By Collin County Criminal Lawyer Jeremy Rosenthal
By now we’re all familiar with police press releases telling us a certain weekend is a “no refusal weekend” or that some police agencies have “no refusal policies” in place. Many people in the general public logically interpret the statement to mean they no longer have the right to refuse a breath or blood test. Unfortunately the term is a confusing and somewhat misleading tag line and today I’m discussing what it means in layman’s terms.
You Have the Right to Refuse Breath or Blood Testing Under Texas Law
In Texas we have the “implied consent rule” under Texas Transportation Code 724.011(a). This rule states a person driving in Texas has… by the mere fact of having driven in Texas and being suspected of DWI… already consented to give a breath or blood test if asked.
But, Tex.Trans.C. 724.013 is unambiguous and says in relevant part “…a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.” In addition, Courts have affirmed, “a person retains an absolute right to refuse a test… That refusal must be strictly honored. McCambridge v. State, 712 S.W.2d 499, 504 n.16 (Tex. Crim. App. 1986) and Turpin v. State, 606 S.W.2d 907, 913-14 (Tex. Crim. App. 1980). Texas Courts have mildly retreated some of the language in the cases above by stating the right to refuse is a “physical right” but not a “legal right.”
Taking Your Blood Even if You Refuse
“No Refusal” refers to the practice of seeking a search warrant from a judge to draw blood against a person’s will where that person has refused a breath or blood test. Prosecutors argue 724.013 essentially has no meaning and Chapter 18 of the Penal Code allows for the drawing of blood from the human body via search warrants the same way a search warrant could allow police to search a drug-dealer’s house. Courts have done little thus far to stand in their way.
Police agencies, hospitals, and even some judges have made special efforts to coordinate and streamline the process. Judges give the agencies private fax numbers receive search warrants (often fill-in-the-blank forms from the officers) via facsimile and sign them. This warrant is a Court Order the person arrested must submit to the blood testing — even against their will.
Why Citizens Find it Troubling
I’ve been pleasantly surprised by juror’s reactions to involuntary blood draws. Even pro-police jurors jaws drop during jury selection when the learn police can literally physically assault someone under the color of law to solve what is normally a misdemeanor. Many jurors wonder if this could happen to their loved ones who might be terrified of needles. The backlash is enough so many prosecutors will actually quiz potential jurors on their feelings about the topic to possibly eliminate them from the panel if they oppose the practice enough.
Why Defense Lawyers Find it Troubling
First, the practice blurs the lines between law enforcement and the judiciary. It’s not uncommon or wrong in any way for police to present a search warrant to a neutral-detached magistrate stating under oath probable cause exists to invade a persons rights for the seizure of evidence of a crime. The mental image we have is from the movies where police are knocking on the Judge’s door at 2 a.m. and apologizing profusely for waking the judge.
But this isn’t what’s happening. Police are filling out cookie-cutter forms and faxing them to Judges assembly-line style so as to treat citizens protections against unreasonable searches and seizures as a technicality easily over-ridden. We’re lucky in Collin County not to have any judge who I would remotely characterize as a “rubber-stamp” but knowing the practice growing around the State is certainly worry-some.
Second, a handful of codes and statutes are bent, ignored, or rationalized away by police to effectuate the “no refusal” practice. Tex.Trans.C. 724.013 prohibiting police from taking a specimen against someone’s will is an obvious one, but almost just as troubling is police are required by law under Tex.Code.Crim.P. 14.06 to take an arrested person before a magistrate “without unnecessary delay” for the purpose of setting bond and reviewing important rights as well as information about the nature of the charges.
Instead of taking an accused under 14.06 without unnecessary delay as police are required to do by law when arresting someone… they contact a magistrate or judge for their own investigation wholly ignoring the accused’s needs (actually rights) to have access to the same magistrate.
*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 legal advice about any situation you may have you should consult an attorney directly.