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.