East Texas

By CASEY KNAUPP
Staff Writer

Smith County defense attorneys said they will be vigilant in making sure law enforcement officials develop probable cause to get warrants for blood tests of suspected driving while intoxicated offenders during the "No Refusal" campaign this New Year's holiday.

Smith County law enforcement agencies have announced that they will participate in a "No Refusal" DWI campaign Wednesday through Saturday.

"Upon the arrest of a suspected drunken driver, he or she will be asked if they would submit to blow into a breath-test machine or take a blood test. If the driver refuses and says 'no,' officers will obtain an immediate search warrant signed by a judge on call to have blood drawn by a nurse on staff at the Smith County Jail," said Don Martin, Tyler Police public information officer.

Bobby Mims, public affairs officer for the Smith County Criminal Defense Lawyers Association, said Monday that the group met and came up with an appropriate response to the "No Refusal" weekend announced by Tyler police.

He said defense attorneys are not telling the public to refuse the test but want the public, as well as law enforcement officers and judges, to know that sufficient probable cause based on evidence is needed for a search warrant and that just refusing a breath test is not sufficient.

He said just because it is a "No Refusal" weekend, doesn't mean people don't have a defense.

"You do have a defense, and we're going to provide it to our clients," Mims said.

Smith County District Attorney Matt Bingham said it is well established that law enforcement is cognizant of the fact a search warrant is based on probable cause for the DWI suspect's arrest and not based on a refusal to a Breathalyzer test. He said a DWI defendant has an absolute right to refuse a breath test, but law enforcement has a right to submit a warrant to a judge based on probable cause to draw the suspect's blood.

Bingham said it is not practical to always get a warrant for a blood draw if a Breathalyzer test is refused in DWI misdemeanor cases because it involves locating a judge, often in the middle of the night, and having an officer transporting the suspect to a nurse at a hospital. But, he said, on certain weekends where DWIs are at the highest, the state exercises its right to obtain a warrant to have a deterrent effect.

He said the probable cause for the arrest is the same evidence then used in submitting a search warrant to a judge.

"This weekend, we are exercising our right that's not always practical to exercise," he said.

The "No Refusal" campaign is a joint effort between the District Attorney's Office and police agencies in Smith County.

After a search warrant is obtained, the blood is drawn and analyzed to determine whether the driver's blood alcohol content is at least 0.08, the legal limit for driving drunk in Texas.

In a prepared statement, Mims said the defense lawyers' association joined with law enforcement and Bingham in encouraging the public to avoid driving while intoxicated and supported the enforcement of DWI laws, but "we also stand ready to protect the rights of citizens accused of DWI to be free from unreasonable searches and seizures."

"During the 'No Refusal' enforcement, the members of the SCCDLA trust that the constitutional rights of our citizens will not be violated by either law enforcement or by judges," he said.

Smith County agencies participated in the "No Refusal" campaign during Labor Day weekend this year.