DWI Stops & Testing: No Refusal in Harris County

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What Does No Refusal Mean? Throughout the past few years, Harris County has experimented with “no refusal” weekends, and “no refusal” on special holidays when it is expected there will be more inebriated drivers on the roads. No refusal refers to implied consent laws which are in place in every state, including Texas. Under implied consent, motorists automatically give consent to alcohol testing when they receive their drivers’ license. If a driver is suspected of driving while intoxicated, he or she may be asked to take a breathalyzer test as a method of determining BAC. Those whose BAC is 0.08 percent, or more will face DWI charges, and those who refuse blood alcohol testing in the state of Texas will automatically have their driver’s license suspended for 180 days—regardless of the outcome of the DWI trial.

Under no refusal, if a driver refuses to submit to a BAC test, the police officer can obtain an electronic warrant which allows the use of force to obtain a blood sample from the suspect. While you could technically refuse a court-ordered blood test, serious consequences could result from such a refusal. In other words, while the law does not change from day to day, the difference on no-refusal weekends is that the warrant for a blood sample is obtained much more quickly—and during a no-refusal period, the officer requesting a blood sample will likely be granted a warrant any time a person refuses a test. And, once that warrant is received, you could be criminally charged for refusing a blood test. That would leave you open for the original DWI charges, as well as a criminal charge for refusing the blood test.

Is No Refusal Constitutional? Since the no refusal times are deemed to be in the interests of protecting public safety, it is therefore assumed that there is no constitutional violation of the driver’s protections against unreasonable search and seizure. So, in the past, Harris County has implemented no-refusal weekends during special times—i.e., high risk weekends—making the procedure fairly common, but also limited. Harris County is now expanding their program beyond these special weekends—in fact, the program is being expanded beyond weekends altogether, becoming a full-time policy. Apparently, the Houston Police Officer’s Union has had some mixed thoughts about the change in policy, although overall, the agency supports the idea. The idea seems to be that there are misgivings in the department regarding how much time each officer will spend dealing solely with DWI, and whether that time spent on DWIs will cause investigations into other crimes suffer.

A blood test is, by far, the most accurate between blood and breath tests, with that accuracy being reflected in the conviction rate for blood test cases—in many jurisdictions the rate of conviction for blood test DWI cases is more than 95 percent because blood testing does not have many of the issues that breath testing can have. Obviously, a blood test is much more invasive than a breath test. A mandated blood test results in a stranger forcibly taking blood from your body, while a breath test allows you to voluntarily blow into a tube. Another issue in the blood/breath testing arena is that a blood sample is preserved, meaning DNA of the suspect is now on file. This does not occur with a breath test.  

Challenging a Blood Test vs. Challenging a Breath Test - Blood tests tend to be highly accurate, making the results of a blood test much more difficult to challenge. The suspect does have the right to have their blood re-tested in another lab, with another lab, with another doctor, and sometimes an independent test could result in different results than the blood test taken by the police.  An attorney may be able to challenge the chain of command in a blood test, but the results of the blood test can rarely be challenged. On the other hand, there are a number of challenges for a breathalyzer test, such as:

Problems with Harris County Breathalyzer Tests - There are a number of problems associated with Harris County Breathalyzer tests which can potentially work in your favor. The Intoxilyzer 9000 is generally used in the state and bases its results on the absorption of infrared light as it searches for the presence—and amount—of alcohol in your breath. Factors which can render the results of the Intoxilyzer unreliable, include the following:

  • The breathalyzer machine assumes the alcohol in your breath is equal to that in your blood—a potentially unreliable assumption;
  • The temperature of your breath makes a difference in your BAC reading—the warmer your breath, the higher your BAC reading;
  • Shallow breathers may have a breathalyzer reading of up to 20 percent higher than the actual BAC;
  • Breathalyzers are calibrated for a “normal” male, meaning a smaller man or a woman can have a falsely high reading;
  • Specific medications can result in a falsely high BAC result;
  • Your individual health can affect the BAC result;
  • Being on the Keto diet can result in a falsely high Bac result;
  • If you work as a painter who spends time in a poorly ventilated area, your BAC results can be affected;
  • The breathalyzer machine could be improperly maintained or improperly calibrated;
  • The officer administering the test could be improperly trained;
  • The officer may not have waited the required 15 minutes prior to administering the breathalyzer test, or
  • A clean mouthpiece might not have been used.

Getting the Help You Need from a Houston Sullo & Sullo DWI Attorney - As you can see, there are potentially many more challenges for a breathalyzer test than for a blood test. This means that it could be a better idea to submit to a breathalyzer test than to have a no refusal blood test administered. Either way, it is always a good idea to speak to an experienced Sullo & Sullo Harris County DWI attorney after being charged with a Houston DWI. There are many different issues your DWI attorney could potentially challenge, resulting in a much better outcome for your DWI charges. Contact a Sullo & Sullo Harris County DWI attorney today for experienced, knowledgeable help with your DWI charges.

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