quote:

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Originally posted by John B. Lyons:

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

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Wow!

Thanks for posting that information! It's a real eye-opener, even for those of us in the field who are used to such results.

The best part, I would imagine, is the fact that blood results are probably challenged a lot less frequently (and less vigorously) than breath test results.

This bill was presented to the Leg last session to expand the availability of mandatory breath/blood samples. Here is what the sponsor put in the bill analysis:

Driving while intoxicated (DWI) is a crime which has many serious and devastating consequences for victims, the victims' families and society at large. According to the National Highway Traffic Safety Administration (NHTSA), approximately three in every ten Americans will be involved in an alcohol-related crash at some time in their lives. In 2005, Texas ranked second, behind only California, in alcohol-related traffic fatalities. Of the estimated 3,500 traffic deaths in Texas in 2005 approximately 45% involved alcohol. NHTSA has also identified that the risk of a drunk driver with one or more DWI convictions becoming involved in a fatality is about 1.4 times greater than for an offender with no prior conviction.

Current Texas law provides that a peace officer shall take a specimen of breath or blood from a DWI suspect involved in a crash where another has died or suffered serious bodily injury. In DWI investigations that do not involve death or serious bodily injury, investigating officers rely on a driver to provide a voluntary breath or blood sample upon request. No Texas law requires habitually drunk drivers to provide a breath or blood sample. Even if there is a long history of drinking and driving, Texas law permits the driver to refuse to provide a breath or blood sample, thereby hiding scientific evidence of intoxication. (In Texas, the first and second DWI arrests are charged as misdemeanor crimes; only on the third DWI is the case charged as a felony offense punishable by 2-10 years in prison and a fine up to $10,000.)

Presently, nearly half of all drunk drivers in Texas refuse to provide a breath or blood sample when arrested for DWI. That means prosecutors often have no scientific evidence of intoxication to present to a judge or jury. More significantly, for those drivers with at least 2 prior arrests for DWI, the refusal rate is nearly 70% statewide. Given those statistics, the Texas breath test collection program is a failure, and law enforcement is often left empty-handed when it comes to collecting scientific evidence of intoxication in the most serious felony DWI cases.

The United States Supreme Court has long upheld the warrantless seizure of breath or blood from a DWI suspect. Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). In that case, the Court held that an officer may reasonably obtain a breath or blood sample, even over the objection of the drunk driver, so long as there was probable cause to believe a DWI had been committed. The need for a search warrant was excused because of the temporary nature of the evidence � alcohol in a defendant�s system burns off over a relatively short period of time. Texas law, therefore, could constitutionally be amended to expand the authority of an officer to take a specimen during the investigation of any DWI offender. House Bill 1810, however, only seeks to expand the collection of evidence of intoxication to habitual DWI offenders.

House Bill 1810 will authorize peace officers to take a specimen, by breath or blood, when the officer has probable cause to believe the driver was intoxicated and the driver has been previously arrested on two or more occasions for a DWI offense. House Bill 1810 will increase the likelihood of removing habitually drunk drivers from the road before death or serious injury occurs and provides law enforcement, prosecutors, judges and juries with scientific evidence to show whether the driver was intoxicated.

Dallas-area police target drunken drivers on Super Bowl Sunday
February 2, 2008

By WENDY HUNDLEY / The Dallas Morning News

For some North Texans, too much partying for today's big game could make for some not-so-super consequences on their drive home.

Several area police departments believe drunken driving incidents increase dramatically during Super Bowl weekend, and they have taken extra steps to get tipsy drivers off the roadways.

Arlington, Plano, Wylie and Richardson police will seek search warrants to draw blood from suspected drunken drivers who refuse to submit to breath or blood tests.

The no-refusal initiative, which started Friday night, will continue through midnight today in Collin County and until 4 a.m. Monday in Arlington, well after today's 5:17 p.m. kickoff.

Dallas police officials said last week that they have no plans to increase drunken driving enforcement this weekend.

Super Bowl Sundays "are among the worst days for drunk driving," said Elly Martin, a spokeswoman for the National Highway Traffic Safety Administration.

The administration has launched a Fans Don't Let Fans Drive Drunk campaign for this weekend.

During the 2006 Super Bowl, the agency found that 39 percent of all traffic fatalities involved drivers with blood alcohol contents of 0.08 or higher.

Police in Arlington and Plano couldn't provide statistical evidence showing that drunken driving or accidents increase on Super Bowl weekends.

But they say that any annual partying event � like New Year's Eve or the Fourth of July � increases the likelihood that people will get behind the wheel after they've had too much to drink.

"There's definitely an increase on Super Bowl weekend," said Officer Rick McDonald of the Plano Police Department.

"We want to prevent a problem before it happens," said Sgt. Chad Gann of the Arlington Police Department, which is partnering with the Tarrant County district attorney's office and Mothers Against Drunk Driving in this weekend's crackdown.

These no-refusal initiatives are becoming more common, and that concerns Lisa Graybill, legal director for the American Civil Liberties Union of Texas.

"We recognize the need to get drunk drivers off the streets," Ms. Graybill said. "But the warrants must be obtained and executed properly."

Ms. Graybill said that she is aware of other similar no-refusal initiatives across Texas but said that her organization has yet to receive any complaints about the practice.

In Collin County, a nurse will be stationed at the Plano Police Department to draw blood from suspects taken into custody by any of that county's three participating agencies.

Police officers will fax paperwork for the search warrants to a judge who will be on call to review the requests, said Greg Davis, Collin County first district attorney.

"I would anticipate they're probably going to have 10 to 20 blood draws at the station," Mr. Davis said.

In Arlington, suspects will be taken to a local hospital for the blood specimens after search warrants are obtained, said Lloyd Whelchel, Tarrant County assistant district attorney.

He hopes this weekend's program will have the same result as a similar initiative launched by the Fort Worth Police Department on New Year's Eve.

"We had no fatalities and no major accidents in Fort Worth," he said. "Hopefully we'll have another safe weekend."

Both prosecutors believe the no-refusal programs will become more common throughout Texas.

"We think it will eliminate many of the DWI trials we have in our misdemeanor courts," Mr. Davis said.

"The scientific evidence for the defendant is difficult to overcome in trial."

More important, he believes it will make roadways safer for all motorists once the public becomes aware that evidence will be obtained even if suspects initially refuse to cooperate with police.

In Collin County, those predictions could be tested soon.

Officials are making plans to institute the no-refusal program every weekend of the year throughout the county, perhaps by this summer.

The Collin County Sheriff's Department and all police agencies in the county have agreed to participate.

"We have the support of these agencies and judges who are willing to assist us," Mr. Davis said.

Our results in Collin County - 11 DWI arrests, 5 refusals, and 5 blood draws. The patrol officers and the command staff appear to see the value of this type of enforcement program.

While driving to work this morning, I briefly listened to a popular AM drivetime show. When one of the DJs mentioned the no-refusal plan for Super Bowl day, the other DJ argued that it wasn't right because it violated the drivers' due process rights. After all, he argued, the law gives the driver the right to refuse so the state shouldn't be able to force the driver to give blood. I guess a search warrant isn't enough to give due process.

Janette a

Remember the "Just say 'No'" to consensual search billboards sponsored by some defense attorneys a few years ago? Same flavor!

JAS

quote:

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Originally posted by J Ansolabehere:
...DJ argued that it wasn't right because it violated the drivers' due process rights. After all, he argued, the law gives the driver the right to refuse so the state shouldn't be able to force the driver to give blood.

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That's part of the problem with the law--it engenders the misconception that you have right to refuse. The assertion of a right cannot be punished, as in the 5th Amendment right not to testify. If it was a right, we couldn't take away your driving privilege for asserting it.

You have as much a "right" to refuse a breath test as you have to disregard the speed limit: we can't stop you from doing it, but you have to be willing to pay the price. The problem is, because people have started to view it as a right, they tend not to hold it against the defendant because we have been trained to approve of people asserting their rights. I make a point of objecting every time the defense refers to the "right" to refuse.

quote:

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Originally posted by WHM:
I make a point of objecting every time the defense refers to the "right" to refuse.

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I like that. Very cool.

And I totally agree with your distinction between a right and a privilege. It seems that some folks like to mesh those two concepts into one thing.

"If it was a right, we couldn't take away your driving privilege for asserting it."

I don't mean to quibble, but this may not be technically true. Black's Law dictionary defines a "right" as
"A power, privilege, or immunity secured to a person by law <the right to dispose of one's estate>. " You have a right to a drivers license in accordance with statute, and a limited property interest in your license, so you have due process rights with regards to its revocation, etc.

You point is well taken, however, that most laymen think of every "right" as an "absolute right" or a "constitutional right." Black's quotes Justice Holmes: "[T]he word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified." American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, 256 U.S. 350, 358, 41 S.Ct. 499, 500 (1921) (Holmes, J.).

Black's lists approximately 40 different kinds/categories of "right". I know this only because of a prof who used to torture us with questions like "Is defecating a right? If so, would it be better characterized as a 'natural right' or a 'peripheral right'?"

sjf, the "right" I was referring to was the s0-called right to refuse a breath test, not the statutory right to a driver's license. If you have a right to refuse a breath test, then it follows that we cannot penalize you for refusing one, just as we cannot hold it against you for refusing to testify in court. Since the law provides a penalty for refusing a breath test, it is by definition not a right, in my opinion. The law does not confer upon a person any "power, privilege or immunity" to refuse a breath test: in fact, the law requires one to comply with an officer's request to provide a sample.

This is yet another reason why BTR should be made a criminal offense: people might then stop thinking of it as a legally authorized option.

You don't have a right to refuse, you simply have the physical ability because of the unique construct of the breath test laws. Law enforcement can overcome that physical resistance through a search warrant that uses a form of evidence collection that can be done with force, if necessary.

I'm just wondering what the "norm" is out there in regards to the judges. Should they be available by fax or should they be in the jail personally during the peak hours of a No Refusal Weekend?

Gordon,

It depends on several factors. Will all suspects be taken to one jail for processing, or will they be taken to several jails throughout the county? (In Collin County, we have some suspects who are taken directly to the county jail, and we have other suspects who are taken to city jails. Tarrant County's programs have involved a single jail.) Is your judge willing to sit at the jail, or does he/she prefer to stay at home? (Our judges wamted to remain at home. Tarrant County was able to find judges who could remain at the jail.) Does the judge have an internet/fax connection that he can use at home? (we were able to set up a fax system that worked well.)

I guess what I'm getting at is this - there currently is no norm. We and Tarrant County are working on some common forms and FAQ's that can be distributed through TDCAA so that other offices can start similar programs.

What do you tell your officers to do when they get a search warrant to take blood from a DWI suspect and the suspect still refuses to cooperate, necessitating use of force to restrain the suspect? One of our Troopers called and said that he has been told different things by different prosecutors. Some say "hold'em down and have the nurse take the sample"; other say "don't take the sample, but go ahead and file on them for resisting a search. I know that case law says that an officer can use force to restrain a person is there is a lawful basis to take the sample (both were non-warrant cases in which the courts applied 724.012(b)).

Janette A

Officers with a search warrrant for a residence would be justified in using force if someone were to resist search of the residence. Likewise, the use of force is appropriate to comply with the judge's order as expressed in the blood search warrant.

I agree with you Ken. I don't really understand why the Trooper is getting conflicting instructions. I have a call into him, so maybe I will learn more about the seeming conflict in recommendations.

Janette A

There may be instances in which a blood draw cannot safely be done. If a defendant is so wacked out and fractious that your nurse or officer risks sticking themselves or inflicting injury to the defendant, a resisting search charge might be a more reasonable alternative.

If you have a couple bodies in pieces on the side of the road, it might not be such a reasonable alternative.

Thanks for the info. I guess I'm trying to figure out what the judges would prefer so I can get the logistics. Either they can stay at home with a fax machine, expecting 30-40(?) calls / faxes for a warrant, meanwhile waking up the kids / spouse. OR they can come to the jail from 10P-4A and be readily available to sign the warrants. It's kind of like a double-edged sword.
I guess I wasn't looking for the "norm", but maybe a pattern.

We have had a no refusal weekend here in Jefferson county as well. I know we are planning more in the future, but not sure when.

If the defendant actively resists the draw after being shown the signed search warrant, is he "concealing" the thing (blood) with intent to impair its availability?