Even as Austin Police Chief Art Acevedo prepares to ‘train’ his officers to forcibly take blood from Travis County DWI suspects, a judge in Tarrant County has ruled that prosecutors may not use blood results from forcible blood draws done by improperly trained cops.

And, as of now, that appears to be all police officers. 

In my previous post, I predicted that Acevedo’s attempts to ‘train’ his police officers to take blood from DWI suspects that refuse a breath test would run into some legal problems: primarily that they wouldn’t meet the legal standards laid out in Texas Transportation Code Section 724.017 and would therefore be subject to a motion to suppress the test results.

As Robert Guest points out:

These cops had some EMT training. However, the law states that EMTs aren’t qualified.

Police should not be drawing blood.

First, they have a vested interest in convicting the defendant, not attending to medical needs.

Second, if the cop actually kills or injures someone they have near complete immunity.

Finally, State law includes breath, blood, and urine for evidence of intoxication. What if the police start getting breath/urine warrants?

Ok. So the last one is not likely (yet). However, we don’t want police playing nurse anymore than we want nurses driving the SWAT tank.

In the comments to the local Austin story about “No Refusal Weekends” many local citizens complained that the police would open themselves to civil liability if Acevedo’s plan was implemented. Actually, I think Guest is right: it would be difficult to mount a successful civil lawsuit.

But while I love the nurses & SWAT tanks line, I’m not as confident as he is that forced urine tests are so impossible. Painful? Orwellian? Perhaps.

But then again, they could be coming to a city near you

Austin is the only Austin in Texas. Or, as the saying goes, “When you leave Austin, you enter Texas”.

And Austin has reacted – albeit in a non-statistically significant way – to the news that our Police Chief announced that he intends to stick it to every DWI arrestee that refuses a breath sample. As in stick a needle in their arm and draw blood.

And furthermore, he’s going to have police officers doing the sticking. Yes, again, with the needle. They’ll be trained though. They’re not trained now – but he’ll get ‘em up to speed.

KXAN ran a story on it, and included a link in their webpage. The type of webpage that allows comments. And Austin commented.

At last count, there were over 50 commenters, and here’s how the pros and cons ran:

4 folks thought it was a great idea.

1 person I categorized as ‘neutral’ although, that’s generous because what he said was:

Don’t see a problem, except Officers should not be drawing the blood. The nurse at the jail can do it. Taking blood is a risky thing, and only a trained professional should do it. This not what cops should be doing.

Mr. Neutral didn’t read the story fully, because the story is about cops sticking the needle in. At any rate, I counted him as neutral because on some level he didn’t ‘see a problem’ with it.

The overwhelming majority said it was a bad idea. 46 commenters – out of 51 total – were against it.

A smattering of the con comments?

  1. This guy [Acevedo] has got to go.
  2. Maybe the cops will also perform surgery on accident victims. That would save a lot of money on doctors.
  3. We all know government agencies want an inch but take 100 miles. APD’s intentions may seem like a good idea, but eventually leads to more government control and less individual rights. Are we are all guilty until proven innocent?
  4. What’s next body cavity searches at a traffic stop?
  5. What happened to the Bill of Rights?
  6. This is the exact thing that our forefathers sought to protect us from.
  7. This is insane. This kind of precedent can lead to a very scary future.

My personal favorite? It’s a tie:

  1. I dont drink, but I don’t care for this idea. I hate blood tests more than I hate beets.
  2. Nothing scarier than a redneck cop with a mouth full of Copenhagen and a needle.

On a more serious note, KXAN has picked up on this ‘vibe’ with their story today about ‘Groups react to APD’s proposal’ and will be broadcasting a follow up story in less than 45 minutes. Looking forward to it.

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

Continue Reading Forced Blood Draws Coming To Austin in DWI Cases

I was waiting in Travis County Court #7 this morning to talk to the judge about a post conviction occupational driver’s license. Meanwhile, a pretrial motion to suppress had already started.

From what I could gather, the officer had seen a car pulled off on the side of the road. The defense attorney was doing a good job pointing out through cross examination that no traffic violations had been witnessed.

Apparently, the State was attempting to justify the initial detention through the ‘community caretaking’ exception. Community caretaking is shorthand for the legal concept in Texas that the police can legally detain you ‘for your own good’. Of course, since it’s only litigated in the criminal context, that means they ended up arresting you for one thing or another, so how much good it ended up doing you is questionable at best.

So the officer had pulled over ‘to investigate,’ I suppose, but I had missed that part of the testimony, when this little gem came up:

  • Defense attorney: Was there anything unsafe about stopping in that neighborhood?
  • Officer: Well, any area in Austin can be unsafe.
  • Defense attorney: Do you consider that to be a high crime area?
  • Officer: All areas in Austin can be ‘high crime’.

Exactly! There’s no place in Austin, in Texas, or really in the world that an officer can’t characterize as “could be a high crime neighborhood’.

So, when an arresting officer testifies that “part of the reason I detained him was to investigate due to it being a high crime area,’ appellate courts need to stop pretending that adds any logical or legal basis for a stop or a detention. Is this really how low we want our standards to sink?

Like most of the affronts to our constitution, no one cares about this sort of erosion of civil rights… until they are arrested for DWI…

Public Defender Dude on “Larry Craig and Police Officer Opinion Testimony”:

One of the areas that has held public fascination in the Larry Craig situation is the vagueness of the charges and allegations against him. Put simply – what did he actually do wrong – tapping a foot and reaching with his hand? He clearly did not break any established and obvious laws by those actions… So what he did had to be interpreted by a police officer as being illegal, because it is not illegal on its face.

This brings up an area that I’ve so often railed against – police officer opinion testimony (or, as I like to put it, "my opinion is that you’re guilty."). I think that this opinion testimony, whether in the context of gangs (giving an opinion that any sundry crime was committed for the benefit of a street gang so as to make minor crimes strikes, or average crimes life sentences), or drugs (giving the opinion that whatever amount of drugs that someone possessed was obviously possessed for purposes of sale), or any other area.

Prosecutors love this stuff. It’s like 2 closing arguments in their case. They get a police officer who gets to get up on the stand and essentially say "I’ve investigated thousands of cases, and in my opinion this person is guilty, because his case falls in with all these other ones in this manner."

It is highly prejudicial, and in many cases, highly meaningless.

It struck me when I read his post that PD Dude is also accurately describing so many officers’ testimony in DWI cases, as it relates to the defendant’s performance on the Field Sobriety Tests.

“In my opinion, he should have done better on these agility tests, and because he didn’t, in my opinion he’s guilty of DWI.”

DWI lawyers must point out that the officer’s opinion doesn’t factor in

  • Initial nervousness for being pulled over for a traffic violation
  • Increased nervousness now that you know you’re being investigated for DWI
  • You might be non-athletic, or perhaps even a klutz
  • Or that Field Sobriety Tests don’t measure a person’s normal abilities to do anything

As PD Dude says, you may just be able to show that the police officer’s opinion is “highly meaningless”.

Dallas DWI Lawyer Robert Guest “I donate to MADD”:

Not intentionally… MADD is stealing my tax dollars. The National Highway Traffic Safety Administration gave MADD $400,000 of our money to "monitor drunken driving" proceedings in court.

This is wrong on many levels.

1. Watching court is free. Anyone can watch court. It costs nothing. Why they need $400k is beyond me.
2. MADD has an annual budget of $52,000,000. They don’t need taxpayer money.
3. MADD already received over $700,000 from the Department of Justice. How much tax payer money do they need?

And, uh, I don’t know how else to say this, but… why would they need to ‘watch court’ in the first place? Smacks of intimidation tactics, doesn’t it?

‘Hey Judge, never mind the Constitution, due process, reasonable doubt, etc., we are a powerful lobby, and we donate.” 

Or perhaps, if you’re feeling a little more cynical/sinister, ‘Don’t make us donate to your opponent in the next election!” (Anyone else having flashbacks to the Sopranos episode where one of Tony’s enforcers ‘bumped into’ a sitting juror in a corner store?)

Houston DWI Lawyer Mark Bennett follows up with the text of the New Mexico governor’s press release bragging about the use of state funds on this project, and adds:

What do you suppose "positive change" is going to mean to MADD’s courtwatchers? More convictions, faster, and more punishment. After all, if your sole goal were "reduction of alcohol-related crashes," you could do away with due process, convict every person accused of DWI (regardless of the facts) and put them all in prison…

Like MADD, I’d like to reduce alcohol-related crashes. That’s why I won’t drive after having more than one drink. Unlike MADD, I don’t think that reducing alcohol-related crashes is more important than due process or common sense.

Why would Mark say he won’t drive after one drink? Well, it is the safest thing to do certainly. After all, the law doesn’t say you are automatically not guilty of DWI even if you are below a .08 Breath Alcohol Concentration.

But I’m also guessing that HPD uses the same rule that Austin police do when making DWI arrests: A traffic violation and the odor of alcohol… arrest now, and sort it out later. You can beat the rap, but you can’t beat the ride. (Also, I suspect some officers think that while they may not have enough to convict, forcing the driver to hire a DWI lawyer is in itself punishment.)

As a defense attorney you can only watch so many video tapes of (some of) your clients performing very well on the Walk & Turn, One Leg Stand, and other field sobriety tests before you realize… the law doesn’t say Zero Tolerance for adults, driving and alcohol, but the police often make arrest decisions on that very basis.

I’m like Mark. I too am not “pro drunk driving”. And I have occasionally praised MADD for some of their marketing campaigns. But is this really an appropriate way to spend taxpayer money?

Police in New York State have admitted to arresting and charging drivers with any alcohol on their breath, although the law only criminalizes impaired driving. Well, that’s my DWI defense lawyer take on the story, but you tell me:         

"If you’re going to drink, do it at home, designate a driver or hire a taxi. We’re not saying there’s anything wrong with drinking – just drinking and driving," said state police Lt. Douglas Larkin of Troop K in Westchester…

Once the driver rolls down the window, (the officer) said, it’s easy to tell if he or she has been drinking.

"The first thing that hits you is the odor of alcohol -it’s so obvious," he said. "I’ve had a few drivers who know they’ve been drinking and try to play it down, but the odor on their breath gives them away."

“Drinking and driving.” And having alcohol on your breath. These are the main standards it appears that police use to make an arrest for DWI.

But the law itself doesn’t say having a detectable odor of alcohol on your breath and operating a motor vehicle is illegal (unless you are under 21 – then it’s a DUI in Texas). Driving while having lost the normal use of your mental or physical faculties, due to the introduction of alcohol, a controlled substance, etc., is illegal.

On a side note, I’ll add this: I advise friends and family, and anyone else who asks, that in Austin, DWI arrests are made using this same standard.

If you are pulled over for a traffic violation in Austin, Texas, and the police officer smells the odor of an alcoholic beverage on your breath, you are very likely going to jail for DWI. I have heard testimony from Austin Police Department DWI Task Force officers that is substantively the same as what is quoted above.

“Does the Austin DWI Task Force have arrest quotas?”

I get asked this semi-frequently by folks recently arrested for DWI. I can tell you that the officers will testify, under oath, that there is not.

And, depending on the definition of the word “quota”, that may or may not be true.

It’s almost definitely true that individual officers are not told “You need to make X number of DWI arrests tonight,” or “You must average Y number of arrests per week/month,” etc.

But I do remember** former Austin police chief Stan Knee being quoted in an Austin American Statesman article, March 4th, 2006 as saying:

“This community needs to take seriously driving while impaired…We will make 6,000 DWI arrests in 2006.”

Bear in mind that the article itself had just acknowledged that fewer than 6000 DWI arrests were made in Austin for 2005. I think you can make a pretty good argument that the chief of police was coming pretty close to not just predicting, but mandating an increase in arrests.

What’s the difference between telling one individual officer “You must make an average of 5 DWI arrests per shift,” vs. predicting not only an increase, but a threshold level of expected arrests for the department as a whole? Just a little math and some semantics, I suppose.

[**I usually link to sources, but unfortunately, the Statesman free archive does not go back far enough. Anyone caring to pay a “small fee” to access the article can do so here.]

From today’s Austin American Statesman:

Senate Bill 59, written by Sen. Judith Zaffirini, D-Laredo, gives police the authority to set up temporary sobriety checkpoints. The roadside barricades haven’t been legal in Texas since 1994. A state court of appeals ruled them unconstitutional because the Legislature had not developed guidelines to ensure they were being conducted legally.

The bill would add (literally) a new chapter to the Texas Code of Criminal Procedure entitled “Sobriety Checkpoints”. This sort of legislation often sounds like a good idea at first…I mean, let’s get those drunks off the roads, right?

But make no mistake about though…this bill will authorize the police to stop vehicles without reasonable suspicion or probable cause.  Non legal mumbo-jumbo translation?… The cops will be able to stop you for any reason, or for no reason at all.

They will then be allowed, after the fact, to “develop” probable cause to believe that an offense has been committed.

Unfortunately, the US Supreme Court has long ago ruled that DWI roadblocks can be constitutional, but the Texas Court of Criminal Appeals has so far not allowed them. This is truly a slippery slope folks…be careful what you wish for.  It’s not to late to tell your representatives you oppose this.

More than half of police officers in Texas are certified to administer field sobriety tests to subjects stopped and being investigated for DWI.  The percentage is even higher in Austin.

The Austin Police Department created a specialized DWI Enforcement Unit (defense lawyers around here tend to refer to it as the ‘DWI Task Force’) in August of 1998. Since that time, arrests for DWI in and around Austin have more than doubled.

This blog will focus on DWI issues from the criminal defense lawyer’s perspective, and a great number of posts will be devoted to talking about the field sobriety tests, errors made in administration of the tests, and how to defend yourself against DWI charges brought primarily because of an officer’s opinion that you did not perform well enough on these tests.