Category Archives: Falsely Accused or Overturned Convictions

DWI No Refusals

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In Texas, holiday weekends have been renamed “No Refusal Weekends”. This program has been designed in a cooperative effort between judges, prosecutors, and the police, usually observed and sometimes funded by MADD. All in an effort to convict you of a DWI (Texas) whether you deserve it or not. Local police departments and sheriff departments may announce a no refusal weekend, but you can count on all of the following as being designated a no refusal weekend:

Memorial Day Weekend,

Fourth of July Weekend,

Labor Day Weekend,

Halloween and Thanksgiving weekend through Christmas and New Years eve.

If you have only one or two drinks at a holiday party in Houston, Texas, for example, and you are stopped for an innocent traffic violation, then it is likely that you will be arrested and your blood will be forcibly taken from you.

If you do not fall within one of the statutorily created “NO REFUSAL” exceptions to reasonable searches and seizures guaranteed to you by the 4th Amendment, and which are set forth in Texas Transportation Code §724.012, then the police will seek a search warrant to take your blood.

When the police get the search warrant for your blood, and if you then do not cooperate in the taking of your blood, your blood will be forcibly taken from you by the police.

So what can you do after being arrested during a NO Refusal Weekend?

  1. Hire an experience criminal defense attorney IMMEDIATELY.  Some of your rights are time sensitive.  For example the request for a hearing to protect your driver’s license must be made within 15 days of your arrest.
  2. Be prepared to hire a toxicologist or blood expert to combat the blood test results and place questions in the juror’s mind about the reliability of the results.
  3. You will be going to trial.  Unless you can accept the conditions and limitations probation will place upon you know that this case will not likely be dismissed or reduced and you will need to begin to prepare for trial with your attorney.   This included interviewing all witnesses to your drinking that night and committing these witnesses to testify on your behalf in a jury trial.

 

Refusals and blood tests can be defeated in trial but obviously it is easier to fight a DWI with no breath or blood tests.  In addition many jurors trust blood results more than the breath machines used throughout the state.   Get a driver or friend who doesn’t drink on holiday weekends so that the price of one night of fun won’t haunt you for a lifetime.

Search and Seizure

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Compare two cases on “what’s a stop”:

“Invs. Concepcion and Dodaro merely parked alongside Mr. Alexander’s car, walked to each side of the car, and asked Messrs. Frails and Alexander routine questions about their presence in the neighborhood. It is undisputed that the time between parking the patrol car and approaching Mr. Alexander’s car was very brief, the suspects had their windows down, the investigators did not draw their weapons, did not ask for identification, and did not give any directions to Mr. Alexander or Mr. Frails during the initial part of the encounter. [¶] Police action such as this is insufficient to establish a Fourth Amendment seizure.” United States v. Alexander, 2013 U.S. Dist. LEXIS 176920 (S.D. Ga. October 18, 2013).*

Defendant was stopped without reasonable suspicion: United States v. Garner, 2013 U.S. Dist. LEXIS 175962 (D. Nev. October 22, 2013)*:

In this case, the government’s written motion argues that Bowman’s attempt to approach and question Garner did not constitute a seizure. The government relies on a line of cases in which the Supreme Court has held that police questioning alone does not constitute a seizure. See, e.g., Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality opinion). It is clear, and the court finds, that this was not a consensual encounter. Bowman and Valle were shining their patrol vehicle spotlight down the alley and focused on Garner when they observed him seated in his car. The spotlight remained on him while the officers immediately pulled their patrol car to the front of Gardner’s vehicle parking at an angle near the front headlight of Garner’s vehicle. The officers activated the patrol vehicle’s emergency lights and immediately got out of the vehicle approaching Garner’s vehicle on both sides. Although both officers testified Garner’s vehicle was not completely blocked in by the patrol vehicle, both acknowledged that Garner would have had to maneuver his own vehicle to get around the patrol car. More importantly, both Bowman and Valle testified that from the point of the initial encounter, Garner was not free to ignore the police presence and go about his business. Rather, both Bowman and Valle acknowledged that Garner was being detained. Bowman testified that Garner was not free to leave and that he was being detained until Bowman made contact with him. Valle also testified that from the point the patrol car pulled up at an angle near the front headlight of Garner’s vehicle, Garner was not free to leave. The court finds that Garner was seized in an investigatory detention.

 

The law is very clear.  While the police can do a quick investigative stop on a vehicle or person and request a name, the police cannot SEARCH you, your car or your purse without probable cause.  You do NOT have to agree.  When a stop happens, be polite but be aware of YOUR rights.  Politely say, “I do not agree or give consent to any search of my person or property and would like to call my attorney.” 

If you use this language the police cannot misunderstand or later claim you gave consent.  It doesn’t matter that you don’t have a personal attorney.  It is the request that gives rise to the right.  The police must stop questioning you at this point unless they have probable cause to believe a crime has occurred or see contraband in plain view. 

Which gives rise to another issue, don’t leave your “drugs, guns or contraband” in plain view.  If you must carry those items in the car (which sets you up for arrest and detention) place them in your trunk and obey all traffic laws!

But mainly know your RIGHTS.  SAY, “NO” TO REQUESTS FOR SEARCH!

What is a No Refusal Weekend?

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TEXAS DRUNK DRIVING NO-REFUSAL WEEKENDS


keyUnfortunately, Texas has some of the worst statistics when it comes to DWI fatalities. There are laws in place to prevent intoxicated driving and to punish those involved. But these laws are only somewhat successful in limiting the number of deaths on Texas roads. Due to the popularity of many crime dramas on television, jurors’ perception of what’s required for sentencing is often skewed. This inappropriate application of the burden of proof, combined all too often with a suspect’s refusal to submit to a scientific or chemical sample, has presented a significant problem for law enforcement.

To combat these issues, police departments across the state have begun instituting “no-refusal weekends” — a program that allows law enforcement to collect a blood sample from people pulled over for suspected DWI regardless of whether the individual refuses testing. In Texas, all drivers are considered to have given implied consent to provide a breath or blood sample if an officer is lawfully requesting it during a DWI stop. Despite that fact, roughly half of all suspects still refuse.

During a no-refusal weekend, if you are suspected of DWI and you refuse to provide a breath sample, you will be forcibly made to provide a blood sample by means of a streamlined process set up to ensure accuracy and admissibility of the evidence in court. Without the program, an arresting officer must take a DWI suspect to a separate locale and await approval of a warrant to obtain a blood sample. During a no-refusal weekend, this process is condensed. At a central location, a suspect is processed for arrest, has a warrant drawn up by prosecutors and reviewed and approved by a judge, and goes through the blood collection process with a nurse — all while being videotaped to ensure that evidence is preserved and accurately depicted for a later court date.

Due to the higher number of impaired drivers on the road during holiday weekends, the first no-refusal weekend took place during Memorial Day weekend in 2007. Many impaired drivers went through the program — including 12 who went through the entire “blood warrant” process. Of those 12, 11 were above the statutory blood-alcohol limit in Texas. The evidence collected exonerated the other remaining person.

DWI Trial

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This week I tried a DWI refusal. The case was 3 1/2 years old and was tried several years ago by another attorney and the client was unfortunately convicted. 3 1/2 years later the case is back in the trial court in Tarrant County after an appeal resulted in a new trial.

Three officers testified which is difficult in a refusal case. In many cases there is only the opinion testimony of one officer. In this case three testified as to my client’s intoxication.

What can you possibly do to combat this amount of opinion testimony?

1. You do NOT attack the cop. That will get you no where with the jury especially if the officer(s) are likable and come across as credible.

2. Question the memory of the witnesses and call their “opinion,” not their character into question.

3. Elicit sympathy by calling witnesses to introduce your client to the jury. Whether by having your client testify or calling friends who were present at the offense, make sure you give the jury an opportunity to get to know your client.

4. Because a refusal case involves no “scientific” evidence you must create sympathy which will make the jury hesitant to convict. In a case with no victim and no science and a likable client, the jury will be hesitant to convict.

This case resulted in a hung jury which was miraculous as the video was not good for my client. The key to this case and so many others is presenting a sympathetic client. Allow the jury to get to know your client as a human and not just a defendant.

Certifications

10.0Katheryn H. Haywood
Katheryn H. HaywoodReviewsout of reviews