Memorial Day Weekend - Another DWI "No Refusal Weekend" - What Does That Mean?

Houston Police and other Harris County police agencies used this Memorial Day weekend to once again deprive citizens of the privacy we should all have in our own bodies.  Memorial Day weekend was announced as a "No Refusal Weekend" by authorities.

So what exactly is a "No Refusal Weekend?"  If you read the words, you would think that we as citizens of Harris County do not have the right to refuse to give a breath test or blood test if offered by the police.  This could not be further from the truth - you can always refuse to do any of the tests the police ask us to do.  That includes the right to refuse field sobriety tests, breath tests or blood tests.

That brings us back to the question, what is a "No Refusal Weekend?"  If you refuse to give a breath test or blood test, the police are forbidden from taking your blood at that point without a search warrant.  During the "No Refusal Weekend," the government puts together a team of police officers, medical personnel, district attorney's office representatives, nurses, the "bat van" and Judge(s).  The purpose of putting this "DWI TEAM" together is to make getting a search warrant for your blood easier.  The arresting officer will take you to where the "DWI TEAM" is.  The district attorney's office will help the officer draft a search warrant that is then presented to a "Neutral and Detached" Judge.  The Judge signs the warrant and they strap you down and extract your blood.

By refusing to give your breath or blood, the "DWI TEAM" is forced to jump through a few extra hoops which can sometimes lead to problems for the prosecutors.  Don't let the media / police / MADD / District Attorney's PR campaign go unchecked.  I hope that our citizens actually know the law, not what these PR campaigns want them to know.  If arrested for DWI, you absolutely have the right to refuse a breath or blood test. 

Cops Should Not Be Able to Draw DWI Supects Blood - Leave That to the Medical Professionals

As I reported back in September of 2009 and as Paul Kennedy writes about this week, the Houston Police Department began making arrangements for some of its officers to be trained to take blood from citizens they arrest for DWI in Harris County. 

As KPRC reports, the Houston Police Department currently has 7 police officers enrolled at Lone Star College to become phlebotomists - people that draw blood.  Unlike what happens now, the cops will now be taking our citizen's blood.  As I have said before, cops have no business taking the blood of our citizens - leave that job to the medically trained professionals. 

Just like I don't want nurses and doctors carrying guns and enforcing the law at hospitals, I sure don't think the police should be drawing blood.

To watch the KPRC video, click here.

Texas Court Holds Blood Draw Violates 4th Amendment

Finally, a Texas court has said enough is enough when it comes to drawing a person's blood in a Texas DWI case.  The 2nd Court of Appeals affirmed the decision of the trial court to suppress the blood draw pursuant to a warrant.  The case summary from the 2nd Court of appeals states:

Although some of the trial court’s conclusions of law supporting its suppression of Appellee’s blood test results in this DWI case were erroneous or unnecessary, the trial court did not err in its ultimate conclusion that the manner in which police took Appellee’s blood was unreasonable under the Fourth Amendment, considering the totality of the circumstances. Here, after obtaining a warrant for Appellee’s blood, which Appellee conceded was valid, a trained officer drew Appellee’s blood in private at the police station (assisted only by the arresting officer) after restraining her to the blood draw chair with gauze, failed to ask for any prior medical history or issues, and failed to check on her condition afterward. Moreover, the police department did not have any guidelines for officers to follow in the event a suspect resisted such a blood draw, which Appellee did here. Although the United States Supreme Court’s decision in Schmerber v. California does not require blood draws to occur at a hospital, it does hold that such a bodily intrusion should be performed in a reasonable manner so as to minimize the risk of infection and pain from the procedure.

The Court said that just because you have a warrant to take a Texas DWI suspect's blood, that is not the end of the inquiry.  Because we have this little document called the United States Constitution, the government must not only have a warrant.  The State of Texas must also execute that blood warrant in a reasonable manner.

Doesn't take long for police to take blood without a warrant

The new Texas DWI law that allows police officers to take blood without a search warrant or any other judicial involvement went into effect September 1, 2009.  According to the Harris County District Attorney's office, over the Labor Day weekend the police forced 6 citizens to give blood - even though they refused to allow the blood sample and the police did not have a warrant.  They also forced 32 other individual to give blood pursuant to a search warrant.

As a group, we should renounce the new law and tell our legislature we do not condone our government intruding into our bodies.  Our founding fathers are turning over in their graves thinking that our state legislature has given the Government so much power.

When are we going to say enough is enough?  Let's keep the government out of our homes and out of our bodies.  The government has no business intruding into our bodies and homes.  Each and every time the legislature meets, more and more of our freedoms are taken away.  Let's also remember that a DWI in Texas is a misdemeanor, barring prior convictions, serious bodily harm / death, or a if there is a child passenger.

 

7th Annual Top Gun DWI Seminar - A Blood Test Trial From Start to Finish

Our firm attended the above DWI seminar last week.  The seminar focused on the ever increasing number of DWI arrests that involve blood tests and the challenges that can be made to the admissibility of the blood test results.  While some of the discussion was very technical, most of the material presented was pretty straight forward.

I obtained a few nuggets of knowledge that will help many of my blood test cases.  Unfortunately, I believe the number of blood test cases in Harris County will continue to increase over the foreseeable future.  While I don't like this fact and think that the mandatory blood tests are too Constitutionally invasive, they are becoming more and more prevalent. 

DWI blood draw warrants have become more and more pervasive in Houston and other Texas counties.  Law enforcement officers are advocating the use of mandatory blood draws in even the most mundane DWI cases.  It is incumbent upon those of us that fight DWI cases to be vigilant in our efforts to educate ourselves to effectively defend our DWI clients.  We all must do our part to fight against these mandatory blood draws either with a warrant or without a warrant.