Texas DWI Law- Prohibition on Taking Specimen If Person Refuses

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§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.

This is part of the “implied consent” chapter of the Texas Trasnportation Code. Unless you are in a car accident with serious injuries (724.012b) this Prohibition on Taking Specimen applies. Notice how their is now exception for fill in the blank search warrants signed by “cooperative judges.”

Now, pretend you are on the Court of Criminal Appeals. Here are the facts.

A defendant has been arrested for DWI and refused to give a blood sample. There has been no injury accident. Officer Friendly gets a warrant and forcibly removes defendant’s blood. Defendants argues that this search violates 724.013 and the 4th Amendment and should be suppressed.

COCA Ruling- To dissalow these forced blood draws “results in giving DWI suspects more protection than other criminal suspects—an absurd result.”

That sentence says a lot about COCA, the 4th Amendment and criminal justice in Texas. COCA judges find it absurd to give DWI suspects more protection even if the law is clear and unambiguous. Absurd- their word, not mine.

Judicial Activism Cuts Both Ways
Conservatives often decry “judicial activism” for issues like gay marriage.Yet this police state judicial activism is ignored by the same conservative pundits.

COCA ignored the plain meaning of the statute. The legislature could have put in an exception in the law for warrants, and didn’t. So, an appellate court made new law and ignored the “strict constructionism” so often praised in conservative circles.

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Posted in: DWI Defense Lawyer, Police and Texas Laws
Updated:

4 responses to “Texas DWI Law- Prohibition on Taking Specimen If Person Refuses”

  1. <img src="http://www.blogge says:
    February 4, 2008 at 5:22 pm

    § 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a specimen MAY NOT be taken if …..GOVERNMENT CODESUBTITLE B. LEGISLATIONCHAPTER 311. CODE CONSTRUCTION ACT§ 311.016. “MAY,” “SHALL,” “MUST,” ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:(5) “May not” imposes a prohibition and is synonymous with “shall not.” The legislature apparently meant exactly what it said when it passed 724.013.Is the appellate court not familiar with the Code Construction Act or do they just not care?

  2. <img src="http://www.blogge says:
    February 4, 2008 at 5:43 pm

    In law school I became convinced that appellate courts decide the result first, then they decide how to make the law fit.It’s a cynical view and I hope to disprove it someday. Hasn’t happened yet.

  3. <img src="http://www.blogge says:
    February 6, 2008 at 9:59 am

    Robert,I apologize for the length of the following rant – I tend to suffer from diarrhea of the keyboard on a regular basis.Reading the COCA’s opinion on [ NO. 1079-01 ] Knowel Beeman, Jr., Appellant v. The State of Texas. – ( “Knowel Beeman was rear-ended while driving. No injuries occurred. The officer cited the other driver for following too closely and arrested Beeman for driving while intoxicated.”) – would lead one to believe that Beeman’s sobriety, or possible lack thereof, did not contribute to the accident as the other driver was cited and there is no indication that Beeman was charged with a hazardous moving violation. In his discussion as to the origins of the Fifth Amendment Leonard W. Levy makes the following statement as to the Framers of the Bill of Rights: “Above all, the fifth amendment reflected their judgment that in a free society, based on respect for the individual, the determination of guilt or innocence by just procedures, in which the accused made no unwilling contribution to this conviction, was more important than punishing the guilty.” ( Leonard W. Levy – Origins of the Bill of Rights – Fifth Amendment, p. 195 )Also, I could be wrong, but I see the key word in the 4th Amendment to be “Unreasonable” not “Warrant”. The people have the right to be free from unreasonable searches and seizures. The mere existence of a warrant does not make an unreasonable search or seizure “reasonable”. The state is already taking hair, blood, DNA, breath, retinal scans, fingerprints, &c.. What’s next on the menu? Fingers, Toes, Ears? What’s “reasonable”? It would appear the State is using questionable SCOTUS and COCA decisions on search and seizure to circumvent prohibitions stated in the 5th Amendment.What does the typical “cooperative judge” know about the Constitution? Most people are not aware that the typical “cooperative judge” does not possess a law degree. The judge is an elected Justice of the Peace or an appointed Municipal Judge. The qualifications for Justice of the Peace are: (1) be 18 years of age and (2) get elected. The qualification for Municipal Judge is: (1) get appointed (hired) by the city council. Unfortunately, with a few exceptions, the JP or City Judge will do pretty well whatever the local police officer tells them to do as far as warrants are concerned. I’ve seen warrants obtained on verbal requests, and complaints or PC affidavits filed days after the warrant was issued (if at all).

  4. tracey says:
    August 16, 2008 at 6:33 am

    You are so right about laws being written to aid Prosecutors in getting a conviction.

    The only purpose for these Warrants being issued in mass is to assist Prosecutors.

    DWI arrests “guilty until you can prove yourself innocent”
    Of course I don’t want “drunk” drivers on the road but the new laws only require”the smell of alcohol” and a traffic violation to arrest for DWI.

    They are using these warrants for anyone refusing a test, and that is not how the law reads.

    I do not see how they are able to do this legally and wonder if anyone has brought suit in this regard. On what basis are these Judges issuing these Warrants?

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