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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

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

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