Several folks – prosecutors and defense lawyers – that I see on a regular basis in the Travis County Courthouse have asked me why I didn’t blog about the No Refusal Weekend that started on Halloween. (Short version: Austin Police Chief Art Acevedo announced that anyone who was arrested for DWI and refused to take a breath test would be forced to take a blood test.)
I have written frequently about blood test DWI cases and the increasingly used police tactic – both in Texas and across the U.S. - of forcibly taking blood from suspects who refuse a breath sample.
But posting “advice” in advance of an announced “No Refusal” weekend isn’t – how do I say this? – it just isn’t my style.
First, I wouldn’t know how to do it without sounding like I was giving advice on “how to get away with DWI”. That would be (a) unethical – a DWI lawyer is still an officer of the court, and (b) utterly useless to boot – I doubt people read my blog right before deciding to go to Sixth Street.
I was interviewed by an Austin TV station for a story about the “No Refusal Weekend” and was asked the obligatory “What would you advise someone who was arrested this weekend? Should they take the breath test?” They chose to air my comment on a different aspect of the story rather than my standard “Get a Cab” response to that question. (Off topic here, but that fifteen second clip convinced me that the camera adds more than ten pounds, but I digress…)
Second, there’s not a one-size-fits-all answer to this question. Sure the gut-instinct response of any DWI lawyer is going to be “Never take the Breath Test!” – but if you’ve really (and I mean really really) only had one beer or glass of wine four or five hours ago… is that necessarily the best advice? Couldn’t you potentially save your license and win the DWI in that situation by taking the test? It’s rare – well under 10% of the time in breath test cases - but I certainly have represented many people who blew under .08.
Third, there’s a difference between writing about the legally and medically dubious policy of seeking warrants to forcibly remove blood from DWI suspects and broadcasting a specific warning that law enforcement is literally out for blood tonight. If I wrote a RICO blog I wouldn’t use it to broadcast warnings to either Tony Soprano or mafiosos in general that the DEA and FBI were raiding Satriale’s Pork Store tonight.
Frankly I think that APD is using these highly publicized “No Refusal” weekends in part to encourage people to think about taking cabs and using designated drivers on a regular basis – and from a purely public policy standpoint I understand why they consider that to be part of their job. It’s just not part of mine.