By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
Dallas has announced a “no refusal weekend” for Labor day weekend, 2010. You can read the details here.
These weekends are becoming more and more commonplace. Not that I feel the need to editorialize but there are plenty of things about this policy that ruffle my feathers legally speaking. And there is actually a positive aspect of a blanket policy from a DWI Defense lawyer’s perspective.
The Plus Side from A Defense Lawyer’s Perspective
As Mark Twain said, “there are lies, damn lies, and statistics.” I’ve heard police and law enforcement agencies brag about the “success” of the blood draws in that when they draw blood with a search warrant — every single result is well over the legal limit.
But here’s the problem — they’re not drawing blood from everyone. When no one is coming in under the limit — or even close for that matter — it tells me they’re only drawing blood in the cases where they think they’ll get a high number. This is a clear (though probably unintentional) manipulation of the numbers.
A blanket “no refusal” weekend where the officer has no discretion EXCEPT to apply for a search warrant and draw blood may show that some people below — perhaps well below — the legal limit are being caught in the wide-net cast by police in the name of goodness and public safety.
Making Up the Rules as they Go Along
Texas Transportation Code Section 724.013 says in relevant part, “Except as provided by Section 724.012(b), [generally felony DWI situations such as intoxicated assault, intoxicated manslaughter, DWI with a minor, etc.] a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”
I’m not sure what part of that rule the Police don’t understand. The prosecution argues under Chapter 18 of the Texas Code of Criminal Procedure that they are entitled to apply for a search warrant for blood — and the more general law controls over the more specific law. While Court’s are supposed to give more specific laws more weight than general ones, the police and the prosecution are making their creative argument for blood draws… for the purposes of good an public safety of course.
But making up the rules as you go along is okay when its in the name of goodness and public safety. Just ask the Dallas Police.
*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 about any specific case or situation you should consult an attorney directly.