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No Refusal DWI Laws


Fivehead

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AB, you're still not understanding the statute you posted. That gives police officers the right to take blood WITHOUT a warrant. Those are very narrow circumstances indeed, and for a reason. Any other time I would need a search warrant to search for evidence. Under that statute, it allows me to take it without a search warrant.

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BTW, the image of jack-booted thugs wearing badges is furthered by comments made by Five0 in this and other forums regarding use of force, and his enjoyment thereof. If you would like, I can quote one from another forum where he was expressing great enthusiasm in using force, and the promise to do it to those of us who might find ourselves in a compromising situation in his jurisdiction.

 

 

If I need to use force, then I will. Just like if you need to use an axe to enter a building, you will do so. I will do what I need to do to do my job, and you will do what you need to do to do yours. How 'bout that? I'm curious as to what posts you might be talking about. Go ahead and post them. I've never broken the law during the course of my duty, so it would be impossible for you to prove otherwise. I assume you're talking about me laughing at the guy while having to drag him into the hospital for a blood draw. It was funny because of the way he was acting, not because I was "getting" to drag him around.

 

As for your question about the DNA. It was a mistype on my behalf. I meant to compare DNA for a semen specimen that had been found.

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AB, you're still not understanding the statute you posted. That gives police officers the right to take blood WITHOUT a warrant. Those are very narrow circumstances indeed, and for a reason. Any other time I would need a search warrant to search for evidence. Under that statute, it allows me to take it without a search warrant.

Why would you think I don't understand the statute?. § 724.012 and § 724.013 point out when a peace officer may take samples. I do understand that if the criteria is met, a search warrant is not required. It ain't rocket science.

 

The statute also points out explictly the cases where the state is not permitted to take samples. This was legislated and signed into law.

 

The blood warrants are specifically to bypass this statute.

 

Art. 18.02 points out specifically when a search warrant may be issued. This was also passed into law by the legislature.

 

No part of Art. 18.02 applies to blood or alcohol in blood with the possible exception of part (10).

 

Art. 18.02. GROUNDS FOR ISSUANCE. A search warrant may be

issued to search for and seize:

...

(10) property or items, except the personal writings by the

accused, constituting evidence of an offense or constituting

evidence tending to show that a particular person committed an

offense;

 

There are reasons this probably shouldn't apply. First, I believe the reason for that part was to restrict the ability of the state to aquire testimony through writing not granted by the suspect. Second, Art. 18.02 defines when it's permissible to issue a warrant and what its's for. The warrant is to "search for and to seize" something. If the search warrant is for blood, then neither the police officer or the judge signing the warrant are dealing in good faith. Everyone knows there's blood in there, and to sign a warrant to search for it, a completely legal substance, is not reasonable or responsible.

 

Issuing a warrant for the alcohol has some issues too. The alcohol may not be present. If you seize blood, and the alcohol is not there, the warrant was used to take something not covered by the warrant, litterally at gunpoint. Not good if you're trying not to look like a jack booted thug. This is possible because the peace officer is not actually searching before seizing. Instead, the state seizes and then searches. And because of the nature of the act, it can't be undone.

 

The courts have apparently now concluded that the purpose of part (10)was to allow the state to require forfeiture of living tissue. And as I wrote earlier, if it can be construed to mean blood, it can be construed to mean some other non-vital part of a suspect's body. The courts could request the legistature to clarify, but I get the idea that they really don't want this clarified.

 

Finally, regardless of Art. 18.02, the Constitution of the State of Texas, Article 1 (Bill of Rights) is a little more pointed.

 

Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all

criminal prosecutions the accused shall have a speedy public trial

by an impartial jury. He shall have the right to demand the nature

and cause of the accusation against him, and to have a copy thereof.

He shall not be compelled to give evidence against himself,...

 

Please notice, this is not testimony, but evidence. The courts, prosecutors, and the police are violating the Texas Constitution by forcing suspects to give evidence against themselves.

 

Or am I misunderstanding that as well?

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Yes, blood is a completely legal substance. So is a knife, but to go in your house to search for it would require your permission or a search warrant. You're still not correct on this. You may disagree with the law. Heck, I don't agree with some laws, but those are just our opinions.

 

Yes, you are misunderstanding that as well. Section 10 deals soley with the trial of the accused. He is not required to show evidence against himself.

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Yes, blood is a completely legal substance. So is a knife, but to go in your house to search for it would require your permission or a search warrant. You're still not correct on this. You may disagree with the law. Heck, I don't agree with some laws, but those are just our opinions.

 

Yes, you are misunderstanding that as well. Section 10 deals soley with the trial of the accused. He is not required to show evidence against himself.

I'm so glad I have you here to explain this. So, in order to go in my house after a knife that was used in a crime, you have to have my permission, or you have to have a search warrant. Who'd have thought it?

 

It's almost like I haven't taken part in this discussion. Certainly you aren't reading what I've written.

 

It's a big surprise to me that you're gathering evidence for something other than a trial. I thought that when you get a warrant to take someone's blood, eventually the evidence that you "collect" will be used in a trial. What exactly are you going to do with that evidence?

 

I could be wrong about blood warrants. I may not have any room to argue at all. Quite possibly, my body is no different than one of those Connaway homes being built along Loop 49. Maybe its exactly the same to get a warrant to collect my blood as it is to cut a patch of carpet from one of those floors. After all, lawyers have said it, so it must be true. Who am I to take it on myself to actually read and understand the law that is supposed to govern civilized behavior. Probably way over my head. I am kind of shallow.

 

Still, I'm a little disappointed that you don't think there's s legal difference between a chunk of carpet and a vial of living applebutter (me). But I am truly shocked that you think there's some way to separate the gathering of evidence from the trial for which you gather that evidence. Honestly, when I read your post, the hair stood up on the back of my neck.

 

The trial defined in the Texas constitution is all inclusive. That trial starts when someone suspects me of committing a crime. It ends with aquital or conviction. It includes every single thing you do as an agent for the state to gather evidence for trial. If you don't read me my rights, that effects my trial. If you beat me to a pulp, that will effect my trial. If you break into my house to take evidence without a search warrant, that will have a large effect on my trial.

 

Do not even attempt to tell me the definition of personal rights spelled out in the Bill of Rights of the Texas Constitution is limited to the time I'm sitting in a formal hearing in a courtroom. They are rules for the state (you) to follow to protect the rights of the accused (me) from the beginning of the investigation to the conclusion of the trial.

 

The judge doesn't assign me my rights as I enter the courthouse.

 

You aren't doing too well on the Jack Booted Thug front here, buddy.

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Guest bleeds
If I need to use force, then I will. Just like if you need to use an axe to enter a building, you will do so. I will do what I need to do to do my job, and you will do what you need to do to do yours. How 'bout that? I'm curious as to what posts you might be talking about. Go ahead and post them. I've never broken the law during the course of my duty, so it would be impossible for you to prove otherwise. I assume you're talking about me laughing at the guy while having to drag him into the hospital for a blood draw. It was funny because of the way he was acting, not because I was "getting" to drag him around.

 

As for your question about the DNA. It was a mistype on my behalf. I meant to compare DNA for a semen specimen that had been found.

 

I certainly believe you should be able to use whatever force the law allows to do your job. I never insinuated otherwise. Nor did I insinuate you had violated any laws regarding force. Just making an observation of your apparent glee at the opportunity to use force, and the threat thereof.

 

And yes, I am talking about what seemed to be you bragging about dragging the guy through the ER, and infered enjoyment thereof, in addition to what seemed to be the giddiness of the authority to do so.

 

BTW, me forcing a door of a house on fire in order to save a life is a little different than laughing as you drag a drunk through the ER.

 

In the opinion of Fivehead. Don't you threaten me!!!!! :lol:

 

 

No threat. :thumbsup: More of a wager.

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Blue, now THAT would impossible to force someone to do. A 10 to 15 second blast of air is quite difficult to accomplish without some sort of cooperation.

 

 

I certainly believe you should be able to use whatever force the law allows to do your job. I never insinuated otherwise. Nor did I insinuate you had violated any laws regarding force. Just making an observation of your apparent glee at the opportunity to use force, and the threat thereof.

 

And yes, I am talking about what seemed to be you bragging about dragging the guy through the ER, and infered enjoyment thereof, in addition to what seemed to be the giddiness of the authority to do so.

 

BTW, me forcing a door of a house on fire in order to save a life is a little different than laughing as you drag a drunk through the ER.

 

Bleeds, I guess I can see where you read that. However, it was not like that. I guess you had to be there to see teh situation. I promise you would have laughed too. The next day, the arrestee even laughed about it and apologized for how he had acted. He had just flopped down in the parking lot like a baby throwing a temper tantrum. You\'ll just have to take my word for it. It was funny and no one even came close to getting hurt.

 

 

No threat. :thumbsup: More of a wager.

 

I know, and that\'s how I took it. I was just picking on Fivehead.

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I would like to hear your opinion on the No Refusal DWI law. My view is that it is the latest nail in the coffin of Constitutionality in this country. The facet of this statute that makes it even more heinous than the ealier assualts on our civil rights is that a person could actually be legally physically harmed by a police officer in the name of public safety.

 

What if the DWI suspect in question was a hemophiliac? He could concievably be punctured by a needle and slowly bleed to death in a holding cell. What about the MRSA bacteria currently running rampant in this country? The MRSA staph could be introduced by a needle stick and spread throughout the body and attack organs and joints and kill the "suspect".

 

Five-0, you might as well get the ball rolling. I know you'll jump in and tell me how wrong I am eventually. Get it over with.

 

Okay, just so that there isn't any confusion. The blood will be drawn by a "nurse" or "doctor", not by a police officer. AND the blood will only be drawn AFTER a judge signs a WARRANT for the blood.

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I'm pretty sure that currently refusal earns you an automatic trip to jail. I don't know first hand, but that is my understanding. Where's a cop when you need one. :rolleyes: I'll have to call my buddy at TPD and see what he thinks.

 

This is correct. A refusal to submit to the chemical test is an automatic trip to jail.

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Okay, just so that there isn't any confusion. The blood will be drawn by a "nurse" or "doctor", not by a police officer. AND the blood will only be drawn AFTER a judge signs a WARRANT for the blood.

 

Just so there isn't any confusion, the argument is that a warrant for living tissue doesn't pass Constitutional muster, NOT who takes the sample OR when. :thumbsup:

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Every attorney I've ever ask about this says you should never submit in the field. Simply tell the officer you will submit, but only in the presence of your attorney. That buys you time, and removes the refusal aspect of the incident.

 

In Louisiana, you are given a 15 minute observation time in order to take the test. If you refuse to take the test until your attorney arrives then you only have that 15 minutes. After that, you can either take the test or refuse. If you agree to take the test, you have an additional 3 minutes to blow for 8 to 10 seconds. If not, then that is a refusal.

 

I'm not sure how it plays out in Texas, but hopefully the concept is about the same.

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The way I read it in the TMT this morning, even if you do refuse to blow unless your lawyer is present they are still going to take you to the hospital so a nurse can draw your blood. I assume they are going to hold you down while they do this. I don't think so Tim.

 

Only after a warrant is drawn up for the blood and signed by a judge. Now about the holding down part, I highly doubt that it would come to that. In Louisiana, your refusal to submit is brought out in your trial as well as a refusal to go with a judges order. Almost a slam dunk DWI in court even without the blood.

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Blue, now THAT would impossible to force someone to do. A 10 to 15 second blast of air is quite difficult to accomplish without some sort of cooperation.

 

Then the solution is better technology capable of testing lower volumes rather than an activist judiciary.

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So if you were an unlicensed drunk, you don't have to give a sample.... But if you do have a drivers license, you are subjected to said blood samples?

 

 

Makes perfect sense in today's world/government....

 

clutchon18,

 

Even an unlicensed drunk has to give a sample. In Louisiana, if you don't have a drivers license and are convicted of a DWI, you are given a psudo license and shown to be under suspension. That way if you ever get stopped again for DWI, it automatically shows up.

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You've missed my point completely. I'm not asking about being Mirandized. I know a DWI suspect would be if he was arrested. I'm asking if the Miranda rights regarding having a lawyer present during questioning extends to a blood draw. Does the suspect have the right to have an attorney present during a blood draw?

 

BTW, by definition, if blood is being drawn to determine sobriety, the possibility exists for self-incrimination.

 

Before giving the chemical or blood test, subjects are given their rights relating to the chemical test for intoxication. It is a completely separate from miranda.

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Before giving the chemical or blood test, subjects are given their rights relating to the chemical test for intoxication. It is a completely separate from miranda.

 

Dude! You should really consider reading the entire thread before replying.

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Dude! You should really consider reading the entire thread before replying.

 

Blue, now I can see what you're talking about. I didn't know that this thread was already 8 pages in length. Someone mentioned something about a police officer answering questions, so I started on what I could.

 

I had no clue that it had already gotten THIS far.

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Blue, now I can see what you're talking about. I didn't know that this thread was already 8 pages in length. Someone mentioned something about a police officer answering questions, so I started on what I could.

 

I had no clue that it had already gotten THIS far.

 

No problem... This is one of the best threads of late.

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This topic has really hit home with me tonight. So bear with me, it is extremely personal.

 

PREVIOUSLY, I didn't like the law, I think it's unconstitutional, and I'm with Straw on this... I'd like to see them get me down - if they do, it's going to take a lot of them to do it.

 

HOWEVER, after tonight... I'll help hold Straw down. I almost lost my son tonight because of the very same thing we're talking about here. If FiveO has to zap 'em, shoot with a darn dart gun, drag them by the head of their hair, then so be it.

 

My son was in a wreck tonight. And had he not been in his Dodge 4x4 half ton, he would probably not be with us; as the other driver died, who was driving a car.

 

Scenario: Approximately 5-10 minutes before the wreck, a man noticed a car swerving, called in to 9-1-1 and reported the license plate number. My son met a lady who at first swerved into his lane, then back into her lane, and then viciously swerved back into his lane, where they were going head-on. He saw to his right, there was a ditch with a steep embankment, and a huge concrete culvert, so he swerved to his left to hopefully get out of her way. They both clipped each other with their passenger sides. Thankfully, no passengers were in either vehicle. My son saw headlights coming, was in the other lane of traffic, and got out of the truck and ran up the hill, thinking that someone was going to hit him, who was, in fact, the man who had called in to 9-1-1.

 

Apparently, because of speed, volatility, etc. she broke her neck, as I was told at the scene, and there was a very strong odor of alcohol in her car. I'm so sorry for this woman and her family. I know one thing, my son is alive because I told him to take the truck and not the car. So while this may be a mom talking here, and although I'm a strong believer of constitutional rights, they say you don't understand it until it happens to you. I came real close to becoming a member of MADD through the fault of another, and truthfully, I'm considering doing exactly that.

 

I don't know for sure if she was drunk or had been drinking, and probably won't know for a week or so, but I can tell you this, if it was... then let the blood flow. Something needs to be done, and I don't have the answers, but if it saves one life, then it's worth it.

 

Needless to say, this week we'll be shopping for trucks, not only one, but 2, maybe even three, and all the cars are HISTORY! If gas gets $5.00 a gallon, then so be it...better my family safe than not.

 

 

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In Louisiana, you are given a 15 minute observation time in order to take the test. If you refuse to take the test until your attorney arrives then you only have that 15 minutes. After that, you can either take the test or refuse. If you agree to take the test, you have an additional 3 minutes to blow for 8 to 10 seconds. If not, then that is a refusal.

 

I'm not sure how it plays out in Texas, but hopefully the concept is about the same.

 

 

In Texas, no one is allowed in the intoxilyzer room except the intoxilyzer operator and the suspect. IF your lawyer can make to the station in 15 minutes then he will just be wasting his time anyway. He's not coming anywhere near the instrument or room in which it is housed.

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