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Keith,

Then they are getting away with writing their own law. The section of 724.012 you reference actually lists three specific exceptions where taking is required. One is for an accident with injuries requiring transportation to a hospital, one is for previous convictions, and one is if there was a child passenger. In those cases, the required part is clear and we have long had mandatory blood draws for fatality accidents. Those I don't question at all.

But the no refusal for a first time straight DWI charge certainly looks illegal to me.

Of course, I will never have to worry about it since I don't drink, and if I decide to get back on patrol, I would certainly not use mandatory blood draws without a fatality involved. And I am not sure if I need it even then. I have a general faith that this group would not need to worry about this also, other than as an academic discussion.

Keith B wrote:

srothstein wrote:Yep, they sure have. It is apparently a standard tactic for the defense on no refusal. The last time I was called for jury duty it was on a mandatory blood draw DWI and in the Voir Dire the defense attorney was pushing the Transportation Code allowance of refusal. I was not chosen for the jury (previous law enforcement got me thrown out I am sure), but the attorney was hitting me hard with questions trying to feel me out about the fact that there was a conflict in the law and what they were forcing. I checked the court records later and saw that he was found guilty by the jury.

I knew they had tried the argument that the draw was illegal. I was wondering how the courts could ignore that law and allow the illegally obtained evidence. Obviously, they did in the case you cited. It might take the right case where someone wants to fight it all the way up to the Court of Criminal Appeals or even federal court. In a straight DWI first offense, they rarely go that high on defense. Some of the exceptions to the don't take blood law are prior convictions and caused serious injury.

The duress defense is slightly different. This is when someone consents to the breath test and then says he only consented because the police threatened to get a warrant and force blood. It is well settled law that a consent to search obtained under the threat of a warrant is invalid due to the duress. I am not aware of any defense attorneys that have tried this tactic to get the breath test thrown out, ruining most cases that are marginal.

As you pointed out, in the serious cases, I can make it stand without blood or breath. I had one where I did not even do the feild sobriety tests and when i was asked about it on the stand, I said he was so drunk I did not need them to make up my mind. It was a kind of ooops moment for the defense.

seamusTX wrote:Y'all do know this is a "zero tolerance/no refusal" weekend, right?

Every time I read about no refusal, I wonder how they get around the Transportation Code ban on this. Section 724.013 says:

Sec. 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.

I also wonder if anyone who has consented has raised a duress defense to get the test thrown out.