Blood Test Cases

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Here’s the text of the resolution, along with my running commentary , on last week’s City Council agenda regarding the possibility of Austin police officers – instead of registered nurses or otherwise medically qualified and trained personnel – collecting blood specimens from DWI suspects:

WHEREAS, the State of Texas allows peace officers to collect breath and blood specimens as evidence for prosecuting people suspected of operating a motor vehicle while intoxicated through Texas Transportation Code §724.012, and Texas Code of Criminal Procedure Article 18.01; and

Since there’s already an implied consent statute, and a law governing search warrants…

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Several folks – prosecutors and defense lawyers – that I see on a regular basis in the Travis County Courthouse have asked me why I didn’t blog about the No Refusal Weekend that started on Halloween. (Short version: Austin Police Chief Art Acevedo announced that anyone who was arrested for DWI and refused to take a …

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.

[I guess it could be worse…]

Update: Below the Fold

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I’ve written before on forced blood draws, and indeed, in Austin, some DWI suspects are being forced to give blood specimens. After an initial refusal to take a breath or blood test, the officer submits a warrant to have the defendant’s blood forcibly drawn. 

This is one of the main reasons that the Travis County …

From today’s Austin American Statesman article about an unsuccessful attempt to reverse the presumption of innocence for DWI cases in Texas:

A third proposal would have simplified the method used for determining a person’s blood-alcohol content at the time he or she was driving.

The proposal, House Bill 915, by Rep. Jimmie Don Aycock,

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DWI lawyers know that most times their defense will be “the State can’t prove my client was intoxicated”. This usually comes up in breath or blood test refusal cases, where the defendant does well enough (not perfectly, just well enough) on the field sobriety tests.

Sometimes, the defense is that the State can’t prove that my …