It becomes a game of definitions rather quickly. The Constitution codifies rights given to the individual. How those are expressed becomes is a game of cat and mouse with law enforcement. Your constitutional right are expressed in written document sitting somewhere in Washington DC and or Austin, Texas. They are just words on a piece of paper. The prosecutors represent the State of Texas and since I started practicing in 1995, I have never seen a prosecutor come to me and say “Law Enforcement violated your client’s constitution rights, I am dismissing the case. I have never seen a judge on his own initiative raise constitution rights of individuals. The only person in the entire judicial system who stands up and gives words in the constitution meaning are the defense attorneys. In effect, I and other defense attorneys are FOOT SOLDIER OF THE CONSTITUTION.
Let’s Talk About One of the Most Important Rights Defense Attorneys Can Raise!
The 4th amendment states clearly that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “ So in order for anything to be subject to a warrant, a process called search and seizure must be activated but the suspicion, that’s why police automatically conduct a field sobriety test BEFORE administering any blood demands.
This is how the 4th Amendment Applies Breath and Blood Test:
In Texas, your drivers license is has some relationships between rights and responsibilities, in-that when you agree to the license, you agree to giving samples of breath and blood to be tested which provide checks and balances to the requirement of operating without prohibited substances are being met. However, a person may still refuse under the Fourth Amendment. Refusing to take a test, is what is known as a “statutory option to refuse” special conditions about demanding a sample exist but ONLY in special circumstances including but not limited to DWI related accidents also have conditions that modify the refusal.
In the past, if you refused to blow or give blood, your drivers license was automatically suspended (remember it’s a privilege to drive not a right.) Enter “no refusal” weekends stage right. No refusal weekends are a bit of a misleading term in that you can still initially refuse the request of an officer for submission to the test; however, on this weekend law enforcement will be sitting by the phone with a direct line to the Judge who’s only responsibility at the time will be to issue such warrants. Once that warrant has been issued, they can physically force the blood draw. However, these procedures are highly scrutinized and an experienced lawyer can potentially keep the test and the results from being admitted under the right circumstances because the police and the procedures used violated your Fourth Amendment Rights.
Regardless of breath blood or initial refusal provisional rights to a drivers license might exist, so its generally a good idea to get a free consultation from an experienced Montgomery county lawyer that knows DWI laws that can help you know your options.