Sunday, March 06, 2005

Authorities look for ways to fight drunken driving suspects' refusal to take tests

If you're stopped for drunken driving, most defense lawyers say, it's not wise to take a test measuring the body's blood alcohol level.

Just ask the 44,357 drivers -- 43 percent of all Texans arrested for drunken driving or boating in 2003 -- who refused to take the test, depriving prosecutors of scientific evidence of their guilt. In some, but not all cases, those drivers received a six-month driver's license suspension instead of a misdemeanor drunken driving conviction.

Exploring other methods of combating driver refusal, officers in Williamson Countybegan training this week to use search warrants to force suspected drunken drivers to submit blood samples. Statewide, the Texas District and County Attorneys Association and the Texas Municipal Police Association are lobbying for new laws that would make refusing a breath test a crime, but interest among lawmakers is tepid as the deadline for filing bills approaches.

Similar bills have been filed before, getting ”a chilly reception," said Keith Hampton, a lobbyist for the Texas Criminal Defense Lawyers Association.

"Criminalizing it doesn't make any sense," Hampton said. "It is your constitutional right not to incriminate yourself or be subject to unreasonable search and seizure."

Shannon Edmonds, a lobbyist for the attorneys association, disagrees. He said courts have upheld the state's right to collect blood and breath samples from people arrested for drunken driving and suspects a personal interest is in play.

In recent years, Travis County Judge Sam Biscoe, former Travis County Court-at-Law Judge Wilfred Aguilar, and state Sen. Gonzalo Barrientos of Austin all refused to take a breath test when they were stopped on suspicion of drunken driving.

Last month, Williamson County Deputy Craig Ferguson was suspected of drunken driving by Round Rock police but was released after he refused to take field sobriety tests. Because the officer did not think he had enough proof to arrest Ferguson, he felt he could not legally request a blood alcohol test.

"If you are a legislator, you are thinking, 'Boy, that could be me,' " Edmonds said. "We are all kind of fed up with it. Why should the rest of the populace do it if the people who write, enforce and judge the law don't do it, either?"

In first-time cases, the consequences for taking the test and having a blood alcohol content above the legal limit of .08 is a potential three-month license suspension and a misdemeanor drunken driving conviction, which carries a maximum punishment of six months in jail and a fine of $2,000.

"We play this little game and tell people that by getting a license, you are consenting to provide physical evidence," Williamson County District Attorney John Bradley said. "But if you refuse, there are very few consequences. The average citizen puts that together and says, 'Oh, I see:
The law doesn't really mean what it says.' "

Even if a drunken driver's license is suspended, most judges will issue an occupational license for work, said state Rep. Terry Keel, R-Austin. Keel, chairman of the criminal jurisprudence committee.

In addition, new surcharges that went into effect in 2003 chage a convicted drunken driver $3,000 over three years to keep a driver's license. A $6,000 surcharge over three years applies if a convicted drunken driver's blood alcohol content measures .16 or higher. Consequently, if you don't provide a breath or blood sample, you won't be exposed to the $6,000 increased surcharge.

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