Both Comal and Guadalupe Counties recently finished a Driving While Intoxicated "no refusal weekend" a few days ago. For the uninitiated, a "no refusal" weekend means that the government will not allow a person to refuse alcohol testing after being arrested for DWI.  Normally, when a person is arrested for DWI, he is taken to the nearest jail and offered a breath test.  The arrested person has the right to refuse the breath test, but may suffer a driver's license suspension as a result.  But during a "no refusal" weekend, a person refusing to take a breath test is told that the police will then, instead issuing a notice of driver's license suspension, obtain a search warrant authorizing the police to take a blood sample from the person.  The blood sample would then be shipped off to the Department of Public Safety lab for testing.  Thus, there is "no refusal" because a test will be taken one way or another. Many people, when told they will be forced to submit to a blood test against their will, simply give up and agree to take the breath test that was first offered.  This is absolutely the wrong thing to do.  What to do, then, when faced with a test you can't refuse?  Easy: REFUSE TO TAKE THE BREATH TEST AND MAKE THE COPS GET A BLOOD SAMPLE INSTEAD. Here's why:

1.     THE COPS MAY SCREW UP THE WARRANT FOR THE BLOOD TEST. The ways in which obtaining and executing a search warrant for blood, or anything else, can be FUBAR are too numerous to list here.  But you should certainly give the police the opportunity to find one of them.  If the search warrant for blood is no good, the breath test is inadmissible.

2.     WHEN YOU REFUSE, YOU KEEP THE CLOCK RUNNING. The result you get on a breath or blood test is just a starting point.  What's really important is what your blood alcohol content was at the actual time you were driving a car.  When you refuse the initial breath test, you force the cops to spend time obtaining a warrant, which lengthens the time between the driving and the test.  Without spitting out a volume's worth of blood testing theory, simply put, the longer the time between the driving and the test, the harder it is to reliably figure out what your blood alcohol content was at the time you drove.

3.     ROUNDING UP ALL OF THE PEOPLE INVOLVED IN THE TAKING AND ANALYZING OF A BLOOD TEST IS LIKE HERDING CATS. One of the reason the government prefers to give breath tests is that it makes it easier to round up its witnesses if there is a jury trial in the case.  The government needs to produce all of the people involved in the administering of, and analysis of, the test.  When there's a breath test, everyone involved is a member of law enforcement.  They are, essentially, professional witnesses.  When blood testing is done, it is more likely to involve civilians along the way, such a nurse or EMT.  These people are sometimes harder to get to a trial.

4.     YOU MAY BE ABLE TO RE-TEST THE BLOOD SAMPLE When a breath test is done, the breath sample is purged from the breath test machine and lost forever.  When a blood test is done, some of the blood sample may be left over at the end.  Your lawyer may be able to obtain the rest of the sample for independent testing.  We have done this before on a few cases, and have come up with interesting results.

5.     IF YOU ABSOLUTELY HAVE TO TAKE A TEST, BETTER ONE BASED ON REAL SCIENCE THAN JUNK SCIENCE When was the last time you saw a breath test machine in an emergency room?  Never, and you probably never will.  That's because breath testing has been widely criticized as being based on junk science, and no reputable health care professional would ever dream of relying upon it.  Only the government does, because its cheap, fast, and "efficient."  It you are forced to submit to a test, might as well take one that at least has a fighting chance of being correct. MORAL OF THE STORY:  WHEN IN DOUBT, REFUSE THE GOVERNMENT'S REQUESTS AND MAKE IT JUMP THROUGH HOOPS.


Got a call from someone trying to get an expunction of criminal records recently, and got a question that is becoming more common, and for which there isn't a clear answer:  "Can you get a criminal record of a case expunged if you were never actually arrested for the offense?"

This issue is becoming more important because of the way in which the expunction statute is worded and the way that criminal background checks are now conducted.  Chapter 55 of the Texas Code of Criminal Procedure provides that, in some instances, you can get an expunction of records associated with a custodial or noncustodial arrest (I've been waiting twenty years to witness a "noncustodial" arrest.).  But let's say you are charged with misdemeanor Theft by Check and, instead of arresting you, the court simply issues you a summons to appear?  The case, which the court posts on its local county website (a very common practice these days), is later dismissed.  Years later, you apply for a job, have a background check done, and the company performing the check finds the record of the case through the public access website.  

Obviously, you don't want this to pop up the next time you apply for a job.  But since you were never arrested, how do get your records expunged?  After all, the expunction statute only provides for erasing records associated with actual arrests. Unfortunately, there is no clear answer.  Back when the expunction statute was written, the Legislature really didn't anticipate how criminal background checks would be performed in the age of the internet.  It was simply assumed that the only records that anyone would find (other than law enforcement) would be records tied to actual arrests.  

This just isn't how it works in the real world anymore. So what do you do?  File for the expunction anyway.  Many prosecutors' offices won't object and many judges won't care as long as you otherwise qualify for an expunction.  The worst that can happen is that the court can say "No."  Given what an expunction is worth in terms of finding a job, it's worth taking a shot.  In the meantime, let's hope the Legislature gets around to dragging the expunction statute into the 21st Century.


September is the month that a new law goes into effect concerning the use of deferred adjudication probation as a reason for denying, uspending or revoking someone's professional license.  Unfortunately, the text of the new statute spills a lot of ink without really changing very much. One of the main concerns our clients have is how a deferred adjudication on their records may affect their ability to obtain, and keep, a professional license.  

Many of the laws that govern whether or not someone is eligible to have a professional license in Texas permit a licensing agency to deny a professional license to someone if they receive deferred adjudication for certain types of offenses.  House Bill 2808 from the last legislative session seeks, at first blush, to change all of this.  The new law states that a licensing authority may not consider a successfully completed deferred adjudication for the purposes of granting or yanking a license. However, the exceptions in the new law are so broad that it's hard to see how anything changes.  

The statute specifically allows state agencies to consider a deferred adjudication the same as a conviction for licensing purposes if the employment being regulated involves law enforcement, public health, education, safety services or financial services. I don't know about other defense lawyers, but the only clients I get coming to me on a regular basis worrying about how a deferred adjudication will affect their professional licenses ARE people working in law enforcement, public health, education, safety and financial services.  What's left? Maybe now you can clear that last hurdle to get your cosmetology certificate.  Other than that, you're still screwed.  Thanks Texas Lege.  Thanks for nothing.