Dallas Police Announce “No Refusal” Labor Day Weekend, 2010

September 4, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

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.

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Posted by Jeremy Rosenthal, Esq.

“No Refusal Weekend” for DWIs in Dallas and Plano

May 30, 2010

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.

(972) 562-7549

*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.

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Posted by Jeremy Rosenthal, Esq.