KXAN ran a story tonight about Austin Chief of Police Art Acevedo’s plan to do away with breath test refusals in Austin DWI cases:
"My intent in the future is to make it so there is no such thing as a refusal. You can refuse all you want, but we are going to aggressively seek search warrants," said Acevedo.
The search warrant would give an officer the right to stick a needle in your arm to get a blood alcohol level, replacing the job of a jail nurse.
"It's about saving money for the taxpayer. If I have an officer that's already involved in a case, they're already going to be going to court. Come to find out, the defense attorneys around here are telling people not to give them a test," said Acevedo.
Ouch – literally. My friend and fellow Austin DWI lawyer Ken Gibson is quoted in the story as well:
"Folks that are exercising their right shouldn't be afraid, that by doing so, 'Bubba Police Officer' may stick them in the arm," said Austin DWI attorney Ken Gibson.
Gibson said police officers shouldn't play nurse as well.
"The officer's going to have a liability if they don't do it right. The city's going to have a liability if they don't do it right. In today's times of AIDS and hepatitis and everything else, police officers don't want to be out sticking needles in people," said Gibson.
Kenny’s got a point.
First, there’s no way that APD is going to be able to train police officers to be physicians, chemists, registered professional nurses or licensed vocational nurses. So that means Acevedo is going to have to find a way to train them to be ‘qualified technicians’ – the only other category of person allowed to take blood in a DWI case by statute. (See Texas Transportation Code 724.017.)
The law specifically says that emergency medical personnel do not meet the definition of ‘qualified technicians’ so who knows what training Acevedo thinks he can put his officers through to get them to meet the requirements of the statute. Guess we’ll have to wait and see.
Second, take a look at the last line of 724.017 (b):
This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.
Acevedo knows a thing or two about civil lawsuits against police departments, so he might want to make sure he knows what he’s getting into on this one.
Update: Below the Fold
‘Central Texas Cop and Travis County Taxpayer’ leaves this comment on the KXAN story:
In Williamson County the District Attorney wants search warrants on all Felony level DWI/DWI related charges! And it's a great tool!
However..........I have questions about the officers being trained to take that blood. In Travis County there is a Jail Nurse who does that......it's not like they have to take them to the hospital like they do in other counties.
Since you are already at the jail (that's where the breathalyzers are) and the judge is ordering the officer and the medical personnel to obtain the blood -- wouldn't it make sense to have the Jail Nurse or other medical personnel such as Paramedics be able to take the blood as well?
After all, they are good enough to take blood to provide to the hospital for patients being transported, why are they not good enough to take blood under the law? People who all they do for a living is draw blood are "not qualified" under the law as it is written now to take blood for evidentary purposes.
There are many sources for obtaining blood (free flowing blood is admissible and is not a 4th ammendment issue) and I think we might need to rethink this as it is a HUGE liability on officers to add that to their requirements of duties.
NIce. An officer who agrees with me - on this only, read the rest of his comment to see where we obviously disagree - and I'm 99.999% certain he hadn't read my post on the subject...