BloomLegalTV: No Refusal DWI
Posted on Jan 7, 2014 in Bloom Legal TV
Hi, this is Seth Bloom. I’d like to welcome you back to another edition of Bloom Legals video blogs. Today, I thought we’re going to talk about a really hot topic going on in New Orleans and all over the country and that’s No Refusal DWI’s and sometimes they’re popularly called No Refusal DWI Weekends. These are typically dealing with road blocks and DWI check points.
Let me explain a little bit about what a No Refusal DWI Weekend is. In the past when you get pulled over for a DWI, you’re asked to submit to both field sobriety tests as well as possible chemical tests. When you get a license you don’t have a right to drive. There’s no constitutional right to drive an automobile. It’s a privilege and that’s why the state of Louisiana as well as many other states see it that way.
So, when you agree to get a Driver’s License you agree to drive with certain stipulations like you’ll drive within the speed of the law and so forth and follow and obey the traffic laws. Part of the agreement is that you agree to submit to a chemical alcohol test if in fact you’re pulled over and there’s probable cause that you may be driving while intoxicated. Because of that, you could get a urine test, a blood test or a breathalyzer test.
So recently it’s been happening especially in Jefferson Parrish over in Metairie on the West Bank as well as in Gretna. They’ve been setting up road blocks. If you refuse to take the breathalyzer test which was the advice and the correct advice for many DWI and DUI attorneys for years, was to not take the breath test. What they’re doing now is they’re saying, if you won’t take the breath test, we are going to force you into a blood test and that sounds, you know, something like what happened in China or the old Soviet Union but it’s happening right here in New Orleans.
The way the process works is if you refuse to take the field sobriety test and then you refuse to take the chemical test, the BAC, that’s the breathalyzer test. What they will do is they will then make an affidavit and they will submit that to a magistrate judge who’ll review the affidavit and decide whether or not he or she believes there’s probable cause to get evidence from your body which most likely will be blood. If in fact that happens, then they will sign, they will take the affidavit to the judge, the judge will sign a probable cause and a search warrant to search your body and in reality to be able to extract blood from you.
In most cases that I’ve dealt with in the past few months it seems like most people when that needle starts going close to their arm, they suddenly decide to breathe and take a breathalyzer test. However, if you still refuse the BAC test and the judge signs the warrant then in fact you will have to take, they will take blood evidence from you. They will arrest you for refusing to take it and then they will have chemical evidence on you. There’s really not a whole lot you can do at this point both in Louisiana and the U.S. Supreme Court say that, that’s acceptable.
So that’s what’s going on all over the country right now and there’s a real ethical question of whether or not this is legitimate so far that the courts have said it is, but people have to know that. So even if your lawyer’s old advice was, hey, I’m not going to take, I’m [inaudible 00:02:57] just refuse the breath test, it now adds another element of complication to that because you now may be forced in one of these No Refusal Weekends to take a blood test.
It doesn’t just have to be at road blocks or DWI check points. If you get any random stop and they believe there’s probable cause you’ve been drinking and they want to pursue a BAC test, they can force this if in fact it’s going on. Typically they’ve done it at stop points because they have the judge there and they’re actually ready to do it.
If you have any other questions about No Refusal Weekends, we blog about this a lot both on my video blog as well as on my regular blog. Give us a call 504-599-9997. That’s Bloom Legal, bloomlegal.com or come down and talk to us at 700 Camp Street in New Orleans, Louisiana, 70130. Thank you so much and thanks for joining us again.