Do Collin County's Blood Testing Labs Get Paid Per Conviction?

Do Collin County's Blood Testing Labs Get Paid Per Conviction?

It's a valid question.  If the answer were "yes," would it spark outrage? 

A new study shows that State Crime labs, are in fact paid per conviction.  In a new paper written in the  Criminal Justice Ethics journal, they found just that.  What they showed is that State Sponsored crime labs get paid through court-assessed fees.

In Collin County, most DWI blood test cases are tested by a DPS crime lab.  Yes, this is the same DPS that issues your drivers licenses, which immediately gives pause to most intelligent citizens as to the accuracy of who is testing your blood.  It is a state agency, not an independent laboratory.

As part of any plea of guilty, or conviction after trial, the court assess certain terms and conditions.  Fines, probation, classes, and court costs.  One of the conditions being assessed in the county now is "restitution" to the DPS crime lab for their testing of the blood.  Its usually in the $60-$80 range.  If a case is dismissed or citizen found "not guilty," then no fee is assessed. 

Admittedly I do not know how much of the labs operating budget is funded by these fees, but I suspect it is significant.  Although, it probably doesn't matter that much when the same agency that can arrest you (DPS troopers), employ the same agency (DPS) that supposedly determines your guilt through their blood testing.

Let the outrage begin . . . . or not.

Gas Chromatography Lecture

I'm pleased to report that I have been selected to speak at this years, "Gideon's Trumpet" seminar in Wichita Falls.  

My topic this year will be DWI Blood Testing: A Simplified Overview of Gas Chromatography.  Or more appropriately titled, "Gas Chromatography for Dummies Lawyers."

Learn to:

- Fight DWI Blood Test
- Pronounce Chromatography
- Impress Your Friends

Here is this year's agenda, and registration information.

The program is put on by TCDLA.  Hope to see you there!

DWI Blood Tests - Gas Chromatography School

Next week I'm headed to Gas Chromatography school held at Axion Chromatography Labs in Chicago, IL.  It is an extremely intensive course with less than 70 graduates thus far across the country.

So why am I spending a fortune on this course and wasting a week in Chicago in a freezing cold lab?

I'm still pondering the answer, but it seems like necessary training in this DWI blood test world.  Gas Chromatography is the technique used to test DWI blood for alcohol concentration.  In the past attorneys focused on the "science" (and I use that term lightly) of breath testing machines and standardized field sobriety tests.  Personally I am already a certified Instructor in Field Sobriety Testing -- I can teach the course that certifies the police officers.  But when it comes to blood testing, I have no certification. . .  Yet.

Studying blood testing methods is the next obvious step.

Part of the reason I want to go is because of the obvious anomalies I've seen in our existing DWI cases.  We have had cases where it was obvious that there was a problem with the blood testing.  And juries have agreed.  One case in particular I can remember, the client was almost three times the legal limit.  Yet she was walking fine, talking fine, and asking normal questions.  Clearly there was a problem with that test.

High error rates have been discovered for Austin PD blood tests in DWIs already. Houston's crime lab has come under criticism as well

The class gives hands on training to attorneys and other professionals experience working on chromatography instruments such as the modern Agilent 6890 instruments with capillary columns and the latest Agilent Chemstation data systems (whatever the heck that is). Admittedly I cut and pasted that last portion from the registration materials.

The Class is taught in part by Harold M. McNair, author of Basic Gas Chromatography the best selling Gas Chromatography book in the world (translated into many different languages. Other instructors include Dr. Lee N. Polite, B.A., M.B.A., Ph.D. (pictured), Lew Fox, Justin J. McShane, Esq, and Josh D. Lee, Esq.

I've been to tons of blood test seminars.  But hearing a Ph.D or attorney drone on about testing procedures can be quite boring.  I think the only true way to learn this information is hands on in a lab setting such as this.  At the very least I should get some cool photos of me in a lab coat.

Our office already has 2 Intoxilyzer 5000 machines.  Maybe next we'll need to invest in our own GC instruments...

D Magazine: Bad Blood at the Dallas County Crime Lab

Dallas County Crime Labby Andrea Grimes  Published 8.24.2011  From D Magazine SEPT 2011

 

No matter how easy it looks on prime-time television, putting bad guys in jail isn’t as simple as slipping on a dark pair of sunglasses, coming up with a scathing quip, and having an invariably sexy forensic biologist deliver irrefutable evidence that eliminates all reasonable doubt. Forensic science is a lot

messier than that.

It’s so messy that, six years ago, Texas legislators created the Texas Forensic Science Commission. It was tasked with hearing complaints about faulty science, bad policy, and mismanagement in Texas crime labs, with an eye toward improving conviction integrity and ensuring the best possible practices in crime labs across the state.

 

The Dallas County Crime Lab—more formally called the Southwestern Institute of Forensic Sciences, or SWIFS—has yet to come under the commission’s microscope. But Dr. Chris Nulf says a thorough review is long overdue. He worked at the lab as a forensic analyst in 2008 and 2009 and has been trying to get the commission to investigate Dallas’ crime lab ever since. He is speaking openly for the first time about the problems he saw there during his tenure. Nulf says the lab practices poor quality control, training is sloppy, and management retaliates against employees who raise concerns. If Nulf is right and there are serious problems with the crime lab, every case that relies on physical evidence could be called into question. Imagine if every convicted rapist going back five years suddenly had a good reason to appeal his case. Similarly, sloppy lab work could send innocent people to jail.

“People’s liberties are at stake here,” Nulf says.
 

 

 

The Dallas County Crime Lab is currently accredited by the Texas Department of Public Safety and, as of 2003, by ASCLD/LAB, the multinational accreditation agency that crime labs pay to join. But Nulf says accreditation is only one part of the puzzle and that ASCLD/LAB has taken the lab at its word that its policies are sound. Essentially, the crime lab is doing fine because it says it is.

Nulf earned a Ph.D. in molecular microbiology from UT Southwestern Medical Center in 2004 and was hired on at the crime lab in March 2008. In the 14 months Nulf spent in training as a forensic analyst, he says that using expired chemicals was a matter of practice, that he saw a box fan used to cool a room where microscopic evidence was handled, and that he was trained under managers and supervisors who had different, and loose, interpretations of lab protocol.

“You never knew what to believe when someone told you something,” Nulf says of his training.
 

 

 

In the summer of 2008, Nulf informed his supervisor, Dr. Stacy McDonald, that a stock chemical, sodium perborate tetrahydrate, used in the serology lab—where blood and other bodily fluids are analyzed—had expired in 2005. The crime lab’s procedural manual states that that chemical can be used for a maximum of 90 days after its expiration date. When Nulf’s complaints were forwarded to ASCLD/LAB, the Dallas crime lab had an explanation. Management explained that sodium perborate is merely a component used to make complete “working solutions.” As long as the working solutions made from the expired chemical passed quality control, that was good enough. In other words, the lab admitted that, yes, it was using spoiled meat, but the chili still tasted fine.

Nulf claims that analysts were trained to re-prepare working solutions until they got a quality control that worked. If an expired chemical failed quality control most of the time but analysts could get it to work some of the time, no one would be the wiser. This kind of information wasn’t shared with ASCLD/LAB.
 

 

 

“They trained on preference, rather than protocol,” Nulf says. (Dallas County medical examiner Dr. Jeffrey Barnard, who oversees the crime lab, was unavailable for comment as of press time.)

Nulf anonymously filed grievances with the Texas Forensic Science Commission in the spring of 2009, while still employed at the lab. “I knew they weren’t following protocol,” he says. “I knew they weren’t being scientific.”
 

Beyond the expired chemicals and the box fan—in their report to ASCLD/LAB, the crime lab said that the fan was used only temporarily and that it faced away from areas where evidence was handled—Nulf also says that, in the year he worked for the crime lab, he was never asked to submit his own DNA for an employee database used to investigate potential contaminations. An employee DNA database is standard procedure for all crime labs.

Nulf was fired in May 2009, in part because he insisted on making a notation in the lab’s logbook that he had used an expired chemical. He was told that the notation was made “without direction from a supervisor and without sufficient documentation.” He publicly attached his name to his previous complaints in a wrongful termination suit filed against Dallas County in October of that year. Local media jumped on the suit, as it contained powerful statements that accused the crime lab of a “total lack of professionalism” and that “the same evidence used to convict murderers and rapists may be used to put them back on the street.” Nulf’s suit couldn’t go to trial because of a procedural technicality. He had failed to file his complaint with the county within seven days of his termination, as per policy. He and his lawyers filed a nonsuit, ending the litigation.

With no recourse in court, Nulf has waited two years to hear the state commission’s response to his complaints. He has amassed a pile of documents via open-records requests to shore up his case. One of those documents is a “corrective action report,” an internal memo created when problems are found in the lab. A report labeled CAR-07-007 details that “areas of the Trace Evidence Lab and office were contaminated with blood,” on or about July 16, 2007, per Dr. Timothy Sliter, the lab’s evidence section chief. The report itself, though, contains the signature of a crime lab employee, Karen Young, who didn’t work for the lab in 2007. Nulf also noticed that the template used for the report looked different than others used in that year. The report lists a resolution date of November 25, 2008. It was not, then, created contemporaneously with the contamination discovery, but 16 months later.

Nulf believes Sliter withheld information about a widespread contamination for 16 months. He says that’s the kind of information defense attorneys would have found very useful. With the prosecution, say, pointing to blood from the crime scene found on the accused’s shirt, the defense could raise the question of whether the blood might have been transferred to his client’s shirt as it was being analyzed in a contaminated lab.

When D Magazine contacted the Texas Forensic Science Commission to inquire about the status of Nulf’s complaint—the commission’s website still says a decision has been “abated” pending Nulf’s civil litigation, which was terminated in July 2010—a commission rep said Nulf’s complaint had been dismissed back in August 2010.

The dismissal didn’t come as a surprise to Nulf, because he’s never been notified by the commission about his case’s status. Representatives for the commission claim they did notify Nulf and that the case was dismissed on the grounds that he did not tie his complaints to a particular criminal case, as is required by the commission’s protocol. That protocol, however, wasn’t adopted until January 2010—months after Nulf had filed his original complaint.

 

Dallas PD Want Your Blood. . . With or Without Your Consent

 

Well, it looks like Dallas doesn't like the breathalyzer either.  An article in the DMN today explains that the Dallas PD 

wants to start forcefully taking blood from DWI 

suspects.  I still haven't understood why the legislature enacts a law like the one listed below, then skirts the issue:


§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION.
Except as provided by Section 724.012(b), a
specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.

Lawrence Taylor in California refers to this as the "DWI exception" to the constitution.

Dallas police seek blood tests for all DWI suspects

06:34 AM CDT on Monday, March 15, 2010
By TANYA EISERER / The Dallas Morning News
teiserer@dallasnews.com

police want to join a growing national trend by making all suspected drunken drivers take a blood test, but the price tag for such a program may be too high for now.

Under a proposed policy, the Breathalyzer would become a thing of the past. And police would seek a search warrant to get blood from any suspected DWI driver who refused to take the blood test.

But preliminary figures – which indicate the program would cost the city of Dallas at least an additional $360,000 a year – may mean it stays on the back burner during the tough economic climate.

Some officials do believe the costs of such a program could be partially offset by other savings.

Police are talking with Parkland hospital officials and the Southwestern Institute of Forensic Sciences about the costs of expanding that program to everyone who is arrested on suspicion of DWI. Parkland's staff would draw blood at the jail for every DWI suspect, and the institute's lab would test the samples.

In Dallas, police arrest about 3,600 DWI suspects each year. Of those, about a third already undergo blood testing at the Dallas County Jail.

Blood tests have several advantages. Breath testing can't detect the presence of drugs in a person's blood stream, but blood tests can. Studies also have shown that blood testing DWI defendants offers prosecutors an almost bullet-proof case. A 2008 federal study found that it results in more defendants pleading guilty, fewer cases going to trial and increased conviction rates.

"There's no question that the blood test is more accepted in the courtroom by a jury than the breath test," said David Burrows, a co-chair of the DWI committee for the Texas Criminal Defense Lawyers Association. "I don't think too many people question the accuracy of blood testing."

That would probably lead to more plea deals, perhaps sharply reducing costly overtime paid to officers called in to testify when cases go to trial.

"We all know that defense attorneys can place doubt in the minds of the jury as to the reliability of the intoxilyzer instrument, but it is much more difficult to place that same doubt for a blood test," said Dallas Police Sgt. Kenneth Campbell, a jail supervisor who has been working on the proposal.

Phoenix and other cities already require blood tests for all drunken driving cases. Dalworthington Gardens was the first Texas city to go to an all-blood test, in the summer of 2005.

Dallas already has periodic "no refusal" weekends, such as this past weekend, where officers kept a close eye on the revelry for the St. Patrick's Day parade on Greenville Avenue. Suspected DWI drivers were offered either breath or blood tests. If they refused, police obtained a warrant for their blood.

The year-round program in Dalworthington Gardens is nicknamed "Can't take no for an answer." Under the original program, DWI suspects were tested by police trained to draw blood. If they refuse the testing, "we go out and get an evidentiary search warrant," Chief Bill Waybourn said.

He said most of the more than 300 people arrested through the program have taken plea deals.

In 2008, a Tarrant County judge discarded blood evidence in the case of a Bedford resident arrested in Dalworthington Gardens after raising concerns about the department's program. Since then, medical personnel have been drawing the suspects' blood while the city awaits a ruling by the state's highest criminal court. If the court sides with Waybourn, he said he will again have his officers draw blood.

The Houston Police Department recently began training eight members of its DWI unit to become certified blood technicians.

Assistant Police Chief Vicki King said the department is working with Harris County prosecutors to get grant funding to implement a no-refusal policy four days a week. That would mean that if someone refuses to take a breath test, officers would obtain a search warrant for a blood test.

"Blood is the better evidence," King said. "It will tell us exactly what's in the bloodstream."

Arizona has implemented an intensive program to train officers as blood technicians, and the program is becoming the national standard.

Many of the state's larger police agencies, including Phoenix, Mesa, Scottsdale, Tucson and the state highway patrol, have gone to an all-blood DWI testing program, said Phoenix Detective Kemp Layden, who supervises his department's program.

In Phoenix, any person arrested on suspicion of DWI is asked to voluntarily take a blood test. If the person refuses, officers obtain a warrant.

"It's extremely successful," Layden said. "We have reduced the number of refusals. Most people don't refuse the test now. We have reduced the number of unsuccessful prosecutions. The conviction rate is way up."

But in Dallas, the department has decided against having their officers draw blood, which is why negotiations are ongoing with Parkland.

"That's just way to open to too many legal challenges," said Lt. David Bonicard, who oversees Dallas police jail supervisors. "We don't want to be in a position where charges are thrown out."

 

Blood Test Seminar - Live Blogging - Cross of the Chain of Custody Witness

Today's lecture on Cross of the Chain of Custody Witness was presented by Houston DWI Lawyer Tyler Flood.

A very good showing.  It was in the Q & A style of a cross examination, so a bit hard to put into a blog the exact questions.  But here are some of the points brought up, that should be explored with the witness:

  • Get the SOP of the police department.  You can find (sometimes) their procedures of how things should be done.  Tyler did this with Houston PD.  It seems like he then tailored his questions to the witness to explore if they were done.  I presume after his cross, he would cross an officer on the correct procedures to bust up the chain of custody
  • Tyler went through exactly step by step where the sample was, who it was handed to and where it was stored
  • Was it refrigerated?  If it was, what about when you pull it out to put it in a cooler?  How long out?  What about when you brought it to the police station?
  • What about other sample's proximity to your client's sample?  Do they stuff everyone's in an envelope, cooler, or lockbox?  Who else's samples were in there? 
  • Examine all the numbers on who is signing in and out items?  What if they were mailed?  See if a bunch of them were all sent in the same envelope?
  • Is special handling checked off??
  • What about biological hazard stickers?
  • (From the last lecture, does this mean the sample is being inverted more than it should have been?)

Great job overall on this part of the lecture.

 

Blood Test Seminar - Live Blogging - Crossing the Blood Drawer

Today presenting on how to cross examine the Blood Drawer (Nurse, qualified technician, etc) was attorney Kelly Case.

A really great job.  So good, I don't really want to give up the strategy or specific questions on my blog.  If any attorneys are interested in my notes or thoughts, I'll send them along.  Just shoot me an email and I'll send it along.

In general, with the Blood Drawer, you can question if intereferrants are present, if there are problems with the blood draw, about the blood draw kit, about the place it was taken, and about the qualifications of the blood drawer.  Really good stuff.

Blood Test Seminar - Live Blogging - Pre Trial Discover

The pre-trial discover portion of this seminar is being taught by Houston DWI lawyer Troy McKinney.  Troy is responsible for putting on many DWI seminars, and speaks at most of them.  Not to be confused with Collin and Dallas DWI Attorney Troy Burleson (my law partner).

First off, you cannot defend a blood test case without Documents.  You need to know what they have.  You need it to prepare, educate the judge, and confuse the prosecutor. 

PS - as a totally random side note, the Houston's Crowne Plaza's cups suck.  They leak.  I got 2 coffees, and both of the cups I used leak out of the bottom.  Also, this is the first time I didn't pay to get the book along with the CD.  I think that was a good decision.  Especially when you can bring in and plug in a laptop and pull it up.

Very often, you are going to need an expert.  Even if not at trial, you'll need them to review the documents you get.

There is a lot of legwork that can be done on looking into Accreditation of the laboratory. This comes into play at not only looking at the  lab that did the testing, but any lab that you might have used to retest the sample. 

His lecture was pretty complex.  I certainly cannot relate all of it here.  The problem I have at a lot of these seminars (especially the scientifically based DWI seminars, is that without an expert, none of this stuff will ever come into evidence.  It is definitely impossible to cross examine a cop on this stuff, and pretty tough to cross the state's lab expert on it as well.  You will need an expert of your own to come in and explain a lot of it.  Remember, attorney's cant testify (technically), only witnesses.

Blood Test Seminar - Live Blogging - Attacking the State's Search WArrant

One of today's speakers, Mark Daniel, a Ft. Worth Criminal Defense Attorney, has been getting a lot of recognition for his recent work on Tarrant County District Judge Elizabeth Berry's case.  Much of the good press was about he finally getting her case dismissed.  Not easy in a case where a blood test was taken. 

He first attacked the search warrant in the case, and got the blood test results kept out of court.  After some appeals by the state, he then won the appeal.  The State's response after that was to dismiss the case. 

Mark's talk is about fighting search warrants in DWI cases. . .

Some of what Mark pointed out, is that this is still a new area of law.  His feel is that it is here to stay, and the only way to fight back is to do just that -- fight back.  Especially in these borderline cases.  Try and litigate these cases!

First off, there are still plenty of mistakes being made.  The officers are the ones that are asking for the warrants, and are not perfect about articulating probable cause.  

Nurses and Doctors aren't on the State payroll.  The hospitals might not like their nurses and doctors sitting around waiting to testify all day long.  And they wont be at court unless we are litigating these cases.

Cops must be saying facts that support the PC.  Just checking off boxes wont necessarily be enough. 

Who can sign warrants - After Sept 1st, there will be a lot of other people that will be allowed to sign these warrants.  This includes any local magistrate that is a licensed attorney.  This would also include courts that are not courts of record.

Additionally (and I'll post more on this later), there are going to be plenty more blood draws coming WITHOUT a warrant.  Some of this may be outside the 4th amendment, if properly fought.  This isn't going to happen here at the local level, but maybe if appealed higher.  Some of the new times the police can take blood without a warrant is where, a) a DWI felony, b) a DWI with a child passenger in the car, and c)a DWI where there is bodily injury and someone goes to the hospital.

According to Mark, "c) a DWI where there is bodily injury and someone goes to the hospital" is an area where the TCDLA fought hard with the legislature.  Apparently it was originally worded just "bodily injury".  That could be pretty much anything -- broken fingernails, etc.

 With PC, you need facts, not just conclusions.  Looked intoxicated, failed the test, etc isn't enough.  Also, we need to know about training and experience of the affiant as well.

You can request a Frank's hearing.  This is when there are false statements in a warrant.

Faxed warrants can be fought as well.  In the Govt code, it says an affidavit has to be before an officer.  In fact, at one point, a court said that we need to let the legislature ask for allowing fax warrants. 

Overall, this was an awesome speaker.  Probably about the best speaker I have heard in the past few years -- and I hit a lot of these seminars.  Also gave out great materials of his briefs and case law that he has looked up and used. in the past. 

Top Gun DWI - Blood Test Seminar - Live Blogging

Well, today I am attending the Texas Criminal Defense Lawyers Association's Top Gun DWI - A Blood Test trial from Start to Finish.  

In the past I did some live blogging from another DWI Seminar Here, here, and here.  I got a pretty good response from it, so I'm going to give it another shot.

Although the premise of this seminar is an actual trial style : i.e. cross examination of officers, toxicologist, etc, there will also be some normal seminar speaking as well.

 

 

 

How to Fight a DWI Blood Test Case - Intro

With all of the recent publicity surrounding DWI Blood test cases, a few months back, I decided to write a paper on how to fight DWI blood test cases.

Well, the paper was coming along very slowly, and I quickly realized my topic was too broad.  I decided to narrow it down to remove all "constitutional/"are the warrants illegal" areas, and leave that area to another legal scholar.  In general, I think the Transportation Code is so clear, I didn't want to get on my soapbox about it any more.  Plus, I have read (but don't buy into) the Beemon case which is where most prosecutors point to.

If anyone is interested in working on a paper with me, let me know.  Maybe a law student out there??

My future topics will include:
  • Retrograde Extrapolation
  • Attacking the Probable Cause in the Warrant Itself
  • Breath Test Coercion
  • Chain of Custody Issues
    • Keeping the Blood Out
    • Creating Doubt
  • Fighting the blood drawer as a "Qualified Technician: (Fight going on today.. read about it here!)
  • Whole Blood vs. Serum Blood
  • Retesting Independently
  • 38.22/38.23
  • Presentation of the Warrant (already covered quite well by Sarah Roland in this article)
  • Poor Lab / Testing Procedures
    • Gas Chromatography / Enzymatic Method

I hope you enjoy (and help contribute) to the upcoming series "How to Fight a DWI Blood Test Case"

DWI Blood Draw Debate Continues

Well, it seems as if the blood draw debate is continuing.. this time in Austin.

Austin DWI Attorney
Jamie Spencer has been reporting on the Vampire Blood Draws heading to Austin Here, and Here

The newest twist is evident from the headline in this article on KXAN in Austin -- "APD chief wants officers to draw blood on DWIs"  Apparently it is not good enough to take someone to the hospital against their will, strap them down, and pull their blood.  APD wants the officer to do it.

As Jamie points out, people on KXAN's website are commenting in droves -- mainly against the idea.  He shows that "[t][he overwhelming majority said it was a bad idea. 46 commenters – out of 51 total – were against it."

Obviously this isnt a survey, or a double blind study, but certainly shows that there is opposition to the idea.  Austin DWI Attorney Ken Gibson even was asked about the problem and explained that "[f]olks that are exercising their right shouldn't be afraid, that by doing so, 'Bubba Police Officer' may stick them in the arm."

A new group now dove into the mix as well.  The Texas Civil Rights Project says in this article that:

"You have the police officers themselves doing the blood tests exposing the city to all types of lawsuits. They don't have nursing training; they don't have medical training," said Jim Harrington, director of the Texas Civil Rights Project.

In this article, Mr. Harrington explains:

“You’re basically violating somebody’s constitutional rights by going into their body and taking blood,” said Jim Harrington, Director of the Texas Civil Rights Project. “People who haven’t been to nursing school (or) medical school could cause a lot of problems to the person they’re sticking the needle in to.”

Of course, these blood draws can only be held with the signing of a warrant by a judge.  Dallas Criminal Defense Attorney Robert Guest shows what happens when one judge actually stops to read the law.  His article, Austin DPS vs. Hero Judge -- Update shows the few prosecutors spearheading the MADDness, are up in arms!

Of course, I still cant get past this.  In my past simple post "Refusing a Breath Test" I showed the LAW:

Texas Transportation Code

§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION.
Except as provided by Section 724.012(b), a
specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.

What part of this does the State not understand?

Refusing a Breath Test

Texas Transportation Code

§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION.

Except as provided by Section 724.012(b), a
specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.

What part of this does the State not understand?

DWI Mandatory Blood Draws

Here is an interesting article on mandatory blood draws for DWI cases. This has been the latest trend in trying to convict those suspected of DWI.  I haven't really written much about it, but I am planning on it in the future. 

There seems to be some serious constitutional, administrative, and public policy problems with the mandatory taking of blood tests.

Here is the article:

Weekend DWI roundup has 'dramatic' results

by Audrie Palmer
Midland Reporter-Telegram
Published: Saturday, April 12, 2008 7:51 AM CDT
Results from Midland's March 28-29 "No Refusal Weekend" were released Friday, and the amount of alcohol in the system of some of the drivers cited for driving while intoxicated was shocking to officials.

"We had, what I consider, pretty dramatic results," Midland County District Attorney Teresa Clingman said Friday morning at a press conference.

In all, the average blood alcohol content in those who voluntarily subjected themselves to a Breathalyzer test was 0.136. The average BACs of those who refused the Breathalyzer test and were then made to submit a blood sample because of a search warrant were 0.22.

In Texas, one is considered legally intoxicated when his or her BAC is 0.08.

The weekend project was a combined effort of the Midland County District Attorney's office, Midland County Sheriff's Office, Midland Police Department and the Texas Department of Public Safety.

About 10 additional DPS troopers were brought in to help from nearby counties and both the Sheriff's Office and MPD provided extra officers to help patrol the areas.

"It's fair to say that the effort was to keep Midland safer," said MPD traffic Lt. Brian Bogart.

In all, the weekend netted 26 arrests with eight of those being for felony offenses.

For the month of February, authorities arrested a total of 36 individuals over the course of four weekends with eight of those citations for felony offenses.

By law, anyone stopped for a DWI can refuse to take a breath test, and by doing so, it hurts in building a case against the driver based only on an officer's testimony and videotape, said Clingman.

"You can't smell what the officer is smelling. You can't hear that well. You can't see what the police officer sees," she said in regards to using a videotape as evidence when on trial.

But Midland defense attorney Steve Hershberger is convinced that taking a breath test isn't always effective.

"I have had cases where the Breathalyzer machine didn't work," he said.

During the "No Refusal Weekend," those who resisted taking a Breathalyzer test were apprehended while a search warrant was made for a sample of their blood.

And getting a search warrant for one's blood is not unusual or uncommon.

Hershberger said that it is not unconstitutional for officials to collect a fluid sample -- whether it be from a person's blood, saliva or urine -- as long as it doesn't impose on their Fourth Amendment right which prohibits unreasonable searches and seizures.

Authorities are allowed to file for one if they have any reasonable doubt about a driver's intoxication levels. Bogart said that officers can get a search warrant any time, but that it could take up to 3-4 hours to complete.

But with the DWI weekend project, county judges were on call making the efforts easier for officials and a nurse from the health department administered the tests. It reduced the time for the officers by several hours, said officials.

Only about one of every four drivers that weekend submitted to a breath test, according to Bogart.

"We need to make them more aware they don't really need to drive while intoxicated," Clingman said. "People just need to be aware we will do it again in the future."

But Hershberger, believes that the consequences on an individual charged for DWI are sometimes "too far ranging."

Those with a DWI arrest on their record, he said, have been affected with having an increase in their insurance as well as some of his clients have had a hard time finding future employment.

"It really does wreck people's livelihood," Hershberger said.

Faye Hodges, president of the Stop DWI organization in Midland, volunteered her time during the "No Refusal" project and brought refreshments and snacks out to officers.

Hodges, who lost her 24-year-old son when he was killed in a head-on collision by a drunken driver, was in favor of the collaborative effort of the local agencies for this project.

"I commend everyone who worked. It's hard to get a prosecution when someone refuses a breath test," she said.

Hodges said Friday she has sat in on DWI trials before and has watched defendants "get off" because of a lack of evidence declaring them to be intoxicated during the incident.

"There's no doubt when you take someone's blood to see if they are drunk or not," she said.

Audrie Palmer can be reached at palmer@mrt.com.



Fact box:

Youngest driver arrested 17

Oldest driver arrested 56

Average age of drivers 33

Highest BAC with breath test 0.205

Lowest BAC with breath test 0.085

Average BAC with breath test 0.136

Highest BAC with a blood sample 0.32

Lowest BAC with a blood sample 0.13

Average BAC with a blood sample 0.22 Continue Reading...