2015 began in Austin with over two dozen DWI arrests during the New Year’s Eve ‘No Refusal’ initiative. According to reports, APD procured 12 search warrants to draw blood on suspected DWI arrestees, and the remaining arrested all voluntarily provided specimens. The results of the voluntary tests were not listed in the report, so it is unknown how many were over the legal limit of .08. It seems that every holiday, however big or small, we hear about these ‘no refusal’ plans, but we still don’t understand them. ‘No Refusal’ does not mean you cannot refuse. It’s a misnomer, and tremendously misleading. You have the right to refuse to provide a specimen of breath or blood. Further, you have a right to refuse to answer any questions posed by the police, and you have a right to refuse any field sobriety tests. The police cannot forcibly make you do any of these things. The only way for police to take a specimen without your consent, or some very limited exigent circumstance, is to get a search warrant signed by a judge. Exigent circumstances is an exception to the warrant requirement that means it would be futile to take the time to get a warrant because the time it would take to procure one would allow the evidence to disappear. For example, if the police are chasing a bank robber and he runs into a house, they do not have to go get a search warrant to enter the house. In DWI cases, police have been allowed an exigency exception if there is a car accident that requires medical treatment or time to investigate the crash. The US Supreme Court held in the 2014 case McNeely v. Missouri that the dissipation of alcohol from the body alone does not create an exigent circumstance, there must be other factors.
The public policy/media campaign regarding ‘No Refusal’ has existed for many years now, since at least 2008. It’s related to TXDOT and NHTSA’s “Drink, Drive, Go To Jail” campaign (another misleading misnomer). These are government agencies who openly and actively misstate the law to the masses in the name of preventing people from driving drunk. I’m not a supporter of drunk driving, my family and I drive on the same roads and streets that you do, but I am a supporter of the Constitution and the law, and it upsets me to see the public mislead about what is legal and what is not. “Buzzed Driving is Drunk Driving” is not a correct statement of the law either but that’s a topic for another blog.
There are ways to fight blood test cases. Blood tests are not the gold standard the police tell you they are. Yur blood is never run through any machine. Forensic blood tests are based scientific principles where headspace gas is removed from a vacuutainer and sent through a machine called a Gas Chromatograph. There are even more ways to fight a blood draw case from a search warrant. You should never plead guilty to a DWI without talking to a lawyer, protect and know your legal rights. Generations of Americans have been lost fighting for you to have them.