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Deemed Consent: When Does a Driver Have to Submit to a Law Enforcement Officer’s Request to Take a Breath or Blood Test?

What Every Driver Should Know

By: J. Gary Trichter

In Texas, there appears to be a lot of confusion between the citizens, law enforcement, and even lawyers, about deemed consent. When it is proper for a law enforcement officer to ask for a breath or blood specimen?

Many people have the misconception — especially police officers and courts — that a driver gives deemed consent to testing when they obtain their driver’s license. This “misconception” is based upon Texas’s deemed consent law found at Section 724.011 of the Texas Transportation Code which provides:

Sec. 724.011.  CONSENT TO TAKING OF SPECIMEN.  (a)  If a person is arrested for an offense Police DWI Tests Portable Breath Test and DWI Blood Test field sobriety test opinion crimearising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.

The Conditions of Deemed Consent

A close reading of this statute makes clear that deemed consent is conditional on the police following the deemed consent law and not when a driver obtains a license. Accordingly, deemed consent is conditioned on three things happening before a proper police request, better known as a “statutory warning”, can be made.

Note, that the required language of a “statutory warning” is found at section 724.015. Properly provided, it allows the officer to threaten certain coercive penalties for the driver’s noncompliance. That section, in pertinent part, states:

Sec. 724.015.  INFORMATION PROVIDED BY OFFICER BEFORE REQUESTING SPECIMEN.  Before requesting a person to submit to the taking of a specimen, the officer shall inform the person orally and in writing that:

(1)  if the person refuses to submit to the taking of the specimen, that refusal may be admissible in a subsequent prosecution;

(2)  if the person refuses to submit to the taking of the specimen, the person’s license to operate a motor vehicle will be automatically suspended, whether or not the person is subsequently prosecuted as a result of the arrest, for not less than 180 days;

(3)  if the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person;

(4)  if the person is 21 years of age or older and submits to the taking of a specimen designated by the officer and an analysis of the specimen shows the person had an alcohol concentration of a level specified by Chapter 49, Penal Code, the person’s license to operate a motor vehicle will be automatically suspended for not less than 90 days, whether or not the person is subsequently prosecuted as a result of the arrest;

(5)  if the person is younger than 21 years of age and has any detectable amount of alcohol in the person’s system, the person’s license to operate a motor vehicle will be automatically suspended for not less than 60 days even if the person submits to the taking of the specimen, but that if the person submits to the taking of the specimen and an analysis of the specimen shows that the person had an alcohol concentration less than the level specified by Chapter 49, Penal Code, the person may be subject to criminal penalties less severe than those provided under that chapter;

(6)  if the officer determines that the person is a resident without a license to operate a motor vehicle in this state, the department will deny to the person the issuance of a license, whether or not the person is subsequently prosecuted as a result of the arrest, under the same conditions and for the same periods that would have applied to a revocation of the person’s driver’s license if the person had held a driver’s license issued by this state; and

(7)  the person has a right to a hearing on the suspension or denial if, not later than the 15th day after the date on which the person receives the notice of suspension or denial or on which the person is considered to have received the notice by mail as provided by law, the department receives, at its headquarters in Austin, a written demand, including a facsimile transmission, or a request in another form prescribed by the department for the hearing.

The officer can coerce under deemed consent only after the person is arrested

By section 724.011, “if the person is arrested”, the first condition is met only where the person being requested to provide a specimen has been arrested. Hence, as per the deemed consent statute, it is improper for an officer to give a “statutory warning” to a driver unless that person has first been arrested. And so, what is clear, is that Texas does allow legal limited coercion in order to get a blood or breath test, however, that coercion can only be utilized after there has been an arrest.

Further, there is nothing that prevents an officer from asking for a consensual blood, breath or urine tests — either before or after an arrest — provided there is no coercion threatened of any nature. There is no deemed consent for the taking of urine.

The officer may take a specimen under deemed consent only with oral and written warnings

Turning now to conditions 2 and 3, we must now look at the statutory provisions of section 724.015, entitled “Information Provided by Officer Before Requesting Specimen”.  That section provides: 

“Before requesting a person to submit to the taking of a specimen, the officer shall inform the person orally and in writing…” (emphasis added).

As so, this language, too, makes clear that deemed consent also requires that officer to do 2 more things before a driver can suffer any coercive consequences.  Specifically, he must provide an oral, and he must also provide a written warning (as is noted in the first referenced section of 724.015, supra).  Again, this is done with a form designated a “Statutory Warning, better known as a DIC 24”. This section requires the officer to both orally read it out loud and provide it to a driver after an arrest. This is so because the legislature wanted the citizens to know that stated penalties might occur if there was a refusal to a properly made test request.

The requirement that there be two required simultaneous methods of providing the same warning is a realistic legislative recognition that a person, being subjected to a DWI investigation, is going to be nervous and perhaps not understand his/her rights or the possible consequences of a refusal.  Without question, the legislature understood that there was a better chance of a person understanding both the request and consequences of refusal where they hear and read the same message. That said, both means of delivering that message — an oral and written presentation — must be made before the request for a blood or breath test can be made.

Until this happens, there is no deemed consent.

“May” vs. “Shall”

In drafting the bill that later became the law, Section 724.015, words were important! Under our Code Construction Act, the legislature’s use of certain words leave no doubt that the use of the term “shall” meant it is the officer’s required duty, i.e. “the officer shall inform”.  We know this because the Act at Section 311.016says: “the following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:

(1) ‘May’ creates discretionary authority or grants permission or a power.

(2) ‘Shall’ imposes a duty.”

Accordingly, the legislature’s use of the word “shall” (duty) instead of “may” (discretionary) leaves no doubt that both the written and oral warnings must be meaningfully given before a breath/blood test can be made. That understood, our law does not allow for any discretion about the need to provide the totality of the dual warnings. That same lesson is applicable to the word “and” which is to be distinguished from the word “or”.  Therefore, absent a proper “statutory warning” being provided, there is no deemed consent and no penalty for a refusal.

You can still refuse a test under deemed consent even if you’re provided a statutory warning

Interestingly, just because a proper statutory warning is provided, it does not mean that that driver cannot decline or refuse submission to the test. Indeed, the driver can! However, if that is done, the State can then proceed to impose two limited and particularized penalties: suspending a driver’s license and telling a jury about the driver’s failure to submit to testing.

The purpose of the latter penalty is to allow the State to infer a concept called “guilty mind” to a jury, i.e. the driver thought he was guilty of DWI and was trying to hide evidence of his guilt.  Here, in regard to “guilty mind”, it is of import that not all refusals will be admitted into evidence. Its admissibility depends on relevance and potential harm.

For example, it is arguable that a driver’s refusal, based on his/her desire to first have the advice of a lawyer before agreeing or refusing, has no relevance unless the officer first informs the driver that there is not a right to an attorney for that purpose. This is true because Texas courts have long held that no inference of guilt can occur by the invocation of the rights, e.g., to have the help of a lawyer or to remain silent.

In regard to a driver’s right to refuse, it is found at Section 724.013, it says:

PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.

Sadly, almost every right a citizen has will have an exception to it, and, the “right to refuse” (no pun intended) is not an exception. For example, under very limited circumstances, an officer can forcibly take blood if there are “exigent circumstances” to do so (e.g. the substances that are causing impairment are dissipating in the driver’s body) and there is simply not the time to secure a search warrant.

Search Warrants Are Not and Should Not Be Automatic

The other example is that a search warrant is procured that authorizes the forceful taking of blood.  A search warrant is a judicial order based upon an affidavit, i.e. a sworn narrative of events that the officer provides to a judge for the purpose of establishing probable cause that the driver committed the offense of DWI and that the alcohol/drug/controlled substance evidence of that crime, is in that person’s blood and is dissipating.

Further, a search warrant is not supposed to be automatically issued upon an officer’s request. Simply because an officer requests a warrant does not mean that a judge should grant it.  Indeed, if the judge, upon review of the officer’s affidavit, determines there are insufficient facts to establish probable cause, (i.e. facts showing the driver probably committed the offense of DWI/not a naked hunch or suspicion or a simple conclusion), the warrant request must be denied.

Said another way, getting a search warrant is not automatic as it is conditioned on a factually sufficient affidavit showing probable cause being provided to a neutral and detached judge. Lastly, if a warrant is issued, the driver needs to know that he/she can forcibly be made to provide blood samples so long as the officer uses limited and reasonable force.

No deemed consent for a taking of a urine test, but there is for breath and blood if conditions are met

In conclusion, there is no deemed consent for a taking of a urine test.  Moreover, there is no deemed consent for a breath or blood test unless the following 3 conditions have been met:

  • the driver is under arrest,
  • an oral statutory warning was provided, and
  • a written statutory warning was provided, and that said warnings occurred before a test request was made.

Further, simply because the 3 conditions are met, it does not mean that a driver has to agree to the taking of those sample specimens. Indeed, many argue that it is better to refuse testing because breath test machines are not warranted fit by their manufacturers for breath testing, and, because the breath provided is not preserved for a subsequent checking of that machine’s accuracy and reliability.

That same logic applies to the taking of the blood sample. This is so because there is no guarantee that it will be done in a sanitary place, by individuals that are properly trained to take the sample and to analyze it. Lastly, knowing about the problems in breath and blood testing, some argue that the best evidence of sobriety is where that driver refuses testing because then there is no risk that erroneous test evidence or an infection can occur.

Finally, from a lawyer and driver’s economic perspective, a driver is probably better off declining to submit to any testing because a no-test case is easier for the jury to understand while being easier, shorter and costing less to defend.