Cities around North Central Texas are publicizing their “no refusal” policies this weekend for DWI enforcement in an effort to ramp up law enforcement and discourage impaired driving. Some have issued press releases to the media such as this one. They’re beginning to have these weekends routinely on Memorial Day, the Fourth of July and Labor day.
Although the press release doesn’t spell it out, what they are trying to communicate is that if you refuse to submit to the breath test, they’ll simply go to a magistrate that is on standby to get a warrant signed. That warrant will enable them to draw your blood, hence the “no refusal.”
In Texas, the police must be extremely careful not to coerce a person to voluntarily give a breath specimen. When a person is formally offered a breath test, they are done so through documents called dic-23, 24, and 25. Those documents lay out all the dangers and disadvantages of submitting to a breath test.
An officer cannot coerce or intimidate a person into submitting to a breath test in Texas. If an officer alters, amends, adds, or subtracts warnings (generally be editorializing his opinion in some way) about the warnings or what the resulting action may be — then they flirt with having the breath test thrown out under a line of cases called the Erdman doctrine. The vast majority of officers will read the dic warnings in a scripted fashion because they don’t want the results of the test thrown out.
The press release definitely walks a tight rope. They’re trying to curb drunk driving this weekend (which everyone agrees is a good thing). But, by over-publicizing the “no refusal weekend,” it is quite possible that people arrested for DWI submit to the breath test because they fear the police punish a refusal by jamming a needle into their arms. It is interesting, then, that the press release omits any references to warrants, and merely insinuates that medical personnel will just happen to be around.
Maybe they’re afraid some lawyer might try and put the press release into evidence during a trial down line to show the police are just trying to intimidate everyone into submitting to a breath test?
Jeremy F. Rosenthal, Esq.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice, you should directly consult an attorney.