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 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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