Several times a year, law enforcement agencies throughout Texas initiate a so-called “No Refusal” weekend in an effort to deter drivers from getting on the road if they have been drinking. These initiatives are usually held for several days over holiday periods, including Thanksgiving, Christmas and New Years. During this time, law enforcement agencies implement resources that allow them to get warrants to quickly draw blood from suspected drunk drivers who refuse to give a breath or blood sample. Prosecutors widely support these efforts for the deterrent effect “No Refusal” initiatives and weekends in Fort Worth have on drinking and driving.
While the name of the initiative may lead you to believe that drivers do not have the right to refuse to give breath or blood, that is not the case. “No Refusal” actually means that a refusal won’t keep an officer from getting a warrant to obtain your blood. You can (and should) still refuse.
Generally, anytime you are pulled over for suspicion of driving while intoxicated, an officer will ask you to take field sobriety tests and/or submit to a breath or blood test. Your options are to either consent or refuse to all of those tests. If you consent, the officer proceeds with the tests. However, if you refuse the tests, the officer must obtain a search warrant if he wants to get a sample of your blood. This is true every day of the year.
During a “No Refusal” campaign, the process for obtaining blood pursuant to a search warrant is expedited. During a No-Refusal weekend, local agencies use grant funding to increase their resources in an effort to obtain warrants and blood much faster. These resources may include a magistrate who is readily available to review and sign affidavits for search warrants, blood-draw nurses, and officers dedicated to enforcing DWI offenses. During No Refusal operations, every police officer will likely seek blood evidence when a person refuses to give a specimen. During regular weekends, officers don’t always seek warrants.
The point of “No Refusal” is to put everyone on high alert that officers are watching for drunken drivers. The purpose is to discourage anyone who has been drinking from getting behind the wheel. But this does not mean you cannot refuse. Be aware that if an officer detects an odor of alcohol on your breath, he is likely to ask you to do field sobriety tests, which is likely going to lead to an arrest. Just because you have had a drink, does not mean you are intoxicated. It is legal to drive in Texas after you have been drinking, as long as you are not intoxicated. Yet, at the arrest stage, the officer is only trying to develop probable cause for the arrest. The question at that moment is not whether there is proof beyond a reasonable doubt that you are actually guilty.
To consent or not to consent: That is the question.
Do not consent to a breath or blood test. It’s important to note that if you refuse to take a breath or blood test in Texas, an officer must obtain a search warrant to obtain a breath or blood test.
From a defense perspective, there are a couple of reasons why you should not consent:
First, if you consent, there is little recourse to overcome the fact that you agreed to the breath or blood test.
Second, in order for the officer to obtain the search warrant, he must submit an affidavit establishing there was probable cause. If a magistrate judge determines the officer has established probable cause, the magistrate may issue a search warrant. If you have refused and the officer cannot establish probable cause, blood cannot be forcibly drawn.
Third, you will not offend anyone by politely refusing. Just as in any criminal case, the police have a job to do and they can do it without you offering evidence against yourself.
Lastly, even if your blood is drawn pursuant to a warrant, the officer’s affidavit can later be reviewed by a defense attorney and the trial court. If probable cause was improperly determined by the magistrate who signed the warrant, the blood evidence may be excluded by the trial court judge.
Politely decline. The prudent course of action is to politely decline field sobriety tests and any alcohol evaluations. Be sure to remain calm, polite, and compliant to any court order that requires blood to be drawn. Texas law does not make it a separate offense for refusing to take such tests. If you refuse a test, your license will be suspended for a minimum of 180 days, but you will not be subject to punishment for an offense solely for refusing to submit to testing. If you provide a sample and it shows a Blood Alcohol Concentration of above .08, your license will be suspended for 90 days. Your attorney will be able to assist you in getting an Occupational License if necessary after first fighting the suspension at an ALR hearing.
The best course of action is not to drink and drive. However,if you are stopped after you’ve had a drink during a “No Refusal” Weekend, you still can and should refuse to provide a breath or blood specimen.