I am a experienced DWI attorney serving clients in Rockwall, Kaufman, Hunt, Collin & Dallas Counties. Understanding DWI and No refusal weekends is important.
Counties all over Texas have started the “No Refusal” weekends. It’s been all over the news that on every weekend during 2011, if you are stopped for DWI and refuse a breath test, you will have your blood drawn involuntarily. The arresting officer will get a warrant to have you forcefully held down against your will and stick a needle in your arm to remove a sample of your blood to have it tested.
“How is that possible? This is the United States of America for God’s sake! Not only that, but THIS is the great State of Texas! How can the State forcefully hold you down and make you give them your blood?” I get that question almost daily. There has been a lot of confusion about this topic. So here is a basic explanation of our law and how it works.
The Texas Legislature provides that any driver arrested for DWI may refuse a request for a breath or blood specimen in spite of the “implied consent” statute. Texas Transportation Code, Sec. 724.013 says: “a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”
Any police officer or prosecutor will tell you that when you went to the local DPS office and got your driver’s license you signed a form stating that if you are ever stopped for DWI you will consent to give a breath test. So, with that in mind they will tell you that you have already “implied” by signing that agreement that you will give a breath sample if you are stopped. They will then tell you that if you don’t give a breath sample your driver’s license may be suspended for 180 days. That is true. BUT, what they don’t tell you is that even IF you give a breath sample your license may still be suspended for 90 days. Either way, consent or no consent, DPS is going to try and take away your license. The question is whether its for 90 days or 180 days. The license suspension can be fought anyway and that is a topic for another blog article.
But don’t forget section 724.013 of the Texas Transportation Code. What the legislature giveth, it taketh away with that statute. Yes, you agreed when you got your license to consent to a breath test or blood test if you ever got stopped. But the legislature then gave you the right to take away your consent at any time. SO NOTHING IN THE LAW SAYS YOU MUST GIVE A BREATH OR BLOOD SAMPLE IF YOU ARE STOPPED FOR DWI.
So what does the no refusal weekend mean? Can you refuse? Should you refuse? Didn’t I give implied consent when I got my license? What happens if I refuse? Yes! you can refuse, should refuse and yes you did give implied consent. But, remember 724.013. Memorize it. You can withdraw your consent at anytime.
If an officer can apply for a search warrant, after presenting facts establishing probable cause to a neutral and detached magistrate, to draw your blood without the suspect’s consent. Wow! Scary! It’s not considered an unreasonable search & seizure, unless there is a problem with the validity of the warrant.
So “No refusal” doesn’t mean you can’t refuse. You always maintain your constitutional ability to refuse all tests and to answer any questions. “No Refusal” means if you do refuse, they will apply for a warrant to draw your blood. Odds are they are going to get it. If you consent to the test because you know they are going to get the warrant, you waive all your rights and can’t argue about it later in court. If you refuse, you may still have a chance to have your lawyer argue about the violation of your rights in court.
I am a experienced DWI attorney serving clients in Rockwall, Kaufman, Hunt, Collin & Dallas Counties. Just remember that a No Refusal DWI weekend violate your right to refuse a test. If you have questions, concerns or been charged with a DWI, call me today. There is no charge for the initial consultation.
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