The effort is in reaction to motorists who refuse to submit to a breath test to check blood alcohol content. Such refusal is permissible under state law, though it hinders prosecution of Texas DWI cases because of a lack of evidence. The Texas DWI law states that a blood draw is appropriate for testing motorists who have a prior DWI conviction who have caused an accident with injury. However, both county sheriff’s departments and municipal police departments have implemented ‘no refusal’ programs in their crackdown on drunk driving in Texas. Judges are available for the issuance of search warrants that forces motorists to comply with the request for a blood sample.

Central Texas Police Chief Art Acevedo has used such a tactic to check for driving while intoxicated in Austin. In 2005, the Fort Worth suburb of Dalworthington Gardens was the first to train officers in blood draw procedures. Harris County has used evidentiary warrants about 300 times during the past 16 months.

The American Civil Liberties Union has questioned the programs from a number of perspectives. Besides being an expansion of what the law outlines, the group has found that warrants are often rubber stamped without probable cause and they are a violation of privacy as protected by the constitution. The actual person and facility in which a blood draw can be taken is also clearly outlined by Texas law because it is considered evidence in a criminal case. In apparent contrast to the law, in some cases police officers are being trained to perform blood draws in jail facilities rather than using a phlebotomists or trained nurses in hospitals.

Police say that the blood draw policy is part of an on-going campaign against Texas DWI, and that it is gaining acceptance from law enforcement agencies and prosecutors across the state.

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During the drunk driving crackdown, police patrolled the streets accompanied by a mobile breath testing bus. The effort started at 9 pm New Year’s Eve and ended at 5 am New Year’s Day.

Police Chief Art Acevedo has reported that alcohol related deaths fell in the last year. Alcohol is now involved in 37% of all traffic fatalities in Austin.

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The accident caused little damage to either vehicle and no one was injured. Flores was booked on suspicion of drunk driving in Waco at the McLennan County Jail and released Thursday afternoon.

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Berry was stopped for speeding in Johnson County, south of Fort Worth, in early November. Police detected signs of intoxication and spotted beer cans in Berry’s SUV. Berry refused to submit to either field sobriety tests or a breath test. Police secured a warrant for a blood sample, which was taken about three hours after the initial traffic stop. The result of the blood test has not been released, though the Johnson County Attorney used it as a basis for charging Berry with Texas DWI.

Berry’s Texas drunk driving defense attorney argues that there are strict state requirements for the environment in which a blood draw can be conducted, and the Johnson County jail does not meet them. He went on to say that all oral and written statements made during the DWI arrest should be suppressed because the arrest and search were made without probable cause or reasonable suspicion.

Neither the local law enforcement agency nor the Johnson County Sheriff’s Department have issued a comment on the matter. If found guilty of driving while intoxicated in Texas, Berry faces 180 days in jail, loss of driver’s license and a $2,000 fine.

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Trauma doctors are not required by law to report drunk drivers. Even if the case is reported, there typically is no evidence for the prosecutor to work with as doctors are also not required to test for blood alcohol content.

There is a financial reason for not testing for alcohol, as insurance providers routinely use a 60-year old federal statute to deny coverage for injuries caused by intoxication. Instead of running the risk of not being reimbursed for services, hospitals limit their actions to their primary function of treating the injured. Doctors have also said that it is not their role to act as law enforcement.

Six states do require hospitals to report drunk drivers and eleven states have laws requiring insurance companies to pay claims for alcohol related injuries. While such measures have been proposed in the Texas State Legislature during the past three sessions, currently the state has neither provision. In the interim, motorists who have been involved with alcohol related accidents are not being charged with Texas DWI.

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Krusee was arrested for suspicion of driving while intoxicated in northwest Austin on April 30, 2008. He was reportedly driving erratically prior to a traffic stop and had expired vehicle registration. The officer detected alcohol and noted that Krusee's eyes were bloodshot. Krusee failed three field sobriety tests though he refused to submit to a breath test, which left the arresting officer's testimony and the dash-cam video as the only evidence in the case. Krusee's DWI defense attorney argued that his client's stumbling and field sobriety test errors may have been caused by the wind that was apparent in the video and that the videotape evidence was inconclusive for a DWI conviction. The judge agreed.

The percentage of DWI arrests in Williamson County that are dismissed is about 30%. Some of those are plead to lesser charges so a complete dismissal such as Krusee received is unusual.

In 2003, Krusee lead the effort to enact a driver responsibility program in Texas calling for stiff surcharges against those found guilty of drunk driving. It included a $1,000 charge for a first conviction of driving under the influence in Texas, and a $1,000 fee for each of three years payable to the Department of Public Safety in order to renew a driver’s license.

Related news articles:
TX DPS Refuses to Release Video of Mike Krusee’s DWI Arrest in Austin (May 23, 2008)
State Lawmaker Mike Krusee Charged with Texas DWI in NW Austin (May 1, 2008)

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Twenty six of those refused to submit to a breath test, leading the officers to seek warrants from a judge to force blood draws as part of a 'no-refusal' policy for the weekend. All 26 had a blood-alcohol content above the .08% legal threshold for intoxication, with seven registering a BAC twice the legal limit.

A spokesperson for the APD said he would need another team of DWI officers to make the effort full-time. As a consequence the 'no-refusal' crackdown will be limited to weekends or large holidays that historically show increases in Texas DWI arrests in Austin. The police department plans to conduct another 'No Refusal' effort around the New Year's celebration.

Arrested for DWI in Austin during the 'No Refusal' weekend? Contact an Austin DWI Attorney for help.

The vehicle contains breath and blood testing equipment, and even has a small cell for detaining arrestees. There will be electronic links to judges when a warrant is requested for drawing a blood sample to test for alcohol.

Known as the Batmobile, the vehicle was funded by the Harris County District Attorney's Office. It will be placed in service on Halloween night and be available to all area law enforcement officers conducting DWI traffic stops.

Arrested for DWI in Houston, Texas? You will need to hire a DWI laywer in Houston for legal representation.]]> http://www.dui.com/dui-library/texas/news/inspector-fakes-breathalyzer-maintenance Action throws into doubt thousands of cases of Texas DWI in Houston. Monica Tue, 28 Oct 2008 09:22:53 -0500 A Department of Public Safety contractor failed to inspect breath testing equipment as required by law, and then faked maintenance records to indicate that she had. As a result, at least 2,6000 arrests for driving while intoxicated in the Houston area are in question.

Texas law requires that breath testing equipment be calibrated once a month to ensure accuracy. According to Houston DWI defense attorney Dane Johnson, blood alcohol content is a key piece of evidence in the prosecution’s case and failure to properly maintain breathalyzer equipment could result in a false reading and an unwarranted arrest.

The interim director of DPS, Col. Stan Clark, said that the contractor may have been falsifying maintenance records for a year at police departments in South Houston, Galveston, League City, Seabrook, Clute, Pearland and Webster. The contractor was suspended once it was believed that records had been altered, and a criminal investigation was started.

DPS officials recommend that anyone who believes they were wrongly charged and convicted of drunk driving in Texas should contact a DWI defense lawyer.

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Texas law gives a motorist the right to refuse a breath, blood or urine test. Law enforcement officers will periodically seek a warrant for a blood sample in cases where there was an accident with injury or the driver has a prior felony conviction for driving while intoxicated in Texas. Acevedo’s plan calls for a forcible blood draw from everyone who refuses a breathalyzer test.

Acevedo’s ‘no refusal’ program is still being developed, though he hopes to have a person specially trained to draw blood on duty during the three-night Halloween weekend.

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The full range of punishment presented to the jury panel covered probation to ten years in jail. The seventeen jurors felt probation was not harsh enough for a felony Texas DWI, which caused their dismissal from the pool. The Assistant District Attorney on the case said usually objections are made to the more severe penalties, not probation. He surmised that drunk driving in Texas is perceived as a greater danger now, and that lead to the call for harsher penalties.

The county will call a larger panel of jurors in about three weeks, in hopes of seating an unbiased group.

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Following a forced blood draw at the Seton Highland Lakes facility, the hospital administrator sent a letter to Burnet County law enforcement agencies stating that the hospital would not draw specimens under a warrant and asked them not to transport DWI suspects to the hospital for that purpose.

The letter received a response from a Burnet County judge that said the hospital stands in the way of successfully prosecuting a motorist accused of drunk driving in Texas.

Hartman responded that blood samples will be drawn from a Texas DWI suspect at a Seton facility when the offense meets conditions outlined under Chapter 49 of the Texas Penal Code. That state law stipulates that the offense must involve the operation of a motorized vehicle or watercraft and the operator must have caused an accident with injury or death to an individual other than the suspect that a law enforcement officer reasonably believes was the result of alcohol impairment.

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A driving culture coupled with one of the largest state populations has left Texas with the highest number of alcohol related fatalities in the nation. Last month a repeat DWI offender killed a newlywed couple in Dallas, focusing attention on the rising number of incidents of drunk driving among Hispanics.

A representative from the American Beverage Institute, an association that represents restaurants and promotes responsible social drinking, said that the trend in legislation is to go after “smaller and smaller groups of responsible adults who are drinking moderately.” The focus has moved away from addressing chronic drinkers at the core of the drunk driving problem to casting a broad net. Reinforcing that view, Austin Texas DWI defense attorney Paul Dunham says there has been a rise in the number of his clients who had a blood alcohol level below the legal limit yet were charged with driving while intoxicated by Austin police.

Texas is one of eleven states that prohibits sobriety checkpoints. Legislation has been proposed over the past 13 years to change the law and bill sponsors are optimistic about their chances in the legislative session. Claiming a need for prevention rather than reaction, legislators are also pushing for a new law mandating ignition interlock devices for everyone found guilty of an alcohol related driving offense. Several states have a similar law, including New Mexico and Illinois, though no studies have been completed showing the benefit of such legislation. Statistically, the overwhelming majority of those charged with DWI never repeat the offense.

Texas is one of 10 states that currently requires ignition interlock devices for repeat offenders though anti-drunk driving advocates feel the devices are not being mandated enough. The law allows judges to sentence offenders to increased jail terms and extended driver’s license suspension as alternatives to an interlock device, which opponents claim are loopholes.

Opponents of the proposed legislation are concerned about personal liberties, especially constitutional protection from search and seizure. Dallas DWI attorney and Texas Criminal Lawyers Association member Randall Isenberg says the “intended benefit (is) outweighed by the potential for abuse and unpredicted and unforeseen consequences.” Isenberg, a former judge, says Texas already has some of the strictest DWI laws in the nation.

Even the Dallas County Sheriff Lupe Valdez is not convinced that sobriety checkpoints are the best use of resources. She advocates roving patrols that target areas with increased incidents of drunk driving.

The next Texas General Assembly convenes January 2009.

Benson played for the University of Texas Longhorns and then the NFL Chicago Bears. After the second Texas DWI offense he was cut from the Bears. Benson, through his attorney, said he has learned from the ordeal and wishes to be a worthy role model for young people in the community. He also hopes to play professional football again.

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While the laws of Texas clearly limit who can legally draw blood in any situation, Acevedo wants APD officers to be trained to do just that in cases of suspected Texas DWI. Austin Texas DWI defense attorneys and civil rights organizations say the blood draw plan is a violation of a citizen’s Fourth Amendment constitutional rights.

The Austin police department is currently waiting for a grant to fund the program. It is also subject to approval by the Austin city council and the Travis county commissioner’s court.

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