DWI No Refusal Weekend

It’s a common announcement from the news that police—be it a local department or the Texas Department of Public Safety—will be conducting a “No Refusal Weekend” or “No Refusal Holliday” around one of the major days associated with drinking, such as New Years Eve or St. Patrick’s Day.  The reality is, however, that the name is misleading and these media campaigns are no different from any other day of the year.  While the suggestion is that police will not take no for an answer from a driver they want to arrest for DWI (that they will not accept someone declining to provide a breath sample), it doesn’t exactly work that way, and drivers should know their rights especially around these no refusal weekends.

No refusal time periods are law enforcement marketing campaigns.  During these times, for example the weekend before and including New Years Eve, police announce to the media that drivers are not allowed to refuse to submit to a Breathalyzer when requested.  In other words, these marketing blitzes suggest that your right to refuse to submit to a breath test does not exist while the campaign is going.  That is, of course, not true, and there really is no difference between a no refusal weekend and any other time of the year, particularly in modern times.

Under Texas law, a driver is guilty of DWI or operating a motor vehicle while intoxicated, if they have a blood alcohol concentration (BAC) of .08 or above or they have lost the normal use of their physical or mental abilities due to drugs, alcohol, or both.  When the argument is about the loss of those abilities, the police use the “Standardized Field Sobriety Test,” a series of roadside physical examinations developed by a sociologist and the National Highway Traffic Safety Administration (NHTSA) and in use by law enforcement for years.  These “tests” are a series of roadside physical exams conducted by a police officer, generally on the side or in a specialized location at the jail, that gives the officer probable cause to arrest for DWI.  When an officer wants to show that a driver is above the legal limit of .08, they either use a breath test (the Breathalyzer) or a blood test.

The way we get to a no refusal is simple and happens daily throughout the state.  On any given day, people are pulled over on suspicion of DWI. The first step for the officer is usually, depending on the situation, a request from the officer that the driver perform the field sobriety test.  Regardless of the result, in many cases the next step is a request for a breath sample, what is colloquially referred to as a request to “blow.”  Refusal to submit to a breath test can be used against the driver in court if he or she is ultimately arrested for DWI, can be used against the driver in court.  Further, if the driver does not submit to a breath test, the police might seek to obtain a warrant to have blood drawn from the driver against his/her will.  The only possible difference from a no refusal weekend and any other day may have a judge more readily available than they ordinarily do, depending on the county.  In some cases, the officer might try to skip the request for the breath test altogether and go straight to the judge for a warrant.  The way that our system is currently structured, most officers can find a judge to request a warrant and get the driver to a facility to have blood drawn with little difficulty.

Every driver should know their rights when they get behind the wheel of a car, perhaps more so during these media campaigns.  There is no law against drinking alcohol and then driving a car, despite old marketing campaigns of “drink, drive, go to jail.”  The law, instead, is that a driver must be impaired, either by showing the loss of ability or by being at or above the legal BAC limit of .08.  That said, an officer that stops a car must first have a legitimate reason to make the stop.  If he has a legal reason to make a stop, that does not give automatic probable cause to obtain a breath or blood sample.  If the police lack probable cause, then a judge would have no legal grounds to issue a warrant.  Even on a no refusal weekend, the law still applies, and an officer must have a reason to stop, must have a reason to detail, and must have probable cause to obtain a warrant for blood testing.  If a driver refuses to provide a breath test by consent, and the officer has no probable cause to obtain a search warrant, then that is the end of case.  If a judge enters a search warrant without probable cause, then the results of that search could later be suppressed from court.

The rights that all drivers have apply to all cases, even to traffic stops, and it’s not uncommon for drivers to forget that.  The Fifth Amendment protects citizens from being forced to give against themselves in any case.  In other words, just because an officer asks question, doesn’t mean you are required to answer, or even that you should.  Consider this: an officer assumes that you are intoxicated and asks you questions about what you may have had to drink today.  You, knowing you are not intoxicated, answer questions about hours before that should have no impact but those answers are later interpreted in a way to harm you at trial.  The officer is trained in a way to get answers and does not know you but, depending on the officer and his experiences, may interpret anything you say against you.  You have the right to remain silent, the right to have an attorney present before questioning, a right not to incriminate yourself, and a right to privacy/freedom from unreasonable searches.  You should use them all, but do so in a way that does not seek to antagonize the officer.  When asked permission to search your vehicle, politely decline to allow the search without a warrant.   If the officer threatens to obtain a warrant, be polite and continue to deny consent and let the officer obtain a warrant (if he can).  Don’t answer any questions without an attorney present, but again be polite.  Remember, your words can come back to haunt you, even if they weren’t meant in the way they are interpreted.  Also remember that the law applies to everyone, even police, and the law includes your rights to remain silent and to require a warrant before your property is searched.

Most lawyers, including myself, recommend that you refuse any testing.  The filed sobriety test is subjective, and many officers do not follow the correct procedure in conducting the test.  The test also has a significant error rate, meaning it is frequently wrong even when done correctly.  I have represented clients charged with DWI after a field sobriety test only to receive a blood test result, after arrest and bond and associated costs, that show no alcohol and no drugs present in the defendant’s blood, just as they told the officer.  I am familiar with other attorneys that represented clients alleged to have failed portions of field sobriety tests that they physically could not have failed—it would have been impossible, but the officer testified to the contrary.  The field sobriety test is a test many describe as being designed to fail, and the error rate is too high to risk.  Therefore, when asked to perform this roadside physical, one never subjected to legitimate and disinterested peer review, say no politely.  The same is true of a Breathalyzer test, which some studies suggest has an error rate of 20%.  Remember, a BAC under .08 is LEGAL, but with an error rate so high it is not impossible for your legal blood level to register illegal and get you arrested.

In Texas, the implied consent law means that if an officer has reasonable suspicion to stop you, and then develops probable cause to request a blood or breath test which you refuse, your license will be suspended.  However, the police have the burden of showing a reasonable stop and probable cause to believe you were operating a vehicle while intoxicated.  Failure to make that showing results in your license being returned.  If they make that showing in an ALR court (assuming you request a hearing in compliance with those rules), then your license suspension will stand, but that is not the same as a criminal conviction, and having refused to the dangers of flawed tests to that point might work in your favor to avoid an unwarranted conviction.  A suspension beats a conviction, and gives you the best chance in the future.

If stopped on a no refusal weekend, remember that it is just a PR campaign, and the law exists as it does any other day of the year.  Officers cannot obtain your blood without a warrant, and they cannot get a warrant without probable cause shown to a judge.  Be polite and don’t antagonize the officer, but don’t answer any questions, don’t allow any search of your person or car, and don’t waive any of your rights to an attorney. (I say be polite because it is better to be polite because for the moment of that stop you are at their mercy).  If asked to perform a roadside test, the answer is no.  If asked to do a one leg stand or a walk and turn, ask for a lawyer and tell them you can’t perform any tests without an attorney.  If they start conducting the tests without your realizing it, ask for an attorney and tell them you do not want to participate in any tests.  If asked for a breath sample, politely refuse to provide one without first speaking to an attorney.  If asked if you’ve had anything to drink, tell them you don’t want to answer any questions without an attorney.  Remember, if you refuse to give them what they want, they are likely to threaten loss of license, arrest, and of course them obtaining a warrant. 

If you are ultimately arrested for DWI an attorney immediately.  If you want to have a hearing because your license is suspended, there is a clock, and it is not a long one.  Even without the license issue, the sooner an attorney can talk to you, the more likely the information will be fresh in your mind.  For questions, call us as soon as possible.

When Will You Make Parole

One of the most common questions we get in felony cases is related to parole.  Those defendants that expect to plea cases—that are looking at a sentence in TDC—want to know when they will become eligible for parole.  Parole relates to early, supervised release from prison, unlike probation which is the suspension of a sentence and placing an individual on community supervision. Probation is administered by the county, parole by state officials with the Texas Department of Criminal Justice.  There is no parole from state jail facilities, and therefore those facing non-enhanced state jail felony offenses will not have the concern of parole eligibility dates.

Texas parole eligibility is found in the Texas Government Code.  Because the Texas legislature only meets every other year (odd years), changes to parole laws can and often do occur every two years.  The thing to remember is that parole eligibility is determined by the law in effect at the time the offense was committed.  While the overall parole law is complex, there are some basic concepts that can assist those looking at time in the Texas Department of Corrections.

Some offenses cannot be given parole in Texas any longer.  Anyone convicted of continuous sexual assault of a child, aggravated sexual assault of a child, or trafficking of persons is not eligible for parole in this state.  Further, some repeat sex offenders are eligible for parole only after the day for day time in prison is 35 years.  Lastly, a defendant that is serving life for a capital murder committed before the defendant was 18 must serve 40 years before being parole eligible.  Most cases, however, fall into one of two categories.

A defendant that is charged under what is known as a “3(g)” offense (formerly 42.12 § 3(g), now 42A § 3(g)) must serve 50% of the sentence without consideration of good conduct time or 30 years before they can receive parole.  These offenses are often referred to as aggravated offenses, and include offenses with an affirmative deadly weapon finding, most sex offenses or offenses that involve children, and aggravated versions of other felonies.  Offenses listed in this category are murder, indecency with a child, aggravated kidnapping, aggravated robbery, drug offenses in a drug free zone with a prior conviction, drug offenses that use kids in the commission of the offense, sexual assault, injury to a child if it’s a first degree felony, trafficking of persons, compelling prostitution, burglary with intent to sexually assault a child, and engaging in organized criminal activity by leading a criminal street gang (there are some additional specific offenses or elements I will skip here).  Cases involving a drug free zone will have to serve 5 years of calendar time (not including good conduct time) or serve the entire sentence before release. 

In most other cases, the defendant is parole eligible when their good conduct time and calendar time together equal either 25% of the sentence or 15 years, whichever is less.  Thanks to Bill Habern, below is a current chart of expected parole eligibility dates which he provides on his website (reproduced with his permission).  I say most cases because, for example, a defendant will have 3 years added to time before parole eligibility for every 12 months between the date an arrest warrant is issued following indictment and the date of arrest.   In other words, running from a warrant means more time before parole.  There also is still a concept of “mandatory supervision” on the books that may or may not apply in a given case.

Keep in mind that these are eligibility dates, not parole dates. The Parole Board (Board of Pardons and Parole) will meet to vote on the granting of parole.  The review period for parole begins 2-6 months before an inmate’s next scheduled review, and the Board could vote 2 months before the review or months after. 

When clients ask about parole, I generally advise them to go in planning to serve the entire sentence and work hard to make that not be the case.  The Parole Board is looking for proof of rehabilitation and growth as a person, so give it to them.  To the extent that an inmate is given a plan of programs they should complete, work to complete them early and do well in the classes.  Look at self help classes and improve your education as much as possible while in custody, both with classroom education and training in a trade if necessary.  Of course, the obvious advice is to stay out of trouble, watch what inmates want to associate with you, and control your self to avoid problems.  As a final note on eligibility, Parole Board’s tend to look to acceptance of responsibility in granting parole. 

The generic answer in parole eligibility is an aggravated offense is 50% day for day, anything else is 25% with good conduct (which could put eligibility for parole on an 8 year sentence at just over 11 months), but as noted this is far from exact.  Parole is a complex issue, and being eligible does not mean actual release.  The fact is, talking about each individual case is important.

When SAFP Is Part of a Probation Plea

Frequently, plea offers in felony cases require a defendant to agree to SAFP or SAFPF (pronounced safe-p, short for substance abuse felony punishment facility). The law in Texas is that a judge sets all conditions of probations.  Some counties allow for the prosecutor to plea bargain conditions of probation, some require an evaluation to suggest conditions and allow attorneys to make arguments based on the results of that evaluation, and some judges simply allow for the defendant to agree to probation following a Pre-Sentence investigation (PSI) that will absolutely set conditions of probation.  The thing to remember in those cases is that the judge, not the DA, ultimately decides conditions of probation.

Texas law allows for several conditions in probation cases, including time as a condition (up to 180 days in the county jail as a condition of probation) or substance abuse treatment, in addition to specialized conditions in sexual assault cases or DWI cases (interlock, for example).  The SAFP option is a state funded and state run type of drug rehab.  SAFP is a six-month, in-prison treatment program followed by 3 months of residential aftercare in a transitional treatment center (TTC), which is in turn followed by 6-9 months of outpatient aftercare, etc.  The program is the probation counterpart to the In Prison Therapeutic Community (IPTC) for those that are sentenced to prison time and in need of substance abuse treatment.  There is also a Special Needs SAFP program for probationers with medication requirements, physical disabilities, or mental health issues that is 12 months in length.

SAFP was created in 1991 in response to a shortage of bed space in our prison system.  Initially, the Texas legislature funded 14,000 rehab beds (12,000 SAFP and 2,000 IPTC).  That number was dropped in 1995 to 5,200 SAFP beds and 1,500 IPTC beds.  As of fiscal year 2012, SAFP had 3,786 available beds that housed 3,433 inmates according to the Legislative Budget Board.  That’s 3,433 of 152.303 prisoners on hand in Texas prisons according to the Texas Department of Criminal Justice.

A key question for many is time credit.  If a probationer is revoked, he will get credit for the time he spent in SAFP provided that he successfully completed SAFP.  If he fails to complete SAFP, he will not get credit for the time he was in custody for the program and will also likely have his probation revoked.  However, courts frequently order defendants to stay in jail until a place comes available in SAFP. That time is called “dead time,” and under the law receives no credit toward a sentence if a probationer is revoked, though some judges will consider that time regardless. 

From the standpoint of a defendant offered a plea deal that includes SAFP, the question is whether it is a benefit to accept SAFP.  When considering that SAFP is a 6 month commitment to a prison facility, followed by 3 months of aftercare and then probation, the time must be compared with what the sentence would be under a non-probation sentence.  Consider this: the range of punishment on a state jail felony is 6 months to 2 years.  If the prosecution offers probation or 6 months in state jail (this is ignoring the concepts under 12.44 of the penal code that would allow punishment as a misdemeanor), then the comparison is 6 months SAFP + 3 months TTC + probation time vs. 6 months and done in the state jail facility.  In a higher level felony, parole issues come into play.  A non-aggravated felony is generally eligible for parole after they serve 25% of the sentence, including good conduct time.  Thus, a sentence of 4 years in TDC (prison) is parole eligible after 5 months and 21 days, approximately.  There is no guarantee that parole will be granted, but it must be considered in deciding what plea to accept, if any.

In another post, I’ve discussed the current parole eligibility issues and time frames.  One additional factor that adds into the discussion of whether to accept a plea deal with SAFP is deferred adjudication, which if successfully completed would prevent a final conviction under Texas law.  As has been discussed, probation is not for everyone, and should be something you discuss with your attorney.  In the end, SAFP is state run rehab, and as with all rehab programs is only as successful as what you put into it, is only successful if you believe in it and that it is necessary, and is run by the government prison system rather than a healthcare provider.