Michalk, Beatty & Alcozer, L.P.


Breath tests and "no-refusal" policies in Texas

If a driver in Texas is pulled over and accused of driving while intoxicated, the police may ask that the driver submit to a breath test to determine their blood alcohol content level. Drivers in this situation may be tempted to refuse to do so, for a variety of reasons. However, per Texas implied consent laws, there could be negative consequences that follow a breath test refusal, including the loss of a driver's license. That is because driving is considered to be a privilege and in exchange for the privilege of driving, a person must submit to a breath test if asked to.

However, some believe implied consent laws aren't enough to prevent drunk driving. According to a 2003 study by the National Highway Traffic Safety Administration, such laws did not result in a significant reduction in the number of people refusing to submit to a breath test. Moreover, the study also found that those who refused to submit to a breath test often avoided being seriously penalized for driving while intoxicated.

Therefore, many states have "no-refusal" policies. This means that police are allowed to contact judges who remain on-call and obtain an electronic search warrant ordering a blood alcohol content test. While a person can refuse a request for such a test, once police have a lawful search warrant for a blood alcohol content level test, a person cannot refuse to submit to such a test without being found in contempt. In fact, in Texas police can even use force in such situations. Therefore, while a driver is still able to refuse to submit to a blood alcohol content level test, the consequences for doing so are more serious.

However, "no-refusal" policies do have their critics. For example, the American Civil Liberties Union believes "no-refusal" policies are in violation of a person's Constitutional right against unreasonable search and seizure. Moreover, the ACLU also believes such policies may also affect a person's medical privacy rights.

As you can see, "no-refusal" policies can be troubling. While some have turned to the courts to challenge "no-refusal" policies, so far these policies have been upheld when it comes to DUI/DWI law.

Source: FindLaw, "No-Refusal DUI Enforcement," accessed Feb. 14, 2017

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