We all enjoy our weekends in Texas - heading to the beach or the lake for Labor Day weekend, watching fireworks with our families for the Fourth of July, or spending the Superbowl with friends at a watch party. But did you know that Texas police departments often have “no refusal” DWI events during holiday weekends and high-traffic events?
What is a DWI No Refusal Weekend?
During a “no refusal” event, police announce that they'll be out in full force and that those suspected of driving while intoxicated (DWI) and asked to take sobriety tests can't refuse to take one. The idea behind a “no refusal” weekend is to crack down on drinking and driving during high-risk and high-traffic events. While keeping the roads safer is a concept we can all get behind, sometimes police might become overzealous in their “no refusal” enforcement sweeps.
1. Implied Consent
Before November of 2014, police officers in Texas could take a blood sample anyway without a warrant under Texas law, even if you refused a blood alcohol concentration (BAC) breath test. As a result, anyone with a Texas driver's license was held to have already given implied consent to chemical testing if police requested a BAC test from you; no warrant required. If you refused, the state automatically suspended your license.
In 2014, the Texas Criminal Court of Appeals ruled in a case that taking breath and blood samples without a warrant or a suspect's consent was unconstitutional. Ultimately the court ruled that the state's DWI implied consent law was a violation of the Fourth Amendment's protections against unreasonable searches and seizures. Now, police officers in Texas can't compel you to provide a breath or blood sample to test your blood alcohol content (BAC) level unless they get a valid warrant. This rule holds even in suspected felony DWI cases like driving while intoxicated with a child, intoxication assault, or intoxication manslaughter. Moreover, if you refuse a blood or breath BAC test, your refusal can be used as evidence against you in a criminal DWI case. The police can still arrest you for DWI if they have probable cause, or request a warrant for a BAC test through the courts. In most cases, however, by the time the police get a warrant and get a blood sample from you, your BAC may have changed significantly, making it potentially less likely for the police to convict you based on the results of your BAC test.
2. No Refusal Weekends and Holidays
Now, police departments across Texas will hold “no refusal” events to make it easier for law enforcement agencies to get a warrant for a BAC blood test if you refuse to consent to one. If the police pull you over for suspected DWI during a “no refusal” event and you refuse BAC testing, the police will get a warrant for a blood test. During no refusal weekends, having extra prosecutors, a magistrate, and nurses on call for warrants and blood collection makes the process faster for BAC blood tests. If you refuse BAC testing even after a warrant and police arrest you anyway, you'll face a longer suspension of your Texas driver’s license.
What Triggers a No Refusal Weekend?
The police will hold no refusal weekends over holidays or for big gatherings and events in the local community. Recent events that triggered “no refusal” weekends in Texas recently include:
- Holidays: Holidays like Memorial Day, the Fourth of July, Labor Day, Halloween, Thanksgiving and Christmas seasons, and the week between Christmas and the New Year can all trigger “no refusal” enforcement periods.
- Concerts: Major concerts at venues across Texas like Houston's Toyota Center, the Cynthia Woods Mitchell Pavilion, the Austin 360 Ampitheater, the Southside Music Hall in Dallas, and the Moody Theater in Austin can all trigger no refusal DWI enforcement.
- Sporting Events: Major league baseball, Wrestle Mania, college football, and mixed martial arts events like UFC 262 can prompt no refusal DWI enforcement events.
- Local Festivals: Festivals like South by Southwest, Austin City Limits, Float Fest, Lights All Night, the Houston Cinema Arts Festival, and the Houston Dragon Boat Festival, are all events that can draw additional DWI enforcement and “no refusal” status.
What if My BAC Test is Over the Legal Limit?
If your BAC test is over .08%, or .04% if you have a commercial driver's license, the police will likely arrest you for DWI if they haven't already. After your arrest, there are a few immediate steps you should take to protect your rights, including requesting an administrative license revocation (ALR) hearing and hiring a skilled DWI attorney.
Request an Administrative License Revocation Hearing
After your arrest for a DWI, Texas will automatically suspend your driver's license. However, this suspension happens separately from your criminal prosecution through an administrative process. If you request an Administrative License Revocation (ALR) hearing within 15 days of your DWI arrest, you can challenge the suspension of your license through this administrative process.
When the police release you after your arrest, they will give you a pink sheet of paper to serve as a temporary driver's license. They will confiscate your Texas license as well. Your pink, temporary license allows you to drive for 40 days. But after that time, the state automatically suspends your license until you resolve your DWI in court or through other means. However, if you request an ALR hearing to challenge the suspension within 15 days of your arrest, you can continue to drive with your temporary license until the ALR hearing in court.
The ALR Hearing
During your ALR hearing, the state has to support its suspension of your license by proving three things:
- The arresting officer had “reasonable suspicion” to pull you over initially: The police can show they had “reasonable suspicion” for your traffic stop if they had a reasonable belief that you violated a law. For instance, if you were speeding, weaving out of your lane, failed to stop at a stop sign, or were driving erratically, the police likely had the reasonable suspicion necessary to meet this element.
- The police had “probable cause” for your arrest: The police can likely show “probable cause” for your arrest if they can demonstrate that you didn't have the normal use of your mental or physical faculties or if you had a BAC over the legal limit before your arrest. For example, if you took a BAC test in the field after failing a field sobriety test and your result exceeded the legal limit. Or, if you appeared to be stumbling, unable to stand upright, and unable to form coherent sentences, the police may determine that you don't have the normal use of your mental or physical faculties.
- You had a BAC of over .08%.
If the prosecutor can't show these three things, the court will likely overturn your license suspension.
The ALR hearing itself will be less formal than a trial but will still be a court proceeding following the rules of evidence and the rules of the court. As a result, it can be challenging to successfully navigate an ALR hearing without an attorney representing you. However, not all DWI attorneys will agree to represent you in an ALR hearing. Many attorneys only handle DWI criminal cases. It's important to ask lawyers whether they will also represent you in an ALR hearing before retaining them as counsel.
ALR Hearing Defenses
At the ALR hearing, your attorney may have several routes to attack the prosecution's case, including:
- Showing that the initial stop wasn't lawful, meaning the police didn't have “reasonable suspicion” for the stop,
- Showing that the police improperly administered or interpreted the field sobriety tests,
- Showing that the police didn't have probable cause for the arrest, meaning you still had the normal use of your mental and physical faculties,
- Showing discrepancies in the police officer's testimony or the evidence presented during the ALR hearing, and
- Attacking the reliability or accuracy of the BAC testing.
In addition to challenging the revocation of your license, an ALR hearing can also give you and your attorney a preview of the state's evidence against you. You will see evidence they intend to use at trial and hear sworn testimony of the arresting officer. Your attorney can use witness testimony from your ALR hearing to impeach a witness giving inconsistent testimony during a later DWI hearing or trial. If you win your ALR hearing, the prosecutor will often drop the DWI criminal case against you.
Challenging BAC Breath Test Results
Even if your BAC breath test results come back with a result over .08%, or .04% for a commercial license holder, this does not mean a court will automatically convict you of DWI. There is no completely reliable BAC test. However, your attorney may often find it easier to attack the results of a breath BAC test in court. If you have the option to choose between a breath test or a blood test, keep in mind that it may be easier to attack breath BAC results in court. Your attorney can often challenge breath BAC results because:
- The police failed to properly maintain or calibrate the breath BAC testing equipment,
- The officer conducting the breath BAC test wasn't properly trained on the equipment or failed to use it properly,
- The food you've eaten can change the test results,
- Some medication you've taken, including over-the-counter medication, can change the results of the test,
- A medical condition you have can change your test results, and
- Your age, gender, size, and weight can all affect a breath BAC test results.
Blood BAC tests can be more accurate, although no test is completely reliable. But if you haven't had anything to drink, you may want to ask for a blood test to avoid an inaccurate result or a false positive resulting from food, medication, or a health condition.
Challenging BAC Blood Test Results
Even though blood BAC tests are typically more accurate than breath tests, your attorney may still be able to challenge a result. Blood tests may be inaccurate for many reasons, including if:
- Law enforcement officials failed to maintain a proper chain of custody with your blood samples,
- The police or techs failed to draw enough blood samples to rerun the tests and used all of your blood in the initial testing,
- The nurse or tech drawing your sample wasn't properly trained or failed to follow necessary procedures,
- The nurse or tech used an alcohol swab before drawing your blood, which can affect your BAC results,
- The tech failed to add an anticoagulant to your blood, causing it to deteriorate before testing,
- The tech or nurse drew blood from an artery rather than a vein, which can result in an inaccurately higher BAC,
- The individual running the BAC tests failed to recalibrate plasma test results to whole blood values,
- The tech or nurse failed to store your blood samples properly, or
- The tech failed to clean, recalibrate, or properly maintain the BAC testing equipment.
It's important to remember that a BAC over the legal limit doesn't mean a court will convict you of DWI. An experienced DWI lawyer can evaluate the evidence and determine the best plan of attack for your case.
What Are the Consequences of a DWI Conviction from a No Refusal Weekend?
If you're convicted of a DWI during a no refusal weekend or event, there will be criminal consequences such as possible jail time and fines and administrative consequences like mandatory financial penalties and a license suspension. But you may also face some collateral consequences you didn't anticipate after a DWI conviction.
What is a DWI in Texas?
Before discussing the penalties for driving while intoxicated in Texas, it's important to understand what constitutes a DWI under the law. Under Texas law, a DWI involves a driver of a motor vehicle operating on a public street that:
- Doesn't have the normal use of their mental or physical faculties because of the use of alcohol, drugs, a controlled substance, or a combination of these, or
- Has a blood alcohol concentration of .08% or more, or .04% or more for a commercial driver's license.
Blood alcohol concentration is measured by the amount of alcohol per 210 liters of breath, 100 milliliters of blood, or 67 milliliters of urine. The criminal and administrative penalties for a DWI conviction vary depending on whether you have any prior conviction and any aggravating circumstances related to your DWI charge.
First DWI Conviction
A first DWI conviction in Texas is typically a Class B misdemeanor. The penalties can include:
- Jail time from 72 hours up to 180 days,
- A license suspension of 90 days up to one year,
- A $2,000 fine, and
- Mandatory administrative fines of $3,000 for a first DWI offense in 36 months.
Other aggravating factors such as accidents, driving with a child passenger, or a higher BAC can result in a more serious charge. If your BAC is over .15%, it is a Class A misdemeanor, and you can receive up to one year in jail and a $4,000 fine, including the $3,500 mandatory administrative fine.
If convicted, the court may also require you to pay court costs, partially reimbursing the state for the cost of convicting you. You may also need to pay restitution for any related property damage or injuries you caused that are related to a DWI accident.
Second DWI Conviction
A second DWI conviction in Texas is typically a Class A misdemeanor. Penalties can include:
- Six days to twelve months in jail,
- A fine of up to $4,000,
- License suspension of 90 days to two years,
- Mandatory administrative fines of $3,000 for a first DWI conviction in 36 months and $4,500 for any subsequent DWI in the same 36-month period,
- Restitution and court costs.
Again, as with a first DWI, aggravating circumstances like an accident or a BAC over .15% can increase the severity of the charges for a second DWI.
Third or Subsequent DWI Conviction
A third or subsequent DWI conviction in Texas is a felony. You will face a minimum of ten days behind bars as well as:
- Two to ten years in prison,
- Fines of up to $10,000,
- License suspension,
- Probation and counseling,
- Courts costs and restitution, and
- Mandatory administrative penalties of $3,000 for a first DWI in 36 months and $4,500 for any subsequent DWI in 36 months.
Other Felony DWI Convictions
In addition to a third or subsequent DWI conviction in Texas, other DWI-related charges are also considered felonies, including DWI with a child passenger, intoxication assault, and intoxication manslaughter.
1. DWI with a Child Passenger:
If the police arrest you for a DWI with a minor in the car under the age of 14, they may also charge you with a DWI with a child passenger, a state jail felony. Penalties include:
- License suspension of 90 days up to two years,
- Six months to two years in jail,
- Up to a $10,000 fine,
- Court costs, and
- Mandatory administrative fines.
If you're divorced, a DWI with a child passenger can also affect your child custody or visitation arrangements. Moreover, if the police can't locate another family member at the time of your arrest, CPS will take your child into custody.
2. Intoxication Assault:
If you are involved in an accident that causes serious bodily injury while DWI, the police may also charge you with intoxication assault, which is a third-degree felony. Texas Penal Code § 49.07(1)(b) defines “serious bodily injury” as an injury that “creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” While intoxication assault is typically a third-degree felony, the police may enhance the charges to a second-degree felony if the accident victim ends up in a “vegetative state” or if the victim is a law enforcement officer, firefighter or emergency medical personnel working in the line of duty.
3. Intoxication Manslaughter:
If you are involved in an accident that kills someone while DWI, the police may also charge you with intoxication manslaughter, a second-degree felony. Penalties can include:
- Two to ten years in prison,
- License suspension, and
- Up to a $10,000 fine.
If the accident kills a law enforcement officer, fire fighter, or EMT medical professional, the police could charge you with a first-degree felony. After a release from prison for intoxication manslaughter, you would also have a felony conviction, which carries many collateral consequences.
DWI Bail Conditions
After your release from police custody, Texas law requires that you meet all the conditions of your release, which a judicial officer can set during arraignment under Texas Code of Criminal Procedures Article 17.15. If you fail to meet your bail or bond conditions, you can end up back in jail. The court sets conditions on your release to ensure the safety of the community. Bail conditions can include:
- Installing an ignition interlock device in your car to ensure you're sober before driving,
- Participating in alcohol or drug-awareness education classes,
- Ordering you to refrain from using alcohol or drugs,
- Submission to alcohol and drug testing, and
- Home curfews or confinement.
It's important to comply with the terms of your release both to stay out of jail and show the court your cooperation. Failing to cooperate can sabotage the defense of your DWI case.
Collateral Consequences of a DWI Conviction
In addition to criminal penalties and administrative fines and suspensions, there are collateral consequences to a DWI conviction. In many ways, a DWI can affect the rest of your life, particularly if the state convicts you of a felony DWI charge. Collateral consequences can include:
- Losing your driver's license,
- Losing your commercial driver's license and any job requiring that license,
- Losing child custody or visitation,
- Losing a professional license or certification, like a pilot's license, medical license, nursing license, legal license, real estate license, CPA license, or teaching license,
- Losing your job, your career, or your business,
- Losing a pension or job benefits,
- Losing a security clearance,
- Losing a law enforcement job,
- Losing the right to carry, buy, or possess a firearm,
- Losing lawful residency status if you're a lawful permanent resident of the U.S.,
- Losing professional honors and awards,
- Losing friends, mentors, and professional networks,
- Facing challenges renting an apartment or buying a home, and
- Losing qualification for student aid and federal student loans.
A DWI conviction can have a serious long-term impact on your life. When you weigh the collateral consequences, the possible criminal conviction, and fines and administrative fees for the first conviction of more than $5,000, hiring a skilled DWI attorney is essential.
Hire an Experienced Texas DWI Lawyer
If you're facing an arrest for DWI in Texas from a “no refusal” weekend, you need an attorney who is an expert in Texas DWI defense with extensive litigation experience, advanced technical knowledge concerning BAC testing, and wide experience with complex DWI cases. You also need an attorney with advanced education regarding the complex constitutional issues that come up in DWI cases, a skilled negotiator, and someone with ALR hearing experience.
Attorney Doug Murphy has more than two decades of experience has been protecting the rights of Texans charged with DWI. He is an expert in DWI defense and one of only two attorneys in Texas who is Board Certified in both Criminal Defense Law and DWI Defense. Doug obtained his DWI certification from the National College of DWI Defense, whose mission is to “provide the finest advanced-level training available to the DUI Defense Law practitioner.” But Doug isn't just Board Certified by the NCDD; he is a past member of the NCDD Board of Regents and currently serves as Dean of the educational organization.
When you're facing a DWI charge, you want to obtain the best possible outcome. You need a lawyer with the experience, expertise, and a proven track record advocating on your behalf. Doug dedicates himself to his clients, the Houston community, and the legal profession. Doug is a leader in the legal community, using his experience and expertise to help clients and educate lawyers. He has shared his experience and expertise with the legal community through more than 120 continuing legal education seminars throughout Texas and nationwide.
Doug also strives to educate the community about DWI defense outside of the courtroom. The Harris County Criminal Lawyers Association awarded him the Sharon Levine Unsung Heroes Award after he helped expose problems with the Houston Police Department's Blood Alcohol Testing vans. Doug's important work with others on this issue led to the HPD decommissioning the vans, leading to more just prosecution of DWIs in the Houston area. Doug is also active in the Texas and Houston legal communities, serving with the Harris County Criminal Lawyers Association Board as well as the Texas Criminal Defense Lawyers Association.
If you're facing DWI charges after a “no refusal” weekend or event, you need an expert in DWI defense to advise you and guide you through the criminal justice system. The Houston press calls Doug the “drinking driver's best friend,” and he can help you too. Call the Doug Murphy Law Firm, P.C. today at 713-229-8333 or contact Doug Murphy online to schedule your appointment and discuss your options.