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.
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!
