Posted on December 31, 2008 by Walter Reaves

Do you really have the right to refuse?

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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Posted on October 24, 2008 by Walter Reaves

DPS breath test operator suspended

The Texas Department of Public Safety has suspended the certification of an independent contractor who improperlly certified breath test results. Not surprisingly, this has generated a number of comments. Grits contains stories from both the Dallas Morning News and Houston Chronicle. Another blog list the agencies that are effected. Unfortunately, this is one more example of an expert who was too lazy to do the work. Fortunately they were caught, but this points out again the problems with blindly accepting expert opinions. It also points the need to scrutinize experts more carefully, and ensure they are qualified, and doing the work they claim they are doing.

This big question is what is going to happen to those cases where this expert testified. For defendants who plead guilty the answer is "it depends". In a writ of habeas corpus you have to establish harm. In this case, the harm would in the failure to actually certify the machine. In a guilty plea, By pleading guilty, you did not challenge the breath test, and therefore you are probably going to have to establish the machine's reading was not accurate. That is impossible to do, since sample are not maintained, and there would be nothing to re-test.

Another way to evaluate guilty plea cases though is whether you would have plead guilty if you knew the machines had not been probably certified. The answer is probably no, since the breath test results would not be admissible. Of course, if the evidence was overwhelming, the answer is probably different. To prevail on this claim, you would have to establish a duty on the State to disclose the evidence. They are charged with knowledge of whatever law enforcement knows, so even if the prosecutor didn't know about the problem, that is not a valid excuse. Generally though you have to make a request for the evidence,  which is usually a Request of Favorable or Exculpatory Evidence. If no request was made, you may not be able to establish the claim.

For defendants who went to trial, they will probably be able to obtain relief. The machines have to be certified if the test results are going to be admissible, and therefore the expert would have committed perjury in testifying that the machine was properly certified.

For any claim, you are going to have to able to establish the machine in your case was not properly certified.  How difficult that is going to be remains to be seen. Hopefully DPS will identify those cases involving improper certifications and notify the defendants and their lawyer.

The effects of this are not going to be fully known. If you think your case may be one effected you should check it out.

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