Galveston County "no refusal" week

[seamusTX]

Starting July 2, Galveston County law enforcement adopted a policy of "no refusal" for breath tests in suspected cases of driving while intoxicated. This effort involved DPS, county sheriff deputies, and city agencies. Two judges were kept on call to issue search warrants for mandatory blood tests of drivers who refused breath tests.

A total of 48 drivers were arrested for DWI in ten days. Fourteen warrants were issued. The rest of the drivers voluntarily (if reluctantly) took breath tests. Of 15 breath tests taken by the county, the average was 0.14 (falling-down drunk for most people). None were found to be below the legal limit of 0.08.

Two drivers were charged with felonies. One was driving a stolen vehicle. One was arrested after a collision.

http://www.galvnews.com/story.lasso?ewc ... d334df45f8" onclick="window.open(this.href);return false;

I have mixed feelings about this approach to law enforcement, but I have to admit that these cases are not some borderline +/- 0.01 threshold where calibration of equipment may be in doubt.

- Jim

[Abraham]

Jim,

Isn't "no refusal" the standard, i.e., if you refuse a breath test you will take a blood test if intoxication is suspected?

[seamusTX]

Not necessarily. In many cases the dashboard video is incriminating enough. (Many of these are on YouTube, and they're hilarious if you are not the suspect.)

Also, refusal to take the breath test results in an automatic six-month suspension of the driver's license.

I think they get warrants for blood tests mainly when drugs other than alcohol are suspected, or in cases of collisions resulting in a fatality; but I'm really not all that knowledgeable about the process.

http://www.dui.com/texas" onclick="window.open(this.href);return false;

- Jim

[Abraham]

Thanks Jim.

Would I be correct in thinking if one refuses a breath test, it constitutes an acceptance of six months driving suspension and most often shuts down further inquiry into one's state of inebriation?

In essence, one has declared oneself "guilty" with a pre-determined punishment albeit an overall short term penalization?

[seamusTX]

I think nearly everyone who is arrested for DWI is prosecuted and found guilty.

I was talking to a lawyer about it some time back. He said he got a DWI charge dismissed only once. The defendant was changing a flat tire when a cop pulled up to see if he needed help. The cop smelled alcohol on the guy's breath and arrested him. The defendant blew very close to the legal limit.

He said everyone else pled or was found guilty, and those who fought the charge just contributed to his hobby budget.

- Jim

[Abraham]

Jim,

Veddy interestink!

Frankly, I don't know how anyone can have even one drink and feel safe to drive.

I know I don't, not even a glass of wine with dinner at a restaurant if I'm driving.

Those that drink and drive while away from home, even if it's "only a few", are chancing the law of averages and their number WILL eventually come up.

It's simply not worth the gamble.

[Drewthetexan]

Thanks Jim.

Would I be correct in thinking if one refuses a breath test, it constitutes an acceptance of six months driving suspension and most often shuts down further inquiry into one's state of inebriation?

In essence, one has declared oneself "guilty" with a pre-determined punishment albeit an overall short term penalization?

I haven't kept up with the laws recently, but in the past I was under the impression that refusing a breath test in the field meant they could arrest you on the spot, but the refusal didn't necessarily lead to a conviction in itself. They could hold you until they could get a warrant to do a blood test.

I tend to agree that its not worth the risk, but I think the idea is moderation and knowing what it takes to impair oneself. I personally have been the subject of at least 3 field sobriety tests after having admitted to drinking at some point, twice with no further questions, the third time I refused to blow, but all three times let go.

A lot of it is subjective; LEO's just have a tool with a numerical result that makes the DA's job easier in getting convictions. An extreme case: A guy I knew, who used to drink heavily, blew .27 - this is getting to the point where most people pass out from too much alcohol (black out is usually around .20). He clearly remembered most of being arrested, processed, and sitting in jail, was wide awake and very alert - much to the surprise of the LEOs who booked him. He is a functioning alcoholic, quite capable of operating at levels of intoxication that would make the rest of us falling-down drunk.

[seamusTX]

I haven't kept up with the laws recently, but in the past I was under the impression that refusing a breath test in the field meant they could arrest you on the spot, but the refusal didn't necessarily lead to a conviction in itself.

The cops can always arrest you. They might not get a conviction. They might get yelled at by their supervisor. But they can always arrest you. Ask Ms. Lopez.

Refusing to take a breath test cannot be used against you, because of the 5th-amendment prohibition on compelling someone to give evidence against himself. But as I said, they don't always need a chemical test to prove intoxication beyond a reasonable doubt.

There's a lot of information about this on the web. Many legal theorists think the entire implied-consent scheme is unconstitutional, but it has held up in court so far.

- Jim

[ELB]

Refusing to take a breathalyzer test is not a crime. The license suspension is administrative, not criminal/penal. You get the suspension without facing a judge, jury, trial, etc. I think that is why it holds up in court -- it is not a criminal penalty.

When I was doing the obligatory CHL-who-wants-a-lawyer's-name-and-phone-number search, as well as researching the "aftermath" what-ifs, I of course read a lot websites and articles by criminal defense lawyers. A large number, if not all, criminal defense lawyers do DUI cases, and everyone of them that bothered to say anything about breathalyzers emphatically urged suspects to refuse them. It's pretty similar to the advice they give you to follow after a self-defense shooting -- you can't help yourself, you can only hurt yourself. Shut-up (and don't breathe) until you've seen a lawyer. You can still be arrested for DUI even if the breathalyzer doesn't show you over the limit, or show anything at all.

A lawyer can work to get the administrative suspension either lifted entirely, or reduced. For example, there are clauses in the law that allow a judge to reinstate your license for limited use, so that you can drive to work, until your trial or charges are dropped or whatever.

Break-break: as far as one drink and drive...one can argue that one drink impairs driving, but so does lack of sleep, lack of experience, many medications, many age-related conditions, many physical impairments, etc etc. It is not clear to me that having a drink makes you any more dangerous than a lot of other people cruising around out there. There seems to be little research into actually defining what is the minimum level of performance required to drive a car "safely." BAC or breathalyzer provides an easy numerical scale for alcohol, so it gets used. The lowering of the legal limit from .10 to .08 generates more arrests, but I am dubious that it generated anything like a significant improvement in safety. I'm all for getting guys and gals who are truly drunk off the streets, but there seems to be a lot of revolving doors in that area -- repeat offenders with high BACs seem to keep right on driving...again and again, until they kill somebody. I saw this with an ex-brother-in-law -- he's been a drunk for 40 years, rotated through the system so many times in so many counties I doubt he can count them, with an occasional prison term here and there for other things, and yet he is still out driving around...sans license. So we focus law enforcement and laws on as many people as possible at the low end of the drink scale, but let dozens of truly dangerous people roam around on a catch-and-release program.

Anyway, caveat -- my one experience with drinking and the law involved walking into a police station stone cold sober, with a zero BAC, and emerging many hours later...considerably less sober. But I got a free ride home in a patrol car. I seldom have even one drink any more because I am a volunteer EMT and firefighter, and don't want to have to miss a call because I just had a beer. But the emphasis on demonizing drinking in any form, versus misbehavior, still annoys me. It is very similar to demonizing guns and anyone who has them, versus focusing on actual criminal behavior.

[seamusTX]

I'm all for getting guys and gals who are truly drunk off the streets, but there seems to be a lot of revolving doors in that area -- repeat offenders with high BACs seem to keep right on driving...again and again, until they kill somebody.

Yep. They drive without a license. They have their kids or girlfriend blow into the court-ordered ignition locks. They borrow vehicles from friends and relatives.

A guy in this county was charged with felony DWI and intoxication manslaughter recently. It was his third offense. He probably has driven drunk thousands of times and just got caught three times.

I used to say that the only sure fix was to cut off their hands; but they could probably get around that, too.

- Jim

[Charles L. Cotton]

Refusing to take a breathalyzer test is not a crime. The license suspension is administrative, not criminal/penal. You get the suspension without facing a judge, jury, trial, etc. I think that is why it holds up in court -- it is not a criminal penalty.

When I was doing the obligatory CHL-who-wants-a-lawyer's-name-and-phone-number search, as well as researching the "aftermath" what-ifs, I of course read a lot websites and articles by criminal defense lawyers. A large number, if not all, criminal defense lawyers do DUI cases, and everyone of them that bothered to say anything about breathalyzers emphatically urged suspects to refuse them. It's pretty similar to the advice they give you to follow after a self-defense shooting -- you can't help yourself, you can only hurt yourself. Shut-up (and don't breathe) until you've seen a lawyer. You can still be arrested for DUI even if the breathalyzer doesn't show you over the limit, or show anything at all.

A lawyer can work to get the administrative suspension either lifted entirely, or reduced. For example, there are clauses in the law that allow a judge to reinstate your license for limited use, so that you can drive to work, until your trial or charges are dropped or whatever.

Break-break: as far as one drink and drive...one can argue that one drink impairs driving, but so does lack of sleep, lack of experience, many medications, many age-related conditions, many physical impairments, etc etc. It is not clear to me that having a drink makes you any more dangerous than a lot of other people cruising around out there. There seems to be little research into actually defining what is the minimum level of performance required to drive a car "safely." BAC or breathalyzer provides an easy numerical scale for alcohol, so it gets used. The lowering of the legal limit from .10 to .08 generates more arrests, but I am dubious that it generated anything like a significant improvement in safety. I'm all for getting guys and gals who are truly drunk off the streets, but there seems to be a lot of revolving doors in that area -- repeat offenders with high BACs seem to keep right on driving...again and again, until they kill somebody. I saw this with an ex-brother-in-law -- he's been a drunk for 40 years, rotated through the system so many times in so many counties I doubt he can count them, with an occasional prison term here and there for other things, and yet he is still out driving around...sans license. So we focus law enforcement and laws on as many people as possible at the low end of the drink scale, but let dozens of truly dangerous people roam around on a catch-and-release program.

Anyway, caveat -- my one experience with drinking and the law involved walking into a police station stone cold sober, with a zero BAC, and emerging many hours later...considerably less sober. But I got a free ride home in a patrol car. I seldom have even one drink any more because I am a volunteer EMT and firefighter, and don't want to have to miss a call because I just had a beer. But the emphasis on demonizing drinking in any form, versus misbehavior, still annoys me. It is very similar to demonizing guns and anyone who has them, versus focusing on actual criminal behavior.

Very good post ELB.

I would also add that "no refusal" makes a mockery of the warrant requirement. If an agency truly has judges "on call" to approve any and every warrant request they receive, and this is the clear message, then the 4th Amendment is being violated. The 4th Amendment envisions the judge/magistrate truly and critically evaluating the evidence to determine if a warrant should be issued. If a warrant is available for the asking, then the judge/magistrate is shirking his sworn duty. The only reason this hasn't been resoundingly condemned and overturned is the fact that it deals with drunk drivers who kill a lot of people every year. That's dangerous because it in essence is sending a message that if the problem is sufficiently widespread, then the Constitution can be brushed aside.

I feel about this issue much like the forfeiture laws. They originated solely as a way to target major drug suppliers, but now they are used without any significant oversight and as a revenue generator. All the good intentions in the world matter not when the end result is further erosion of constitutional protections.

/soapbox
Chas.

[ELB]

Very good post ELB.

I would also add that "no refusal" makes a mockery of the warrant requirement. If an agency truly has judges "on call" to approve any and every warrant request they receive, and this is the clear message, then the 4th Amendment is being violated. ... etc

/soapbox
Chas.

Interesting insight. The "on-call" part always made me uncomfortable -- it was like the judge is working for the police department -- and you gave constitutional flesh to why it feels bad. Excellent.

[Keith B]

No refusal blood draw warrants are a big issue in Texas right now. I was recently called for Jury Duty on one of these cases. Went into the Voir Dire and the defense was trying to push the issue that there is a Texas Transportation Code 724.013 states once you refuse to submit to an analysis, then you can't be forced to submit to any additional testing unless you were involved in an accident and specific issues listed in TTC 724.012 are met.
Apparently this is VERY common for the defense attorneys to try and push this defense as three of my Friends have been called in for jury selection on the very same thing.

With Texas being an implied consent state, then they have the right at that point to suspend your license, but as stated before, that is an administrative thing and not a criminal offense.

One issue with Texas is there are two definitions for DWI; .08 or greater BAC and 'Impaired' meaning not having the normal use of physical or mental skills due to alcohol consumption, a controlled substance, a drug, or a combination of two or more of these substances. That one is where they end up using the dash-cam video more than not. Pretty gray.

I ended up not being chosen as they figured out real quickly that I had a law enforcement background (the Judge actually asked after I answered a couple of questions on reasonable suspicion and probable cause .) I did follow up on this case and the other three friends cases and all were convicted based on BAC gathered during the blood draw, so they are not being successful pushing the right to refuse.

[seamusTX]

(the Judge actually asked after I answered a couple of questions on reasonable suspicion and probable cause ...

If you want to get out of jury duty, just make it clear that you know about things like the burden of proof and jury nullification. Throw in some Latin for good measure.

I don't know how many people are prosecuted for really having one drink or a dose of cold medication. I know that many defend themselves on that basis; but as I've said, the video tells the story.

- Jim

[Originalist]

When I took my NHTSA Standardized Field Sobriety Test Practitioner course the instructor gave some alarming statistics about DUI in Texas. For example, 1 in ever 4 contacts police make, they are dealing with a legally intoxicated (I sat legally becuase they probably walk, talk, act normal). of those only about 1 in 20 or 30 get arrested for DUI. Statistically, everyone will drive while intoxicated once in their lifetime. Of those who do it frequently, they risk the chance of getting arrested only about .05% of the time. These are not exact, just what I can remember.

Now for the warrant, BrAC (Breath Alcohol Concentration) and BAC (Blood Acohol Concentration). The "limit" is only a Per Se law (In and of itself). The statute says: The loss of mental and physical capacities due to the introduction of alcohol or drugs into the body OR a BAC/BrAC over 0.08.

Perhaps, the "on call" is a little mis perceived - on Lackland we have to call the base magistrate (O-6 or better) and the oncall Staff Judge Advocate for a "warrant" (we use slightly different terms/means the same thing) and he is on-call but under no terms do I think he works for me.

If the officer has his observations, and (if you agree) the results from any Sobriety Tests (if you fail based on the NHTSA standards), I think you would meet the "probable cause" criteria to justify a warrant from anyone you called. Just my Air Force Police .02/take it for what it is worth.