What “No Refusal” Really Means

December 7, 2012

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

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.


Tarrant County’s Disappointing Decision to Publish DWI Arrestees Names

January 1, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Tarrant County decided to publish the list of DWI arrestees over New Year’s weekend.  You can read about their decision here.

According to Richard Alpert, Tarrant County prosecutorial guru for intoxication offenses, the measure is a creative way to make the streets safer.  Alpert reasons, “If the financial cost of being charged with a DWI-related crime and the risk of injury or death is not enough, perhaps the effect of having it known by friends and neighbors will be.”

Mr. Alpert further said he’s motivated to create new efforts to reduce drunk driving because of cases he’s worked on where people have been killed: “The worst photographs that I’ve ever had to look at as a prosecutor are vehicular crashes.”

Point well taken.  Mr. Alpert is highly regarded around the State and he is nothing if not sincere about his beliefs.

Here’s why Mr. Alpert’s decision is disappointing and reveals a common thinking error amongst law enforcement and prosecutorial agencies.  Not everyone is guilty.  In fact, based on past statistics it is inconceivable that all of the arrested people this weekend will be convicted.

Tarrant County’s actions of publishing the names probably means an acquitted person’s name will be on the internet FOREVER as a drunk driver regardless of what a jury says — and even regardless of if and when a District Judge Orders the Tarrant County District Attorney’s Office to take certain names off the list.  Putting something on the internet is writing it in permanent ink.

I wouldn’t expect the public to be too lose sleep over a few unlucky schmos who get tossed on this list because they ran into an angry cop having a bad night… or for some poor mope with a lisp that couldn’t talk an officer out of arresting him for having slurred speech… and I can’t imagine the masterminds of the list would be too bothered either.  After all… even if they beat the rap, they were probably guilty of SOMEthing, right?

Prosecutors have a duty to seek justice.  That duty is worthless where prosecutors assume everyone is guilty… and how do we know they’re making this assumption?  They are intentionally convicting them in the public and they’re not even bothering to read the police reports first.

Scary.

*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 should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications through this blog are not confidential.


Tarrant County’s Disappointing Decision to Publish DWI Arrestees over New Years Weekend

January 1, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Tarrant County decided to publish the list of DWI arrestees.  You can read about their decision here.

According to Richard Alpert, Tarrant County prosecutorial guru for intoxication offenses, the measure is a creative way to make the streets safer.  Alpert reasons, “If the financial cost of being charged with a DWI-related crime and the risk of injury or death is not enough, perhaps the effect of having it known by friends and neighbors will be.”

In an interview with the Dallas Observer, Mr. Alpert further said he’s motivated to create new efforts to reduce drunk driving because of cases he’s worked on where people have been killed: “The worst photographs that I’ve ever had to look at as a prosecutor are vehicular crashes.”

Point well taken.  Mr. Alpert is highly regarded around the State and he is nothing if not sincere about his beliefs.

Here’s why Mr. Alpert’s decision is disappointing and reveals a common thinking error amongst law enforcement and prosecutorial agencies.  Not everyone’s guilty.  In fact, based on past statistics it is inconceivable that all of the arrested people this weekend will be convicted.

Tarrant County’s actions of publishing the names probably means an acquitted person’s name will be on the internet FOREVER as a drunk driver regardless of what a jury says — and even regardless of if and when a District Judge Orders the Tarrant County District Attorney’s Office to take certain names off the list.  Putting something on the internet is writing it in permanent ink.

I wouldn’t expect the public to be too lose sleep over a few unlucky schmos who get tossed on this list because they ran into an angry cop having a bad night… or for some poor mope with a lisp that couldn’t talk an officer out of arresting him for having slurred speech… and I can’t imagine the masterminds of the list would be too bothered either.  After all… even if they beat the rap, they were probably guilty of SOMEthing, right?

Prosecutors have a duty to seek justice.  That duty is worthless where prosecutors assume everyone is guilty… and how do we know they’re making this assumption?  They are intentionally convicting them in the public and they’re not even bothering to read the police reports first.

Scary.

*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 should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications through this blog are not confidential.

 


My Comments in the McKinney Courier Gazette’s Article about the “No Refusal” Fourth of July Weekend

July 2, 2011

By Dallas and Collin County Criminal Lawyer Jeremy Rosenthal

(972) 562-7549

(214) 724-7065 (jail release)

www.thecollincountylawyer.com

Collin County has designated the 4th of July holiday weekend as a “no refusal weekend.”  You can read the McKinney Courier Gazette’s article about it here (the DWI lawyer they talk to seems very good!)

*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 specific case you should contact an attorney directly.

 


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

www.thecollincountylawyer.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.