Dallas DWI- Forced Blood Draws and The Right To Counsel

Dallas Morning News has yet another story on the proliferation of DWI blood warrants. This time the Dallas Police are joining the bandwagon of cities who have chosen to circumvent the law and violate your right to refuse blood testing.

What about the right to counsel? Will these DWI suspects have the right to consult an attorney before the Dallas Police forcefully remove their blood?

Texas Bill of Rights
From your Texas Constitution- Article 1 Section 10.

In all criminal prosecutions the accused shall have the right of being heard by counsel,

DWI Blood Draws
Does Article I Section apply to DWI suspects? After all, the Dallas police want to detain you, interrogate you, ask you to perform useless physical challenges, arrest you, ask for a breath sample, and finally hold you down and forcefully extract your blood. That sounds like a good time for a defense attorney to intervene.

Unfortunately, the right to counsel for DWI suspects was repealed long ago. Here is a summary of the sorry state of RTC law from the Texas prosecutor’s DWI manual, DWI Prosecution and Investigation by TDCAA.

An officer does not have to give Miranda warnings to a suspect before asking for a breath sample. A suspect does not have the right to counsel before deciding whether to give a sample. An invocation of the suspect’s right to an attorney will not later exclude evidence of a refusal to take a breath test.

How was the right to counsel repealed? Conservative Judicial Activism. (Due Process also applies to this discussion. However, that is outside the scope of this post.)

McCambridge v. State
The Court of Criminal Appeals abated the right to counsel for DWI suspects in the early 1990s. A string of DWI cases allowed COCA to rewrite the Texas Constitution in order to save DWI convictions. A good example is McCambridge v. State (778 S.W. 2d 70).

In McCambridge the defendant was found guilty of DWI. On appeal McCambridge argued that he should have had the right to speak with an attorney before deciding whether or not to give a breath sample.

How would COCA save this DWI conviction that clearly violates the Texas Bill of Rights?

Rights under Article 1 Section 10 only apply during a “criminal prosecutions.” COCA held that DWI suspects are not being prosecuted. Ergo, they have no rights.

Only in a DWI case would such tortured logic be allowed. COCA won’t even stoop this low to save a drug case. For example, if the police had a warrant to search your house for drugs they could not force you to show them where the drugs are. If you asked for an attorney while they were searched they would not continue to question you.

The Dissenting opinion sums up the McCambridge decision well.

Today… a lackluster majority of this Court declines to hold that under Art. I, § 10, of the Texas Constitution, the “Rights of the Accused in Criminal Prosecutions” clause, 1 an individual lawfully arrested for allegedly committing the offense of driving while intoxicated has the right to the assistance of counsel from that point forward; they opt instead to hold that such a person has the right to the assistance of counsel only after formal criminal charges have been filed, which act apparently lies in the discretion of the police as to just when that must occur.

For unknown reasons, a person lawfully arrested in Texas for driving while intoxicated is to be treated differently from a person who has been lawfully arrested for committing some other criminal wrong.

DWI = Not A Criminal Prosecution?
This arbitrary decision by COCA has little basis in law enforcement reality. Any assistant DA or criminal defense lawyer can attest that every DWI arrest is indeed a criminal prosecution. Every facet of law enforcement works in concert to arrest and convict dwi suspects. The police work under the direction of prosecutors, who then conspire with cooperative judges, who then sign “fill in the blank” search warrants. Under any definition (besides COCA’s) that is clearly a criminal prosecution. But don’t take my word for it. From DMN-

Deputy Chief Tom Lawrence said the effort is “the next step in what we are ultimately trying to achieve when we make an arrest for driving while intoxicated. That is the successful prosecution of these cases.”