Law enforcement and groups such as MADD are always on the lookout for new ways to get drunk drivers off the highway. While such efforts may be well-intentioned they often end up walking the fine line between what does and what doesn’t violate constitutional rights.
Law officers in Jefferson County (Texas), where I reside, announced yesterday that they will adopt a plan which has provided some controversy in other parts of the state. The concept is called “No Refusal Night.” The “no refusal” refers to a DWI suspect being taken to jail where a judge is on hand to sign a warrant for a blood test in the event the suspect refuses a breath test.
A 2002 Texas Court of Criminal Appeals case opened the door for “blood search warrants” in DWI cases in which suspects refused a Breathalyzer. More recently Texas counties have been trying the “no refusal” approach to varying degrees. Some areas such as in Collin County, north of Dallas, want to expand the no refusal plan to more holidays and perhaps each weekend.
What is wrong with such a program if it gets drunks out from behind the wheel? Well for one thing, it raises search and seizure issues. This is especially true when looking at who actually performs the blood test. While it might be legal for law enforcement personnel without adequate medical training to draw blood for the blood tests, the matter is far from settled. And some medical facilities have questions as to whether their medical personnel should perform the test on someone when the sample is taken without the subject’s consent. That makes sense, given one has to sign a consent form before a hospital will treat you. The one news story I saw on this announcement in Southeast Texas didn’t really make it clear who would be performing these blood tests.
And I am certainly not a lawyer nor do I play one on television. But I would have to question whether having a justice of the peace or county court-at-law judge on standby to sign a warrant willy-nilly at the police agency’s request is exactly how the whole search warrant “thing” was meant to be.
I do have to say that this is a pretty gusty move both legally and politically for Jefferson County law officers and judges given the reputation for this area being a plaintiff’s heaven or, if you are a tort-reformista, “a judicial hellhole.”
It will be interesting to see how it turns out. The best way to avoid the confrontation is to not drink and drive. Unfortunately, not everyone will choose to do that.