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Texas ‘No Refusal Weekend’ Ruled Unconstitutional

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By Angela Kaye Mason, Contributor

On Wednesday, November 26, 2014 the Texas Court of Criminal Appeals ruled that the controversial “no refusal weekend” was unconstitutional. This law formerly allowed police to take blood sampled from drivers, even if the driver refused.

Is ‘No Refusal’ an ‘Unreasonable Search & Seizure’?

Recently, the implementation of the “no refusal weekend” had become quite popular, especially during holidays such as Saint Patrick’s Day and Super Bowl Sunday. Those are the weekends when the number of people Driving While Intoxicated (DWI) increases a great deal. On such weekends, the police would enact a policy which allowed them to test the blood alcohol level of suspected drivers even if the driver refused to submit to the testing. The practice had caused much controversy as citizens insisted that it was an unreasonable search and seizure.

Judges Must Sign Warrants

Under the new ruling, police officers must have a signed warrant before a suspected DWI driver can be forced to submit to a blood test. In many jurisdictions, this was already the procedure; police would have a judge ready to sign a search warrant, usually on the scene of an accident or traffic stop. In other jurisdictions, a DWI enforcement van is used to take suspected DWI drivers to where a judge can sign the warrant. This new ruling will not prevent police from being able to determine whether or not a suspect is driving over the legal limit, nor will it stop suspected DWI drivers from being forced to submit to a blood sample. It will simply make sure that a warrant has been signed first.

Legislature Revised Wording in Attempt to Pass ‘No Refusal’

In an effort to pass the “no refusal” policy, legislatures revised the working of the current law hoping that it would pass as constitutional. The Texas Court of Appeals, however, ruled that it did not pass. Five out of nine judges decided that police cannot force a citizen to submit to a blood test without a warrant. Judge Elsa Alcala wrote, “We hold that a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment.”

Not the First Changes in the Law

According to Alison Baimbridge, Chief of the Harris County District Attorney’s Office Vehicular Crimes Section, their office had already made such revisions in the law. The new ruling will have no impact in her county simply because they have already made it a practice to obtain search warrants in any case where a DWI suspect refuses a blood or breathalyzer test.

The changes to Harris County policy came after April of 2013. That was when a ruling by the Supreme Court decided that police should generally have to obtain a search warrant before issuing a blood test to a DWI suspect. This ruling did not specifically address states such as Texas, which have certain weekends or times that it is mandatory to give blood, such as “no refusal weekend.” In these cases, Baimbridge states that changes were made to their policies to make sure that evidence is collected properly in these cases.

Precedence Called for New Laws

The new ruling actually protects law enforcement officials and the courts when they are trying to convict someone of DWI. Precedence for the ruling was set back in 2012, when David Villareal refused to take a sobriety test. He had been pulled over in Nueces County and arrested. The police had him taken to the hospital and his blood was drawn without his consent, and without a warrant. According to the arresting officer, the actions by police were legal because Villareal had been previously convicted two or more times of DWI. At the time, state law required that a breath or blood sample be taken from someone who had had those prior convictions.

Considering the fact that Villareal had been convicted of DWI twice before, in 2001 and in 2005, the state asked the judge to sentence him to 25 years or more. His defense attorney, Fred Jiminez, cited a ruling from the Supreme Court in 2013 that said drawing the blood of a suspect without a warrant was an infraction of the search and seizure law. Villareal’s blood sample, and resulting blood-alcohol content of .16 became inadmissible in court, and he walked.

Defense Attorney Jiminez stated that he was pleased with the ruling, but that it will not put an end to the practice of taking a blood sample without the permission of a DWI suspect, but will simply ensure that the police have a search warrant before doing so. “We’re not going to see the end of no refusal weekends, but the procedure has changed. All it is, is a ruling that says law enforcement officials cannot use the blood test they obtained without a warrant. That’s all it is. They can still try my client. It’s a weaker case without that evidence. There’s a videotape of my client, and he looks good on the videotape.”

Previous Cases Also Set Precedence

In another such case, a motorist in Missouri was stopped by highway patrol after he was seen weaving and speeding as if he were drinking. He failed various field sobriety tests, refused a breathalyzer, and was handcuffed and taken to a local hospital. There, his blood was taken against his will in order to determine his blood-alcohol content. When his court date came up, Tyler McNeely claimed that his fourth amendment rights had been violated.

According to the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall be issued, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The court agreed with McNeely.

No-Refusal Weekend & No Refusal Strategy Pushed by Ray LaHood

Also in 2010, just months after McNeely’s arrest, US Transportation Secretary Ray LaHood pushed a new policy from his department which he called the “no-refusal strategy.” At the time, LaHood stated, “Drunk driving remains a leading cause of death and injury on our roadways. I applaud the efforts of the law enforcement officials who have pioneered the “No Refusal” approach to get drunk drivers off our roads. I urge other states to adopt this approach to make sure that drunk drivers can’t skirt the law and are held accountable.”

LaHood also proudly noted that nine states, including Texas, Louisiana, Florida, Kansas, Missouri, Illinois, Utah, Idaho, and Arizona, had already implemented his policy. Technically, what this meant was that nine states, in an effort to take drunk drivers off the roads, had agreed to violate the fourth amendment rights of their citizens. As Mark Horne, a blogger at Political Outcast states, “If we have a right not to incriminate ourselves [under the Fifth Amendment] then how can exercising that right be the basis for a lawful warrant [under the Fourth]?”

Not the End of No Refusal Policy

Just as Attorney Jiminez stated, this new ruling is not likely to stop the “no-refusal” policy from being enforced, however, it will ensure that police have a warrant before doing so. Most law enforcement agencies will likely step up the number of available judges in order to have warrants signed whenever they want. For some, this satisfies the fourth amendment obligations, for others, this seems like a way to try and make it legal to force someone to give their blood or incriminate themselves. Either way, this battle is likely far from over.


The New American

The Houston Chronicle

Texas Monthly

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