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Major DWI Decision

July 14, 2016 By Jeff King

Know Your Rights: Major DWI Opinion Issued By Supreme Court

Significant changes are afoot in the most frequently contested area of criminal law:  DWI/DUI.

To Blow or Not To Blow, That Is One of the Questions


My wife and I are fond of our front porch.  Occasionally after putting our daughter to bed, we’ll settle into our plastic outdoor chairs, turn on some Prime Country on XM radio (if I win the coin flip), and open a bottle of wine.  Then, in the immortal words of Lloyd Christmas, “neighbors flock like the Salmon of Capistrano.”  We’re very lucky to have awesome neighbors and always have a couple extra glasses on hand.  Consistent with lawyers per capita in Texas, several of my neighbors are attorneys–though none practice in the trenches of criminal law.  Last week, all eyes were on me when one of my lawyer friends (importantly, a brilliant attorney in a different practice area) asked, “so if I got pulled over, do I blow or not?  What about a blood test?  Can I refuse that?”  And scene…

First, regardless of the ebb and flow with DWI law in these recent Supreme Court decision, my advice will always be to refuse both for the simple reason that it is more difficult to prosecute these cases without physical evidence, i.e., your blood alcohol content (BAC).

Birchfield v. North Dakota


Those involved in defending DWI cases throughout the country anxiously awaited the decision by the Supreme Court in Birchfield v. North Dakota. The case, decided in June, will shape DWI defense strategies and public policies in a big way going forward. The case was somewhat of a surprise and ended in a split decision with two major holdings.
In this case, the Supremes were tasked with deciding whether a state could penalize a person for choosing not to take a blood test or breathalyzer in connection with a DWI investigation. Some states, like North Dakota, made it a crime for a person to refuse to take a blood test when the police had probable cause to believe the person was drinking and driving.

Missouri v. McNeely – Blood Test Decision


Many prognosticators of Supreme Court Decisions felt like this case would be an easy decision for the court, given recent precedent. In a recently decided case by the Supreme Court, Missouri v. McNeely, the court held that in most cases it is unconstitutional for the police to take a blood test without a warrant. It followed, then, that a state could not penalize a person for exercising that right of forcing the police to get a warrant to draw blood. But the question remained whether the court would treat breathalyzers in the same way.

Court’s Ruling


DWI: Blood Test


In one of their rulings, the court upheld the standard for blood draws. Meaning that the police are required to obtain a warrant before taking a blood sample from a DWI suspect. But there are some exceptions to that standard.  For example, when there are extenuating circumstances that make it too difficult for the police to get a warrant (note: in most jurisdictions, including Dallas, there is a duty magistrate that is available 24/7 specifically to issue probable cause warrants).  So barring special circumstances, a state cannot punish a suspect for exercising their right to demand a warrant.

DWI: Breathalyzers


Breathalyzers did not get the same treatment as blood draws, however. In the decision, the court held that the police can force a DWI suspect to take a breathalyzer test without a warrant. This represents a major development in the law, where it was never clear whether forced breathalyzers fell within the bounds the constitution.
The court rested its decision to grant police the right to obtain a breathalyzer test without a warrant on several reasons. Chief among them was the justification that a breath test is much less invasive than a blood test, since it only requires the testee to blow into a small box. But some are questioning that reasoning because while the act may not be invasive, the information that is collected as a result penetrates very personal details about a person’s DNA, drinking past, and other fact.

Impact on Texas DWI Laws


Texas Law: Blood Test Requires a Warrant


The impact on Texas DWI laws is not yet clear, but the police will continue to be required to obtain warrants to take blood draws in connection with a DWI investigation. Currently a driver suspected of DWI can refuse to take a breathalyzer test, but will have their driver’s license suspended as a result. It is not clear whether the Texas legislature will change the law in the future, requiring drivers to take breathalyzers when police suspect them of DWI.  Regardless, most defense attorneys (including this one) will strongly advise against allowing BAC to be tested.  It is very difficult for the prosecution to build a case against you without physical evidence.
When a major decision such as this one is ruled on by the Court, it takes years for the different applications and nuances of the ruling to make its full impact. Having the right criminal defense attorney on your side to ensure you take full advantage this opinion. Contact The Law Office of Jeffery King today.

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