Many Texas cities and counties have begun to institute strict law enforcement policies to combat drunk driving. An increasing number of jurisdictions have begun a program that’s been labelled “no refusal” by law enforcement. In Montgomery, Tarrant, Travis and Dallas counties the authorities institute “no refusal weekends” when the law enforcement agent can get a warrant for your blood if you refuse to take a breath or blood test (see articles here and here for county “no refusal” policies),. The term “no refusal weekend” can be a bit misleading because law enforcement is not restricted to weekends in order to seek a search warrant for the blood of suspected drunk drivers (see here). In Houston, every weekend is a “no refusal” weekend (see here).
So, what does “no refusal” mean?
I will attempt to answer that question by breaking it down into two questions:
1. How does the government get in your arm?
To begin with there are certain situations where law enforcement is REQUIRED to draw your blood and test your blood alcohol concentration (BAC). Those situations are listed in the Texas Transportation Code section 724.012(b) and include automobile accidents due to alcohol where there was an injury or death, where there is a suspicion of DWI when there is a child passenger (Tex. Penal Code 49.045), or the driver is facing a third charge for DWI (the driver must have been previously convicted twice for DWI).
The Transportation Code also provides that consent to taking a specimen of blood or breath is implied. (Tex. Transp. Code 724.011.) That means that the officer who suspects you of driving under the influence already has your consent to take a sample of your blood or breath before you say anything. This “implied consent” law also allows the state to use your refusal to take the tests into evidence that can be used against you in court.
The Transportation Code further states that specimens that are not collected under the “mandatory blood draw” provisions of 724.012(b) cannot be used against you in trial over your objection if you revoked your implied consent to the search and seizure of your blood or breath. (Tex. Transp. Code 724.013.)
So the answer to the question of how the government gets to take your blood sample is: you’re presumed to consent to give a sample; but you can revoke your consent unless the mandatory blood draw conditions exist.
2. If the law says that I can revoke my implied consent and none of the conditions for a mandatory blood draw exist then how can the government still use my blood or breath sample against me?
A warrant is a judicial instrument that allows law enforcement to encroach upon our personal space and even our bodies. Taking a blood specimen is a search and seizure under the 4th amendment to the constitution (for links to cases on this click here and here). To obtain a warrant the law enforcement agent must present a probable cause statement to the judge detailing the probable cause (or reason) to get a specimen. Probable cause is presented to the judge in the form of a sworn affidavit and it must have a specific articulation of facts that support the conclusion that a crime has occurred, what the contraband to the crime is, and where it can be located. (The requirements for a search warrant affidavit are listed in the Texas Code of Criminal Procedure art. 18.01.) After considering the probable cause affidavit from the officer a judge or magistrate may then issue a warrant to seize your blood. (The requirements of a search warrant are found in the Texas Code of Criminal Procedure art. 18.04.)
No refusal programs are set up to expedite the process of obtaining a warrant in light of a refusal to give a sample. The arresting officer, local prosecuting attorney, and local magistrates are on call to process affidavits and issue warrants for blood. The program is designed to aide law enforcement officers in keeping our streets safe from intoxicated drivers, however, many people may be arrested and charged that are not legally intoxicated. There are also many procedural steps that must be followed or the whole system could collapse and a charge may be dismissed for failure to meet the procedural guidelines.
Once the government has a sample of your blood they must then test the blood for the BAC. That entails issues that are not really tied to the “no refusal” policies of law enforcement, but those issues are important to know, because only blood tests that were conducted in such a way that they produce reliable results will be allowed into evidence over objection.
The Law Office of The Law Office of Matthew D. Sharp has successfully challenged the State’s evidence in DWI cases involving both warrant blood draws and mandatory blood draws. If you have been arrested for DWI and had your blood forcibly drawn then you need a lawyer that knows the procedural pitfalls and the legal avenues for defense.