A DWI Test You Can't Refuse -- Growing Number of States Collecting 'Involuntary' Blood Samples
Officer Taylor cruised through the Austin metro for almost two hours before she finally collared a drunk driver around midnight. Sure, it was a Wednesday night—but it was also Halloween.
For Taylor, it was about time. She’s a busy-body by nature, and it couldn’t have helped that she was saddled with a hack writer. Because no one else raised their hand and because she’s the rookie in the Austin Police Department’s (APD) 14-member DWI unit, Officer Taylor “volunteered” to serve as ride-along chaperone during one of the department’s “No Refusal” weekends. It’s probably fair to say we both got excited when she finally hit the lights.
Texas’ No Refusal law is pretty straightforward. If a police officer—after a reasonable detention to investigate his or her informed suspicion of public intoxication—can demonstrate probable cause that a vehicle operator is drunk, and if that person refuses to “volunteer” potential evidence to further the investigation, the officer can apply for a warrant from the night judge to take a biological sample to prove it.
Simply put: If, on a No Refusal night, you get pulled over for drunk driving and refuse to cooperate, they will haul your ass to jail and take your blood.
Sounds ghoulish. And yet, the only complaints DWI unit leader Lt. Derek Galloway ever hears about No Refusal come from talk-radio callers who deride the officers as “ police vampires.”
At least 14 states have implemented No Refusal blood draw laws. Passed by the Texas state legislature in 1995, Austin implemented No Refusal laws in 2002. It’s automatically required for incidences involving previous convictions, a traffic accident and so on. But for everyone else, No Refusal is “voluntary,” in so far as the Austin police don’t usually bother with the entire process most days of the year. Lt. Galloway said the only difference that distinguishes No Refusal weekends or days—usually holidays and national events that go hand-in-hand with a spike in drunk-driving, such as Memorial Day, Super Bowl Sunday, Halloween and the night before Thanksgiving—is that they’re primarily a “free promotional opportunity.”
“The media likes it because the media has a story to run and it gives them a little piece. But also at the same time, it helps us to get the word out—just don’t drink and drive,” said the lieutenant. But in reality, he added, the police “could go No Refusal all the time, at any point.” San Antonio does it year-round.
On these high-profile nights, Austin police typically arrest about 25 people for driving while intoxicated. And although “each No Refusal [weekend] is a bit different,” Galloway said, the average number of individuals who refuse to give a biological specimen and thus are sent to jail for a blood draw is “anywhere between 50 and 60 percent.”
As luck would have it, the suspect Officer Taylor stopped was dressed for Halloween. He was going as Jeffrey Tambor, the actor most famous for playing (appropriately enough) jailbound patriarch George Bluth in the mid-2000s cult sitcom Arrested Development.
It didn’t seem like Officer Taylor would have to invoke No Refusal. She had Jeffrey Tambor dead to rights. For starters, Officer Taylor and her responding partner found two longnecks inside the vehicle—and it was easy to see, even from 30 feet away and at night, that one of the bottles was half-full and trickling with condensation. And Jeffrey Tambor, in jeans and baby-blue cowboy boots, clearly failed all the other tests, including the portable breathalyzer, which—though inadmissible in Texas court—is usually a sure bet. He even freely and voluntarily violated his own Fifth Amendment rights, remorsefully blaming his “bad decisions,” including a 14-hour-day, a light dinner of kale salad and playing “too much good music.”