You are out partying it up with your buddies one weekend.. You have a few beers, which turns into a few too many. In the true tradition of an obnoxious drunk you tell all your friend you are fine, head to your car, stop to puke in an alley and you are on your way. You are pulled over. You are asked to peform a field sobriety test. You pull out every piece of law you have ever heard in bars, nightclubs and your last stay in the drunk tank.
“I don’t have to take the field sobriety test ”
Well you are right, at least in Texas you have to right to refuse do the field sobriety test, blow into any probably cause breath analyzer, or say anything at all. While there are possible consequences for your refusal ,you can basically stand mute(if you are able to stand). The police officer then says “fine we are going to draw blood”. Your response is “please see previous refusals”
Police officer goes back to his car for a bit, and comes back with this piece of paper. You manage to slur out the party line again…. “please see previous refusals”
The officer, responds, “you can take your previous refusals and stick them in your beer can. I have a search warrant to draw your blood.”
Hmmm……. the jail house lawyers in the drunk tank didn’t tell you about that one…..
Your response? Drop your pants and bend over(figuratively) for the needle! Danger Will Robinson!
Do you have the right to refuse a blood test at a DWI stop? Not if the cop has a properly obtained warrant to draw your blood which he went back to his car and obtained from an on-call magistrate. In fact, even if the warrant was improperly obtained, the cop is taking that blood and you can argue about whether the warrant was properly obtained in a suppression hearing or on appeal after your conviction. Welcome to the “no refusal” policy being instituted by an ever increasing number of law enforcement agencies. .
The Dallas police and departments all over the country are instituting these “no refusal” policies with increasing frequency at DWI stops. It started with holidays only, went to every weekend and when budgeted and staffed for, will be the modus operandi every day of the week. This means you can forget everything you have ever been told about your right to refuse various tests when you are pulled over. You can throw whatever your state’s drunken driven statutes say about right to refuse out the window.
Local police departments through the use of search warrants and “on call” magistrates have in effect been able to write their own legislation without the help of the legislature that says you can not refuse. In order to get a better feel for the effect of this statute, I decided to talk to people in the trenches.
Richard Warfield, a very respected local Dallas Attorney specializing in DWI had this to say:
“The law in Texas regarding DWI’s(Driving While Intoxicated) requires that if a peace officer has “probable cause”(i.e.,he smells alcohol) to believe the driver of a motor vehicle may be intoxicated, the officer can demand the suspect give a specimen of his breath or blood to determine the level of the intoxicant, whether it be alcohol or drugs.
However, the Texas Legislature enacted a Statute under the Transportation Code(Sec.724.012) which states if a suspect refuses to give a specimen “none shall be taken.” This is out of respect for the rights of the accused and the inherent dignity of the individual. In other words, to forcibly extract breath or blood from a suspect is considered so invasive as to offend our sensibilities as a proud and free people.The argument can be made that if one is suspected of a serious felony such as murder, if the state seeks and obtains a search warrant, such a specimen would be taken.
A DWI is, much to the chagrin of Mothers Against Drunk Driving(MADD), still a Class B Misdemeanor. This all changed when the highest criminal court in Texas ruled in Beeman v. State that if an officer obtains a search warrant for ones’ blood, the warrant trumps the wishes of the Texas Legislature and we no longer have the right to refuse. I can’t help but think this is another example of the will of the people being overridden by an activist judiciary. By the way, this opinion was written by Judge Micheal Keasler, a Republican on an ALL Republican high court.
What this means to us is that if a local police or sheriffs’ department wants to set up a procedure whereby they have access to a local judge 24 hours a day, they can get the warrant EVERY SINGLE TIME!
The Dallas Police Dept. came up with this procedure this past weekend so they could have it in place just in time for our National Holidays of Memorial Day and Independence Day. Think about that. On those days on which we celebrate the memories of those brave souls, those patriots, who gave their lives so that we could become and remain free, our own govt. can now forcibly extract by needles our body fluids if any police officer says he smells alcohol on our breath and saw us drive.
This is a bit like the “Broken Windows” crime theory in reverse. When our “little” dignities and freedoms are abridged, and the people put up with it, the next thing you know our Govt. spies on us without warrants, we operate secret prisons, torture suspects, kidnap and even invade foreign countries not a threat to us. In other words our way of life, our democratic republic is under assault at all levels, on small scales and large. If we wish to override the Beeman decision, citizens should contact their State Rep. and express their outrage as only the Legislature can remedy this.”
That is the opinion of one Dallas DWI attorney.
Then of course there is Jacqueline Saburido. You can read her story here. Her photo graces this blog. I wonder what she would say. She is one of many dead and alive who probably wished there was a “no refusal” policy that deterred just one person from drinking and driving. That one person that disfigured them or wiped out their family.
There is part of me that says so what. If you don’t want to have your blood drawn, don’t drink and drive. It does not get any simpler than that. There is part of me that says there are to many graves and Jaqueline Saburidos out there. This is a good thing.
Then there is that part of me that has concern about this evolving into a “kangaroo procedure” where magistrates do not even listen to the facts. They simply fax the warrant over. Who knows, maybe the magistrate is taking a dump when the call comes in and his wife listens to the cop and faxes the warrant over. You get the point.
When the process becomes a complete rubber stamp farce, the joke is really on the Constitution as our rights our stripped away piece by piece.
Is it a trade off? Is the Constitution supposed to be a trade off? If we say we are trading the pain and suffering of future Jacqueline Saburidos and the future graves of unsuspecting families on their way home from church with a reduction in civil liberties does that make the trade off acceptable?
I use the picture and story of Jacqueline to make a point. We should never forget that when you lift the curtain on all the theories, constitutional arguments, lawyers, drunks, etc, there are real people. Should this change our opinion?
So what do you think? Should police have the right to draw blood at a DWI stop involving no injuries, no accident, nothing but your smelly breath? Is this a violation of our constitutional rights? Do we even care if lives are saved?
Police Arrest 76 In First Use Of “No Refusal”
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