In Texas, like other states, when a driver accepts the privilege to drive (receive a driver’s license) he or she consents to being tested for drugs and alcohol if suspected of driving under the influence. However, a driver can revoke this consent. But what happens when a driver is unable to revoke consent due to unconsciousness?

Implied Consent in DWI Prosecutions

If you are unconscious or otherwise unable to revoke your consent to a breath or blood test, then your consent is implied. In other words, if you are suspected of Driving While Intoxicated (“DWI”) and you are passed out in your car, law enforcement can draw your blood without a warrant because you have already consented. Remember, by accepting a driver’s license you agree to submit to a breath or blood test if requested by police. You can revoke consent, but if you’re unconscious, this isn’t possible.

Exigent Circumstances

Recently, in Mitchell v. Wisconsin, the United States Supreme Court ruled that it was lawful for police to withdraw blood from an unconscious driver. The Court’s reasoning rested on the “exigent circumstances” exception to the Fourth Amendment warrant requirement for a search. Thus, Mitchell leaves room to argue that when exigent circumstances do not exist then drawing blood based on implied consent is unlawful.

If you or someone you know if facing prosecution for DWI in Tarrant County, then contact Hardy Law Group for a complimentary consultation.