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Texas takes strong stand against drunk drivers this holiday season

Robin Wulffson MD's picture
DWI, drunk driving, alcohol, breathalyzer, blood test, no refusal policy

Dating back to the siege on the Alamo, Texans have been known to take a strong stand on many issues. A current one focuses on drunk drivers. This holiday seasons, Texans pulled over for drunk driving should be prepared to give their blood. Cities and counties throughout the state are increasingly demanding that drunk driving suspects who refuse to take breathalyzer tests submit to blood tests, which accurately measure the amount of alcohol in their systems. As everyone knows, drunk driving can be hazardous to one’s health, passengers, other motorists, and pedestrians.

The blood-test policy, which is known as "no refusal" by law-enforcement officers, prevents drivers from refusing to provide evidence of intoxication. It is becoming an initiative used by police statewide, particularly during weekends and holidays when more tipsy motorists are weaving down the roads. Furthermore, the no-refusal initiative is being adopted by other states, including Florida, Illinois, Louisiana and Missouri.

The attraction for law enforcement officers and prosecutors is that blood evidence is extremely convincing to a jury. Armed with blood evidence of intoxication, prosecutors can win convictions in more than 90% of drunk-driving cases, noted Houston police Captain Carl Driskell, who works in the traffic-enforcement division. Furthermore, trial attorneys note that when a defendant is faced with blood evidence, they admit their guilt and forego a trial. "If it bleeds, it pleads," quipped Fort Worth prosecutor Richard Alpert.

Texas prosecuting attorneys note that courts in the state uniformly upheld the constitutionality of mandatory blood testing; however, criminal defense attorneys argue that lawyers say such mandatory tests infringe upon a suspect’s rights to be free from unreasonable searches and seizures. "It's an erosion of civil liberties," noted Austin defense lawyer Samuel Bassett. "If we can poke people involuntarily for evidence, where do we draw the line?"

The use of blood tests to measure a suspect's blood-alcohol content is not new; however, these no-refusal initiatives generally streamline the process by having magistrate judges standing by at a police station or other location to issue the needed search warrant. If the warrant is granted, nurses or other medical professionals are readily available to draw blood. To obtain a blood sample, police are empowered to strap a suspect to a chair, if necessary. That facilitates prompt withdrawal of a specimen, which is a key benefit to prosecutors because blood-alcohol concentrations dissipate over time.

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"With no refusal, you don't have to go tromp down to the police station and then to a judge's house and then to a hospital, because you have everyone in one central location," said Warren Diepraam, a prosecutor in Montgomery County, north of Houston, which has a no-refusal campaign in place from Thanksgiving through New Year's.

San Antonio defense lawyer Jamie Balagia, a former police officer who now bills himself as the “DWI Dude,” expressed concern that magistrate judges involved in no-refusal campaigns may be prone to rubber-stamp search warrants. He noted, "There needs to be more transparency," Mr. Balagia said.

Over the July 4 weekend, almost 500 law-enforcement agencies in Texas participated in a no-refusal campaign that netted about 1,500 DWI arrests. Bexar County, which includes San Antonio, recently implemented mandatory blood testing year-round. In El Paso, police find that the policy actually encourages people to submit to breathalyzer tests. "We give people the option of blowing into a tube or getting poked with a needle," said Lt. Rod Liston. "People increasingly are going with the less painful option."

Police officers cannot demand that one submit to a breathalyzer test because it is unlawful to force an individual to breathe out into a tube sufficiently to complete the test. Therefore, prosecutors bringing DWI cases sometimes have to rely on officers' eyewitness testimony, which they say often is inadequate to impress jurors accustomed to television crime dramas that feature cutting-edge forensic evidence.

In 2010, about 800 traffic fatalities in Texas involved a legally intoxicated driver; furthermore, that number has steadily increased in recent years, according to the Texas Department of Transportation. In 2009, Texas had the most people killed in alcohol-impaired crashes, according to the most recent data from the National Highway Traffic Safety Administration. The state agency has offered grant money to four Texas jurisdictions to help them fund no-refusal programs, said Terry Pence, the agency's traffic-safety director.

Also in 2010, U.S. Transportation Secretary Ray LaHood announced a national "no refusal" initiative, offering to provide states help to implement the policy. He noted, "About one in four DWI suspects refuses a breathalyzer test in order to avoid prosecution. It's a persistent, ongoing problem.”