While there are several important areas that I always make sure to cover in an initial consultation with a prospective DWI client, one of the most basic is finding out whether there was a blood or breath specimen provided after the arrest. If the answer is yes, the very next question is always the same: did you agree or consent to providing that sample? More times than I can remember, the response I have received has been something similar to, “I didn’t have a choice. I couldn’t refuse, because it was a ‘No Refusal’ weekend.”
Unfortunately, this is never true. Citizens always have a choice. And they should exercise that choice by refusing to provide a sample. Yes, even on so-called “No Refusal Weekends.”
“No Refusal Weekend” is a misnomer. The term refers to weekends when officers intend to be more vigorous with DWI enforcement. These weekends tend to surround holidays, such as the 4th of July, Labor Day, Memorial Day. By promoting these weekends as “No Refusal” there is a subtle implication that you are not allowed to tell the officer that you do not consent to a test if requested. However, this is not true. Rather, all it actually means is that if you properly exercise your right and refuse to consent to give a breath or blood specimen, the police intend to seek a warrant from a Judge to draw your blood anyway.
So why refuse if the police are just going to seek a warrant anyway? Well, first it is important to understand that police can always seek a warrant to draw blood when someone refuses a request to provide a sample. Any weekend, not just a “No Refusal Weekend.” But seeking a warrant and obtaining a warrant is not the same thing. The police are not entitled to a warrant just because they want one or think they need one. Rather, they need to convince the Judge that the facts of the particular situation justify the issuance of a warrant. Our judicial system has a structure and a purpose. And every person in our system has a function. And it is the function of our elected Judges, and not the police officer, to make the final determination as to whether an invasive procedure such as a blood draw is legally warranted. Of course, often times the Judge will agree with the police officer making the request. But sometimes, they will not. Regardless, an important decision like this should be left to the determination of the Judge. Not the police.
Also, another reality that most citizens do not realize is that the officer’s request for a breath or blood sample has absolutely nothing to do with the officer’s determination as to whether you are in fact Driving While Intoxicated. Officers request a specimen of your blood or breath after you have been arrested. After you have been handcuffed. After you have been placed in the back of the squad car. After they have called the tow truck to haul away your vehicle. In other words, after they have decided you are going to spend the night in jail.
On a related note, these tests are often not even accurate or reliable. It is becoming increasingly more common for juries in Texas to return a verdict of ‘Not Guilty’ in a case where the State is presenting a test that purports to show intoxication. Juries may reject the State’s arguments in these cases for a host of reasons that affect the accuracy and reliability of the test. Check back on our blog in the future for a detailed analysis of some of the specific issues with blood and breath tests.