Shannon,

We have had our program in place in Wharton County since mid-November, with very good results. Our officers and judges have participated enthusiastically and we are making a dent in our DWI case load as we are able to now resolve the case much quicker. The Houston DPS lab has also been getting us results in a very timely fashion. Thanks to all who have made this possible.

Lee, it is worth the wait. Have your judge use bond conditions including an interlock device on DWI 2nd and 3rd. One local JP is ordering it on DWI 1st cases.

Lee:

We have found that if you get close to your 90 day deadline on felony cases, you can call a couple of weeks prior and get them to expedite the lab report.

I realize this is a site for prosecutors, and I am a substance abuse counselor. But, you guys scare me a little. From reading your posts, I am assuming that almost all, if not all, of these blood tests yield the .08 result. If this is not the case, I wouldn't be so exuberant about the programs. Unless you think it's ok to forcibly take an innocent persons blood.

For felony DWI cases, the results from a blood sample are most frequently 2 and 3 times the legal limit of .08. You should be more frightened about driving home from counseling with such drunks on the road.

And, given your nonlawyer background, you should be comforted by knowing that the police officer must first develop probable cause to believe the defendant has been driving while intoxicated. The collection of a breath or blood sample only comes after such an investigation is successful.

Furthermore, every defendant could avoid losing blood through a search warrant by voluntarily complying with the law he/she agreed to follow when he/she got a driver's license: by blowing in the Intoxilyzer.

quote:

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Originally posted by Don:
I realize this is a site for prosecutors, and I am a substance abuse counselor. But, you guys scare me a little. From reading your posts, I am assuming that almost all, if not all, of these blood tests yield the .08 result. If this is not the case, I wouldn't be so exuberant about the programs. Unless you think it's ok to forcibly take an innocent persons blood.

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Don,

Thanks for the work you do in the field. It is appreciated, I'm sure, by all of us.

Regarding the drunks and blood draws, let's not forget that the only reason (in all of the cases we are talking about in this thread) the person's blood is being drawn is because that person has REFUSED to submit a breath test.

When you sign for your driver's license, you are also agreeing to submit (as a condition of having the privilege of receiving the license) to a blood, breath, or urine test at the request of a law enforcement officer who has lawfully arrested you for suspicion of D.W.I., etc. (To my knowledge, the urine tests are only used for commercial vehicle arrests, and probably on very rare occasions at that.)

So, it's not like the big mean policemen are just yanking people off the streets, strapping them onto a gurney, and forcibly removing blood from them.

I am not a prosecutor. I am a law enforcement officer, and so I can only share my personal "street" experience with you.

I have actively investigated/arrested/processed over 1,000 drunk drivers in my law enforcement career. I am a former Intoxilyzer operator and so I conducted a large number of breath tests for most of the drunk drivers who were arrested by patrol officers at my (former) agency.

During most of that time, the legal limit was 0.10 not 0.080 like it is now.

I can remember only ONE person who blew under the limit. His first sample was 0.101 and the second sample was a 0.098. (An Intoxilyzer test is really two separate tests that are compared against one another, with a common variance of a few thousands.)

The lower result is always used, but in this case the prosecutor accepted charges because there was a delay in getting the breath test of several hours due to circumstances beyond our control, and I suppose he extrapolated based on the time of the guy's last drink, etc.

So I guess what I'm saying is, don't worry too much about innocent persons getting blood drawn.

If nothing else, the incredibly small amount of blood they stand to lose is wholly insignificant compared to the blood of innocent persons that is lost due to drunk driving crashes.

Just my two cents.

Again, thanks for doing what you.

[This message was edited by tgltexas on 01-31-08 at .]

[This message was edited by tgltexas on 01-31-08 at .]

Thanks to tgltexas for a respectful reply. And I also should thank JB for his (not particularly respectful) reply which confirmed my suspicion that I would draw a lot of condescending disdain since I had a "non-lawyer" background, thus didn't know my ass from a hole in the ground about what was being discussed here. As a person who has worked with hundreds of alcoholics, which most who get felony DWI's are, and most of my work has been in the criminal justice field, I know that probable cause is usually established. I also know that probable cause is pretty easy to conjure up. For the most part, I realize that cops do their jobs, prosecutors do their jobs, judges do theirs, etc. It is the exceptions that trouble me, and I have seen come of those. I live close to Tulia, Texas. Ring a bell?

quote:

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Originally posted by Don:
I realize this is a site for prosecutors, and I am a substance abuse counselor. But, you guys scare me a little. From reading your posts, I am assuming that almost all, if not all, of these blood tests yield the .08 result. If this is not the case, I wouldn't be so exuberant about the programs. Unless you think it's ok to forcibly take an innocent persons blood.

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Don: In the two years that we've run our program here in Parker County (which deals with DWI 3rd or more), I believe we've only had one of approximately 50 samples come back below the .08 limit (and that one is currently pending in the lab in Austin for a drug analysis). That, I believe, is a product of two things: (1) We have officers on the street who are doing a tremendous job on the traffic stops and administerting the SFSTs in screening the cases; and (2) the warrant process has been enthusiastically accepted by our law enforcement officers, the judges, and our local community hospital.

In terms of "taking blood from innocent persons"--I just ask that you remember that before any blood is taken, an officer has submitted a sworn statement to a district or county court at law judge who then makes a probable cause finding that an offense has occurred. Those warrants are no different then any other type of evidentiary warrant. Every prosecutor on this board can tell you stories of cases where a warrant was obtained for stolen property, dna, blood or other evidence-in which ultimately the person named in the warrant was not convicted of the crime.

quote:

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Originally posted by Don:
...which confirmed my suspicion that I...didn't know my ass from a hole in the ground about what was being discussed here.

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That makes two of us! But there are a lot of people on here with a tremendous amount of knowledge and experience, so I just loiter around and hope I can soak up some of it.

quote:

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...I know that probable cause is usually established. I also know that probable cause is pretty easy to conjure up.

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That might be true, but I'll tell you this:

From a police officer's perspective, it's easier to work a sexual assault or death investigation than to make a quality D.W.I. case.

Nothing we do on a day-to-day basis takes as much time as a D.W.I. arrest. Nothing.

There's the DIC23/24/25 reduncancies, dubbing tapes/DVDs/etc., writing probable cause statements, waiting for the Intoxilyzer (complete with the 15-minute observation period), and so forth.

The majority of police officers dread D.W.I.s because they are ***EXTREMELY*** time consuming and almost always result in ALR hearings, court time, etc.

What I'm saying is, 99% of police officers out there are not going to go out of their way to "stretch" for probable cause on a D.W.I. case. They're just too much headache (and the cases almost always get pled down to reckless driving anyhow).

quote:

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It is the exceptions that trouble me, and I have seen come of those. I live close to Tulia, Texas. Ring a bell?

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Yes, it rings an unfortunate bell. And, yes, the exceptions trouble me, too. I would assume the exceptions trouble most everyone on this board.

Fortunately they are called exceptions for a reason.

And I guess that's why the defense bar is there. *shrug*

To tgltexas. I agree with you mostly. Don't know that I agree that the "exceptions" are as troubling to most people on this thread as they are to me. Human nature is what it is, and one tends to be defensive of their own domain. And I may be unduly cynical of the system. The problem I see with the generalities is that nobody has worked in all jurisdictions, and it varies from county to county and district to district about the zeal with which officers and prosecutors go after offenders, as well as just go after convictions. I have worked directly or indirectly with probation departments, parole offices, prisons, CRTC's, a state jail, mostly in rural areas of West Texas, in about 15 counties, which are not the same breed of cat as Travis, Williamson, Dallas, Tarrant, etc. etc. Tulia is unique in that they got a little ambitious and tried a railroad job on 40 people. I can guarantee you that I have seen things in, say, Yoakum County, that made my blood run almost as cold as Tulia, but on a much smaller scale. You say "that's why we have the defense bar". (shrug). Please. If not for the ACLU, Texas Observer, New York Times, NAACP, Friends of Justice (a preacher), et al, the "defense bar" was having a little trouble stepping up, to say the least. I'm guessing that the abovementioned people and entities are probably not among the heroes of most members hereon.

In all of this discussion about the blood test, it must be remembered that, while the test is being performed at the request of law enforcement, it is, in fact, a scientific test. If the person is not intoxicated, the test will show that too. For those like "Don" who are worried about the propriety of the involved officers, I would submit that this test is the best thing that could possibly happen for the defendant -- independent evidence to confirm or deny the officer's stated observations. Those who oppose these tests should recall that, in the end, they are immensely helpful in finding the truth, which is a good end result, whether it results in conviction or acquittal.

Don,
I can appreciate your perspective on this issue and don't fault you for it. There is, however, another perspective. There was a time in my life, even as a prosecutor, when I had a fairly "forgiving" attitude toward DWI offenders. In most instances they are just misdemeanors--not unlike hot check cases--a little slap on the wrist, a little probation--justice served, right? In 1999 I decided it would be a neat thing to become a volunteer firefighter for my local fire department. It wasn't long before I realized that maybe as many as one third or more of our calls were not fire calls, but rather extrication or JAWS calls. Over and over it seemed that I was getting called out at night--often late on Fridays and Saturdays--to assist with cutting someone out of a car or setting up a landing zone for the LifeFlight helicopter from Houston to transport someone from an accident scene. After awhile, it started to become extremely apparent that the common denominator in most of these accidents was the use of alcohol by one of the motorists. The smell of gas, diesel, oil and booze; the sound of crying or injured victims--all of that is really hard to forget.

Amazingly, in most of these cases, the drunk driver walked away only slightly injured, or not injured at all. On the other hand, more seriously injured parties were innocent husbands, wives, or children who simply happened to be on the road at the wrong place at the wrong time. In the same connection, as a felony prosecutor I've seen all of the Intoxication Manslaughter and Assault cases; and the traumtic impact many of those cases have had on the lives of victims and their families. I don't want to sound like someone crusading for MADD here, but many of these folks have had their lives changed tragically just because someone thought it would be okay to drive a vehicle after having several drinks. I have no problem with drinking in general. I'm not a teetotaler myself. I just have a problem with folks who want to drive a vehilce after having a few drinks at the same time my wife or kids may happen to be using the public roadways here in our county--which they also have the "right" to do.

In making the decision to have a "no refusal" weekend here in my county, I'm not looking to "pad" our DWI conviction statistics or "drum up" more business. In fact, I intend to promote our "no refusal" effort in the media in the days and weeks before Memorial Day weekend. I want people to know what we're up to and hopefully it will cause them to think twice before deciding to drive drunk. Hopefully, if prosecutors around the state promote such "no refusal" weekends, over time we'll start to see the number of DWI cases go down. I doubt anyone who posts on this board would hate to see fewer DWI cases. Of course, you'll never be able to totally measure our success because it will always be impossible to count the number of lives saved, collisions avoided, etc.. In my opinion, if we can just save one life in our county by doing this, it will be more than worth extra effort on the part of law enforcement, prosecutors and judges. Just my opinion.

[This message was edited by LH on 01-31-08 at .]

To LH: Once again I appreciate the respectful response. But it reinforces why I was reluctant to post on this site in the first place, and that is the knee-jerk reaction that I am somehow defending someone's right to drink and drive, taking sides with the drunk driver against the prosecution, or whatever. I invite all of you to reread what I have actually said, and see if you can figure out what my point actually is. My issue actually is, and I admit I haven't made that clear, is the gradual defacto repeal of the 4th, 5th, and 6th Amendments to the Constitution, mostly in the name of the War on Drugs, and more recently in the name of the War on Terror. And it is exactly this "end justifies the means" mindset that fosters it. Even SCOTUS has bought into it with sobriety checkpoints, otherwise known as suspicionless roadblocks, without probable cause. That smacks of police state methodology. As you attorneys no doubt know, SCOTUS, while admitting that this flew in the face of the 4th Amendment, they would allow them because of the overriding concern with public safety. More end justifying the means mentality. Never mind that they don't reduce DWI crashes, according to studies don't enhance public safety in any fashion. And are often used as fishing expeditions. I'm just saying, the Bill of Rights was there for a reason. Just for the record, I hate alcohol, and not just in drunk drivers. Your assumptions that I am an apologist for drunk drivers is simply wrong. I just don't think you get to shred the Constitution, for any reason. Nor am I saying that these blood warrants are doing that. I am not saying that at all. I am saying that as citizens, we need to be vigilant. As Ronald Reagan famously said: "Trust, but verify". You mention MADD. They are a prime example of what I am talking about. With ever so noble beginnings, they had an impact for the better for a few years, but IMO they are totally out control. Even Candy Lightner, the founder, can't hack them anymore. This is just an example of "nose of the camel under the tent". If we don't watch it, Mr. Camel will be right in the tent with us. I have had plenty of experience with the horrors of alcohol vis-a-vis DWI, suicides of friends and family members, ruined family of my loved ones and almost of mine. Please. But I do appreciate your tolerating another viewpoint. I'm not totally anti-lawyer. My daughter is one.

Don,
I don't understand how you see "knee jerk" in Lee's response. His feelings on DWI changed over the years and were molded by his experience as a volunteer fireman... sort of the opposite of "knee jerk" if you ask me.

It seems like you are advocating the position that taking blood without consent is always an unreasonable search, warrant or no warrant.

I agree the idea of someone taking your blood against your wishes is creepy, but I also think whether or not something is reasonable is not a static notion but rather a living function of public opinion.

[This message was edited by AlexLayman on 01-31-08 at .]

JB-are you sure you aren't a counselor? Or maybe should be one. Thanks, anyway, but I am as relaxed as you can get, and I don't drink. However, you are pretty insightful in figuring out that I didn't log on to the District and County Attorney's web site to do anything but challenge the thinking. I wanted to see how long it would take for someone to get defensive and tell me I was out of my element, and if I was going to hang around, I really should just listen and soak up some prosecutorial wisdom. Didn't take long, did it?

Alexlayman: the knee-jerk I was referring to in Lee's response was not about his feelings toward DWI, but his assessment of what I was saying. A tendency to look at counselors as coddling hand patters, bleeding hearts, if you will. I had no quarrel with his response, as I said I appreciated his respectful tone. Maybe it will catch on, perhaps in Williamson County.

While I think what happened in Tulia was appalling, that does not mean that the alleged "victims" were innocent!!!! Tell that to the then 4-year old child who was a victim of a "so-called innocent person from Tulia". While this man spent most of his money he got from the Tulia settlement on more drugs - he thought proper discipline was to beat this child until his back looked like raw hamburger meat - maybe while he was "innocent" of using drugs.The alleged victims of Tulia are not innocent because they are actually innocent, they are innocent but because of the mistakes one cop made. Associating what happened in Tulia to all cops is akin to racial profiling. It appears that being influenced by what happened in Tulia you base your decision on that as a ends to justify the means: that most cops falsify probable cause, therefore, cops should be further restrained in their ability to get drunk drivers off the streets.

Was wondering when that was coming. I didn't say any of the things you said I said. You flat-out made all of that up. That kind of thing is what takes away from the value of the great opportunities the internet affords for honest discourse.

This thread is about search warrants for blood; let's keep it on topic, folks.

Blood test results from Fort Worth's New Years "No-Refusal" weekend.

Highest BAC was 0.31

Lowest BAC was 0.09

Overall Average BAC was 0.202

Individual BAC results:

0.31, 0.21, 0.22, 0.18, 0.18, 0.16, 0.21, 0.24, 0.23, 0.14, 0.24, 0.27, 0.09, 0.12, 0.27, 0.20, 0.14, 0.22, and 0.21