No refusal debate draws strong opinions

HOUSTON The next no refusal push will likely be Memorial Day weekend. You'll see more officers on the roads targeting drunken drivers.

One side says no refusal is just a creative way to use the law on searches, and the other side says that while it's legal, it's just not fair.

The last time Harris County had a no refusal weekend, it was the start of spring break. One-hundred-twenty people were arrested, and it was declared a success.

Now this video has some defense attorneys once again questioning that.

"It's fundamentally unfair to the citizen," DWI attorney Mark Thiessen said.

No refusal as we now know it started in 2004. Once a suspected drunk driver fails a field sobriety test, he is arrested, taken to a central location where he's offered the chance to take a breathalyzer test.

If he refuses, a prosecutor asks a judge for a warrant to have a nurse draw his blood, and he can't refuse that.

Appellate judges have said it's no different than getting a warrant to search a home.

Thiessen disagrees.

"This excessive force of holding people down, taking their blood -- can you imagine doing that in a house, just looking for medicine or drugs in your house?"

"Blood search warrants cut both ways," Harris County prosecutor Warren Diepraam said.

Diepraam started Harris County's program six years ago.

"That spread to practically every Texas county and has now spread to 10 different states," Diepraam said.

And he has taken it with him to the Montgomery County District Attorney's Office, where he now works. He says all the program does is expedite a blood draw, but it's not rubber-stamped.

"Judges will read those things closely, and if they spot any problems with it, they won't sign it," he said.

While this video creates questions, Diepraam defends the program -- making a sometimes gray area clear.

"DWI is an opinion crime," he said. "You can be convicted based on the opinion of an officer. No refusal takes the opinion and the guessing out of it. It's solid evidence."

If the person's blood alcohol content comes back below .08, the legal limit, prosecutors will drop the case.

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