I am Carl David Ceder, I am Board Certified in Criminal Law by the Texas Legal Specialization – and I am passionate about trying to educate the public on what YOUR RIGHTS ARE WHEN DEALING WITH THE POLICE.
A question I am frequently asked is – “What exactly DOES a ‘NO REFUSAL WEEKEND’ mean? A huge misconception exists between what the law actually states, and what public perception actually is.
“A No Refusal Weekend” simply is a local policy that a certain police department may announce to the general public (on the news, on the radio, etc.) that they are employing a policy, during a certain time interval– usually on major holidays – whereby if someone is arrested during this time period for a charge of Driving While Intoxicated – if the person refuses to give a chemical specimen of their breath or blood – the officers must instead have to proceed with obtaining a search warrant to be a signed by a magistrate Judge that will allow for the collection of a blood sample. It does NOT, HOWEVER, take away the ability for the citizen accused from exercising their right to refuse to give a voluntary sample.
There is a very common, and strong, misconception on what "No-Refusal" weekends entail. It is important for people to understand their rights, and what exactly a "No-Refusal" weekend actually is.
What “No Refusal” DOES NOT Mean…is that a person IS FORCED to give up any of their constitutional and/or statutory rights, including their right to refuse to voluntarily give a chemical specimen of breath or blood following an arrest for DWI. Usually, it just means a specific police department will have the proper protocol in place, usually in order to encourage and PRESSURE an individual into giving their consent. All it means, simply put, is they usually will have the required mechanism in place, so to speak, in order to expedite the process to make it a bit quicker. Usually it only means they may have a Judge on hand ready to sign a search warrant when presented (instead of having to find one that is available and not asleep), a phlebotomist (or another qualified technician) available to draw the blood after the search warrant is signed (rather than actually have to transport someone to a hospital to find a nurse to facilitate the blood draw procedure).
IT DOES NOT, HOWEVER, OBVIATE WITH WHAT IS REQUIRED BY LAW. Even during a “No Refusal” period – an individual CAN AND SHOULD STILL decline to give a chemical specimen.
Because of this prevailing myth and how far it has propagated over the years - it has resulted in how most people now believe they MUST give a breath or blood sample when asked by a police officer after they are already under arrest – … all because they have heard somewhere of the “No Refusal” policy. Very often is the case now the citizen accused simply agrees to voluntarily give a chemical specimen of breath or blood – simply because they THINK THEY ARE REQUIRED TO BY LAW. THIS IS NOT THE CASE.
If you are arrested for DWI, regardless of if it is a “No Refusal” period or not – YOU ALWAYS HAVE THE RIGHT TO DECLINE TO GIVE A VOLUNTARY CHEMICAL SPECIMEN. Do not be erroneously led to believe that just because whatever you have heard on the news about “No Refusals” – you do not have a decision in the matter, and therefore will be forced to give a sample REGARDLESS. Many individuals now, which was not the case years ago, agree to voluntarily give a sample of their breath, ONLY because they mistakenly understood the law about their right to REFUSE. SO - Be educated about the process!
In fact, one CAN – AND….SHOULD REFUSE TO GIVE A CHEMICAL SPECIMEN OF BREATH OR BLOOD if arrested for a DWI. The law states that one can choose to NOT give a voluntary chemical specimen of breath or blood. “NO refusal” weekend or not – the law and procedure that must take place is still the same. Recent Texas and United States Supreme Court cases have mandated that - without proper exigent circumstances - a police officer MUST OBTAIN A SEARCH WARRANT if an individual DOES NOT voluntarily consent to give a chemical specimen.
There are a myriad of reasons for why one should exercise their right – and “CHOOSE TO REFUSE.” One reason is the very real and distinct possibility that some error may occur in the legal process of obtaining a search warrant. Another possibility is that all of the requisite legal items that are necessary to properly obtain a search warrant may not be able to be achieved.
If a search warrant is obtained, do not argue with an officer, be polite, and strictly maintain that you are not giving your consent voluntarily. If they do obtain a search warrant, the reality is that it will take significantly longer – and it may be as long as a couple, or even a few hours before they legally obtain everything required before the blood draw is to take place. During this time period, usually alcohol will eliminate from your system, and in all likelihood – your “BAC” – your “Blood-Alcohol Content” Level will be lower than at this point, compared to if you had just given your consent voluntary initially. If they do get a search warrant, an experienced DWI attorney can examine its contents to scrutinize if it meets proper legal standards. If all necessary and legal requirements are NOT MET, the search warrant can be attacked in court.
Thus, if you find yourself in this position – please be informed of exactly what a “No Refusal Weekend” or a “No Refusal Policy” entails before voluntarily giving a chemical specimen. Do not do the job of the police officers for them. You have rights, and it is within your power to assert them.
There is no statute mandated by the Texas Legislature that permits, by law, any police department to implement a "No-Refusal" policy. In actuality, all a "No-Refusal" weekend usually relates to a specific police department to obtain a search warrant for the taking of a blood sample, if an arrested driver does not "consent" to a chemical specimen. In these cases, it is very common for a magistrate or a judge to actually be at the jail, so when the arresting officer writes and submits an affidavit for a search warrant for the taking of a blood specimen, it is much easier for them to accomplish. If not, is sometimes difficult for arresting officers to find a proper magistrate or judge to sign a search warrant.
If this is the case, the police department will usually have a "qualified technician" - usually a phlebotomist, at the station to obtain the blood specimen once a search warrant is obtained. To be properly qualified to obtain a blood specimen, one has to be a qualified technician according to Section 724.017 of the Texas Transportation Code.
***It is important to realize that just because there is a "No-Refusal" weekend in place on any given day, weekend, or holiday - DOES NOT MEAN YOU HAVE TO CONSENT TO ANY STANDARDIZED FIELD SOBRIETY TESTS OR TO THE TAKING OF ANY CHEMICAL SPECIMEN. It is merely a policy, as stated above, by the police department to obtain a search warrant for the taking of a blood sample if an individual does refuse. It simply streamlines the system for them to make the process easier (as opposed to a person being taken to a hospital for a blood draw). YOU SHOULD STILL REFUSE, REGARDLESS OF A "NO-REFUSAL" policy.
NO-REFUSAL WEEKEND POLICIES
There are certain days in Texas, usually holidays, which have been designated by an alliance of MADD representatives, police departments, judges and District Attorneys as "No Refusal Weekends." This means on days such as the 4th of July, Halloween, Christmas, Memorial Day, New Year’s and Thanksgiving you could be arrested and have a blood test obtained regardless if you consent, and it will be taken regardless of your decision if you indeed refuse to the taking of a chemical specimen. If you do refuse and have been placed under arrest, the arresting officer usually will obtain a search warrant for your blood in order to help gather evidence in order to assist with trying to obtain a conviction against you.
Therefore, if you are driving on a Texas roadway during a "No-Refusal" Weekend and if you have been pulled over and have had something to drink, the chances of being arrested are extremely high. A simple traffic stop could result in a DWI arrest for any individual. If you plan to relax and celebrate with family and friends during one of the "No-Refusal" Weekends, be sure you have 214.702.CARL(2275) or 469.2000.DWI(394) saved into your phone.
I am Carl David Ceder, I am Board Certified in Criminal Law by the Texas Legal Specialization – and I am passionate about trying to educate the general public about what YOUR RIGHTS ARE WHEN DEALING WITH THE POLICE. Therefore, always “CHOOSE TO REFUSE – even if it is “No Refusal” weekend.
You can contact The Law Offices of Carl David Ceder at any time for assistance at 214.702.CARL(2275) or at 469.2000.DWI(394). You can also e-mail Carl directly, at [email protected]; or to the office for general inquiries at [email protected] Phones should be answered 24 hours a day/7 days a week for immediate and personal assistance.