http://en.wikipedia.org/wiki/Implied_consentAll U.S. states have driver licensing laws which state that a licensed driver has given his implied consent to a field sobriety test and/or a Breathalyzer or similar manner of determining blood alcohol concentration. These laws have generally been upheld by courts as a valid exercise of the states' police power, against challenges under the Fourth Amendment (as a reasonable search and seizure) and Fifth Amendment (as not violative of the right against self-incrimination). This is largely because in the United States, driving is considered a privilege rather than a right, and the state has a legitimate interest in keeping dangerously intoxicated drivers off the road, to prevent injury, property damage, and loss of life. In most states, however, the police must have reasonable grounds for administering a sobriety test.[1]
You know, you could have led off with that to begin with.
No, it's really not when you say "Probable cause just means that a cop has to reasonably believe that a crime has been committed."
Probable cause means the officer has a right to search. If smell alone gives the officer the right to search, then why would the officer not be en led to draw blood, i.e search?
What's the fun in that?
That example still specifies "if lawfully arrested".
Meaning you have to give one if you have been lawfully arrested.
The question then becomes what is "lawfully arrested"?
I'm not sure "lawfully arrested" encompasses "smells like beer and we don't really have any other evidence".
What you said is not relevant.
Because it's not reasonable. And it's not reasonable because there are less invasive ways of getting similar information (i.e., breathalyzer, FST).
It probably doesn't. But lawfully arrested probably encompasses: smells like beer, can't walk straight, and has slurred speech.
And I think if you start with smells like beer, it's reasonable to look into whether you also have slurred speech and can't walk straight.
http://dwi.austindefense.com/2007/02...xas-dwi-cases/The Implied Consent Fallacy in Texas DWI Cases
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Trackbacks Chapter 724 of the Texas Transportation Code is en led “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".
I think I would rather take the 180 suspension than the DWI.
(edit)
Seems like they nail you even harder if you outright refuse. Yikes. Nevermind that.
Last edited by RandomGuy; 10-25-2011 at 03:24 PM.
I fully agree.
http://www.legalmatch.com/law-librar...-in-texas.htmlIf I am Arrested for DWI in Texas, am I Required to Take a Chemical Test?
Technically, no. If you are arrested and charged with a DWI, you may choose not to take a breath or blood BAC (blood alcohol content) test. However, a refusal to do so will have serious consequences due to Texas' implied consent laws.
What is Implied Consent?
Texas' implied consent law states that if a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, 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 in the persons body. Thus, by driving in Texas, you have consented to a chemical test.
What are the Penalties for Refusing to Take a Breath or Blood Test After Being Arrested for DWI?
If you are lawfully arrested for a DWI and refuse to submit to a BAC test in Texas, you will be subjected to an administrative penalty. The penalty for refusing to take a BAC test is in addition to the standard penalties for DWI. Even if you are acquitted of DWI charges, you will still face these administrative penalties:
■First Offense: License suspension of 180 days
■Second Offense Within 10 Years of DWI Arrest: License suspension of 2 years
However, if your license is administratively suspended for refusing to take a BAC test, you can apply for an occupational license that may allow you to drive to and from work, and to perform essential household duties.
Should I Take a BAC Test?
Deciding whether or not to take a BAC test is a personal choice. If you refuse, you face stiff penalties. However, many criminal defense attorneys in Texas recommend refusing to take the test unless you are sure that your BAC level is below the legal limit.. This is a risk. You may be able to avoid a DWI conviction by refusing a test because there is no evidence of the amount of alcohol in your system. The administrative penalty for BAC test refusals is less than the penalty for DWI convictions, especially considering the availability of occupational licenses. However, if you refuse to submit to a BAC test, you may still be found guilty of DWI and will be assessed further penalties due to your refusal.
Do I Need a Texas Lawyer if I Have Been Charged With a BAC Test Refusal?
DWI arrests are serious and can have severe consequences. If you refused a chemical BAC test when arrested, you need to contact a criminal defense attorney who specializes in DWI defense immediately. Your attorney will be able to help you fight any charges and may be able to help you reduce your penalties.
And if Scott, smelling like beer, refuses the breathalyzer and FST, you then have the right to take a blood test?
http://www.austindwilawyer.net/texas...edconsent.htmlIf you are ever pulled over for su ion of driving while intoxicated (DWI), the police officer will probably ask you to take a breath test. Should the results indicate your blood alcohol content (BAC) is above the legal limit of 0.08%, you will then be arrested and charged with DWI.
But what happens if you simply do not take the test? You can’t be charged if you don’t take it, right? Wrong. In fact, due to implied consent laws, refusing to take a breath test can lead to harsher penalties than failing it.
You may not realize it, but when you accepted a driver’s license from the state, you promised to abide by the implied consent law. In other words, you agreed to comply with any police officer if he or she asks you to take a breath test. Therefore, if you refuse to submit to chemical testing—be it a breath, blood or urine test—you will face criminal charges.
A police officer cannot force you to take a breath test unless you were involved in an accident that led to a serious injury or death. Nevertheless, violating the implied consent law is a serious crime, and is punishable by a 180-day license suspension. If you have a prior DWI arrest on your record, the suspension can last up to two years.
In addition to losing your driving privileges, you may still be charged with DWI if you refuse to take a breath test. If convicted of DWI, your license will be suspended for even longer, and you may be sentenced to jail time, community service and/or probation. You can also expect to pay some hefty fines, and may be ordered to attend an alcohol education program as well.
Fortunately, an experienced DWI attorney can help. If you have refused to take a breath test, you should seek legal counsel immediately. With the proper defense, you can fight the charges against you, and may even be able to reduce or eliminate them altogether.
Why is this so difficult for you to understand?
Why are you asking a ty lawyer legal questions?
http://www.statutes.legis.state.tx.u...htm/TN.724.htmSec. 724.011. CONSENT TO TAKING OF SPECIMEN. (a) If a person is arrested for an offense arising 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.(b) A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person's alcohol concentration.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 32, eff. Sept. 1, 1997.
Sec. 724.012. TAKING OF SPECIMEN.
(a) One or more specimens of a person's breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:
(1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or
(2) was in violation of Section 106.041, Alcoholic Beverage Code.
(b) A peace officer shall require the taking of a specimen of the person's breath or blood under any of the following cir stances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer's request to submit to the taking of a specimen voluntarily:
(1) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident:(A) any individual has died or will die;(2) the offense for which the officer arrests the person is an offense under Section 49.045, Penal Code; or
(B) an individual other than the person has suffered serious bodily injury; or(C) an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment;
(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:
(A) has been previously convicted of or placed on community supervision for an offense under Section 49.045, 49.07, or 49.08, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections; or
(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.
(c) The peace officer shall designate the type of specimen to be taken.
(d) In this section, "bodily injury" and "serious bodily injury" have the meanings assigned by Section 1.07, Penal Code
Because you suggested you have probable cause. If Scott denies the less intrusive methods, you should be able to blood test him based on the fact that you have probable cause (he smells like beer).
I don't know why you are still arguing. You have already resigned to the fact that smell alone is not probable cause for a search, only reason to further investigate, which an officer can do with or without probable cause.
Scott, by applying for a drivers license has given up some of his rights under the 4th and 5th amendments.
Yes. But that came much later in the debate. And ty lawyer was unaware of that fact when he said smell alone gives an officer probable cause. I took issue with the fact that he was standing by 'smell alone gives probable cause' yet never proved it.
When did I say that smell alone doesn't provide probable cause for a search?
And if Scott denies the less intrusive methods, the cops take him to jail, get a warrant and search him.
Only if there is a JP on duty to issue the warrant. If they have to wait till the next morning for the warrant you may be able to beat the test by then.
I'm not sure "lawfully arrested" encompasses "smells like beer".It probably doesn't. But lawfully arrested probably encompasses: smells like beer, can't walk straight, and has slurred speech.
And I think if you start with smells like beer, it's reasonable to look into whether you also have slurred speech and can't walk straight.
look into = search, btw
You left out the part where RG said he agreed with me
lol ty lawyer
I agree with you too. You need more than smell alone to establish probable cause, i.e. slurred speech, etc. Glad we agree.
Why is this so hard to understand?
Dude, give it up. He had probable cause to OFFER the chemical test. He could not COMPEL her to take it. Yes she violated the implied consent law by refusing the test but that did not automatically mean she violated DWI laws.Originally Posted by Ham v. State
The fact that Ham smelled strongly of alcohol, standing alone, provided Officer Hatfield with sufficient probable cause to at least offer her a chemical test. See, e.g., Dalton, 773 N.E.2d at 334; see also Jellison v. State, 656 N.E.2d 532, 534 (Ind.Ct.App.1995) (noting that probable cause requires only the probability that criminal activity had occurred). Moreover, the totality of the cir stances presented here provided Officer Hatfield with sufficient evidence that Ham may have operated her vehicle while under the influence of some type of a controlled substance. See, e.g., id. Thus, because Officer Hatfield had probable cause to offer the chemical test, Ham's refusal to submit to such test cons uted a violation of the Implied Consent law.
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