Considering The Constitutionality of No Refusal Weekends

Posted on Jan 22, 2014 in DUI/DWI

When you are suspected of drunk driving, the police are going to ask you to submit to a breathalyzer test that measures your blood alcohol content (BAC).  For a long time, the standard from a New Orleans criminal defense lawyer was to say no to a breath test in most cases. This is because breathalyzers are routinely unreliable and your BAC could appear higher than it is.

However, things have changed thanks to a new trend sweeping the nation: No Refusal Weekends.  As we discuss in our detailed video on No Refusal DWI, no refusal weekends are time periods when police won’t take no for an answer when it comes to a test of your BAC. If you refuse to submit to a breath test, the police can force you to submit to a blood test.

They’ll do this by submitting an affidavit to an on-call magistrate judge who will decide if there’s probable cause to take your blood and get a BAC reading. If the judge says there is probable cause, a search warrant will be executed right away and the police will take blood.

No Refusal DWI Weekends Change DWI Evidence Collection

During a no refusal weekend, refusing to take a breath test means you’ll likely end up with your blood being taken. This makes it a lot harder to decide how to respond when asked to take a breath test. It also makes it more important than ever for you to contact a New Orleans DWI law firm as soon as possible when suspected of a drunk driving offense, so your lawyer can try to safeguard your rights as much as possible.

Unfortunately, the very fact of being forced to submit to a blood test can be a tremendous violation of your freedom. Despite the fact that it is clearly an invasive search of your body, the courts have upheld these no refusal weekends, and so there’s not a lot you can do.

The Constitution and No Refusal Weekends

As Salon reports, there is a lot of criticism of no refusal weekends and there are some valid arguments that the law violates your constitutional rights. You have, for example:

  • The right to be free from unlawful searches and seizures under the Fourth Amendment
  • The right not to incriminate yourself under the Fifth Amendment
  • The right to a lawyer under the Sixth Amendment (you aren’t generally given a chance to call your attorney before you submit to a blood test on a no refusal weekend.)

So, how is this legal and how do states get away with it? It all starts with a case called Schmerber v. California heard by the U.S. Supreme Court. The case involved a driver who was hospitalized after an automobile crash, and who had his blood taken in the hospital at the direction of a police officer. The hospitalized man objected to the test but his blood was taken anyway and revealed intoxication.

The court said that the evidence was admissible and legally collected because:

  • The Fifth Amendment protects against compelled testimony; not physical evidence.
  • The Fourth Amendment protects the right to be secure in your person, but the exigent circumstances doctrine lets police take even a warrantless blood test because otherwise the evidence of intoxication could be lost.
  • The Sixth Amendment doesn’t guarantee a DWI defendant the right to talk to a lawyer before a blood test.

From this case, law enforcement now believes that a blood test forced on you on a DWI no refusal weekend is perfectly legal and within the bounds of the constitution. This is a hard position to justify since there are so many amendments that could be interpreted and applied to protect the rights of the accused. In any circumstance, be sure to contact a New Orleans DWI law firm to speak with a knowledgable attorney about your options.

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