The New Braunfels Police announced that they arrested a whopping one person on New Year's Eve for Driving While Intoxicated as a part of a DWI "no refusal" weekend that began on December 21st. In case you haven't heard all of the dire warnings on your local TV news, a "no refusal" weekend is where people who are arrested of DWI will not be allowed to refuse alcohol testing.
If a DWI suspect refuses to take a breath test, then police obtain a warrant to draw a blood sample from the person, which can then be tested for alcohol concentration. The New Braunfels Police claim that its "no refusal" weekend policy has been a great success so far. But this begs the question: "If no refusal weekends are such a great tool for law enforcement, then why isn't this law enforcement technique used all of the the time?" Why just have this policy for special weekends?
Why not make no refusal standard operating procedure? And is it really worth the trouble to do a no refusal policy on special holiday weekends? Some things to consider: 1. Breath testing is far easier for law enforcement, and far less expensive, then blood testing. Doing blood testing requires law enforcement to go through the trouble of processing extra paperwork to obtain a warrant, have a judge on call 24/7 to issue a warrant, and to have qualified medical technician on hand to draw the blood. The blood sample then has to be sent off to a lab to get a result, which can take weeks.
It just isn't feasible for most jurisdictions to do this on a routine basis. A breath test, on the other hand, can simply be obtained by an on-duty cop who happens to have taken a certification class in order to run the breath test machine. No warrant, no waiting, no civilian personnel -- and instant results. 2. The idea that there is a huge number of DWIs on holiday weekends is largely a myth. I think the general public assumes that an enormous number of people get arrested for DWI on holiday weekends. My experience as a criminal defense lawyer doesn't bear this out.
The vast majority of our DWI clients aren't arrested on holidays. Instead, they're arrested for DWI coming home from their cousin's barbeque, after stopping at a bar after work with friends; they are arrest during normal times, during their normal lives. If anything, they are less likely to be arrested on a holiday, when they are more self-aware of their drinking, when they are more likely to be conscious of police targeting DWI and more likely to have access to designated drivers."No refusal" weekend are good PR, but I haven't seen anything like a peer-reviewed study that says they actually do a lot to stop DWIs from being committed.
As long as there are prosecutors and judges who run for reelection in Texas who think they can get some PR bank for the buck by publicizing "no refusal" weekends, such weekends will continue to pop up around the holidays. But don't expect no refusal polices to become the normal way of doing things or for them to make a significant dent in overall DWI statistics.
Both Comal and Guadalupe Counties recently finished a Driving While Intoxicated "no refusal weekend" a few days ago. For the uninitiated, a "no refusal" weekend means that the government will not allow a person to refuse alcohol testing after being arrested for DWI. Normally, when a person is arrested for DWI, he is taken to the nearest jail and offered a breath test. The arrested person has the right to refuse the breath test, but may suffer a driver's license suspension as a result. But during a "no refusal" weekend, a person refusing to take a breath test is told that the police will then, instead issuing a notice of driver's license suspension, obtain a search warrant authorizing the police to take a blood sample from the person. The blood sample would then be shipped off to the Department of Public Safety lab for testing. Thus, there is "no refusal" because a test will be taken one way or another. Many people, when told they will be forced to submit to a blood test against their will, simply give up and agree to take the breath test that was first offered. This is absolutely the wrong thing to do. What to do, then, when faced with a test you can't refuse? Easy: REFUSE TO TAKE THE BREATH TEST AND MAKE THE COPS GET A BLOOD SAMPLE INSTEAD. Here's why:
1. THE COPS MAY SCREW UP THE WARRANT FOR THE BLOOD TEST. The ways in which obtaining and executing a search warrant for blood, or anything else, can be FUBAR are too numerous to list here. But you should certainly give the police the opportunity to find one of them. If the search warrant for blood is no good, the breath test is inadmissible.
2. WHEN YOU REFUSE, YOU KEEP THE CLOCK RUNNING. The result you get on a breath or blood test is just a starting point. What's really important is what your blood alcohol content was at the actual time you were driving a car. When you refuse the initial breath test, you force the cops to spend time obtaining a warrant, which lengthens the time between the driving and the test. Without spitting out a volume's worth of blood testing theory, simply put, the longer the time between the driving and the test, the harder it is to reliably figure out what your blood alcohol content was at the time you drove.
3. ROUNDING UP ALL OF THE PEOPLE INVOLVED IN THE TAKING AND ANALYZING OF A BLOOD TEST IS LIKE HERDING CATS. One of the reason the government prefers to give breath tests is that it makes it easier to round up its witnesses if there is a jury trial in the case. The government needs to produce all of the people involved in the administering of, and analysis of, the test. When there's a breath test, everyone involved is a member of law enforcement. They are, essentially, professional witnesses. When blood testing is done, it is more likely to involve civilians along the way, such a nurse or EMT. These people are sometimes harder to get to a trial.
4. YOU MAY BE ABLE TO RE-TEST THE BLOOD SAMPLE When a breath test is done, the breath sample is purged from the breath test machine and lost forever. When a blood test is done, some of the blood sample may be left over at the end. Your lawyer may be able to obtain the rest of the sample for independent testing. We have done this before on a few cases, and have come up with interesting results.
5. IF YOU ABSOLUTELY HAVE TO TAKE A TEST, BETTER ONE BASED ON REAL SCIENCE THAN JUNK SCIENCE When was the last time you saw a breath test machine in an emergency room? Never, and you probably never will. That's because breath testing has been widely criticized as being based on junk science, and no reputable health care professional would ever dream of relying upon it. Only the government does, because its cheap, fast, and "efficient." It you are forced to submit to a test, might as well take one that at least has a fighting chance of being correct. MORAL OF THE STORY: WHEN IN DOUBT, REFUSE THE GOVERNMENT'S REQUESTS AND MAKE IT JUMP THROUGH HOOPS.
Yes, you can be prosecuted for Driving While Intoxicated in Texas if you operate a motorized bar stool on a public road. I answer this question in response to several inquiries I have received today concerning this subject. In case you missed it, the AP is reporting that on March 31st, police in Ohio arrested a man for Driving Under the Influence after he had an accident while driving a motorized bar stool on a public street.
The bar stool in question is mounted on top of a modified lawn mower frame and engine and also has a steering wheel. While at the hospital being treated for injuries, the man allegedly told police that he had consumed 15 beers before attempting to drive home on his gasoline-propelled bar stool. On the way home, he struck an object and was thrown from his throne, so to speak. The question I have been asked in the aftermath of this tragedy is this: If you were intoxicated while driving a motorized bar stool in Texas, similar to the Ohio rig, could you be prosecuted for Driving While Intoxicated? Yes. Texas's DWI statute provides that you commit an offense if you operate a "motor vehicle" in a public place while intoxicated.
Texas Transportation Code Section 601.002(5) states, in part, that the term "motor vehicle" means "a self-propelled vehicle designed for use on a highway . . ." There are then some exceptions for things such as a traction engine (which is a steam-powered engine), a road roller, a tractor crane, a well driller, a horse trailer, and, significantly, "an electric personal assistance mobility device as defined in Section 551.201." The Ohio device was gas-powered, self-propelled once started, and designed to drive on the road. Thus, a motorized bar stool is a "motor vehicle" under Texas law. This reminds me of a case I had in Guadalupe County about a year ago, in which my client was arrested for DWI while sitting on a lawn tractor.
There was never any real dispute concerning whether or not he was operating a motor vehicle under the Transportation Code -- he was (The case was later dismissed because law enforcement lost the roadside video. Personally, I think they still have it and are showing it at parties.) The man in Ohio, if he were in Texas, could have chosen to build a steam-powered bar stool, though I suspect that this would be impractical. It is important to note, however, that you cannot get a DWI in Texas while operating a motorized, electric wheelchair, or a similar device. If you live close to your regular bar or beer joint, and do not have to take the highway to get home, you should consider investing in a pimped ride from the Scooter Store. Although the cops might still be able to arrest you for Public Intoxication if they find you smashed, they cannot arrest for you Driving While Intoxicated (a far more serious offense) even if you have had a wreck. Although I admire the ingenuity and imagination of the bar stool pilot, he might have been better advised to do some legal research first.