McManus pushes DWI overhaul

Guillermo X. Garcia
Express-News

Alarmed by statistics in which San Antonio exceeds the national average of drinking and driving fatalities, Police Chief William McManus on Thursday urged the City Council to push for wide-ranging changes aimed at toughening the state's DWI laws.
He said Texas is one of 10 states that "doesn't have the ability to do roving sobriety checkpoints." He made it clear he'd like that to change, pointing to statistics to indicate that every five days, one San Antonio resident dies in an alcohol-related accident.

Other changes being proposed by McManus and Dr. Fernando Guerra, director of the Metropolitan Health Department, would include assessing a 10-cent fee for every individual serving of alcohol dispensed as well as a tougher interpretation of the state's open container law.

He also wants an ignition-locking device on vehicles of first-time offenders. Typically, such devices prevent a car from starting if the driver's breath registers any level of alcohol. Currently, the devices are installed in vehicles owned by drivers with multiple convictions for driving while intoxicated.

http://www.mysanantonio.com/news/metro/stories/MYSA031408.01A.councilDWI.38a7954.html

All very interesting. But, frankly, why can't we just start with collecting sufficient information in the DWI cases we are currently making? In other words, I'm willing to talk about all this other fancy stuff only after we get mandatory breath/blood samples.

I think that educating the public would be a good start. I live in the San Antonio area, we get SA news, and very rarely is there any information on drunk driving fatalities....I can think of a couple hit and runs that were big stories. People don't really know how many drunk drivers are on the roads, that just by the grace of God manage to avoid hurting anyone. And they certainly don't know how badly driving is affected at .08. In my little town, we have had a few fatals also, and almost are were alcohol related, but not much attention is paid to them.

I think the lack of interlock for first timers is not the problem. I would be curious to see the statistics on how many fatals are caused by drunk drivers with no priors--I don't think that's the problem. It's how many people get away with it (because no officer happens to see their driving behaviors) that's the problem.

Actually, I believe the second biggest problem with DWI enforcement, right behind our inability to collect blood or breath evidence is actually the fallacy that DWI drivers will exhibit bad driving behavior. Far more DWI arrests are made off of simple traffic law violations than from the blatantly obvious, TV quality, bad driving stops or crashes. Because bad driving is perpetuated as DWI related, far too many officers fail to "look beyond the stop" when they make a traffic stop for a defective license plate lamp or failure to signal a turn. Far too many officers never get the driver out of the vehicle but allow them to sit in their vehicle surrounded by cigarette smoke and cheap cologne, thereby masking the odor of metabolized alcoholic beverages that they would more readily recognize if they would make a habit of getting every driver out of the vehicle and on the same playing field.
We also need to do more to be able to educate our juries on DWI and SFST's. Without knowing what HGN is and what it looks like it is very hard for an untrained person to understand what we are looking for and what we are seeing. It is also difficult for them to understand why HGN is important in driving. A more aggressive posture on juror education about SFST's certainly couldn't hurt.
Following that, ALR hearings are nothing more than a free for all discovery hearing for the defense. There is more paperwork attached to a DWI offense than just about any other misdemeanor offense, short of family violence. While we are pushing for the Legislature to give us mandatory specimens we should also be pushing for the abolishment of ALR and putting suspensions and penalties back the hands of real judges and juries. Law enforcement officers dread ALR hearings and, because of them, become apathetic when it comes to DWI enforcement.
The use of blood search warrants is a great thing and it has worked well in Williamson County, thanks in large part to JB's efforts. If he could just convince the judges to take the next step and let's start hitting the total refusals, drivers in crashes and the repeat offenders we would be light years ahead of the game. Again, officers feel apathetic when their hands are tied when it comes to getting the evidence they need to make a good case. DWI is the only crime on the books where hiding evidence is acceptable and that needs to change.

It won't change simply because too many legislators and other high governmental officials like to drink and drive. They won't vote for any law that could hurt them.

It will just take some sort of scandalous crime. Watch your paper for "Career Drunk Kills Car Load of Kids--Senator Snorkle Says There Oughta Be a Law." That's how change usually happens. The law lurches from scandal to scandal.

Mscheffler, I think you make some really good points. I have a few officers that I have NEVER seen arrest for DWI, and I think it's because it is so hard for them, and they get so grilled on the SFST's in front of a jury who doesn't know anything about them. I can even sympathize a little, because so little of the investigation is actually in their hands--it's all determined by what the drunk will or will not do. The majority, though, are actually more inquisitive about illegal activity happening on stops than I would expect. Amazing how good their instincts can be.

Blood warrants seem like they are absolutely the best way to go. In rural counties with JPs who are not able to do them, it's an uphill battle.

We also use an extra officer, who is SFST training certified, to come in and explain the tests themselves. That way, the arresting officer gets to focus on THIS stop, and the other officer gets crossed on the tests. It has worked well to educate the jury, because they hear a lot of it twice (from the witnesses, and who knows how many from me).

Using that second, 'expert' officer to explain the tests is really a great idea! I shall start using that, too. It will certainly make things a lot simpler.

Quoting MScheffler:

"ALR hearings are nothing more than a free for all discovery hearing for the defense. There is more paperwork attached to a DWI offense than just about any other misdemeanor offense, short of family violence. While we are pushing for the Legislature to give us mandatory specimens we should also be pushing for the abolishment of ALR and putting suspensions and penalties back the hands of real judges and juries. Law enforcement officers dread ALR hearings and, because of them, become apathetic when it comes to DWI enforcement. "

I couldn't agree more!! Sign me up to speak in favor of this when Leg. is in session next.....

I wholeheartedly agree with JB regarding mandatory breath and/or blood test for DWI.

Another approach would be to make failure to take a breath test a Class B misdemeanor with all the collateral consequesnces of a DWI, including a surcharge, suspension of driver's license, interlock device requirements, etc. It could be used for enhancement by including the new offense in the definition of "an offense relating to the operating of a motor vehicle while intoxicated" in PC Sec. 49.09(c)(1). Then, any two prior convictions could be prosecuted as a 3rd degree felony. It also has the advantage of being a lot easier to prosecute and convict. Moreover, the police would not need to obtain blood search warrants.

I began my legal career as one of the original 46 ALR attorneys in 1994 after I graduated from Texas Tech School of Law. At the time, just about everyone thought the hearings would be mainly "paper" and only last about 30 minutes. In fact, as I remember, phone hearings were set at 30 minute intervals in the beginning. DPS sent me to Abilene which covered a bunch of counties with remote hearing sites in San Angelo, Wichita Falls, and Vernon. I rarely had an officer subpoened and in only about 20% of the breath test cases did I have to producte the BTO or the technical supervisor. Now the hearings are much longer (in some areas, not others) with loads of discovery requests and subpoenas for everyone from the stopping officer to the tow truck driver. These are civil hearings and I don't think the original intent was to turn them into discovery hearings for the defense bar. I tell Troopers that call me to keep in mind that the hearings are at least good practice for testifying in court. A surprising number of Troopers have told me that they have never had to testify at a regular DWI criminal trial. Frankly, I find that amazing.

Janette A

Ken, your suggestion is, frankly, the most honest approach to solving the problem. Unfortunately, it is the choice that is least likely to gain legislative support. Meanwhile, we need to make some progress, and mandatory breath/blood for felony DWI's seems to be the one most likely to gain acceptance.

It appears to me that, after reading the paper daily about people killed and injured in "alcohol-related accidents," that DWI is more serious than many offenses labeled as felonies, but which result in far less serious consequences. In fact, DWI was originally a felony. Recognizing that the legislature would rather do nothing (because more of their constituents, or themselves, are likley to be arrested), isn't it time to put some teeth in an anti-DWI effort:
1. To make first offense DWI a Class A Misdemeanor, and a 2nd one a state jail felony
2. To provide for deferred adjudication so that more defendants will be encouraged to plead so that they can come under court supervision (with the threat of adjudication) and be treated, if such is possible, for whatever lifestyle problem led to the DWI. (Currently, we are experiencing more defendants opting for a straight hit to avoid the expense of probation)
3. To make a blow of 0.8 or more within 60 minutes of being arrested prima facie evidence of intoxication
4. To make refusal to blow a Class B Misdemeanor and mandatory one-year license suspension
But, of course, this will never happen.

I believe that should read: ".08"

About half of the states have DWI laws that contain a presumption of intoxication or impairment if the individual has a BAC of 0.08 or higher with X hours of arrest or operation of the vehicle. One hour might be too short a time frame for officers working in rural counties. Many times, it will be more than one hour before they can get to the jail and an Intoxilyzer and a certified operator. Most state use two hours. A few have a three hour limit.

Janette A

quote:

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Originally posted by Rick Miller:
... it time to put some teeth in an anti-DWI effort:
1. To make first offense DWI a Class A Misdemeanor, and a 2nd one a state jail felony
2. To provide for deferred adjudication so that more defendants will be encouraged to plead so that they can come under court supervision (with the threat of adjudication) and be treated, if such is possible, for whatever lifestyle problem led to the DWI. (Currently, we are experiencing more defendants opting for a straight hit to avoid the expense of probation)
3. To make a blow of 0.8 or more within 60 minutes of being arrested prima facie evidence of intoxication
4. To make refusal to blow a Class B Misdemeanor and mandatory one-year license suspension
But, of course, this will never happen.

---

In fact, almost that exact bill -- which included a repeal of ALR but not the punishment enhancement -- was filed in 2005 as HB 3241 (click HERE to see the bill). The bill was killed in committee by criminal defense lawyers --including those who were on the committee (!) as legislators.

As pointed out earlier, absent a horror story or three to provide political heat, prosecutors' attempts to effect large-scale change in DWI law will not find traction at the Legislature. (And no, apparently, killing thousands of people on our roadways is not enough of a horror story to accomplish it.) That's why JB's more limited approach is the most likely to succeed.

There's a horror story or three every single night on the Dallas news.

For another reason why we need mandatory blood samples, read this story.

In the three years since the [Bexar County] DA�s office began instituting �no refusal� weekends, no defendant has taken a case involving a mandatory blood draw to trial �until now.

That move didn�t work out so well for Carlos Vara, 52, who was convicted Thursday of felony DWI after less than 30 minutes of jury deliberation.

Details.