Rep. Dan Gattis (R-Georgetown) has filed HB 1810, requiring felony DWI suspects to provide a sample of breath or blood. The bill would provide a major improvement in the collection of physical evidence in DWI cases.

You can also enhance a Misdemeanor DWI into a 3rd degree Felony if the person has a prior conviction for Intoxication Manslaughter.

This bill only mentions persons who have two prior arrests for DWI.

The way I read Harrison, a DWI defedant can already be ORDERED to provide a urine sample. Harrison v. State, 205 S.W.3d 549, 553-54 (Tex. Crim. App. 2006)("Texas statutes did not require that Harrison be given any statutory warnings before she was asked for her consent to provide a urine specimen.FN20 And the officers were not required to inform Harrison that she could refuse to provide a urine [*554]sample without losing her driver's license simply because they first sought breath and blood specimens after giving her the required statutory warnings.")

I agree, David. Just a thought, though, how do you compel someone to provide a sample and prevent them from evacuating anywhere but in the specimen jar? Practically, one has to breath and blood can be taken against someone's wishes. But I understand that a urine sample works just fine if the subject acquiesces to an order.

JAS

In 2006, Harris county had 11,125 DWI cases. Care to guess how many of those defendants refused breath samples?

6,573? Just a guess.

5,245 (47.15%) refused tests.

What, exactly, is the point of a program that has half of the people ignoring it? And, that percentage gets worse with repeat offenders, particularly felony DWI-third offenders.

If we justify taking a mandatory sample with the death or serious injury of a victim, why not be more preventative by taking samples from those that are most likely to be very drunk and have a history of DWI's?

For statistics showing Texas way in the lead for alcohol-related fatalities, go to the MADD web site.

Repeat DWI offenders are more likely to have higher BAC levels.

Repeat DWI offenders are more likely to be in accidents that kill or maim victims.

Repeat DWI offenders are more likely to refuse a breath test.

So, why not target the felony DWI-third offender for a mandatory breath/blood sample?

For an excellent study showing Texas close to the top of the heap in breath test refusals, check out this National Highway Traffic Safety Administration Report.

From the Texas Commission on Alcohol and Drug Abuse:




[This message was edited by JB on 02-26-07 at .]

[This message was edited by JB on 02-26-07 at .]

[This message was edited by JB on 02-26-07 at .]

Of the more than 11,000 DWI's in Houston, 1,056 were felony DWI's, meaning they had at least 2 prior trips through the criminal justice system for DWI. So, would you like to guess what their refusal percentage was?

Perhaps you are right, John, to suggest targeting repeat offenders first. But it doesn't seem too much to require anyone stopped for suspicion of DWI to give a sample--be it breath, blood, or urine. If police violate the rights of the suspect, civil lawsuits provide an adequate remedy. A first time offender was merely lucky that worse did not happen. And let's not forget all those offenders who are not even pulled over.

JAS

Over the years, legislators have been resistant to solutions for the breath test refusal problem. Some of the resistance has focused on the notion that mandatory blood samples are too invasive.

All people seem to overcome that hesitation when faced with a defendant who has caused death or serious bodily injury. When balanced against the destruction of a life or health, the public good is better served by the collection of evidence of intoxication.

Well, this bill relies on that same notion by focusing on those DWI offenders who are (1) most likely to cause death and destruction and (2) most likely to refuse to provide a sample when requested.

Look, the majority of people respond to their first DWI case by not ever driving drunk again. But, there is a population (rather small when compared to the overall DWI arrest statistics) that repeatedly drives drunk regardless of their arrest, treatment or punishment. (In Texas, 125,941 of the 352,372 drivers arrested for DWI from 1987 to 1990, or 36 percent, were repeat offenders. That number is reduced even more if you only count those with 2 or more prior DWI cases.) For those drunks that are determined to continue driving, we should be collecting evidence of their intoxication.

This bill gets that done without offending the civil liberty sensibilities of first and second offenders. In a perfect world, those first and second offenders should be providing samples. And such a law would not violate the US or Texas constitutions. But, looking at the political reality, we have made little progress in convincing legislators to go there.

So, why not focus on what is really hurting society the most (felony DWI offenders) and get a solution to that problem?

By the way, in Houston, of the 1,056 felony DWI cases in 2006, 677 (64.11%) refused a breath or blood sample. That's the target of this bill.

[This message was edited by JB on 02-27-07 at .]

I hope if the legislature mandates more blood testing they don't forget about kicking in increased funding for the DPS crime lab. Seems like it takes a couple of solid months to get a blood test result back. During this entire time both the State and the Defense are in limbo about what to do with the case. The defense attorney shouldn't plead the guy without the blood result back, and the prosecutor shouldn't cut a deal without that same evidence (billiard chalk, anyone?). Increased numbers of blood draws with no increased funding will result in an even longer wait in what is already a painfully long process.

And if testing is mandatory, I still haven't figured out how you can get someeone to blow. Strap 'em down and take blood, I can understand in a "Twelve Monkeys" / "Clockwork Orange" sort-of-way (if thats the kind of society you want... . But the Intoxilyzer is touchy about a proper breath sample. If someone simply doesn't want to blow properly, the machine will not register a result.

Maybe we need some new technology. If a person won't blow voluntarily, insert their head in a sealed helmet (diving-type thing). Let them suck in air but have the helmet catch and then force all the exhaled air into an analyzer. Oh, I just caught myself dreaming again!

JAS

Perhaps one day we will have the technology to actually test impairment rather than merely blood alcohol level. Maybe it will be some sort of fancy virtual reality driving simulation machine.

After having my "Carlton Mathis" experience a couple of years ago (and losing to an attorney with about 1/10 the skill of Brunner), we started the DWI Blood Search Warrant Program in Parker County for all felony DWIs. We bought fax machines for all the judges to put in their homes to receive affidavits for search warrants. Went out and trained every department and provided them forms and standardized paperwork to use for the affidavits. Met with the local hospitals and got their adminstrators on board to cooperate (and not charge) for doing the blood draws.

Result--every felony DWI now has a blood draw.

John--I love the fact that they're trying to pass legislation to make the warrants unnecessary. Its legislation thats long overdue. But the simple fact is that if your law enforcement officers are not already obtaining search warrants for felony DWIs--they need to be educated or motivated to do so. We've got the process tuned to a 20-30 minute turnaround. I haven't tried a DWI case since late 2005 b/c my BAC results from the DPS lab are all .18 and above for these repeat offenders.

How about state/federal/grant funding for additional staff to support the smaller/more rural agencies for whom transporting a defendant to a hospital for blood takes up a significant amount of time, and usually removes their only patrol officer from the street? I am completely in favor of mandatory draws on felonies (and I personally would include DWI w/ child passenger), but I could see it biting some counties in the butt when it comes time to put it into practice. I wish I had a good answer for this.

Getting a blood draw in my county means the cops having to transport the drunk about 60 miles. And sometimes they are the only cop on duty in the county.

I think a better solution is the one they have in Wisc. that Rob Kepple told me about. There you can commit DWI any of three ways: 1) Having lost the normal use, etc; 2) Having a BAC over a stated limit; or 3) Refusing to give a police officer a breath test after being arrested for DWI.

If we had such a statute, we would be making less use of the crimes labs, not more, & it wouldn't require tying up a cop, and taking up the time of hospital personnel.

My guess is such a statute would lower costs to law enforcement, and would tremendously increase the conviction rate on DWIs, and would likewise tremendously drop the fatality rate, and serious car crash rate in Texas. Might even eventually lower auto insurance costs.

Of course, such a bill would not stand a chance in a legislature that thinks letting crooks go free is being "smart on crime."

The Wisconsin approach sounds excellent. Anyone know how it works out in practice?

JAS