Under
current Texas law, it is perfectly legal for a driver suspected of driving
while intoxicated to refuse to give a breath specimen when asked by a police
officer to do so. Citizens suspected of driving while
intoxicated (DWI) in Texas have the absolute right to refuse testing. Refusal
automatically does incur an automatic license suspension, although this can be
appealed if contested through an ALR hearing.
The citizen
accused also has the right refuse to answer questions that may be
incriminating.
Many
people have questions regarding the mandatory “no refusal” weekends for DWI
arrests in Texas. The question always
is, “ do I HAVE to give my blood to the police?” Due to the increase in available information
and knowledge for people in regards to how to respond to a DWI investigation,
many citizens are exercising their constitutional right to refuse to take the
standardized field sobriety tests (SFST’s) or provide a Breath Sample.
Many
people seemingly submit to the taking of a breath or blood specimen when under
investigation for a DWI simply because they believe the arresting officer will
be able to take it given the current state of DWI blood search warrants. Without a blood search warrant signed by a
judge, the requirements for a blood test to be admissible in Texas are as
follows: a) that
you were given the option to take or refuse a blood test by the police officer
(unless, of course, a blood search warrant has already been obtained); b) the
blood sample was taken properly by trained medical personnel; c) all sanitary
measures and safety precautions were taken when obtaining the blood sample (the
chain of custody must be proven); and d) the blood sample was properly
inspected prior to testing.
Police officers are becoming increasingly
frustrated by the lack of cooperation from citizens in assisting them in
helping gain a conviction for DWI. One of the new methods is the use of blood
search warrants. Texas Senate Bill 261
and Texas House Bill 747 significantly expands the authority for police
officers to obtain a sample of blood for DWI suspects without a search
warrant. Currently, Texas
law mandates the taking of blood without a warrant in intoxication manslaughter
cases where a fatality has occurred. As
well, it can be taken in intoxication assault cases where serious bodily injury
has occurred or where someone other than the DWI suspect has been taken to a
hospital or medical clinic. To take your blood in those cases, however, the
officer must have some belief that the subject is under the influence of some
intoxicating substance. This law was created to try and ensure that the blood
evidence is obtained without delay where there might not be enough time to get
a judge or magistrate to sign off on a blood search warrant. Blood can also be obtained without a warrant
according to the new law where a suspect is accused of driving while
intoxicated with a child passenger, and where a person has at least two
previous DWI convictions on their record.
The distinguishing characteristic of the new law is that it gives
the police authority to take the samples without your consent or the approval
of a neutral, detached judge through the search warrant process. Before,
the law only provided the taking of blood without a warrant in intoxication manslaughter
cases (fatalities) and Intoxication Assault cases (serious bodily
injury). That law was written to ensure that a blood draw could be done
without delay in case there was no judge or magistrate available to sign a
warrant before the evidence might be lost.
The
current fade on Texas DWI law is the “no refusal” weekend and mandatory blood
draws. Effectively, police officers have found a loophole and have circumvented
obtaining the blood sample in other cases than the ones described above. During
the “no refusal” weekends, magistrate judges work 24 hour shifts and
effectively sign every blood search warrant that is presented to them. Regardless, however, it is best to still
refuse the taking of your blood until the blood search warrant is obtained. Whether the mandatory blood draw weekends are
constitutional is another story altogether.
Because most all, if not all, of the blood search warrants that are
presented to the magistrate judges are signed, it is impossible to know whether
the warrant actually contains enough information to justify the intrusion of
taking the blood from a citizen's body.
The best advice if
you are pulled over under suspicion of driving while intoxicated is to say as
little as possible, politely refuse the field sobriety tests, and also refuse
to give a breath or blood specimen.
Simply put, make the police officer obtain a blood search warrant based
on whatever information they can gather on their own. A search warrant requires the police to
develop and determine probable cause for the arrest to believe the person was driving
while intoxicated. They will try to use
the results of the field sobriety testing (if you refuse, there will be none to
use), any incriminating and damaging answers to police questioning (so say as
little as possible), and also any observed driving clues to develop the probable
cause evidence needed to get the blood search warrant. However, it should be noted that the blood search
warrant may be challenged more easily if the person accused refuses to submit
to any and field sobriety tests.
It should also be
noted that the police will not seek blood search warrants in all cases where a
refusal has occurred. However, it is
true that the frequency of obtaining blood search warrants is increasing among
law enforcement personnel. Regardless, a
reasonable course of action for the person under suspicion of driving while
intoxicated is to say as little as possible when responding to questioning,
while also being as polite as possible.
The driver should also politely refuse all field sobriety testing and should
never give consent to the taking of a sample of their blood or a sample of
their breath. And it is also very
important for a driver to never provide a blood sample thinking the police will
get a warrant anyway. If the police
choose to get a blood search warrant, then cooperate and do not physically
resist. If they go this route, then it
is best to then hire an experienced DWI Defense attorney who can help attack
the blood search warrant and blood results in open court.
Resource Box:
Contact The Law Offices of Carl
David Ceder if you want the services of the best Dallas DWI Blood Search
Warrant attorney at http://www.carlcederlaw.com/Blood-Draws
or http://www.thedallasdefender.com or http://www.thedfwdefender.com
Keywords:
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