As a DWI attorney the major question I get is, “if I’m pulled over and investigated for DWI, should I blow or refuse”. I would always explain that for various reasons there is no cookie cutter answer and that all cases are different. Typically, with everything being equal, I would usually advise to refuse the breathalyzer if there is any question in your mind whether you’ll blow over the presumptive legal limit of .08%. Due to a recent change in policy in Greene County, however, for reasons I’ll explain, I pause before giving someone the advice to refuse the breathalyzer.
Missouri v. McNeely, 133 S.Ct.1552 (2013), is a fairly recent and hugely important case regarding blood draws in DWI cases. In that case, the U.S. Supreme Court held that forcing a DWI suspect to submit to a blood draw without a warrant is unconstitutional. However, the case left open the possibility for forcible blood draws as long as police officers get a warrant. A person’s body is clearly protected under the Fourth Amendment, but as with any other type of evidence, if police can demonstrate that they have probable cause to believe evidence of a crime will be found, judges can sign warrants allowing an intrusion into the human body. As communistic as it may sound, forcible blood draws are included.
Greene County has now instituted what they call a “no refusal policy”. What this means is that any time the Springfield Police Department, the Greene County Sheriff’s Department, or the Missouri State Highway Patrol have a DWI suspect refuse to blow into a breathalyzer after a DWI arrest, the officer will fill out the paperwork requesting a warrant, submit the paperwork electronically to a judge, and will request an electronic signature. Once a warrant is signed, police can then go to any means in order to extract blood from a suspect, even if it means strapping them to a gurney and forcing a needle into his or her arm.
Setting aside the numerous human decency and rights arguments, there are a few things that people need to be aware of before making the decision to refuse in Greene County. Traditionally, if a person blows and the breath alcohol content is .08% or greater, they can request an administrative hearing with the Department of Revenue. Typically, they would still lose their license for 30 days followed by 60 days of a hardship, and would have to jump through some hoops to get it back. If a person would refuse to blow after arrested for DWI, in the scenario of a first offense, there were ways to keep that person from losing his or her license at all. On a second or subsequent arrest in that situation, things got murkier and oftentimes the suspect would lose their license for one year, with eligibility for a hardship after 90 days. An ignition interlock for the full year, plus an additional six months, was one of the hoops required before reinstatement. Now, if someone refuses to blow and a warrant is obtained, not only are they looking at the refusal suspension, but depending on timing, they could also be looking at the administrative suspension, not to mention a possible point suspension if convicted of the criminal case. The blood draw will be sent to the Missouri State Highway Patrol Crime Lab for analysis, then the results forwarded on to the Department of Revenue. This process can often take several months, so the suspect could be almost finished with the first license suspension before the second and third suspensions even start.
There are cases, however, where this new policy could come back to bite law enforcement and prosecutors. For example, if someone refuses to blow in cases where they would have been very close to .08%, once law enforcement goes to the trouble of getting a warrant (which can take up to an hour or longer) the alcohol may have very well dissipated and the BAC is then below .08% at the time it is tested. This situation will put an even heavier burden on the state because by statute they will have to show “substantial evidence of impairment” if the BAC is below .08%, whereas if above the legal limit, a presumption of impairment is created. With those who refuse, although no legal presumption is created, the law makes it clear that the refusal can be used as evidence of guilt by the judge or jury, thereby creating a presumption even if not specifically enumerated as such. Therefore, in the actual prosecution of cases on the criminal side it is unlikely to help and may realistically hurt those that would have been strong cases without the blood draw.
Because of the above, to me, this is an unnecessary and burdensome step in an effort to gain public attention. The procedure will do absolutely nothing to help prosecute DWI cases. All it will do will be to punish hard working people who have perhaps made a poor decision, even if for the first time, to get behind the wheel after drinking, by suspending their licenses for longer and making it more difficult and costly to get reinstated. It will add extra cost and time for law enforcement and for the judges who are up in the middle of the night to review and sign the warrants, for very little benefit in the courtroom. It is much more a publicity stunt than a tool to combat DWI offenses, while dehumanizing those accused. Time and money would more wisely be spent on giving the officers added education and knowledge in the science and investigation of DWI cases rather than wasting it on figuring out ways to legally invade the human body.