As of today, September 1, two new laws go into force that deal with DWIs in Texas. Section 724.017 of the Transportation Code is now expended to allow more situations where police can do a forced blood draw without a warrant. Mandatory warrantless blood draws are now allowed if a person is arrested for DWI, or BWI, the person refuses to submit to the taking of a specimen volutarily, and: 1) an individual other than the person arrested has suffered bodily injury and was transported to a hospital or other medical facility for medical treatment; 2) the person is arrested for DWI with a child passenger under 15; 3) the officer has reliable information that the person has been previously convicted of DWI two or more times; or 4) the officer has reliable information that the person has been previously convicted of DWI with a child passenger under 15, intoxication assault, or intoxication manslaughter.
The Legislature also tried to give some assurance to the health care providers that actually draw the blood persuant to a blood warrant, or mandatory blood draw. Section 724.017 of the Transportation code was amended to provide protection to those who take blood specimens according to "recognized medical procedures." However, this change in the law DOES NOT relieve a person from lability for negligence in the taking of a blood specimen. And there lies the danger to anyone that takes blood under these intrusive warrant/warrantless blood draws.
The Austin American Statesman reported in today's paper that Austin's Hospitals and the Travis County Sheriff's Department have informed the Austin Police Department (APD) that they will no longer collect blood for APD.
Travis County's central booking facility had been the place where APD took their suspected DWI folks for the forced blood draw.APD would rely on the Sheriff's nurses to do the forced blood draw.(If the person refused, they would literally strap them in a chair so that the person couldn't move their arms, and then stick them with the needle)The Sheriff's Department nurses stopped taking blood samples on January 1.The Sheriff's Department has finally realized that the nurses main function should be to treat inmates, not collect evidence.Further, they are deeply concerned about having to give nurse's overtime pay to appear in court after having been the one that draws the blood.
Since the Sheriff's Office stopped doing the blood draws, APD started taking suspects to the hospital for the blood draws.(I can't verifiy this, but I heard that the hospital was charging APD $400.00 per blood draw.)The Hospital representatives have now told APD they don't want them to bring suspects to jail for blood draws.The Hospital staff are worried about lawsuits, and are concerned because these types of blood draws are not being done for medical reasons.Further, the Hospitals are worried about who will pay for the nurse's time when they are called to court to testify about the procedure they used to draw the blood.
Chief Acevedo thinks he has figured out a way around these problems.APD contracted with a private phlebotomist to draw the blood of folks on Halloween weekend and New Years Eve.APD agreed to pay the phlebotomist for three eight hour shifts during these weekends.What APD didn't contract for was pay for this phlebotomist when she is drug into court to testify about the blood draws.I predict there will be a lot of screaming from the phlebotomist when she finally figures out that the money she received per hour will now be reduced by the number hours she has to sit in court.
In the Statesman article, an "expert in blood draws" states that "the state laws are clear that nurses and hospitals are protected from such suits.What the "expert" appears to be referencing is Section 724.017 of the Texas Transportation Code.The relevant section, section (b), states:
The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures.
However, this "expert" left out the final sentence to section (b):
This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.
Now, what the "expert" seems to be forgetting is that it will ultimately be up to a fact finder (Judge or Jury) to determine if negligence took place.
Also, I bet no one informed the phlebotomists that they could be held liable for the blood draws either.
APD is treading on thin ice on this issue, and the sad part is, they either don't even realize it, or they just don't care.
In December 2006, Gregg County commissioners approved a grant to participate in the statewide “Drink, Drive, Go To Jail” campaign. This grant provides resources necessary to conduct DWI enforcement throughout the holiday periods to increase the arrests of folks that drink and drive.
Captain Ken Hartley with the Gregg County Sheriff’s Department says; “We’d just like to remind people to drive responsibly. Don’t drink and drive. Enforcement will be out there and it’s not worth that chance and certainly not taking a chance of hurting yourself or others.”
What they are totally ignoring is the fact that is not against the law to drink and then drive as long as you are at least 21 years of age, and you are not intoxicated. I believe that the Sheriff is setting up a great argument for the fact that people are going to be arrested that don’t meet the above criteria.
The police and prosecutors always want to lower the standard, but it just isn’t the law. Another example of the attempt to lower this standard is the “Buzzed driving is Drunk Driving” billboards. Neither Buzzed driving, nor Drunk Driving is the standard…..Intoxication is.
I certainly hope a defense attorney in Gregg County is paying attention to this and is willing to use this to show the juries there that THIS Sheriff’s deputies have the potential for making wrongful arrests.
While we all know the Austin Police practice a “Drink, Drive, Go to Jail” policy, the administration has been smart enough not to voice it publicly.
Increasing the minimum jail time keeps few drunken drivers off the road and doesn't significantly prevent fatal car crashes, according to the study, published in the journal Accident Analysis & Prevention.
The researchers examined the changes in DWI laws and policies between 1976 and 2002. They also studied the rates of DWI arrests and fatal alcohol-related car crashes.
Alexander C. Wagenaar cq , lead author of the study and epidemiology professor in the UF College of Medicine, said researchers wanted to find out if stricter regulations deterred people from drinking and driving and if the number of accidents would drop in the population as a whole.
"We found out that's not the case," he said.
James C. Fell, director of traffic safety and enforcement programs for the Pacific Institute for Research and Evaluation in Maryland, said on average, statistics show that a person drives under the influence 50 to 200 times before he or she is caught or gets into a crash.
I have said over and over and over, we must move our resources into education, rather than punishment. Until the powers that be, the Legislature, figures this out, they will continue to increase punishments to no avail. I was once told that the two areas that Legislators love to go home and tout, is tax cuts and being tough on crime. Unfortunately, I guess that still holds true today.
§ 31.124 of the TexasParks and Wildlife Code states, “an enforcement officer may stop and board a vessel . . . and may inspect the boat” to determine whether it is in compliance with the various provisions of the Code.
What this means for the average lake-goer is that an officer has the power to stop his or her boat without probable cause or a reasonable suspicion to believe that a crime has been or is about to be committed. Basically, a law enforcement officer may board any boat, for absolutely any reason and, once aboard, may legally come into contact with evidence of a possible crime, like boating while intoxicated.
The Court of Criminal Appeals of Texas recently discussed whether or not this statute violates the 4th Amendment’s ban on illegal searches. The court held in Schenekl v. State that it does not.
It may be difficult to understand how a random stop, unsupported by probable cause, could be constitutional. The court, in making this determination, applied a two-prong test, weighing the State’s interest in the search against the individual’s right to personal security free from arbitrary interference by law enforcement.
The court held that the State has a strong interest in protecting its citizens and promoting water safety through random safety checks. The court decided that, in contrast, the level of intrusion to the individual during a random boat stop is minimal.
Thus, while it may seem counter-intuitive, the court held random safety checks of boats to be constitutional and not a violation of the 4th Amendment. This information is certainly important to keep in mind while spending time at the lake this spring and summer.
The city agreed to buy a breath alcohol testing bus so officers don’t have to make the trip to the county jail.
The new Bat Bus will have to stations for Intoxilyzer 5000s as well as workstations for the officers to review the videotapes of the incident and prepare the offense reports.
Futher, there will be City Marshalls on hand to transport folks who have been arrested to the jail facility. This will allow officers like the one they call “the Machine” to get back on the street faster. The Machine currently holds the record for making 7 arrests in one night.
“Typical, DWI arrest takes between three and four hours,” Austin police Cmdr. Patti Robertson said. “It narrows it down. Takes off 3/4 of that time. They have all the paperwork, turns it over to the officers on the bus.”
DWI has become big business in Austin.
“We are at 800 per 100,000 people for DWI arrests…” Robertson said. “What that means is we are ……the highest in the state for DWI arrests. I think that speaks volumes.” It certainly does.
There are approximately 10 different agencies in and around Austin that are all competing for grant money related to DWIs. The question then becomes, “Could this possibly motivate officer to make more and more arrests?” My belief……ABSOLUTELY!
A Virgin Atlantic Pilotfound out the hard way that the Adkins diet can affect the breath test when he was removed from a transatlantic flight after failing a breathalyser test. He has finally been cleard of this charge after it was discovered that his low-carbohydrate diet triggered a false reading.
Subsequent blood tests on the pilot showed a blood-alcohol reading of just over a fifth of the limit set for airline pilots - which in turn is a quarter of the drink-drive level.
The pilot’s nightmare began when he went through the security checks for flight crew one of the guards thought he could smell alcohol on his breath.
The pilot was allowed to board the plane but about 45 minutes before take-off police got on the aircraft and breathalysed the pilot in the cockpit using a machine calibrated to aviation levels. The pilot failed this test and was escorted off the plane.
A standby crew was called and the pilot was taken to the police station, where blood tests were taken.
He was suspended from duty and released on bail.
The pilot’s blood was sent it to a laboratory where they found only a minimal blood alcohol reading. After the lab tested two more samples, he was exonerated.
Even non-drinkers are capable of producing trace elements of alcohol in their bloodstream, which would explain the level in the pilot’s blood.
The breathalyser reading was attributed to the pilot’s low–carbohydrate diet, which can affect the smell of a person’s breath and their metabolism.
Breathalysers mainly detect ethanol (the type of alcohol found in drinks) But some machines are unable to distinguish ethanol from acetone, a chemical that is produced by people on low-carbohydrate diets such as the Atkins diet. In normal circumstances this is not a problem but with the alcohol limit in the aviation industry is set at about a quarter of the normal “intoxication” level (.02) even these traces can result in a positive reading.
Where this is most likely to cause problems is when a person has been drinking, but not to the level of being intoxicated (.08). You then add the fact that the person is on a low carbohydrate diet, which will produce acetone in their breath, and there is a strong likelihood you will end up with a unreliable result from the breath testing machine.
