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For sale: cheap, barely used intoxililzer, last used prior to Sept. 2003. not needed now due to lack of willing participants.
If the trend continues at its current rate, this will not be a joke.
I believe it is "INTOXILYZER"....
I would suggest that if the public trend toward refusing breath tests continues, the device might be spelled more appropriately as "o-r-n-a-m-e-n-t-a-l" or "p-a-p-e-r-w-e-i-g-h-t."
Mike: I think you've hit upon our biggest problem in DWI law enforcement. So how can we get people to take the test? What will it take?
Class B misdemeanor to refuse? Or, even better, Class A, making it nominally worse to refuse than to take the DWI charge?
Having once been young and stupid, I think this is the sort of law that might have encouraged me to modify my habits . . .
If I'm not smart enough to spell intoxilyzer, how can I be expected to answer the question that has baffled even the sharpest legal minds Texas prosecutors have to offer?
In doing a quick check of this week's docket, of the new DWI cases, 60% of those are refusals. That has been the norm the last few months. Couple that with a NO Bill in A felony case last week where the video was marginal and the defendant had her two kids with her and blew a .122 on the portable test, but refused the inotxilyzer, things are tough all over.
I agree that making it a crime to refuse might be the answer. Would that need to be enhanceable as well to "encourage" repeat offenders? I can see the defense bar liking that idea by telling clients never blow and maybe we can get your DWI dismissed(if it was filed) if you plead to "Failing to deposit a Sample". Perhaps allowing a deferred if the test is taken but still be able to use it for enhancement(such as the family violence staute).
Further license suspension is not the answer!
I'm curious, have there been any stats kept for the # of refusals the past few years statewide and what are the results?
The question I keep coming back to is "Why do we not get cooperation on a DWI case from the defendant but they will give confessions to all types of felony offenses? Is it the stigma attached with the DWI? The consequenses(no deferred, license suspension, etc.)? Job consequences that flow from a DWI conviction?"
Seems to me the solution is either to grant some positive reward for taking the test or make it a crime not too. Negative collateral consequenses flowing from the refusal have not worked in my jurisdiction.
I would encourage others to give this some thought as well, as there has to be a workable solution.
Thanks for letting me rant.
We don't need to figure out whether to provide an incentive or penalty. I will merely repeat what I said in October, 2002 on this forum:
"It would be far easier and less expensive if only we had a statute like Nevada Rev.Stat. sec. 484.383 (7) which reads: 'If a person to be tested fails to submit to a required test as directed by a police officer pursuant to this section and the officer has reasonable grounds to believe that the person to be tested was:
(a) Driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance; or
(b) Engaging in any other conduct prohibited by NRS 484.379 or 484.3795,
the officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested. Not more than three such samples may be taken during the 5-hour period immediately following the time of the initial arrest. In such a circumstance, the officer is not required to provide the person with a choice of tests for determining the concentration of alcohol or presence of a controlled substance or another prohibited substance in his blood.' The statute has provisions for hemophiliacs and similar concerns."
Of course, such a statute would still eliminate the need for the "machines" or instruments or whatever they are (except the experience in Nevada shows that most suspects submit breath samples).
I forgot about the option of forceable testing.
That would take the quesswork out of the situation.
If you are going to do that, require blood and avoid the attacks on the intoxilyzer.
Will the legislature go for it?
Maybe if it becomes more apparent that 49.04 cannot be enforced without evidence-- but I rather doubt Texas legislators will adopt such a law anytime soon. It makes too much sense and would put the Trichters of the world out of business.
If .08 is going to be the standard then there needs to be a method to gather the evidence. As most of us know, there are a lot of people who look real good on a video at .08 and above and the HGN just does not do it for jurors. As prosecutors, we see the slight deviations from the FST's and realize the Def. is intoxicated and could probably come close to guessing their BAC. But the layman has a hard time unless there is a gross loss of capacity.
That being said, if the trend continues, .08 is useless.
Another thread discusses the search warrant as a way to obtain the evidence. We are discussing implimentation of that policy on all felony and misd. cases. Hoping to hear how it has worked in other jurisdictions.
I like the Nevada idea, but that means we would have to ramp up our blood testing around the state. Wonder how much that would cost? I think the whole point of the Intoxilyzer was ito be a whole bunch cheaper than blood....but, if we have a realistic threat of blood test right there behind the breath test, maybe the breath tests would become more frequent....
We can pay for the blood tests with the loss of overtime pay being spent on officers reading nonsensical statutory warnings to drunk defendants.
PS. Are you sure it isn't "Breathalyzer"?
While we are a small jurisdiction, I have the abililty to break down percertages of DWI with and without the test without a whole lot of difficulty. Are there statewide stats available?
I used to practice in AZ and we had well over 80% of our cases as breath tests ... the reason, we would tell them up front that if they refused a breath test then we could obtain a search warrant to forcibly obtain their blood. Once the word got out, everyone simply choose to blow. We rarely had the need to get a blood test. I know that the case law supports obtaining a blood sample pusuant to a warrant, but it has been difficult getting the system going here. Does anyone have this in place in their county?
My SO is using blood test search warrants with success. For some reason, the Highway Patrol are all but refusing to utilize the search warrant. They have come up with every excuse imaginable to keep from using this tool. Some of the Troopers have even complained that their Sgt. is discouraging them from using it. I have not found out why yet. We have emphasized that an officer does not need to use it in all refusals. Only in those cases where a defendant has priors, where there is an accident, or where the defendant has violated the POP statute. Once our SO got past their reluctance to wake up a JP to get the warrant, (No Court of record in the county) they found it to be a good tool. We still have the reverse extrapolation problem, though.
[This message was edited by Tuck on 03-10-04 at .]
At the risk of riling up any high level DPS chain of command people who might be monitoring this discussion, Tuck, the problem with DPS reluctance in this area comes straight from the top. Several years ago, I had a case involving three teenagers who were killed by a drunk driver on a rural highway. Defendant told the DPS trooper working the case that he would refuse to give a blood sample, even though it was a mandatory sample situation. That's when I found out (the next day after it was too late) that DPS command had a "policy" in place that troopers were not to force a suspect to give a blood sample even though the law requires it. When I enquired about the policy in Austin, I could never get an explanation as to why the policy was in place. I was left to conclude that the DPS had a policy that it could not defend and so it just wasn't going to try. With the help of the Governor and Attorney General's offices, I got the policy rescinded but you would not believe the level of acrimony directed toward me for challenging DPS command. Long story short, there is no good reason why DPS would be reluctant to seek a search warrant, except that command frowns upon being told what to do in such cases by the prosecutor. It's a territory thing. That's my take.
We implemented a search warrant program about 6 months ago. Our county, pop. 20,000, averages about 10 DWI's a month. Our local PD and SO, have been using the SW regularly. Since our hospital is 3 blocks from the jail, and the JP and County Judge are only minutes from either, the system has worked pretty good.
The officers were initially reluctant to go along, but once they saw how easy it really is, they are huge fans of this system. The officers have made improvments to our forms, and offered good, practical suggestions on how they can save time on their stops, which have been incorporated. In particular, the officers really feel empowered by the whole situation. Our blood draws have been averaging 45 mins to 90 mins after the stop.
The whole set of procedures is really just an extra burden for the officers, hospital staff, and Judges. But when informed of the potential benfits, all have agreed to participate.
We have had attys in several of the SW cases, and none have been challenged in Court, or really even vigorously questioned to us. Once we point out the case law, the attys seem convinced as we do.
I think we have a unique set of circumstances in our County that help this work. We're a small County, and the participants are at most 10 mins away. Combined, our law enforcement usually has at least 4 officers on duty, which can help the arresting officer, by performing the inventory, waiting for the wrecker, doing the bookin while the officer gets the warrant signed, etc.
I don't have any stats to back us up, but it seems like the number of DWI's has gone down slightly.
I have not had any complaints from defendant's either. It's really surprising how many people look decent on the FST's and video, and then their blood is drawn, and results come back pretty high.
Great! Now for the obvious question, would you be willing to share forms and information to assist a similarly sized and situated county with the SW proceedure?
I looked at the DWIs back to 1999 and the % of refusals in misd. cases has risen from 25% in 1999 steadily to 50% this year so far. Refusals ran above 40% last year. I would assume the % would be greater for felony cases since the defs. have been through the routine before.
Yes, I would also love to have copies of the forms and any other documents you all use in obtaining a draw by SW. We are thinking of limiting them (at first) to cases where we have a total refusal. I would think our time issues would not be as great in this sort of case.
I too would like to see your paperwork. Maybe we can encourage the drinkers and drivers to blow with the threat of blood firstname.lastname@example.org
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