January 1, 2014
by David Nachtigall
For years, Harris County has been performing mandatory blood draws on drivers suspected of DWI who refuse to agree to a breath test. Termed “no refusal”, the policy was initially limited to holidays and times of increased risk of DWI, but has more recently been expanded to effectively include all DWI arrests.
The usual course of enforcement is: (1) a driver is pulled over and suspected of DWI by an officer based on observations (alcohol on breath, bloodshot eyes, etc.) and possibly field sobriety tests; (2) the officer arrests the driver and transports him or her to a police station to a take a breath test; (3) the driver is offered the opportunity to take a breath test and declines; (4) a prosecutor drafts a search warrant for the driver’s blood based on the officer’s observations; (5) a judge or magistrate signs the warrant; and (6) a nurse or individual statutorily qualified to draw blood draws a blood sample from the driver. If the driver refuses to submit to the taking of a blood sample after a warrant has been signed, he or she will be restrained, and a law enforcement agent will take a blood sample.
Texas law defines the instances in which a driver’s blood may be taken. These include felony DWIs (a DWI arrest after two or more convictions for DWI) and DWIs that involve injury. Texas statutes do not permit the taking of a blood specimen solely on the basis of a breath test refusal. District Attorneys’ offices who have instituted no-refusal programs have effectively created new law by mandating a blood test when a driver refuses a breath test.
If you are facing a no-refusal DWI charge, contact a Houston DWI defense lawyer as soon as possible.