March-April 2012

Not a single blood search warrant

Zack Wavrusa

Misdemeanor Chief in the County and District Attorney’s Office in Rusk County

On New Year’s Eve 2011, Rusk County law enforcement agencies conducted the first no-refusal program in county history. The countywide effort yielded four misdemeanor arrests and two felony arrests. To the surprise of everyone involved, the need for a blood warrant never arose:  All misdemeanor defendants provided a breath sample as requested, and while the seasoned felony defendants drew on their prior experiences with law enforcement and opted not to provide breath samples, those defendants were, of course, subject to the mandatory blood draw provisions of Chapter 724 of the Texas Transportation Code. The night went by without any intoxication-related wrecks or injuries.

    We prosecutors spent the night on stand-by at our office. From 6 p.m. on New Year’s Eve to 5 a.m. New Year’s Day, First Assistant Richard Kennedy and I were available to help officers fill out blood draw warrants. Both of us anxiously waited for phones that never rang.

    The next day I reported the results of the evening to County and District Attorney Micheal Jimerson. I was at a loss for words. It was the first no-refusal weekend in Rusk County, so we had been careful to do everything by the book, following every step in the National Highway Traffic and Safety Administration’s (NHTSA) “No Refusal” Toolkit. The high refusal rate and the great number of arrests that I had expected simply didn’t materialize. I was ready to chalk the whole weekend up as a disappointment and begin preparing for the next one when Mr. Jimerson reminded me that the goal of no-refusal programs is to prevent people from driving while intoxicated. Procuring blood evidence of drivers’ intoxication through search warrants—a huge boon to prosecuting such cases—is only a secondary benefit of the program.

    Mr. Jimerson encouraged me to focus on two things in my assessment of the weekend: the low number of arrests and the true no-refusal results from the misdemeanor arrests. When I stepped back and looked at the program from his point of view, it was obvious the weekend was a huge success—despite the unexpected results. Driving while intoxicated may be “only” a misdemeanor, but there is a legitimate chance of someone being seriously injured or killed during its commission. If we as prosecutors can do anything to stop even a single person from being hurt by an intoxicated driver, we should look at it as a victory.

    Mr. Jimerson’s whole point is something that I am reminded of regularly. Everyday I take Highway 13 into Henderson for work. At about the mid-way point, just outside the town of Price, there is a small, white cross by the side of the road. Everybody has seen crosses like this one. They crop up on the sides of highways all across the state as memorials to those who were killed on that particular road. The Highway 13 cross is a constant reminder to me about why I am a prosecutor. If I do my job right, if I’m aggressive and I make the most of the tools that I have available to me, then I can be a part of the prosecutorial team that sees the last little white cross erected on a Rusk County road.

The pitch

Rusk County has just one county court-at-law judge and a single district judge. They are the only two judges in the county who can sign warrants for blood draws. At this time, both have been extremely underutilized; it is very unusual for either judge to be called to sign a blood draw warrant because officers typically never request one. We in Rusk County need to do more work to get judges and law enforcement on the same page on requesting blood draw warrants.1

    As a misdemeanor prosecutor this is extremely frustrating. Most misdemeanor DWI defendants are able to easily avoid supplying a sample if they simply refuse to blow. Absent the scientific evidence of blood alcohol content, many defendants refused to accept a plea offer and opted to take their chances with a jury, and our misdemeanor docket was bloated with DWIs. After only a short time on the job, I found myself searching for ways to more effectively prosecute these cases.

    In July 2011, I attended the Prosecutor Trial Skills Course put on by TDCAA in Austin. The course was unbelievably helpful in a number of different ways, the most beneficial of which was that putting on a no-refusal program in Rusk County was an incredibly achievable goal. W. Clay Abbott, TDCAA’s DWI Resource Prosecutor, and Warren Diepraam, an Assistant District Attorney in Montgomery County (both speakers at the seminar), championed the no-refusal program. With all the resources available through NHTSA and colleagues at other district and county attorney’s offices, I left the course convinced that a program would work here.

    When I returned from the school, I discussed the idea with Mr. Jimerson and after quick approval, planning for the event began. Going into the project, I thought that the most challenging task would be getting one or both of Rusk County’s judges to give up their New Year’s Eve to be on standby to sign blood-draw warrants. Without a judge to sign warrants, there was no way for the program to work, so I tackled this obstacle first.

    I first approached the judge for the County Court-at-Law, the Honorable Chad Dean. Luckily, Judge Dean was on board from the outset. He readily agreed to be available by phone the entire evening and into the early morning hours of the New Year’s holiday when the need for a blood draw warrant arose. (I approached the other judge about participating and told him that Judge Dean was already on board but that our office would certainly welcome his participation. He appreciated the gesture but took a pass.)

    After securing Judge Dean’s participation, it was no trouble getting the various local law enforcement agencies to buy into the program. By all accounts, it was something that each of the agencies had been wanting for a long time—the different law enforcement agencies just needed someone to step up to the plate and lead the effort. As it turns out, stepping up was the easiest thing to do. The only things that the agencies needed were copies of the required paperwork, and they were ready to go. To help ease the expected burden of getting the paperwork completed for blood-draw warrants, Richard Kennedy and I agreed to stay at the office all night long to provide assistance.

The philosophy

The unusual success Rusk County achieved wasn’t the result of any one thing we did in preparation for the no-refusal program. Rather, it was a result of almost a decade of work by the elected county and district attorney and the staff that came before me. Mr. Jimerson has long held the belief that a strong law enforcement community is something that must be built over time, and our office is constantly talking with the community about the criminal prosecution. The idea behind such efforts is that if the community shares the serious attitude towards DWIs that the office does, then there will be greater success in terms of DWI convictions and punishments. Recent examples of success with these efforts include sentences of 50 and 58 years on our most recent felony DWI convictions.

Pre-event advertising

When I received the go-ahead from Mr. Jimerson to put together a no-refusal program in Rusk County, one of my first questions concerned the advertising budget. My question was greeted with a chuckle and then a pause. In his normal no-nonsense fashion, Mr. Jimerson informed me that I did not have an “advertising budget.” I was going to have to get the word out about the program, and I was going to have to do it without spending a dime.

    Luckily, finding a way to inform the public was not something that I had to do on my own. Rusk County is comprised exclusively of rural areas and small towns. The right people can really help get the word around town. For that reason, Mr. Jimerson set me up with speaking engagements at local civic groups such as the Kiwanis Club. In preparation for the talks, I put together a PowerPoint presentation that addressed the issue of driving while intoxicated in the simplest terms possible. Prior to the presentation, Mr. Jimerson contacted a reporter with the local paper, the Henderson Daily News, and arranged for the reporter to be at the Kiwanis meeting, which was scheduled about a week before New Year’s Eve.

    I had three main points in my presentation. I dedicated the first part to discussing the law on driving while intoxicated crimes, and I discovered that many people had misconceptions about what did and did not constitute an offense. After fielding just a few questions, I made a point to walk through the different ways that a defendant can be charged with DWI.

    For the second point, I focused on the dangers that DWI presents. Rusk County is a place where many people don’t feel that DWIs are a problem unless someone gets hurt. It is almost a game to see how many times you can drive while intoxicated before being stopped for it. To combat this attitude, I pulled information relating to intoxication-related traffic wrecks from NHTSA’s website. A plethora of information was available, but the intoxication-related fatality numbers were of particular interest to those at the meeting. I also included information about alcohol toxicology to illustrate the many different ways that alcohol affects a person’s ability to control his own body and, in turn, operate a motor vehicle safely.

    The final area I covered was the no-refusal program itself, which we discussed in detail. I began by telling the audience the reasons an officer might stop a suspect and walked through every step of the typical DWI arrest, spending a significant amount of time discussing the implied consent laws on requests for breath or blood samples. The presentation highlighted the consequences for refusing to provide a sample when requested and put special emphasis on the fact that a suspect’s driver’s license is suspended automatically if he refuses to provide a breath sample.

    After I concluded the presentation, I answered a few more specific questions from the newspaper reporter. The next day, the paper published a front-page story about the county’s plans to step up DWI enforcement efforts. The report thoroughly covered the plans for the event, and potential intoxicated drivers had all the consequences of driving while intoxicated laid out in front of them. The article, like the presentation, unmistakably portrayed the no-refusal program as a prevention effort. Anybody reading the article should have been encouraged to find a designated driver for the evening or abstain from drinking if they could not make such arrangements.

    After the civic club presentations and newspaper story, we issued a general press release detailing the event on Thursday, December 29. The releases went out a couple days early to ensure that the respective news outlets had an opportunity to run the stories at least one full day before New Year’s Eve that Saturday. Press releases ran in the only two newspapers with significant readership in the county, the Henderson Daily News and the Tyler Morning Telegraph, as well as all the local television stations.

    On Friday the 30th, a Henderson-based radio station, KPXI 100.7, spoke with me over the phone for a radio spot that would air throughout the day on New Year’s Eve. The message was brief and to the point: Like the newspaper articles and press releases before it, the emphasis was on DWI prevention and the different measures Rusk County law enforcement agencies took in preparation for the weekend.

The results

Every Rusk County law enforcement agency, from highway patrol to the sheriff’s office to the local police departments, participated in the county’s no-refusal program. No agency put any special “DWI units” on the road for this first attempt at a no-refusal program; they just operated with the usual number of officers.

    Ultimately, DPS Highway Patrol was the only agency to make any DWI arrests on New Year’s Eve: four misdemeanor arrests and two for felonies. In a county the size of Rusk County, six DWI arrests in a single night is a little above average, but the number still fell shy of what we expected. The night went by without any intoxication-related wrecks or injuries.

    It is worth mentioning that the Henderson Police Department made one misdemeanor DWI arrest on the evening of January 1. It was technically outside the no-refusal window coordinated by the prosecutor’s office and our judges, but the offender didn’t know that. When the arresting officer requested a breath sample, the defendant agreed because the officer was “just going to get some kind of warrant anyways.”

Reception to the program

The public reception to the program has been overwhelmingly positive. In the wake of the program’s completion, local civic clubs have invited our attorneys back to recap the program’s success. We’ve also taken these opportunities to share the office’s plans for future such programs and to continue developing a sense of seriousness about these issues within the community.

    The local defense bar has not commented on it, which may very well be because no blood warrant was ever required. Our county’s defense attorneys have been quite vocal with respect to DWIs. In the short time that I’ve been a prosecutor here, I’ve heard them object to everything from a county map of DWI convictions to a victims’ tree set up on the first floor of the courthouse. I firmly believe that had there been a single case where a blood-draw warrant was issued, the appointed defense attorney would have made some sort of fuss. It will just be a fight saved for another day.

Going forward

The no-refusal program is certainly one that Rusk County will continue in the future. The results, while atypical, were certainly appreciated by the prosecutors, law enforcement officers, and judges involved. Currently, we anticipate conducting similar no-refusal weekends over the Memorial Day and Labor Day holidays. Like any good office, we learned a lot from this first go-round, and we will make some major additions to the program before we do it again.

    One thing that will most certainly remain the same is the community-driven method of advertising. The efforts will be considerably more widespread, however. We will visit more civic clubs and also hope to present a DWI-related program to the local high school to educate students on the dangers and legal consequences of driving while intoxicated.

    By the time Memorial Day weekend rolls around, beer and wine will be sold inside Henderson city limits for the very first time. This move was highly controversial and, despite its passage last election day, it has raised a number of concerns about DWIs within the community. For that reason, our office anticipates using some public signage that was absent from the first program. The primary targets for “Drive Sober or Get Pulled Over” signs will be grocery and convenience stores selling alcohol and restaurants and bars serving drinks.

    The final significant change I foresee involves our office partnering with local community service organizations, such as the Kiwanis and Rotary Clubs, and churches to provide something akin to a designated-driver service during no-refusal weekends. Logistically, there will be quite a few hoops to jump through before this could happen, but the benefits of this move far outweigh the burden of putting it on. Similar services are offered every weekend in college towns across the state: Stephen F. Austin State University in Nacogdoches and Texas A&M University in College Station come to mind. We will look at both programs for inspiration when Memorial Day weekend rolls around.

    One thing that will not change is the community work to make the no-refusal weekend a success. Again, it will be a joint effort of all law enforcement agencies, courts, prosecuting attorney’s office, media, and community organizations to lower the number of DWI offenses committed in the county and simultaneously demonstrate the program’s true goal: prevention.


1 As a side note, while preparing for the no-refusal weekend, Judge Chad Dean and I discussed the possibility of being a no-refusal county. He was extremely open to the idea, but much work remains before that becomes a reality.