The Prosecutor, September-October 2007, Volume 37, No. 5

Anatomy of a DWI “no-refusal weekend”

2007
How Harris County police and prosecutors are cooperating to curb DWIs

Texas is the deadliest state in the nation when it comes to DWI fatalities. Texas statutes designed to decrease the carnage on our roads have been effective to a degree, but many measures seem to have limited success in further curbing the number of deaths. Public perception of how these crimes should be prosecuted has fallen victim to the “CSI effect”; jurors now have a somewhat glamorous view of what evidence is needed in a DWI prosecution. And the refusal of many DWI suspects to provide a scientific or chemical sample to a law enforcement agency after a DWI arrest is a significant problem in ensuring justice in Texas courts.

Theoretically, every person stopped for DWI in Texas should provide a chemical sample to a law enforcement officer. All Texas drivers have impliedly consented to provide a sample of breath or blood when it is lawfully requested by a police officer making a DWI arrest.1 However, roughly half of suspects refuse to provide a sample.2 For suspects, there are collateral consequences for refusing to provide a sample, such as administrative license suspensions,3 and for prosecutors, there are evidentiary consequences, such as admissibility of the subject’s refusal as evidence of guilt.4 Although these consequences are evident, the number of DWI arrestees refusing to provide a chemical sample has remained at roughly 50 percent.5

As a result, some law enforcement agencies and prosecutors’ offices have begun to use search warrants to obtain blood samples when suspects refuse to submit to a breath test. We in the Harris County DA’s Office have formed a Vehicular Assault Team (VAT) to focus our energy on such cases, and earlier this year we established a new program, called “no-refusal weekends,” to ensure a breath or blood sample from every suspect pulled over for suspected DWI, full prosecution of these offenders, and, more importantly, to decrease the numbers of fatalities over holidays.

In Harris County, there have been an inordinate number of traffic fatalities during certain holiday periods when alcohol consumption increases: Memorial Day, Halloween, Christmas, etc. This has been noted as a nationwide trend and is addressed by NHTSA and others in both advertising and public information campaigns and in high intensity patrol or checkpoint programs. The loss of life associated with these dates causes a tremendous amount of grief to survivors for the remainder of their lives. A holiday season that should otherwise be festive suddenly becomes a reminder of death and tragedy. To combat this circumstance, we created a plan of action for a “no-refusal weekend” over Memorial Day, and took our idea to Chuck Rosenthal, our district attorney, who has been very supportive of our efforts to combat driving fatalities and who quickly gave us approval to proceed.

Due to the overwhelming number of DWI cases in Harris County,6 we came up with procedures to streamline the process, to ensure both adequate handling of evidence and protection of suspects’ rights. Rather than have the arresting officer take the subject to one location to draft the warrant, then to a hospital or fire station to execute the warrant, we decided that all parties would be at one central facility and that normal DWI booking procedures should be followed. We also knew we’d need more help.

We discussed the “no-refusal weekend” concept with a local judge, Mike Fields of County Criminal Court No. 14, who volunteered to review the warrants for blood; local and national MADD representatives agreed to hire and pay for a nurse, Angela Biddle;7 and Paul Lassalle, the Houston Police Department DWI/Task Force liaison officer, handled the entire blood collection process after the suspect was released to him. I decided that we would need three prosecutors at the site to talk to the officers, prepare the warrants, and have them reviewed by a judge. Eric Kugler and Craig Feazel, both VAT members, joined me that night. Separating the workload minimized training of the arresting officers, who simply followed their normal routine.

Because the no-refusal weekend was a first for Harris County, we did not want to create additional evidentiary concerns. Primarily, we decided to ensure the admissibility of other evidence, such as the refusal and the station video, by following standard DWI procedure: The arresting officer would bring the offender to the Houston Police Department Central Intoxilyzer Facility (Central Intox). The officers would then be instructed to follow normal protocol, such as reading the statutory warning to the suspect, either obtaining a refusal or a breath sample, then videotaping the suspect. Therefore, if any problem arose with the warrant or the blood sample, the refusal and the video would be unaffected. When suspects refused to provide a sample, they were brought into another room that had been sanitized to hospital standards and quarantined so that access by others was limited. Although there is no requirement that the room be sanitized, as there is with a mandatory blood draw sample, we decided it would be better to follow this approach.8 The entire process was videotaped, from the reading of the statutory warning to the blood draw, which was important to minimize suspects’ claims of coercion or failing to follow proper procedures, and we catalogued any statements for trial.

The search warrant was drafted in template form prior to the weekend, and Eric Kugler reviewed it.9 Its purpose was to speed the process of drafting the warrant to ensure that the blood sample was obtained as close as possible to the time of driving. (A prosecutor could also use a warrant from the TDCAA book by Richard Alpert, DWI Investigation and Prosecution.) A copy of the template warrant was then stored on the Houston Police Department DWI computers.

As Memorial Day approached, the people and procedures were in place. With preventing fatalities as our focus, we held a press conference whereby our DA, Chuck Rosenthal; Officer Lassalle; and a MADD representative announced that every person arrested for DWI over the weekend and who refused to provide a chemical sample would have a blood sample taken. We tried to get the word out as much as possible.

Unfortunately, many people failed to take notice of the announcement, and the first suspected drunk driver was soon brought to Central Intox. The officers had been previously instructed not to alter their normal process to minimize any admissibility issues with the refusal.10 We had a quick turnaround on the warrants, which was due to our preparation beforehand; additionally, having prosecutors and officers in the same room to discuss the details of the arrest for the warrant template was beneficial. (Contact between the suspect and the prosecutor drafting the warrant was kept to a minimum.) The prosecutor then faxed the warrant to the judge and called him via telephone. The officer would be sworn to the warrant, and the judge would sign the warrant and fax it back to Central Intox. A copy of the signed warrant was presented to the suspect with an admonishment that the police officer executing the warrant had authority to enlist civilians to obtain the evidence.11 At that point, the nurse would use a Betadine swab to prep the area and the blood sample was drawn.12 Although the results would not be available for a week pending analysis, the prosecutors working at Central Intox would accept charges on the case as a DWI Refusal. The entire process involving the suspect was documented by using one videotape for later use by the trial prosecutor and the lawyers defending the suspect.

Although the officers were reasonably attentive at following the protocol and not forewarning the suspect, the impaired suspects were probably not as quiet. A total of 12 blood samples were obtained that night, and three-quarters of them provided breath samples (up from the approximate 50-percent nightly average). The 25-point increase could have been a result of the arrestees communicating with each other or, theoretically, it could have been a coincidence. Therefore, long-term analysis of the compliance rate will be analyzed when the program has sufficient numbers. One thing is certain: On that particular night, every person arrested and processed at Central Intake provided a chemical sample one way or the other.

When the suspects appeared on the various dockets, a package was prepared and delivered to the trial court prosecutors. This package included a certified copy of the arrest warrant, a sanitization certificate with a business records affidavit, a chain of custody statement with a business records affidavit,13 and a caselaw/statutory citation packet that included court holdings and statutes on issues that may be raised by defense lawyers. After all blood and breath test results were obtained, they were also forwarded to the prosecutors.

Of the 12 people arrested that night who went through the warrant process, 10 tested well above the statutory limit in Texas:14 Results varied from 0.118 to 0.321, with an average of approximately 0.21! Of the two people who tested under the statutory limit, one tested at 0.073 but had also consumed additional impairing substances, thereby justifying the officer’s arrest decision.

The other suspect, an immigrant laborer, received a result of 0.061 with no additional impairing substance in his system. This person would have been handled as a refusal and most likely would have been taken to trial. Although there is no presumption of sobriety for suspects testing below a 0.08 (and all results at or below this level should also be evaluated under the “loss of normal use” definition of intoxication), this person’s case was dismissed. Therefore, one person who may have been convicted was exonerated as a result of this process. The exoneration of suspects is also a noteworthy goal of this program, although from this period it appears that the officers’ arrest decisions were highly accurate.

The program was an overwhelming success. Police officers built stronger cases without having to do increased paperwork; prosecutors received evidence that should result in appropriate verdicts and sentences; criminal defendants are theoretically receiving a better evaluation of their cases from their lawyers; one underprivileged defendant was exonerated; and the public obtained a streamlined and efficient process to ensure strict compliance with DWI laws.

As far as the future goes, we will continue the program, which should be in effect for every major holiday this year with a final study of results and refusal rates. The limited scope of the Memorial Day event, which was a test run with one law enforcement agency and one intake facility, will be expanded to include all law enforcement agencies, thus necessitating greater cooperation between police, prosecutors, and medical personnel to properly staff the extra facilities. In addition, local judicial personnel will have to enact procedures to ensure orderly and timely handling of these warrant requests. The future looks good because several agencies have already expressed their desire to participate, and judges are aware that the use of search warrants for blood samples will likely increase, as will the number of DWI cases.

But the public will benefit the most from this aggressive response to intoxicated driving: safer roads and better prosecutions.

Endnotes

1 Texas Transportation Code §724.011.
2 “Harris County Statistics for 2006 DWI Offenses.” Similar numbers are reported from other state agencies.
3 See generally Texas Transportation Code §724.015 and §§724.031-064
4 Mody v. State, 2 S.W. 3d 652 (Tex. App.—Houston [14th Dist] 1999).
5 Some recent proposals to the legislature to increase compliance have gone nowhere. Some states have successfully criminalized breath test refusals, but any attempt to do so in this state has failed. In the 79th Legislative Session, House Bill 3241 would have done just that (among other things), but the bill went nowhere.
6 According to the “Harris County Statistics for 2006 DWI Offenses,” about 12,000 DWI cases are filed annually in this county.
7 Although the Texas Transportation Code blood draw requirement relating to a qualified person under §724.017(a) did not apply, it was decided that a nurse with full qualifications should still be used. Because these blood draws were not mandatory blood draws, any person such as a paramedic, doctor, or jail nurse could obtain the sample if a search warrant is used.
8 Texas Transportation Code §724.017(a)
9 For a copy of the template, contact any member of the VAT group or Clay Abbott at TDCAA (512/474-2436).
10 Erdman v. State, 861 S.W. 2d 890 (Tex. Crim. App. 1993).
11 See Texas Code of Criminal Procedure art. 18.08, which authorizes an officer to enlist civilians in the process. If a volunteer nurse is unavailable, this section should apply to paramedics or any other person assisting the officer with the blood draw.
12 Although alcohol swabs (isopropanol) should not affect the alcohol results (ethanol), it is still suggested that Betadine swabs be used.
13 Nurse Biddle drew all blood samples, and Officer Lassalle took all of them directly from her to the crime laboratory for testing.
14 Intoxication is defined as having an alcohol concentration of at or above 0.08 at the time of driving according to Texas Penal Code §49.01.