We have posted before about “no refusal” programs whereby law enforcement agencies coordinate with local judges to streamline the process of obtaining search warrants to compel blood samples from individuals suspected of DWI. In the past agencies would have “no refusal weekends” around major holidays like New Year's Eve or Memorial Day. But more and more these “no refusal” periods are becoming the standard operating procedure of many counties. This shift is reflected in a recent change in the Texas law relating to DWIs.
When an individual is suspected of DWI, a police officer will ask whether the individual will consent to a breath or blood test. At the time of the request, Texas law requires that a statutory warning be read to the individual regarding the consequences of refusing to submit to a breath or blood test. This warning is contained on what I called Form DIC-24. New Texas laws, effective September 1, 2011, changed the language of the DIC-24 to include a warning regarding search warrants for blood samples. Specifically, the following language has been added to the DIC-24: “if the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person.”
The language contained in the DIC-24 is important because there are Texas cases indicating that some statements by police in warning a DWI suspect about the consequences of refusal can negate the individual's consent to the blood or breath test. By adding the new language regarding the officer's ability to obtain a search warrant to compel a blood sample, this will allow the state to avoid questions about whether consent was voluntary in some cases. It is important, however, that police read the DIC-24 warning to a DWI suspect accurately and state that the officer “may apply for a warrant,” rather than using language indicating the blood will be drawn no matter what. The officer can ask a judge to compel a DWIsuspect to give blood, the officer himself cannot compel the blood sample and there is no guarantee that a judge will grant a warrant. Where an officer has deviated from the proper DIC-24 warning, there may be an argument that the suspect's consent was involuntary and the blood or breath sample obtained should not be admitted against them in their DWI case.