Andrews County has been using blood search warrants for a couple of years now. Some officers are more enthusiastic about it than others, but I have noticed an increase in blood draws. I request them on any refusal (misd. or felony).
I have followed this bulletin with some fascination since Collin County had its "no refusal weekend" over the Labor Day weekend. I was assaulted, defended, myself, and left a bar that Sunday morning @ 0030 HRS. I was pulled over by a police officer as I was leaving the bar. His report states he was called to the location as the result of a civilian report of the altercation I was involved in. He smelled the last beer on my breath and had me do a field sobriety test. I told him there was not way I would pass because a) I just was in a fight and was sure the eye thing would read wrong and b) I have such severe arthritis in my feet that walking in a non straight line is hard. I cooperated, he arrested me.
It has been stated that we do not get to choose which test we want. Legally that is correct, however the defacto answer is I can refuse and in the no-refusal weekend environment, force the state to do a blood test. This I did. My results came back under .08. After reading the results from the various counties here, it appears my case is a rare exception. Unfortunately, the prosecutor is still going through with it. My point here is to debunk the myth being propagated that the blood test will also prove a non-drunk state. I am spending 1000s of dollars for something I did not do, while the prosecutor knows this to be the case.
Zedd, it's hard to answer your claim. You get to be anonymous. You get to state the facts. We have no way of questioning the accuracy of those statements.
Nor should we. The proper forum for your claim to be litigated is in court. A difference of opinion between the defendant and the State as to guilt is not all that unusual. That's why we have contested hearings and trials.
And, we shouldn't (but often do) establish policy on the anecdotal examples of individuals. In the field of DWI prosecution, we know that there is a statewide average refusal rate of about 50%. That has led us to seek blood samples. As even you acknowledge, the average blood result often shows definitive, unquestionable guilt as to intoxication. (For repeat offenders, the average result is 2-3 times the legal limit.)
Would you rather go to trial and risk conviction on the evidence of an officer's opinion as to your intoxication or have some physical, scientific evidence upon which to generate a more specific defense? In addition, a low alcohol concentration can nonetheless prove intoxication if, for example, the alcohol was combined with drug use or the sample was taken hours after the driving.
And, admittedly, there is no perfect system in any social arena. We are, after all, all human and bring to our systems human problems. But, the addition of blood testing to DWI cases unquestionably improves the accuracy of the decision to arrest and prosecute those cases.
From what I hear from the ACLU, Innocence Projects, Legislative interim committees, professors, and anyone that cares about justice, making improvements that lower the likelihood of improper conviction are to be praised. Or does that only apply to those changes that reduce the likelihood of imposing the death penalty?
I would be more than happy to share the police report with anyone. I do not debate the stop (the officer had a valid reason), I do not debate the request for field sobriety test, I do not even question my arrest and bail etc... I was driving, I had the smell of beer on my breath, and in his educated opinion, there was reason to cite me. My question is with the veracity of the blood alcohol test. If the prosecutor can live by the blood alcohol, it should also sink by the blood alcohol. According to 'intoximeters' web site the blood alcohol peak absorption is between .75-2 hours and other studies show up to 6 hours. Point is that my blood alcohol level was under the legal limit and it was sampled soon after my arrest. Is there reasonable doubt? Clearly. Even you are now digging into the ways the blood alcohol level under the legal limit could still b grounds for prosecution. I have never done drugs, I would be willing to put my money on a hair toxicology against the state's paying for it.
Please, do not get me wrong. I thank god mandatory blood tests were required. I have little faith in the accuracy of breathalyzers and much better faith in blood alcohol tests. The blood test is the only proof I have of my sobriety. My main point is if my blood alcohol concentration (or anyone else's) is close enough for debate, the case should be dropped. There was no evidence I was impaired other than the fst. Since this is a prosecutors forum, I appreciate the opportunity to ask you to consider justice. I make about $1300/month working two jobs after getting laid off my last one. There is no way I can afford an attorney and Collin County will not provide one. I am faced with trying to save my own butt in court without knowing the 'secret handshakes' of the legal system. If I was guilty of the infraction, I would suck it up and say fine, I deserve what I get. But I was not. Anyway, I am not looking for commiseration or justice here, just asking the prosecutors to be men (or woman) enough to move on to the serious cases.
Zedd, while I think your points are well made, you do have one misunderstanding of the law that has to be considered: while a person over .08 is always intoxicated, under the legal definition, as person under .08 is not always unintoxicated. I know from personal experience, having attended a seminar in which we were given the opportunity to drink and then blow into an intoxylizer, that I will be impaired to the point where I would not want to drive at a level well below .08. I realize I'm a lightweight, because I don't drink alcohol very often, but there are lots of people like me who are unsafe to drive at alcohol concentrations which are below the legal limit. At least at the time I participated in the testing demonstration, had i been driving I would have been guilty of DWI despite being under the legal limit.
Many people have other reasons for appearing to be impaired other than due to the ingestion of alcohol, in which case those people would be not guilty of DWI. Many other people, however, are guilty of DWI despite being under the legal limit. I do hope the truth wins out at your trial.
Posts: 622 | Location: San Marcos | Registered: November 13, 2003
To add to WHM's comments, the legal definition of "intoxication" in Texas is not just the "alcohol concentration 0.08 or greater." There are two other means to prove intoxication: that the person did not have the normal use of their mental faculties (because they ingested alcohol or another substance, like drugs, or a combination), or they did not have the normal use of their physical faculties (because they ingested alcohol or another substance, or a combination). There are many instances I have seen intoxicated defendants in spite of low BT's because (1) they couldn't hold their liquor, or (2) they combined alcohol with something else (cold medicine, allergy pills, Xanax, marijuana, etc.).
I recognize from your post that you have not done drugs. I will be curious to see how this works out under the "not having the normal use" theories. I have no opinion in the outcome because I am only getting one side of the facts on the forums, but I do agree with JB that you have been professional in your protests.
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004
My cousin is a police officer (sargent, Wichita Falls) who showed me a study they did where officers were given various levels of alcohol and then did physical and mental skills tasks. It was very interesting to see the results. They were not predictable based on any of the 'normal' qualifiers. Some of the 'heavy' drinking, bigger guys did amongst the lowest while my cousin a scrawny guy who drinks little did 'better' than others. One of the common denominators for those who performed lower at both physical and mental (they were always linked, hence the fst) was modifications in speech patterns, i.e., speaking louder than normal, speaking at a different pace, slurring words etc. I do not believe there is a specific blood alcohol level that will determine definitively for all decreased levels of performance. I think a fst is subjective and an indicator by an officer of a potentially dangerous driver. Yet ruining someones life for a potential is a harsh punishment (and at this stage of my life that is what it would do). My recent interest in this subject has led me to believe the .08 is still to high. What is needed is a blood alcohol level is determined to be sufficiently low enough that the majority of drivers at that level are 'safe'. This would be an epidemiological study. Perhaps this has already been done. In some countries they have no alcohol allowance. We have this with regards to CDL drivers. Or perhaps changing the law that one range of drivers incurs a different penalty, say a reckless endangerment or something. Anyway, this is way out of my pay grade. But not ya'lls (a yankee speaking Texan).
Having said all this, I have kids. I want them protected. As I said, I have no problem with what I did until it gets to the point of wrecking my life. I have a license hearing tomorrow. My lawyer (until she found I couldn't afford her) wanted me to cross examine the officer in an almost hostile-witness environment. My understanding is this panel is not the same as a judge and jury. They are not bound by conventional rules since driving is a privilege. I can't help but think that interrogating the officer for doing his best would only antagonize those in judgment over me. Any way. I'll let you know what happens....
Defendant is free to initiate contact. He also is anonymous, hardly at risk of being overcome by a forum. But, your point is a good one and probably another reason to repeat the advice at the top of this forum:
Welcome to the TDCAA Bulletin Boards. The discussions in these user forums are for the benefit of prosecutors and their staff members, although we welcome relevant and appropriate input from other members of the criminal justice and government lawyer community. These forums are NOT a source of legal advice for citizens. Call the State Bar of Texas (1-800-204-2222) for information on seeking legal advice.
Beginning Saturday, mandatory blood samples will be gathered at Williamson County Jail for those suspected of felony DWI, according to District Attorney John Bradley.
The county has trained three medical staffers at the jail to draw blood from those suspected of their third DWI, causing serious bodily injury or death as a result of drunk driving or driving while intoxicated with a child present. All three crimes are felonies.
[This addition at the jail didn't cost the county anything other than the training for drawing blood. That's because we used personnel already employed at the jail.]
Our County Attorney is attempting to make Kerr County a non-refusal county on all DWI's.
Would anyone who currently has such a program be willing to send me a copy of the forms that you use and if your willing I'd like to talk about the steps you had to go through to set up the program and make it run effectively.
"It certainly seems to suggest that the folks who really know that they shouldn't have been on the road, that they shouldn't have been endangering the other citizens of the community, are trying to withhold that evidence," said Catherine Evans Chief Prosecutor, Vehicular Crimes Section.