The Implied Consent Fallacy in Texas DWI Cases
Chapter 724 of the Texas Transportation Code is entitled “Implied Consent” and this law covers the rules regarding driver’s license suspension hearings for Texas DWI breath test refusal cases.
The basic legal premise justifying a DL suspension in refusal cases is that every person that has a Texas driver’s license already agreed to submit to a breath (or blood) test by virtue of applying for the license itself.
724.011 “Consent to Taking of a Specimen” reads in part:
If a person is arrested for …[DWI]… the person is deemed to have consented… 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.
Since, therefore, you already agreed to take a breath test if you were arrested for DWI, the law says that if you refuse, they can suspend your driver’s license. For 180 days.
It’s one of those things that sounds good, but let’s examine it further.
Google defines “logical fallacy” as: “a misconception resulting from incorrect reasoning”, and that sounds good to me. Why then do I call the concept known as “implied consent” a logical fallacy?
“…the person is deemed to have consented…” [emphasis added]
If a person actually, intentionally and knowingly consents to submitting a breath or blood specimen on demand at the time of applying for a Texas driver’s license, then it would logically follow that they have forfeited their 24/7 driving privileges if they subsequently refuse to follow through on that promise.
But that’s not what happens. No one knows that this law exists. Nor is anyone told this when they apply for a license. In fact, most Texans know that it is not a crime to refuse to take a breath test (as it is in some states).
The law merely states that everybody is “deemed” to have consented…which is just legal mumbo jumbo for saying “we presume you have consented, even though you didn’t know you did…”
It might make sense to suspend a privilege such as the right to drive, if a person refused to live up to their end of their bargain; that is, what they knowingly agreed to do when they asked for the license.
But pretending that everyone knowingly agreed to give a sample of breath, and punishing them for breaking a promise they didn't know they made...well, that's why it's called "Implied" not "Actual Consent".
Could this be a rebuttable presumtion? Or "deemation"?
Dear Mr. Spencer:
I have a friend that was convicted of three DWI offenses in Texas and received a sentence 25 years in prison. Dont you think that a little extreme for a circumstance that did not cause any deaths, no bodily injuries and involved no children.Can anyone help me find some case law to help him.
It's a good law. Bottom line, don't drive after consuming alcohol.
Simple enough, why don't they get it? Too bad there are attorney's who defend these people of lower than average intelligence.
After reviewing the "APPLICATION FOR TEXAS DRIVER LICENSE OR IDENTIFICATION CARD" I found that the only persons required to sign that they received the "implied consent law" documentation are those under the age of 18 and their cosigners. This is made evident on page 2 of the application under the Notary section. I believe it’s reasonable to conclude that, any persons issued a TX DL at or after the age of 18 never gave receipt for such a document.
After reviewing the "APPLICATION FOR TEXAS DRIVER LICENSE OR IDENTIFICATION CARD" I found that the only persons required to sign that they received the "implied consent law" documentation are those under the age of 18 and their cosigners. This is made evident on page 2 of the application under the Notary section. I believe it's reasonable to conclude that, any persons issued a TX DL at or after the age of 18 never gave receipt for such a document.