Some states in our country are so desperate to convict and punish people arrested for DWI that they passed laws making a refusal to submit a breath/ blood specimen a separate criminal charge. In these states, if a driver is arrested for DWI and they choose not to allow the police to take their blood or to blow in the police breath tester, they can be charged with a new criminal charge that can carry a jail sentence. Texas, like most states, only threatens administrative license suspension to try to coerce breath test cooperation.
In 2016 the United States Supreme Court will decide a case that involves the question of whether it is legal for a state to impose criminal sanctions upon a person for refusal to provide evidence from inside their body when they are being investigated for DWI. Two years ago, the Court held that search warrants are required when police want to take someone’s blood in a DWI investigation without their consent. This new legal issue will help address whether consent is valid when it is obtained only upon the threat of a new criminal charge.
It is possible that the ruling of the Court could also address the question of whether consent is valid when it is obtained by the threat of driver’s license suspension. This could then affect DWI arrests in Texas and similar states that only attempt to coerce consent through threat of administrative license consequences. All Texas police officers are required to give suspects certain warnings in every DWI arrest. These warnings include a statement that refusal to consent to a breath or blood test can result in a more severe license suspension than if they consent to allow a specimen to be taken from them. The best DWI lawyers will look for these arguments in Texas cases involving what is called “implied consent.” The idea of implied consent suggests that a driver consents to having a specimen taken from them when they first accept a driver’s license from the State. Upon a later arrest for DWI, the idea is that a refusal to give the specimen is a breach of the contract between the driver and the State in order for the privilege of driving to be granted.
Lawyers are arguing that there is a distinction between administrative consequence and the observance of personal liberties in a police investigation in which the 4th Amendment of the US Constitution is involved.