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Posted by Ed McClees | May 22, 2020

With the upcoming Memorial Day weekend coinciding with the Texas governor’s order allowing bars to reopen for the first time in months, we expect cops to be on the prowl to catch and arrest suspected drunk drivers, and we expect that they will literally be out for blood.

Over the last several years there has been a popular trend among district attorney's offices in Harris County, Montgomery County, Ft. Bend County and others to have “no refusal” weekends during holidays, and this upcoming Memorial Day weekend will be no exception. 


A “no refusal” program means that if a person refuses to provide a breath sample during a DWI investigation, the officer will obtain a search warrant and will forcibly take a sample of the person's blood.  For political reasons, local district attorneys often boast that this procedure is “cutting edge."  It is not.  Search warrants have always been available to acquire a blood sample from a person suspected of driving under the influence of alcohol or drugs.

In the past, officers would typically not go to the trouble of getting a search warrant for blood on a DWI arrest when no one was seriously injured because it was time consuming to do so.  Because of this, many lawyers urged people to refuse breath tests if they were being investigated for DWI.  When these cases went to trial, prosecutors were limited in the evidence that they presented to a jury.  Prosecutors started working with local law enforcement officers to create “no refusal” programs in an effort to increase their conviction rates.  Under these programs, officers are instructed to get a search warrant for a person's blood if that person refuses to provide a breath sample.  Some counties have “no refusal” weekends, while others have a no refusal program in place year-round.


Do not be fooled by law firms that aggressively market on billboard, radio and through cleverly worded slogans about whether you should or should not provide a breath sample. The truth is that there is no “one size fits all” answer to this question, because each situation is unique. 

At the end of the day, a breath test or blood test is simply another piece of evidence. And in some situations, you may not have a choice. In Harris County, for example, if you do not volunteer to provide a breath test, the police officer will obtain a search warrant for your blood. And, as mentioned above, other counties have “no refusal” programs in place around holidays. The good news is that like any other piece of evidence, these tests can be successfully attacked at trial by an experienced defense lawyer.

Law enforcement agencies in Texas use the Intoxilyzer 9000 to measure the amount of alcohol in a person's breath. When you blow into the device, air is captured in a small tube. An infrared light is then shined into the tube, and a device measures the amount of light at the end of the tube. The theory is that alcohol will absorb some of the light, so if there is alcohol in the breath, less light will get through. The problem is that other substances absorb light at a similar rate to alcohol. Further, mouth alcohol and other interferents can lead to artificially high results. Simply put, the machine is better at detecting whether alcohol is present than it is at determining the precise amount of alcohol that is in the breath. We have the experience to spot these and other problems that exist in the breath test machine.

Blood testing is done through a process called gas chromatography. For this process to work properly, the machine must separate alcohol from all other substances that can be found in the blood. Because human blood contains thousands of substances, this is no easy task. If the alcohol is not properly separated, then the results are useless. Further, the text book that is used to train blood analysts warns that in some situations certain microbes can actually create alcohol in the test tube before the blood is tested, which will result in an artificially high reading.

While there are a lot of law firms who will gladly take your money to handle your DWI, we have the experience to challenge these cases and have successfully defended people charged with DWI who have given a breath or blood sample to law enforcement. Call us for more information. 

About the Author

Ed McClees

Ed is a criminal trial lawyer who is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a former Harris County District Attorney where he served as chief of the Organized Crime Section, prosecuting cases involving complex organized criminal activities, including Fr...

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