Texas DWI Roadblocks

July 13, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

The Texas legislature has been conducting hearings lately on DWI and DUI enforcement.  While some groups are calling for restraint and understanding in enforcement, other groups are still convinced the only way to lessen DWI’s are through move invasive police tactics — specifically through DWI roadblocks.  This Dallas Morning News article details the discussions.

Here’s what the law says about DWI roadblocks in Texas:

1.  There is no current statute on the books which allows a police agency to set up a DWI roadblock.  A police agency or political subdivision of the state (such as a city or a county) does not have the legal authority to implement one on their own.  Only the State of Texas can pass such a law for enforcement here.  See State v. Holt, 887 S.W.2d 16 (Tex.Crim.App. — 1994). Texas law does allow police to create checkpoints for driver’s license checks, however, those checkpoints cannot be used as an excuse, ruse, or pretext for a sobriety checkpoint.  See King v. State, 816 S.W.2d 447 (Tex.App. — Dallas, 1991).

2.  Any DWI or sobriety checkpoint must satisfy a well-established three-pronged balancing test or else it violates the Fourth Amendment to the U.S Constitution and Article I, Section 9 of the Texas Constitution’s prohibition against unreasonable search and seizure.  the prongs are:  (a) the interest of the state in preventing accidents caused by drunk drivers; (b) the effectiveness of DWI roadblocks in achieving such goal, and (c) the level of intrusion on an individual’s privacy.  Brown v. Texas, 443 U.S. 47 (1979), and State v. Van Natta, 805 S.W.2d 40 (Tex.App. — Ft. Worth, 1991).

The Bottom Line

A DWI, DUI, or sobriety checkpoint or roadblock is not per-se unconstitutional in Texas, however it’s been so hard to conduct legally that agencies wanting to do so must “go back to the drawing board.”  The biggest short-coming according to cases such as Van Natta is that the State has a very difficult time justifying the intrusion into people’s lives where there is no evidence that DWI road-blocks are effective in attaining the goal of reducing drunk driving.  This is not to say that such evidence does or does not exist — but it was not presented to the Courts deciding these cases.

It would be interesting to know from the hearings in Austin whether the people in question asking for the authority to conduct roadblocks have any data which shows checkpoints reduce DWI’s.  If the best argument the advocates can muster is “just because it’s time to get tough,” it looks like they’ll get sent back to the drawing board yet again.

*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 for any specific situation, you should directly consult an attorney.

1 Comment | Uncategorized | Tagged: , , , , , , , , , , , , , , , , , , , , | Permalink
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.

Leave a Comment » | Uncategorized | Tagged: , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.