1) Implied consent is not the equivalent of voluntary consent for the purposes of establishing an exception to the warrant requirement of the Fourth Amendment. At least when a defendant refuses to submit to a breath test, that person cannot be said to have freely and voluntarily consented to the search. Language to the contrary from the Court of Criminal Appeals in Forte v. State, 759 S.W.2d 128, 138 (Tex. Crim. App. 1988) establishes only that implied consent makes it illegal to refuse a breath or blood test under specific circumstances, and language from Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002) specifically stating that implied consent permits warrantless blood draws in Texas is only dicta. Finally, a footnote in Missouri v. McNeely, 133 S.Ct. 1552 (2013) that appears to endorse Texas’ implied consent statute does not go so far as to approve of warrantless searches under those laws, but it does imply that implied consent can be withdrawn.
2) Warrantless searches under Texas’ “third-strike” implied consent statute are not presumptively reasonable. Warrantless searches are presumed unreasonable and must be evaluated on a case-by-case basis. To do otherwise creates a per se exception to the warrant requirement, which is prohibited by McNeely. Read the opinion.