The Prosecutor, September-October 2009, Volume 39, No. 5

Making no-refusal holidays float

2009

 

Montgomery County has taken no-refusal weekends from the streets to the water so that boaters, like drivers, must submit a breath or blood sample if suspected of intoxication.

Thanks to some enterprising law enforcement officials almost a decade ago in Hereford, the use of search warrants in driving while intoxicated (DWI) cases has become an accepted part of Texas law enforcement practice. Appellate cases on the issue are becoming more common and approving of the practice. The “no-refusal holiday program,” where law enforcement and prosecutors designate a holiday weekend, such as July Fourth, as a high-publicity time to seek search warrants for blood when DWI suspects refuse breath samples, has been expanded to many Texas counties, and I have spread the gospel to seven other states with more lining up to join. The legislature arguably approved of the program through recent legislation making it easier to obtain mandatory blood samples and blood search warrants. (See W. Clay Abbott’s article on the subject on page 8.) Now, the Montgomery County District Attorney’s Office has expanded the no-refusal program to Lake Conroe, thereby increasing the flotilla of tools available to impaired driving and boating enforcement.

Lake Conroe is one of the smaller of the Texas lakes. Addition-ally, the City of Houston has a possessory interest in the lake, and the area surrounding the water is close to that city’s jurisdiction. This means that the lake is swamped with recreational weekend and holiday boaters who are not necessarily the most skilled at boating rules and safety. The one theme that echoed when Brett Ligon, the district attorney, began to focus on impaired driving and boating was that the locals refused to go on the lake during the summer weekends due to the large number of impaired boaters. The facts bore this out with several recent incidents of serious boating crashes. Furthermore, no police officer who patrolled the lake could remember a summer holiday when there was no major boating incident. This situation was tailor-made to deliver a broadside on impaired boaters through implementation of a no-refusal program.1

Implementating this program required some significant planning on the part of the Montgomery County District Attorney’s Office. The first area of concern identified by the planning prosecutors (Frank Barnett, Brett Ligon, and myself) was the Texas Penal Code. The laws regarding boating while intoxicated (BWI) are not necessarily the same as those that cover drivers of cars. What constitutes a motor vehicle is a simple maneuver that requires little thought. However, the same does not hold true for the definition of a watercraft.2 It’s a no-brainer that a motorized boat is a watercraft, but the definition is particularly broad in that water skis, rowboats, aquaplanes, or any other vessel is a watercraft unless it is designed to be propelled only by the water current. Because the operation of a motorized boat by an impaired skipper is the most dangerous of the potential BWI conduct, we decided to limit search warrants to people suspected of operating motorized vessels. While an impaired skier is not automatically excluded for warrant consideration, we decided to allow them to be processed with more traditional approaches. Almost all the serious crashes on Lake Conroe involved impaired boaters, further justifying the focus on these individuals.

We also decided which law enforcement agencies to contact. The Texas Parks and Wildlife through Captain Ron Vanderroest and Montgomery County Constable Don Chumley were the obvious choices because they knew the ropes when it came to boating safety. Both of their agencies have a long history of law enforcement on the lake, and their input was extremely important in the process.

Field sobriety tests

One area of concern was field sobriety testing (FSTs). With boating, impaired driving facts are often absent (in contrast with DWI cases, where such facts are often part of the prosecutor’s case in chief). This absence of impaired driving facts would need to be addressed through other means to justify intrusion upon boaters on the lake. The lack of ability to perform the National Highway Traffic Safety Administration’s (NHTSA) standard tests is a further complicating factor in BWI cases that seriously affect the prosecution’s chances of prevailing at trial.

All of the FSTs adopted by NHTSA require that the subject be tested on a flat and solid surface. This requirement is difficult on a lake or other waterway. In fact, officers involved in BWI cases prefer that the NHTSA FST battery not be performed until the subject has been on dry land for at least 15 minutes. Considering tow time to the shore and this 15-minute wait, we needed a method to solidify an officer’s decision to detain. Therefore, we decided that officers would employ some of the traditional but n