Silly me--I always thought it was the job of an impartial judge to determine whether or not a affidavit for a warrant set forth probable cause.

Burnet County has a few agencies doing no refusal all the time. Our problem has been the hospital refuses to draw the blood. We have officers driving to other counties to get to a hospital that will draw. We hope to resolve that soon with the opening of a new jail and facilities to draw at the jail.

Katherine McAnally

Katherine, I spoke to the Austin PD Chief and he tells me the Seton hospitals in Austin are also refusing to cooperate with search warrants for blood.

They have apparently decided their personnel are too important to be involved in the criminal justice system (my words, not his). Next thing you know, they'll be joining the media seeking a "shield law" that prevents them from being subpoenaed!

Anyone else having this problem?

We had a similar problem in Georgetown. My first assistant and I met with the CEO of the hospital and discussed our various community obligations. We worked out an excellent protocol that would speed up the process. We also informed them that we would be working on a process to do blood draws at the jail. I found the hospital appreciated the meeting and was very cooperative.

The protocol works to keep the phlebotomist or nurse out of the witness loop by making sure the officer is a witness to the entire process.

After multiple meetings with our hospital administration and the Seton Administrators and counsel, they are still refusing because they believe that they are not immmune from liability in a search warrant draw as they are in a mandatory blood draw. We have not met as much resistance regarding the witness problem as this liability issue.

Katherine McAnally

Performing an act upon the order of a judge is hardly likely to create civil liability. Sounds like a dodge by the hospital.

What about the extreme solution of contempt or interference with public duties? I guess that would be a stretch...and probably not very conducive to a happy political situation.

I have never used one or even had one signed but, how would a nurse or doctor, in a jail or hospital be able to get around an Order for Assistance that is signed by a Judge and tells them that they will be held in contempt? I have heard that the nurses at the Travis County jail are now refusing to do blood draws, as well. What remedies do LE officers have in these cases?

Fortunately, JB and Jana McC have done a great job with negotiations with the hospitals in Williamson County and we are not having isssues getting blood.

quote:

---

[...] how would a nurse or doctor, in a jail or hospital be able to get around an Order for Assistance that is signed by a Judge and tells them that they will be held in contempt? [...]

---

"Sure, I'd be happy to help but you'll have to wait because I have some medical issues that need my immediate attention. I will be available in 6 to 8 hours if you'd like sit in the waiting room. Thanks."

Regarding Travis County, one of the radio station reporters mentioned that Travis County had contracted with phlebotomists to draw the blood during their "no refusal" campaign over the New Year's Day weekend. Don't know if its true.

Janette A

The DA and CA in Bell County collaborated on a "no-refusal" experiment on New Year's Eve, with 11 total arrests and 6 refusals. Blood samples were taken from all 6 without a hitch. We did note that the DPS blood test kits did not contain any swabs, so we had to scurry and get some non-alcoholic swabs for disinecting purposes. We have no knowldge of DPS expediting their test results. For a smaller county without a full-time medical type on duty at the jail, our only other problem was having a judge really willing to be on call during the wee hours. Is there any way that the Legislature might consider allowing JPs to approve an evidentiary search warrant only for suspected DWIs?

quote:

---

Originally posted by Rick Miller:
Is there any way that the Legislature might consider allowing JPs to approve an evidentiary search warrant only for suspected DWIs?

---

Lots of prosecutors ask me that, but none of them have stepped forward to get that bill filed (yet). Until someone does, the idea won't go any farther than the wishful thinking stage.

Here are the results from the New Year's Eve program:

"Twelve people suspected of drunk driving refused a breath or blood test during the initiative, and a judge signed a warrant to have their blood drawn. One person voluntarily offered a blood sample, and that person's results were included in the report.

1 -- Blood alcohol level less than the legal limit of .08.
4 -- .08 to .16
4 -- .16 to .24
4 -- .24 to .33

The lowest sample was sent for further drug testing."

For more, go to KVUE.com

quote:

---

Originally posted by Katherine McAnally:
After multiple meetings with our hospital administration and the Seton Administrators and counsel, they are still refusing because they believe that they are not immmune from liability in a search warrant draw as they are in a mandatory blood draw. We have not met as much resistance regarding the witness problem as this liability issue.

---

The story gets legs ...

Hospitals, jail officials don't want to collect suspects' blood (Austin American-Statesman)

I can somewhat understand the hospitals, but not the county jail. The jail is run by Travis County and not a private entity, like many jails in Texas. You would think that the County Attorney, who prosecutes misdemeanor cases in Travis County, could persuade the Sheriff to be a team player. Then again, why do you need to persuade the Sheriff in the first place? This makes Travis County look really stupid.

The city motto is "Keep Austin Weird." As an example, check out this link to a blog that tracks the status of ... umm ... restrooms in Austin. Click here.

I find it interesting that the jail nurses believe that they can "remove themselves from gathering evidence" by a bunch of jail administrators getting together and deciding that is their "policy." I'm sure it's every criminals personal "policy" that he not be arrested, but that doesn't keep the officers from making an arrest. It is my own "policy" that the government not make me pay back my student loans, but those bills keep coming!!!

I agree, this does make the jail look silly. If the nurse witnessed a riot, they could not decide not to be witnesses. I have seen jailers try to avoid sending their officers to testify, though, because it cuts into their budgets, which are already pretty high. There must be some compromise out there that could be found if the real issues were addressed...which, let's face it, is money. Nobody wants to say "we can't help law enforcement because it costs us too much money," but that's the real issue. I wonder if this issue is carrying over into the accident with injury blood draws and the medical staff and whether the medical staff is refusing to do those as well?

[This message was edited by Shannon Edmonds on 01-16-09 at .]

I asked Phil King to sponsor a bill to permit all magistrates to sign evidentiary search warrants for offenses under Chapter 49. He has graciously agreed to do so and has started the bill writing process with the legislative council. Any and all support that y'all can muster would be appreciated. I think that this will really help the smaller to mid-sized counties with a limited pool of judges who can currently sign evidentiary search warrants to establish a blood search warrant program, expand their existing one, or prevent judicial burnout from becoming a problem.

The one unexpected thing that I am reading in this thread is that so many people are not "voluntarily" agreeing to submit either a sample of breath or blood when threatened with a mandatory draw. I guess the concept is just too new in Texas. But, apparently no one is commonly experiencing having to use physical restraint to get a sample. That is good.

The concerns of nurses and hospital/jail administrators are validly raised, but should be quickly and conclusively answered. Adding to the judge pool is reasonable, but there should be no such thing as judge burn out. It is an important and integral part of the job.

Suzanne rightly points out there is the perception of increased cost. Why don't those prosecutors who have avoided untold costs in prosecution (i.e., enjoyed meaningful plea bargains rather than trial costs/losses) make sure the legislature and county commissioners recognize that it is so much easier (cost effective) to prove a case on the front end than on the tail end. I believe Dalworthington Gardens PD started all of this, using trained in-house personnel. Looks like we may end up where they started.

I hope Richard, or someone, will do a good study on the overall results of this new enforcement method. Until we see an actual demonstrable change in conduct or number of DWI related injuries, the idea is apparently going to meet resistance in a lot of quarters.

Hartley County (DPS, local PD and sheriff) have been doing it for a couple of years. You've got to work to get your magistrates on board for 3am phone calls and faxes. DPS is very backlogged now and it's been taking longer and longer, up to 5-6 months now, to get results back.