The government’s latest campaign against drinking and driving is a program called No Refusal Weekends. No Refusal Weekends is really a deceptive term.
- First, the program runs all the time, not just on the weekends.
- Secondly, just because the government says it is a “No Refusal Weekend” does not mean you do not have the right to refuse any and all testing.
All that No Refusal Weekend means is that if you refuse to take the evidentiary breath test, the officer will apply for a warrant from a judge or magistrate to take a blood sample from you without your permission.
While it is true that most of those warrants are signed, there have been cases throughout the State of Texas where judges or magistrates have held that there was insufficient probable cause to issue a warrant for your blood.
Does it apply to field tests?
The No Refusal Weekend policy only applies to the evidentiary breath test. That is the breath test administered at the police station on an instrument about the size of a typewriter. The machine sits on a desk and has a long tube that comes out the side or back of the machine.
The Field Sobriety Tests are not a part of the No Refusal Weekend policy. The police will not get a warrant that requires you to perform any of the field sobriety tests.
Does it apply to the PBT?
No. A portable breath test is a handheld breath test machine used to help the officer develop probable cause to arrest you. It is supposed to be used to help him confirm his suspicion you are intoxicated. PBT’s are not as scientifically accurate as the evidentiary breath machines – not that those are accurate either.
The PBT program began in the mid-1990’s and has become a standard piece of equipment for officers all over the country. In Texas you are not legally required to submit a breath sample for the PBT because the Implied Consent law does not apply to the PBT. The No Refusal Weekend policy only applies to the evidentiary breath test.
In order to get a warrant to draw your blood the officer will have to demonstrate to the judge or magistrate that he has probable cause to believe you were driving while intoxicated. If the officer gets a warrant to draw your blood you must submit to that test. A warrant is an order by a judge, and you have to follow the judge’s orders.
Even if you refuse, the officer will hold you down while someone forcibly takes your blood. Just because the State gets a warrant and draws your blood does not mean that blood sample or the test results of that sample will be admitted into evidence against you.
There are many defenses to a warrant.
If the officer misstated evidence, left essential information out the warrant application, or otherwise failed to be fully honest with the court, the results of your blood test can be suppressed.
Breath Instead of Blood Test
If the officer gets a warrant to draw your blood you will not be allowed to provide a sample of your breath instead of a blood sample. A warrant is an order from a judge or magistrate and the officer does not have the right to change that order. He must do what the judge’s order tells him to do.
If you refuse to take the breath test and the officer then goes to get a warrant for your blood sample you will still face the penalties for a sobriety test refusal. The purpose of the Implied Consent law is to coerce people to submit to the officer’s request for a breath test. Since you refused, the State will attempt to impose the refusal consequences on you even though they eventually took a sample of your blood.