Implied Consent & the “No Refusal Weekend”

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Throughout holidays and other times of merry-making, law enforcement agencies step up to announce “no refusal weekends” in their jurisdiction.

The legal origins of the no refusal weekend are rooted largely in the implied consent statute promulgated by the Texas Legislature. Section 724.011 of the Texas Transportation Code explains that if a person is arrested for DWI (and a few other related offenses), the person is “deemed to have consented” to the taking of breath or blood by law enforcement personnel. Implied consent stems from the premise that drivers are entering into a contract in which they agree to consent to providing a specimen for law enforcement in exchange for the privilege to drive in Texas.

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Practically speaking, a person arrested for DWI may refuse to provide a blood or breath specimen, which prompts the arresting officer to obtain a search warrant. However, the misconceptions surrounding implied consent very often render an arrested person unaware of his right to refuse. While the Texas Legislature may have had benevolent intentions, they have actually codified the idea that a Texas driver cannot exercise his Fourth or Fifth Amendment rights in the context of this type of arrest.

Building on the implied consent statute, the Texas Legislature has further muddied the water by enacting the so-called mandatory blood draw statutes. The Legislature has found instances in which law enforcement needs trump a person’s Fourth Amendment right to be free from unreasonable search and seizure, and a specimen of breath or blood may be obtained without a search warrant from a person arrested for DWI.

Section 724.012 (b) of the Texas Transportation Code lists these specific situations. Most commonly applied by law enforcement is Section 724.012 (b) (3) that requires the taking of a specimen when the arrested person is a repeat offender and Section 724.012 (b)(1) that speaks to a DWI arrest made as a result of an automobile accident in which someone has been injured and taken to the hospital, has suffered serious bodily injury, or has or is likely to die.

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The United States Supreme Court has begun to dismantle mandatory blood draw statutes throughout the country with their recent decision in Missouri v. McNeely because of the Fourth Amendment implications of forcibly taking a specimen from a person’s body. At this time, Texas courts of appeals are addressing the implications of McNeely, but have not yet found this section of the Texas Transportation Code to be unconstitutional.

DWI, like no other area of criminal law, has sparked the curiosity of the average person – what is the appropriate behavior if one were to be detained or arrested for it? With a loose understanding that police officers can either obtain a search warrant or forcibly take a breath or blood specimen, the average person could consent to waive his constitutional rights without being properly informed. In this environment filled with misconceptions and the feeling that he has no choice in the matter, the arrested person will often fall into the law enforcement trap of voluntarily providing the most damning evidence against himself.

Added to this climate of misconceptions are “no refusal weekends,” wherein the public is told that there can be no refusals to provide blood or breath specimens when arrested for DWI as a result of high incidents of alcohol consumption surrounding holidays. No refusal is a misnomer, however. It is vaguely reported, so as to provide law enforcement an edge in their investigations, and to serve as a possible deterrent for intoxicated people contemplating driving.

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On their website, the National Highway Traffic Safety Administration (NHTSA) outlines the no refusal program, as an “enforcement strategy … [wherein] prosecutors and judges make themselves available to streamline the warrant acquisition process and help build solid cases” against those arrested for DWI. NHTSA acknowledges that the message behind no refusal weekends is propaganda created to make DWI prosecution more efficient and effective. The government is delivering a message to the public that inaccurately reflects their legal rights and adds to the probability that an arrested person will be unable to make an informed, voluntary decision regarding consent to take a breath or blood specimen from him after arrest.

From a standpoint based in the law as well as law enforcement’s application of the law, there is very little stopping police officers from obtaining a specimen of an arrested person’s breath or blood. However, that does not mean that an arrested person should be set up to provide evidence against himself in a manner that is timely and convenient for the arresting officer. An officer can obtain a blood search warrant and, for now, can take a specimen without a warrant in some situations.

When evaluating the state’s case against a defendant charged with DWI, areas capable of providing a defense or raising reasonable doubt can include the protocol that an officer must do properly in order to obtain a blood search warrant, as well as any delay that comes from an arrested person’s refusal to provide a specimen to the arresting officer. Combating the ideas of a strict implied consent or time of no refusal can prove integral to ensuring that citizens charged with DWI put themselves in the best possible position to defend against this charge long before they ever consult with or hire an attorney. Sheridan Lewis

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