Did you know that some states impose criminal penalties for refusing a blood or breath test? In Texas, although there is implied consent when you operate a vehicle on the roads, you have the right to refuse both a blood and breath test and doing so is not considered a crime. While there can be civil penalties in Texas for refusing to give a chemical sample (Department of Public Safety can suspend your driving privileges/license) you are not charged criminally for your refusal.
Birchfield v. North Dakota was argued before the Supreme Court this month. In Birchfield laws that impose criminal penalties when motorists suspected of drunk driving refuse to take a “chemical test”—usually a blood or breath test are being challenged. North Dakota, Minnesota, and 10 other states have passed such laws as a way to avoid obtaining a warrant before drawing a defendant’s blood or giving a breathalyzer test. Danny Birchfield, was arrested for refusing to take a blood test in North Dakota. He argued that these laws violate the Fourth Amendment, which typically requires a warrant before police can conduct a search. North Dakota deflected by stating motorists give consent to all chemical tests when they drive in the state.
So is legally imposed consent consent at all? That is the question. If the quips passed back and forth by the Justices are any indication, the answer will likely be no. The Justices really drilled down on the excuses and flimsy arguments presented by the attorneys representing North Dakota. The article below, entitled Blood Tests and Bad Lawyering, by Mark Joseph Stern for Slate gives a great synopsis of what went down at the highest court in the land:
Although Birchfield’s lawyers are arguing that both breath and blood tests should require a warrant, breath tests will most likely not have the warrant requirement attached. It is looking good, however, for blood draws in states that try to skirt the constitution and take them without a warrant. Either way, no criminal penalties should ever be attached to exercising your right to refuse.
Remember, you do have the right to refuse to give breath and blood samples. If you are arrested for suspected DWI get an attorney who can help protect your rights and navigate the process.