Frisco DWI Lawyer & Attorney Blog
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."