Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

McLennan County has hopped onto the bandwagon, and will have "no refusal weekend" over memorial day. That means if you are arrested for DWI you won't have the refuse to provide a breath or blood sample. If you do they will get a search warrant and obtain a blood sample. There are so many things wrong with this that I don't even know where to start.

As you would expect, this is being touted as a way to keep drunk drivers off the road. I realize that politicians and law enforcement have a problem with logic, but this goes to the extreme. How does this prevent DWI? You have already arrested the person; they are already off the street. Maybe the argument is that it will deter people from driving while drunk; if so, where is the evidence of that? Other counties have implement this policy - have they seen a drop in DWI arrests? I seriously doubt it. Most people don't rational decisions, especially after they have been drinking. Do you really think someeone is going to not drink, or not drive, because they don't want to give a blood sample? Most people don't think they are going to caught in the first place.

There is another flaw in this argument. and that is that people get off DWI charges because they refuse the tests. That is true in some cases, but who's to say those people wouldn't pass a blood test. The reality is that most people arrested for DWI end up getting a conviction. Maybe this will increase the odds, but probably not by much. The bigger question is whether it is worth it.

I also wonder about what happens while officers are getting warrants, and taking defendants to have their blood drawn? They certainly aren't on the streets. Maybe your chances aren't as great of getting caught, because the officer won't be on the street? If you are going to abandon logic, you can just as easily this will increase the number of drunk drivers on the road.

The biggest problem I have with this is what it says about our criminal justice system. We give all citizens certain rights. Is that a burden to law enforcement - sure it is. It would  be a lot easier to arrest someone, and force them to give a confession - by force if necessary. Our country was founded because we wanted to get away from that. Is forcing you to provide a blood sample that much different. Rights are eroded a little at a time - is this the first step.

The legislature has said you consent to giving a sample if you drive, and if you don't you are penalized. We are now saying that you don't have the right to refuse. I have a problem with that. People always complain about judges making the law; isn't that what they are doing here? If the legislature wants to change the law, they are free to do so - after debate, and subject to getting voted out of office of course. We shouldn't be circumventing the process though, and going through the back door.

No one should drive while you are intoxicated; unfortunately, some do. However, there must be limits to solving crime; I would suggest the limit is when the government has to violate your body. Are the streets really going to be safer this weekend? I seriously doubt.

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The Texas legislature is in session, which generally means an attack on DWI laws. Every session a number of bills are introduced - most of them bad. Fortunately, few ever make it through the process though.

Texas is one of the few states without legislation authorizing roadblocks. That may change - the Senate yesterday passed a bill that would authorize roadblocks in very limited situations. If you are going to have roadblocks, this bill seems like it contains the appropriate limits. For one, it only applies to the 15 most populous counties, which leaves out many cities - like Waco. It also has a number of restrictions. Checkpoints are limited to 4 hours in lenght, and their existence (although not their location) must be publicized. There are also restrictions on where they can be set up. If you are going to have roadblocks, this appears to be as good as a bill as you are going to get; at least from the standpoint of protecting the ordinary citizen.

Another bill moving along is less circumspect. That bill would authorizie the collection of a breath or blood sample, even where the suspect refuses. Bassically, you can be forced to give evidence against yourself. If this bill passes, I wonder why you would even ask anymore. If you do ask, do you have to tell the person that you are going to get a sample even if they refuse?

With all the economic problems we have, you would think there would be better things to spend time on. This session appears to be no different than most though; crime is still a popular topic. Everyone likes to talk about how tough on crime they are. I'm not sure that is as important to voters as it is politicians, but the perception remains. If nothing else, you don't have to address the really important issues.

I'm sure there will be other changes discussed before the session is over. Stay tuned.

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Bell County is hopping on the DWI bandwagon for New Years. According to a press release, if you are suspected of driving while intoxicated and refuse a breath test, they are going to obtain a warrant for your blood. Unfortunately, this is not something they just came up with on their own; many other jurisdictions have already implemented this policy. It may not be publicly announced, but it is becoming more common that a refusal to take the breath test is not going to be accepted.

This is being justified as tactic to get drunk drivers of the streets. If you think about that for even a few seconds, it is clear that is not the reason for doing this. It is nothing more than a tactic to obtain more convictions. The driver is already off the street; he has been arrested, and taken to jail. He/she is also off the streets, because their license is taken, and will be suspended for at least 180 days. The only reason to forcibly draw blood is to get more evidence for a conviction. They already have at least probable cause, or they wouldn't have arrested the person.

There's another problem I see with this proposal, which is how many drunk drivers get away while the police officer is taking someone to the hospital to have their blood drawn. They are off the streets for a longer period of time, during which time there are probably people driving under the influence.

I certainly don't advocate driving while intoxicated. Personally, I don't think you have any business driving after you have had anything to drink, even if you aren't legally intoxicated. I don't drink, so it's not something I'm worried about. But I am worried about forcing people to provide evidence to possibly convict them.

The legislature knew people would be hesitant to submit to breath tests, and tried to provide an incentive to take one; your license won't be suspended for as long. They also recognized that in some cases, such as accidents, blood tests should be mandated. They have never approved blood tests in all cases though - if so, the warnings need to be rewritten - do you want to give a breath test or blood or test - you are getting one of them.

I wonder if the new policy is going to include the warning that they are not going to take no for an answer. It doesn't seem fair to me to let someone refuse a test, make them take a blood test, and then suspend the license for the refusal. Even if the blood test was negative, your license could still be suspended for refusing the breath test. At least you should know what is going to happen if you refuse.

Please drink responsibly - not only during the new year celebrations, but all year. But be aware that if you are arrest, you may not really have the right to refuse to be tested.

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