The Galveston County Criminal District Attorney’s Office announced that its office will be working with law enforcement in Galveston County in sponsoring a “no-refusal” operation during the weekends of Mardi Gras.
In Texas, anyone driving with a blood alcohol content (BAC) of .08 grams per deciliter or higher is considered legally impaired under DWI statutes. Under the no-refusal program, law enforcement may seek blood search warrants for offenders arrested for DWI and who refuse an officer’s request for testing.
The program will employ prosecutors and nurses to work through the night to assist law enforcement with the investigations. Local judges will be on hand to make probable cause determinations and to authorize the blood search warrants.
Right to Refusal
Ordinarily, Texas law requires individuals to take a blood or breath test in order to be charged with DWI. Texas’ “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving or boating while intoxicated, then you consent to taking one or more chemical tests of your blood or breath for the purpose of determining your BAC.
Although DWI is an implied consent offense, you do, however, have a right to refuse the testing of your breath or blood. If you refuse, there is an automatic revocation of your license for 180 days on a first offense. You will, however, receive a temporary permit that is valid for 41 days. If you want to challenge the suspension of your license, you may do so within the first 15 days. At a hearing challenging the suspension, to have your license reinstated it must be proven that the officer did not have a reasonable belief that you had driven drunk or that you did not actually refuse the test.
NOTE TO SELF: YOU ALSO HAVE THE RIGHT TO REFUSE ALL TESTS AND ALL QUESTIONS, DON’T EVER DO THERE TESTS…
Generally, an officer cannot make you take a test if you refuse. There are exceptions to this rule. It used to be that law enforcement required you to take a test if your current arrest involved an accident where someone else was seriously injured or killed.
They also required you to take a test if you have had two prior DWI convictions or if you have had only one prior DWI conviction but there had been a child in the car, or someone was seriously injured or killed. But after much work on finally on appeal to United States Supreme Court in a case simply referred to as McNeely an end was put to all that illegal nonsense that was being pulled by law enforcement and the Forth Amendment applies to blood draws just like any other search and requires a warrant or consent.
Galveston County District Attorney’s office was probably one of the last District Attorney’s offices to grasp the McNeely issues and the ruling handed down in Missouri v. McNeely. Actually until very late in 2014 I still had several cases on appeal where the Galveston County District Attorney’s office was fighting for illegally obtained blood. Ridiculous. I blame it all on Jack Roady, the elected District Attorney. Remember the saying, if you want to kill an evil snake you have to cut off it heads. Bad leadership makes for a bad office. Brazoria County and Harris County didn’t have these problems…..go figure!
Seek an Experienced Attorney
If you are charged with an implied consent offense and you have refusal issues, you have rights prior to your criminal hearing. Even if the Galveston DA still doesn’t grasp McNeely, we do! Contact The Law Offices of Tad Nelson & Associates and let us challenge your license suspension and defend your case. Attorney Tad Nelson is a board certified criminal lawyer. His experience and knowledge can help your case.
