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A DWI Test You Can't Refuse -- Growing Number of States Collecting 'Involuntary' Blood Samples

In Texas, if a police officer can demonstrate probable cause that a vehicle operator is drunk, they can apply for a warrant to take a biological sample to prove it.

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After listening attentively to Officer Taylor read, as required by law, the page-long explanation of No Refusal, Jeffrey Tambor politely replied, “I guess I should say ‘no,’ right?” And that was it.

“You’re just doing your job, and that’s all for the best,” said Jeffrey Tambor from behind the plexiglass of the cop car. The smell of booze wafted throughout the vehicle for the entire journey. “It’s Halloween.”

There were a wide variety of detainees—about 20, give or take—in the open room-style jailhouse. Jeffrey Tambor stood out as the person most likely submit a properly annotated tax return.

After some paperwork, Officer Taylor headed through a corridor to the night judge’s office, where his honor would review the search warrant.

The judge didn’t want to be identified—but he did like to talk, and seemed to enjoy walking this reporter through the steps of a No Refusal warrant.

He also opined on the constitutionality of No Refusal, according both to his and others’ opinions. “There’s a  Supreme Court case that says [police] can obtain a warrant to take someone’s blood and [that that is] not compelled self-incrimination,” said the judge, as he dutifully studied the warrant and began signing off on it. “Personally, I think it is. If I were on the Supreme Court, I would have said, ‘No, you can’t do that. It’s compelling someone to incriminate themselves by forcibly taking blood from their body.’”

Local attorney Jamie Balagia feels the same way. A former police officer with drug expertise, Balagia advertises himself as the “DWI Dude,” because the gonzo attorney handles such cases almost exclusively—and often can get them thrown out on technicalities.

One bone of contention for Balagia is that the No Refusal law itself is written with the specificity of a coloring book. There is nothing in the blood warrant section that says how long the government can keep the specimens (they take two: one for the prosecution and another for any future defense). Nor does it require “vampire police” to have any special training before they can demand blood from members of the public. There’s also nothing that forbids obtaining evidence outside of the initial DWI test.

The reality isn’t that Orwellian, for a simple reason: According to APD Forensic Chemistry Supervisor Gloria Rodriguez, her department doesn’t have the resources. They can’t afford to be that cunning.

“We’re averaging approximately 400 blood alcohols a month ... and we can’t work that many a month,” she said. Although they contract out for some of the testing, Rodriguez's office only has one full-time blood specialist, and her staff hasn’t increased since 1992. The current wait time (in-house or otherwise) for alcohol blood tests is about three months—and any blood needing to be tested for anything besides alcohol has to be sent out to a different chemist entirely.

Another one of Balagia’s objections to No Refusal is the rubber-stamping of blood warrants. “I’ve never seen a judge say no,” he said. “Why not have a chimpanze rubber-stamp these warrants? Because they are not turning down or rejecting any of them.”

A local ACLU representative agreed, saying she couldn’t think of a single example of a judge declining to sign a warrant.

Evelyn McKee, presiding judge of the Austin Municipal Court, told The Fix why. Rejection of blood warrants doesn’t happen often because, she said, “Generally, if the probable cause for the underlying charge is sufficient, then it’s probably going to be sufficient for the warrant.”

So while it might sound like hyperbole when Balagia says that the No Refusal law essentially means, “We’re going to take your blood no matter what you do”—in practice, it rings true.

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