“No Refusal” For San Antonio DWI (updated Legal Advice)

Posted on Sep 20, 2012


It was once the case, that our San Antonio DWI Lawyers at Cook & Cook Law Firm, PLLC advised clients to REFUSE the breath and blood tests.   When a suspected drunk driver is pulled over, an Officer will Offer the breath test or the blood test.  In the past, during most every day of the year in San Antonio, Texas, a person could refuse to take these tests.  THE POLICY HAS CHANGED.  Now, San Antonio has an ongoing policy AGAINST refusing the test.  Below is a copy of the update from our local District Attorney, stating this policy, and offering the DWI statistics for September 18th, 2012:

Bexar County District Attorney’s Policy:  “No Refusal Program” For DWI

The flyer states:  (This flyer can be found here).

San Antonio, Texas:  9/18/2012

District Attorney Susan Reed is targeting drunk drivers in Bexar County, in cooperation with the various law enforcement agencies, by implementing a No Refusal program in effect everyday. Everyone who is arrested for a driving while intoxicated offense and refuses to give a sample of their breath or blood will have a sample of their blood taken pursuant to a search warrant. 

During the No Refusal program this past week, beginning at 12:01 a.m. 9/10/2012 through 11:59 p.m. on 9/16/2012 there were 141 persons arrested for driving intoxication offenses and 80 blood draws. Below is a breakdown of the arrests by offense:

Driving While Intoxicated: 70
Driving While Intoxicated w/ BAC 0.15 or higher: 20
Driving While Intoxicated-Open Container: 5
Driving While Intoxicated-2nd: 28
Driving While Intoxicated-3rd or More: 14
Driving While Intoxicated-with Child Under 15 yrs. old: 2
Intoxicant Assault: 2
Intoxication Manslaughter: 0

The No Refusal program is an initiative of the District Attorney’s Office implemented to keep everyone safe from intoxicated drivers. The District Attorney’s Office encourages everyone to be safe and smart on the roads: don’t drink and drive.

As stated by the District Attorney, IF YOU REFUSE TO DO A BREATH TEST, YOU WILL BE FORCED TO DO A BLOOD TEST INSTEAD.

How Does No Refusal Program CHANGE our Legal Advice to Suspected Drunk Drivers?

At one point, we advised clients to REFUSE the tests.  Breath and Blood samples are taken AFTER a person is already under arrest.  They are only used to hurt a defense case.  The Breath and Blood tests, like all tests in the world, have inaccuracies and problems.  While a majority of people easily rely on scientific evidence, when presented with it, the “science” behind the evidence becomes extraordinarily important when the evidence itself will label a person innocent or guilty for the rest of one’s life.  The implications of the evidence are enormous.  Thus, the evidence must be carefully scrutinized before just blindly relying on it to render a criminal verdict.  As such, criminal defense attorneys have historically advised that people refuse to offer any help to the State which is certainly pursuing a conviction against its arrested Defendants.  Instead, DWI defendants should exercise their right to say no.  At least, that used to be the case.

Old Advice:  REFUSE THE BREATH TEST; New Advice:  Say Yes to the Breath Test

NOW, all has changed (in my opinion).  Now, with this new “no refusal policy”, one is left in a conundrum of sorts.  My position is that DWI suspects should no longer refuse the breath test, when it is offered.  However, having spoken with other defense attorneys, there is a different position one may take on this issue which I will explore below for purposes of full disclosure and exploration of this issue.  First I present the Reasons Why one should now SAY YES TO THE BREATH TEST.

If a person refuses the breath test, then the person is going to have a blood test taken instead.  If you have a choice between taking a breath test and a blood test, you may prefer the breath test.  The reason for this is that, you are going to have to hire a criminal defense lawyer to fight your DWI.  Criminal Defense Lawyers charge more to combat blood test cases than breath cases (generally speaking).  If you want to pay less to your lawyer, the breath test will result in a less expensive defense.  The blood tests can be fought on just as many grounds as  breath test case, but defending a blood DWI is far more complicated and thus more time consuming (thus more expensive).  So, reason 1 to take the breath test is that it is less expensive to fight than blood (it is the lesser of  two evils).

Secondly, if a person cooperates with the breath test, then the person’s license will not automatically be suspended as will happen if the person refuses to take either of the tests.  Instead, depending on the outcome of the test,  a person may be under the legal limit and thus will keep their license.  A person may be arrested and will get a temporary license until a hearing takes place regarding the license.  Regardless if a person refuses, certainly, the person will lose their license for (I believe it is) 6 months.

Why Some Lawyers Still Advice People to Refuse, Despite the No Refusal Policy

As stated earlier in this article, despite the possible increased expense involved with a breath test, and despite the added complication to the defense of combating a breath test, some would STILL advise a Defendant the same way as before.  JUST SAY NO….Don’t Blow and Don’t Give Blood.  In the event that you DO refuse despite the new no refusal policy, Police cannot force you to blow.  Blowing is a voluntary act.  You could simply refuse by physically not blowing.  At that point, the officer will have to bring facts before a magistrate judge in order to get a warrant issued that enables the officer to pull the blood from your arm.  No voluntary actions on your part are required for someone to take your blood.  If you do refuse the breath and blood test, this causes the police officer to have to jump through the additional hoop of getting a warrant executed to take your blood.  If you complied with taking the test, the officer does not have to get a warrant.  Making the officer get a warrant means that the officer will need some time to do this.  The Officer cannot just magically produce the document.  It should be noted that time passing before a blood test, means the test results are less accurate.   Your blood alcohol level can drop or climb from the time you were actually caught driving.  In fact you could have been under the legal limit when you were caught driving, and after an hour passes of you waiting for that blood test, your blood alcohol content could rise to above the legal limit. The time, no matter how you look at it, is problematic for the State and the Police.

All of those side notes said, some Attorneys simply feel that if you are going to give evidence that incriminates yourself away, you might as well demand a warrant.  In some cases the police will not be able to get the proper staff or equipment to have the blood drawn that is necessary.  In some rare cases, the police may not be able to get the judge to give a warrant.

I tend to disagree with attorneys that take this position at this point.  I think that the best route for people to take is to comply with the test, and take the breath test when given a choice.  If you don’t have any choice and are stuck with the blood test only, then do demand the warrant in that case.

IMPORTANT DWI REFUSAL REMINDERS

This No refusal Policy DOES NOT CHANGE other rights that you have to refuse.  You have the right to refuse to answer questions (However you must produce information as to your identity).  Do not discuss your drinking with the police.  Even if you are under the legal limit, your answers will only harm you when officers are doing investigations. This is your right to remain silent as guaranteed to you by the Fifth Amendment of the United States Constitution. Exercise your right to refuse to speak.  In order to exercise this right, simply tell police that you would like to speak with your attorney.  THEN CALL ME ANY TIME. PUT THIS NUMBER INTO YOUR CELL PHONE RIGHT NOW: (210) 271-2800 (Megan V. Cook, Attorney at Law).

This No refusal Policy DOES NOT CHANGE that you CAN REFUSE THE FIELD SOBRIETY TESTS– the walk on a line test, the eye test, the one legged stand test. Field sobriety tests are subjective tests that are absolutely skewed in favor of YOU FAILING.  Passing a field sobriety test would be difficult for an athletic sober person (in my opinion).  So, remember that no one can make you get out in front of a car and do some gymnastics to prove that you are driving legally.  Instead, you may politely refuse the tests.  Always be polite, though.  Just like an officer cannot force you to blow into a machine, an officer cannot force you to do gymnastics.  You are a free person, living in a free country.

For General Information on DWI defense, go here.

For Information on Defending Breath Test Cases, go here.

If you need a DWI Lawyer in South Texas, Call me right now! (210) 271-2800.  We will aggressively fight for you.

 

 

Submit a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

[recentreviews city="San Antonio" state="Tx" count="10" zoomlevel="9"]