CNN reported that Washington’s National Transportation Safety Board (NTSB) is recommending that all 50 states should lower the blood alcohol content rate from .08 to .05. The NTSB is trying to force the states to expand their laws allowing officers to confiscate a driver’s license when arrested for DWI….Something Texas already does. NTSB is also trying to get ALL states to require ignition locks (IID) on all first-time offenders.
As I have previously stated, requiring IID on ALL drivers takes the subjectivity away from the Judges, and instead places the IID decision making on the legislature. The Judge, who has full knowledge of the facts, should be the one that make the decision as to whether it is in everyone's best interest that IID be required. While nearly all states grapple with shrinking budgets, NTSB is expected to recommend to the National Highway Traffic Safety Administration that it provide financial incentives to states to implement the changes.
Really, this is just another “feel good” approach to fighting DWIs. The number of folks that test between .05 and .08 is so small, that it will likely have little effect.
However, with the margin of error, measuring smaller and smaller amounts will become more and more unreliable.
Involuntary, warrantless, blood tests may be unconstitutional after the U.S. Supreme Court ruling in MISSOURI v. MCNEELY.
The U.S. Supreme Court recently held that involuntary blood draws from drunken driving suspects can be unconstitutional. But the court offered little guidance on when they might be allowed, leaving the fate of pending cases in doubt.
The court’s ruling said officers can only take blood samples without a warrant in “exigent circumstances,” but did not define the term, and lower courts must now refine the ruling on a case-by-case basis.
It will be interesting to see what will happen to all our pending DWI cases in which our client’s blood was drawn without consent or a search warrant. With these cases, blood was taken based on Texas statutes which had previously allowed officers to demand blood without a warrant. These include accidents in which there was a death or serious injury; when children were in the vehicle; when the person had has two or more drunken driving convictions; or when the suspect has a single previous conviction for intoxication assault, intoxication manslaughter or drunken driving with a child passenger, among others. As you can see, these, for the most part, are felony DWI charges.
You can bet we are going to challenge all of these statutory blood draws. If we can get the blood result suppressed by the Judge, we have moved the case a long way towards getting the result we, and out clients want. The McNeely case may end up being a very good tool in fighting “blood test” DWIs.
The Canadian government has always been difficult when it comes to allowing folks with DWI conviction on their records to gain entry. The Canadian rule about entry is pretty straightforward. A person will be denied entry into Canada if they have been convicted outside of Canada of an offense that, if convicted in Canada, would constitute an indictable offense under Canadian law.
A foreign conviction is considered indictable if there is an equivalent offense under the Canadian Criminal Code. Unfortunately, Canada usually considers any alcohol related driving offense to be equivalent to their alcohol statute. And to further complicate things, the Canadian Government considers Reckless Driving equivalent to their “Dangerous Operation of Motor Vehicle” statute. So pleading down a DWI to Reckless Driving, while it might be a great result for a particular set of facts, could make a person ineligible to enter into Canada.
There are two ways a person can become eligible to be admitted into Canada after they have been deemed inadmissible. The first way is Criminal Rehabilitation, and the other is to apply for, and receive, a Temporary Resident Permit. To be considered for Criminal Rehabilitation, a person must wait until five years has lapsed since the completion of all the conditions of their sentence. To obtain a Temporary Resident Permit, a person must show a significant reason to travel to Canada.
If, however, a person has more than one conviction on their record, they must apply for criminal rehabilitation. A person may also be considered rehabilitated if there has been more than ten years since the completion of all the conditions of their sentence, and the person has only one conviction. If a person has more than one conviction, they must be prepared to show that they have been rehabilitated. This is something that can rarely be done without the help of a lawyer.
While pleading guilty to a DWI may not seem to be a big deal to some folks, it can have far reaching consequences. Most folks from Texas don’t think about going to Canada, but you just never know when a job might need you to travel there for business.
A new law, which is being called the “Extreme DWI Law”, took effect on September 1. This new law enhances the punishment for anyone with .15, or higher, alcohol content in their blood or breath, taking a DWI offense from a Class B to a Class A misdemeanor.
This new law carries with it a possible sentence of up to a year in jail and $4,000 in fines, even for first-timers.
This is just another example of the enhancement that can occur when you provide a breath or blood sample. If you don’t give a breath or blood sample, then the .15 enhancement is irrelevant.
The Austin American Statesman reported today that the Travis County Commissioners voted to enter into an agreement between Travis County and the City of Austin that will allow for a phlebotomist to be at the jail from Tuesday night through Sunday morning. These folks have reported that they anticipate the cost of this service to be approximately $60,243 per year. What they are not taking into account is the added cost of having those folks present to testify in the cases for which they drew blood. I was told that they plan to contract with a "phlebotomy service", rather than hire a single phlebotomist. The logical nightmare will be when the actual person that took the blood no longer works at the contracted service. Further, who do they think is going to pay for their time.
The article states that the phlebotomist(s) will work from 9:00 p.m. to 5:00 a.m. Well, we shall see how they feel about waking up to be in court at 9:00 a.m. Further, who is going to pay for the blood to be tested. Chief Acevedo has been pushing for a full time no refusal policy, and I think this is just one step towards his goal. As I have stated in past posts, this isn't Williamson County. Folks, in general, are against people being held down and stabbed with a needle. Sooner or later, Acevedo will have to realize that. Either that, or maybe another city will consider him for their Chief, since Dallas apparently didn't want him.
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.
Ken has completed training by the National Highway Traffic Safety Administration to administer standardized field sobriety tests. Ken is a member in good standing with the State Bar of Texas. Ken is a member of the Austin Criminal Defense...More...