Wednesday, February 09, 2005

Tarrant County Officers Sidestep Implied Consent Law To Get Blood Sample

The Ft. Worth Star Telegram reported that motorists who refuse to submit to a breath or blood test may no longer have a choice in some Tarrant County cities.

Some officers in Fort Worth and other law enforcement agencies in the county are now obtaining search warrants for a driver's blood, a rarely used legal tool with which officers had not been familiar until recently.

"We have to treat DWI as a serious crime just like we do any other crime," said Sgt. Don Hanlon, supervisor of Fort Worth's traffic investigation unit. "The evidence for that crime needs to be obtained to be successfully prosecuted."

Officers obtain search warrants by providing a judge or magistrate with a written affidavit outlining a probable cause for why the driver is suspected of being intoxicated. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant. Blood is then drawn.

The entire process, beginning with when the driver is first pulled over, can take a few hours.

Ruling opened door

Richard Alpert, a Tarrant County assistant district attorney, said a ruling two years ago by the Texas Court of Criminal Appeals in State v. Beeman confirmed that search warrants are a legal option in DWI cases.

Knowel Beeman, who was convicted of driving while intoxicated in Midland County, had appealed a judge's denial of his motion to suppress a blood test. Beeman argued that police violated the Texas Transportation Code's implied consent statute when they obtained a search warrant and drew his blood despite his objections.

The statute allows blood to be taken from drunken-driving suspects despite an objection, only when an officer has reason to believe that the individual is at least partially responsible for an accident in which someone has died or suffered serious bodily injury.

The Court of Criminal Appeals ruled, however, that the implied-consent law does not trump a valid search warrant.

During a recent training seminar, Alpert said, area police departments were instructed on how to use a search warrant in a DWI case.

"I think some officers were unaware that this option was available," Alpert said, adding that several police agencies have since begun or are preparing protocols to begin using warrants in DWI cases.

In December, Fort Worth's DWI unit began obtaining search warrants for some habitual DWI offenders who refuse to take breath tests. And starting this month, all patrol officers can use the warrants.

"The program has been so successful that we've opened it up to all officers," Hanlon said.

So far, DWI officers have obtained seven search warrants for blood. Testing revealed that the blood-alcohol level of all of the drivers was more than twice the legal limit of .08, Hanlon said.

More prosecutable cases

Folks need to remember that without the blood-alcohol test results obtaining convictions can be difficult in cases in which the driver refuses to submit to a breath or field sobriety test.

It boils down to this, without a breath sample or blood sample, it's typically the officer's word against the defendant's.

Alpert said he expects quicker resolution to cases in which police use search warrants to obtain blood specimens.

Quicker resolutions, means quicker pleas of GUILTY!

"Because the blood evidence is so compelling and so difficult to successfully attack by the defense, I think it will lead to those cases being resolved quicker and without the need of a trial," Alpert said.

However, a delay in drawing blood -- caused by the time it takes police to obtain a search warrant -- could lead to misleading results. Depending on when a driver consumes his last drink, blood-alcohol levels may peak long after the driver is stopped by police.

It is difficult to understand why a driver can refuse a breath test but cannot object to a blood test if police obtain a search warrant.

They are told ahead of time they have the right to refuse the breath analysis. Then they turn around and they don't have the right to refuse the drawing of blood if police get a search warrant.

Know Your Rights. A Breath or Blood Test doesn't automatically prove you guilty.

If arrested in Austin, Texas or one of the surrounding Central Texas Counties, call me at 1-888-DWI-TEXAS.

We will fight for your License and your Freedom!

Ken Gibson, Austin DWI Attorney