For another excellent story on blood search warrants, check out this Tarrant County story.
The Tarrant County DWI Czar continues to educate the public on the outrageous refusal rate. Thanks.
DWI blood testing sticks in North Texas
10:45 PM CDT on Friday, May 9, 2008
By WENDY HUNDLEY / The Dallas Morning News
What started as a way to combat drunken driving on certain holiday weekends is becoming a more permanent practice in many North Texas communities.
Over the last year, Fort Worth, Arlington, Richardson, Plano and other cities have employed "no refusal" weekends, which require motorists to give blood samples if police suspect they are intoxicated and they refuse Breathalyzer tests. The blood is drawn after authorities obtain a search warrant.
On May 2, "no refusal" became standard operating procedure in Burleson.
Dallas County prosecutor accused of DWI
11:05 PM CDT on Monday, June 16, 2008
By TIARA ELLIS / The Dallas Morning News
A Dallas County prosecutor was arrested Saturday evening after witnesses said he drove into a house and continued trying to drive the car forward, according to a Dallas police report. Thomas Andrew Gatlin, 43, has been accused of driving while intoxicated.
He refused breath and blood.
Judge Angelini's DWI case tossed
By Elizabeth Allen
San Antonio Express-News
A four-month-old drunken-driving charge against State District Judge Raymond Angelini was dismissed Thursday afternoon because of what a prosecutor deemed insufficient evidence.
Special prosecutor Tony Hackebeil asked County Court-at-Law Judge Michael Mery to dismiss the misdemeanor charge stemming from a Feb. 28 traffic stop against the longtime jurist.
�I�m not going to elaborate on it at this point,� Hackebeil said Thursday afternoon. �Suffice it to say that I filed a motion to dismiss based on insufficient evidence.�
Reacting to the dismissal, the 57-year-old judge said, �I�ve said all along that I was not guilty.�
Still, he said he�s aware residents will perceive the dismissal as a reflection of his authority and position.
�I know there�s a lot of people that believe things like that, and there�s nothing I can do about it,� Angelini said. �I had nothing to do with what (Hackebeil�s) decision was. I didn�t talk to him.�
Was there no request for a search warrant for blood? If not, why?
I seem to remember Rob Kepple ethics seminar indicating that as a prosecutor we ethically had a duty to take the breath test. (now I may have misinterpreted Rob's statement and if so, I apologize.)
Close! What I have said in ethics trainings is that it is a violation of the law to refuse a lawful request for a sample of breath or blood from an officer. Now, the penalty for that law violation is a license suspension, but it is still unlawful. Just seems hard to be an enforcer of the DWI law when, push come to shove, you wouldn't follow it yourself.
I know a number of prosecutors, and at least one elected prosecutor (in another state) who have been stopped for DWI and took all the tests, come what may. Many of those folks got to remain in the profession because they followed the law (that elected DA was re-elected, by the way).
But hey, what do I know? The refusal rate amongst our lawmakers, and even a current Supremse Court Justice, is 100%.
A couple years ago you may recall that our TDCAA president was picked up for a DWI. Took all the tests, and went into court immediately and took the offer the state of Oklahoma made him. I respect the heck out of that.
And in the case of a judge's refusal, I think it adds a whole new twist. The intoxilyzer is deemed reliable scientific by the highest court in Texas. If a judge is adamant that the judge is innocent when arrested for DWI, then the breath test would support that assertion.
What does that mean when later the question of reliability of the intoxilyzer comes up in that judge's court room? If the judge doesn't even believe it's reliable, how can he hear those cases. And if he does believe it's reliable and didn't blow, what does that say about his intoxication?
The policy of the arresting agency would not allow the arresting officers to obtain a search warrant.
Austin's Police Chief has a marvelous idea: when you refuse, an officer will stick you with a needle. For the story, click here.
In some states, a suspect is warned that a refusal to provide a sample creates a presumption that you are intoxicated. Why not do that in Texas, and not worry about blood draws, etc.?
Other states also REALLY suspend a person's license (i.e., no occupationals, sorry), and slam them if they are caught behind the wheel.
Have we forgotten that there is NO constitutional right to drive? It is a privilege, and should be easily revoked.
Stop being so Orwellian.
State troopers to crack down on unsafe driving this weekend 11:35 AM CT
12:26 PM CDT on Wednesday, July 2, 2008
By CHARLES SCUDDER / The Dallas Morning News
In an effort to curb traffic fatalities and crashes, the Texas Department of Public Safety is increasing patrols this Fourth of July weekend.
Through a national effort called Operation CARE (Combined Accident Reduction Effort), troopers will look for drivers who are drunk, speeding or not wearing seatbelts.
Travis County prosecutor arrested on DWI charge
[... snip ...]
They say an officer gave Gentry a field sobriety test and he agreed to take a breathalyzer test. According to police, Gentry's blood alcohol level was .18.
[... snip ...]
From an opinion out of Fort Worth: "Gilfeather declined to participate in field sobriety tests because his father, a lawyer and a judge, had advised him not to participate in them."
Result: DL suspension will go into effect.
EDITORIAL: DRINKING AND DRIVING
There will be blood
Some prosecutor predicted that the defense challenges to breath tests was short-sighted, leading instead to stronger evidence. And so it is...
From Dallas Morning News:
Dallas police want to join a growing national trend by making all suspected drunken drivers take a blood test, but the price tag for such a program may be too high for now.
Under a proposed policy, the Breathalyzer would become a thing of the past. And police would seek a search warrant to get blood from any suspected DWI driver who refused to take the blood test.
Here is an excerpt from a local defense attorney's blog that you might find interesting:
"What's the problem for citizens from whom blood was drawn after their DWI arrest? Simply, a blood test is much more difficult to defend than a breath test. Breath samples analyzed by the Intoxilyzer 5000 can be attacked in many credible ways. We've discussed the problems with the Intoxilyzer on many occasions here at the Defense Perspective. However, blood testing does not suffer from the same, wide array of problems. There are ways to attack a blood test, but not nearly as effectively.
"Consequently, the no-blow paradigm may be changing around these parts. The best way to avoid the problem is to avoid drinking-and-driving. However, in a large college town like Bryan|College Station, students rarely take this issue into consideration before a night out on the town. So, if you drink and drive in Brazos County, it may be time to start saying yes when asked to submit to a breath test. But better you never get asked."
The full blog post can be found at http://texascriminaldefenselawyer.blogspot.com/
Quite a turnaround and a sure sign we're on the right track in seeking blood samples from DWI suspects, especially those involved in accidents.
I was pleased to see growing recognition that collecting good evidence helps the entire system. For too long, the DWI has been treated as a criminal justice stepchild, as if we should all tolerate bad investigations in those cases because, gee, those crimes could involve all kinds of "good" people.
The Austin Police Department along with the Travis County Sheriff�s Office will present a proposal to Travis County Commissioners Thursday afternoon to bring a full-time, trained phlebotomist on staff to conduct blood draws at the Travis County Jail.
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