Breath Test Refusal Cases

[Question via email.]

Since I don’t even know the jurisdiction this question comes from it’s pretty broad but let’s answer it from the Texas DWI perspective.

 

In most Texas DWI cases the officer will read the subject a form called the DIC-24 entitled “Statutory Warning”. It covers the various driver’s license penalties for refusing to

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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SUBCHAPTER A. GENERAL PROVISIONS

Section 724.001. Definitions

Section 724.002. Applicability

Section 724.003. Rulemaking

SUBCHAPTER B. TAKING AND ANALYSIS OF SPECIMEN

Section 724.011. Consent to Taking of a Specimen

Section 724.012. Taking of a Specimen

Section 724.013. Prohibition on Taking a Specimen If Person Refuses; Exception

Section 724.014. Person Incapable of Refusal

Section 724.015. Information Provided