Let's start with the background. Law enforcement have had the ability to obtain a "mandatory blood draw" by law in several areas. One of our laws provide that if a person is suspected of driving while intoxicated in Lubbock or any place in Texas and is arrested and if that person caused an accident that resulted in either death, fear of death or serious bodily injury to another person then law enforcement can have a qualified medical person take the arrested person's blood. However, if there is no accident with serious bodily injury or death and a person refuses a breath test then the law says no sample SHALL be taken.
Then in 2002 the Texas Court of Criminal Appeals decided the case of Beeman v. State and said that the law of no sample shall be taken does not prevent the government from seeking a search warrant under the Fourth Amendment search and seizure law.
"The prosecutors in various jurisdictions and now Lubbock are trying to use that case, set up a no refusal weekend, that type of thing, and so they got warrants, stuck a needle in somebody's arm and drew blood," Lubbock Criminal Law Attorney Stephen Hamilton said.
Hamilton is against the blood search warrant program.
"You have an absolute right to refuse to give a breath sample. What the D.A.'s office has done, through the case law, is say well that doesn't prevent us from going forward attempting to get a warrant to take somebody's blood," Hamilton said.
"That's incorrect," Brummett said.
He says once you get behind the wheel on a Texas roadway, you give authorities implied consent. It's written in the Texas Transportation Code.
"There's not a right not to give a breath test. If that was so, we couldn't bring it up in trial as evidence against you, and we're allowed to do that. You also couldn't face a penalty for doing that, and right now the penalty for not providing a breath sample is a suspension of your license for six months. If you had a right not to give that, they couldn't take away your driver's license," Brummett said.
As you can see from part of the article, the District Attorney's office believes that you cannot refuse to give a breath test!!!! Really, well I wonder why then in EVERY dwi arrest that does not involve an accident that the police REQUEST not demand a breath sample. I wonder why the statutory warning says the police are now REQUESTING a sample of your breath.
As I said I will have lots to say on this and why the above statement from Mr. Brummett is absolutely wrong in the next few posts.
Here is the link to the story
Lubbock DWI Blood Draws
