DUI No-Refusal Weekend

 Posted on July 03,2008 in Uncategorized

Harris County prosecutor Warren Diepraam (mentioned before here and talking about "honoring the dead" here) writes in the TDCAA forums:

Harris County is doing a July 4th No Refusal Program and hopefully joining some area counties for a multi-jurisdictional effort. Ours will be for all agencies in Harris County with one prosecutor stationed in the northwest portion of the county for those agencies and one stationed down south on the Galveston County line for those agencies. Three judges will be available to review the warrants for PC.The prosecutor down south will be teaming up with a judge, prosecutor, and police in Galveston County to review search warrants for their no refusal program. The prosecutor and judge in the northwest will be available for Ft. Bend County if their judges are not available.Montgomery County was the first area jurisdiction doing search warrants and usually does one, but I have not heard anything definite from them.Brazoria County will also be doing a "No Refusal" program over the 4th of July. For this area, it will probably/possibly be Brazoria County, Chambers County, Fort Bend County, Galveston County, and Harris County.I may be a bit optimistic on my counties, but we are trying.... ?

A no-refusal weekend is a weekend in which local law enforcement, prosecutors, and (paragons of impartiality) judges team up to ensure that anyone who is arrested for DUI (actually "DWI" in Texas, but I'm surrendering to the usage more common nationwide) who refuses to blow in the breathalyzer (as drivers are entitled to and generally should refuse, despite the legal fiction of "implied consent") is subjected to a coerced blood draw under a search warrant.

(Dallas DUI defense lawyer Robert Guest wrote about blood warrants many times ; one gets the idea that he's not terribly fond of them. Austin DUI defense lawyer Jamie Spencer wrote about blood warrants in several posts grouped here.)

So does a no-refusal weekend change the advice that a competent Texas DUI lawyer gives friends about whether to blow if they are arrested for DWI? I think probably so.

While those few of us who still give a damn about the right to be left alone (that, indeed, the right to pursue happiness is the right to be left the hell alone) would devoutly wish that forced blood draws would be found illegal, it hasn't happened yet, and it's not likely to. So with a warranted blood test result we're left fighting over (a) the probable cause contained in the "four corners" of the search warrant affidavit; (b) a possible "while" defense; and (c) the integrity and accuracy of the blood test result.

The science of gas chromatography is better documented and more accurate than the Intoxilyzer 5000. Scientists know how GC works; it's not a trade secret like the software inside the breathalyzer machine. In other words, it's a science instead of voodoo. Properly conducted following a proper blood draw, blood alcohol tests are not susceptible to the same errors (described by Bryan, Texas DUI defense lawyer Stephen Gustitis in this series of posts) as the Intoxilyzer 5000.

So it's much easier - as far as the defense of a DUI case in Texas goes - to convince a jury that a.10 Intoxilyzer result is actually <.08 at the time of driving (recall the .02 margin of error) than to convince a jury that a.10 GC result actually indicates a legal alcohol level.

If your BAC could possibly be.08 or higher, you're better off with a breathalyzer than a blood test. And since, if you've been drinking, you probably don't know what your blood alcohol content is going to be, the better rule this weekend in Harris County is, if you're arrested for DWI, to blow.

The best rule, of course, this weekend and any other, is to call a cab if you've had more than a drink or two. It's a lot cheaper than getting arrested.