The Campaign For DA

6.23.2016

I Predicted Wrong On This One (Edit: I Was Only Half Wrong)


I even listened to the oral arguments.

But be clear: This has nothing to do with DWI prosecution (regardless of how MADD has lied over the last few weeks in an effort to get money). The Supreme Court reviewed a couple of state laws that made it a crime to simply refuse a breath or blood test after you were arrested for DWI even if you weren't guilty of DWI. As for DWI prosecutions, nothing has changed.  (But it is a blow to the "implied consent" terminology -- the myth that you have somehow agreed to voluntarily provide a sample of breath or blood if arrested for DWI. You have agreed to no such thing.)

Huge Edit: Hold the phone. I just read the opinion. I think the AP was a little off on the headline. It looks like a State can make it a crime to refuse a breath test but cannot make it a crime to refuse a blood test.

(For criminal lawyers, DWI cops, and eggheads only: A huge underlying holding in the case is that police do not need a warrant to get a breath test. That's amazing. But there are two problems. First, you can't logistically force someone to provide a breath sample. That is, if someone doesn't want to blow, you can't make them blow. (The Intoxilyzer needs several seconds of continuous breath.) Secondly, Texas still has a statutory scheme requiring that a warning be read (DIC-24) and a person be asked to provide a sample. Those laws are still in effect and can't be bypassed. The only crazy scenario I can come up with is that the police don't read the DIC-24, take someone to the jail, tell them to blow into the new Intoxilyzer, and the person complies. The State will argue that the results should be admissible because there is no requirement for a warrant plus the smaple was provided with consent -- although they have to concede there will be no driver's license consequences because the DIC-24 wasn't read. The defense will argue that no evidence is admissible under art. 38.23 if there is any violation of the law and, since the DIC-24 wasn't read, there is a state law violation.)