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The 4th of July weekend brings another weekend that law enforcement will once again utilize its controversial “No Refusal” policy for those citizens arrested for a Houston DWI offenses. Law enforcement agencies have teamed up with the district attorney’s office to force blood from DWI suspects who don’t volunteer to give a breath or blood test.

When a police officer, sheriff’s deputy or DPS Trooper arrests a citizen for DWI this 4th of July weekend, they simply won’t take no for an answer. Even though we all have a right to refuse a breath or blood test, law enforcement just refuses to see it that way. Instead, these law enforcement officers – with the aid of the district attorney’s office – will fill out a search warrant affidavit and ask a Judge to sign that affidavit. The police will then strap the DWI suspect down and forcibly take his blood.

It should be noted that a prominent Houston DWI lawyer recently made a request to determine how many, if any, DWI blood search warrants had been refused by the Judges. The answer, I believe, was none. The Judges are “suppose” to be neutral and detached from the facts and the results in this process. They are “suppose” to carefully scrutinize these DWI search warrant affidavits and only sign if the affidavit is sufficient. Does it sound like the Judges are acting as a rubber stamp in these DWI search warrant cases? Does it sound like the Judges are acting neutral and detached in this process as required by the Code of Criminal Procedure?
 

For a more cynical article, read Paul Kennedy's take on the "No Refusal" 4th of July weekend.

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What is wrong with the title of this?  The real question is what was the Government thinking?  Testing psychiatric patients to further prosecution for DWI arrests is irresponsible at best, and depending on your views, downright despicable.

How far is the Government going to go in its efforts to obtain evidence in Harris County DWI cases?  Should we allow this police state type behavior or are we going to finally say enough is enough in these DWI investigations?  Fortunately, Houston Mayor Annise Parker finally told the Houston Police Department to stop to this particular DWI program. 

So why were the Houston Police officers drawing psychiatric patients blood?  They were there "training" to become phlebotomists - yes that's right, phlebotomists.  The Houston Police Department started training DWI officers to draw blood on suspects arrested for DWI several months ago to negate the necessity of having a qualified medical person take blood in DWI cases. 

According to Stephen Dean at Channel 2, the University of Texas Medical Branch said in a statement,

UTMB’s Correctional Managed Care program has an agreement with Lone Star College involving its Law Enforcement Phlebotomy Program. The participating Houston police officers at the units were there as part of the Lone Star College course they were taking. Having blood drawn is part of the standard intake process at TDCJ and offenders were given the option of having a police officer or a staff phlebotomist perform the procedure. All of the offenders involved chose to allow the police officers to do the procedure.

So every psychiatric patient involved would rather a cop draw their blood than a certified trained professional?  Why would psychiatric patients even be in the pool of persons to "practice" on?  As we say in the legal profession, this just doesn't pass the smell test.  Actually, for a more satirical take on this issue, take a look at Mark Bennett's blog.

Thanks to Mayor Parker for stopping a program that should never have been started in the first place.

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Houston Police and other Harris County police agencies used this Memorial Day weekend to once again deprive citizens of the privacy we should all have in our own bodies.  Memorial Day weekend was announced as a "No Refusal Weekend" by authorities.

So what exactly is a "No Refusal Weekend?"  If you read the words, you would think that we as citizens of Harris County do not have the right to refuse to give a breath test or blood test if offered by the police.  This could not be further from the truth - you can always refuse to do any of the tests the police ask us to do.  That includes the right to refuse field sobriety tests, breath tests or blood tests.

That brings us back to the question, what is a "No Refusal Weekend?"  If you refuse to give a breath test or blood test, the police are forbidden from taking your blood at that point without a search warrant.  During the "No Refusal Weekend," the government puts together a team of police officers, medical personnel, district attorney's office representatives, nurses, the "bat van" and Judge(s).  The purpose of putting this "DWI TEAM" together is to make getting a search warrant for your blood easier.  The arresting officer will take you to where the "DWI TEAM" is.  The district attorney's office will help the officer draft a search warrant that is then presented to a "Neutral and Detached" Judge.  The Judge signs the warrant and they strap you down and extract your blood.

By refusing to give your breath or blood, the "DWI TEAM" is forced to jump through a few extra hoops which can sometimes lead to problems for the prosecutors.  Don't let the media / police / MADD / District Attorney's PR campaign go unchecked.  I hope that our citizens actually know the law, not what these PR campaigns want them to know.  If arrested for DWI, you absolutely have the right to refuse a breath or blood test. 

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According to the Austin American Statesman, the Travis County (Texas' capital county), Commissioner's Court approved a plan that would allow the city of Austin and Travis County to share the cost of employing a phlebotomist at the county jail to draw blood from those suspected of DWI.  The reasoning, save the taxpayers money.  Not a bad reason to try something new. 

Hiring a non-cop (someone with blood drawing experience) to draw blood sure does seem like a better idea than having cops draw blood.  Harris County, however, is in the process of training police officers to draw DWI suspects blood.  Let the cops do what they do and let the medical people do what they do.

COPS SHOULD NOT BE TAKING BLOOD FROM ANY CITIZEN - DWI SUSPECTS ARE NO EXCEPTION

Harris County should take a page out of Austin's book and have a medical person draw blood.  Keep the cops away from needles.

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As I reported back in September of 2009 and as Paul Kennedy writes about this week, the Houston Police Department began making arrangements for some of its officers to be trained to take blood from citizens they arrest for DWI in Harris County. 

As KPRC reports, the Houston Police Department currently has 7 police officers enrolled at Lone Star College to become phlebotomists - people that draw blood.  Unlike what happens now, the cops will now be taking our citizen's blood.  As I have said before, cops have no business taking the blood of our citizens - leave that job to the medically trained professionals. 

Just like I don't want nurses and doctors carrying guns and enforcing the law at hospitals, I sure don't think the police should be drawing blood.

To watch the KPRC video, click here.

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The Houston Police Department hoped to have police officers certified to draw blood; however, there have been delays because several of the officers have not had proper vaccinations.  Before training to become phlebotomists, the officers must first become current with their vaccinations.

The training these officers will undertake is less than what is required by a nurse or doctor to draw blood.  The government does not seem to be phased by this reduced blood draw requirement.  I am, however, concerned about the police drawing our citizens blood.  Now we are learning that the police will receive less training than a nurse or doctor on the procedures for drawing blood from a misdemeanor DWI suspect. 

How about this for an idea - get a qualified doctor, nurse or phlebotomist tot draw our blood - not a cop!  There are certain things I want only a health care professional to do and drawing my blood is one of those things.  Just like I don't want a doctor, nurse or phlebotomist making arrests, I don't want a cop sticking a needle in me.

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Finally, a Texas court has said enough is enough when it comes to drawing a person's blood in a Texas DWI case.  The 2nd Court of Appeals affirmed the decision of the trial court to suppress the blood draw pursuant to a warrant.  The case summary from the 2nd Court of appeals states:

Although some of the trial court’s conclusions of law supporting its suppression of Appellee’s blood test results in this DWI case were erroneous or unnecessary, the trial court did not err in its ultimate conclusion that the manner in which police took Appellee’s blood was unreasonable under the Fourth Amendment, considering the totality of the circumstances. Here, after obtaining a warrant for Appellee’s blood, which Appellee conceded was valid, a trained officer drew Appellee’s blood in private at the police station (assisted only by the arresting officer) after restraining her to the blood draw chair with gauze, failed to ask for any prior medical history or issues, and failed to check on her condition afterward. Moreover, the police department did not have any guidelines for officers to follow in the event a suspect resisted such a blood draw, which Appellee did here. Although the United States Supreme Court’s decision in Schmerber v. California does not require blood draws to occur at a hospital, it does hold that such a bodily intrusion should be performed in a reasonable manner so as to minimize the risk of infection and pain from the procedure.

The Court said that just because you have a warrant to take a Texas DWI suspect's blood, that is not the end of the inquiry.  Because we have this little document called the United States Constitution, the government must not only have a warrant.  The State of Texas must also execute that blood warrant in a reasonable manner.

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As I wrote last week, Houston Police officers are being trained to draw blood on those suspected of drunk driving / DWI.  According to an AP report on September, 13 2009, cops are on patrol with tasers, guns and  now syringes.

Police officers are increasingly looking at needles as a new weapon to fight driving while intoxicated cases.  Instead of looking objectively at the results of rediculous balancing tests, the police are now relying on citizens blood to gather evidence.

Again, for the record, this type of search is in my opinion unreasonable and violates the 4th Amendment to the United States Constitution.  We should not allow Houston Police Officers to draw blood fo Houston citizens in a Houston DWI arrest.

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An elected Harris County Criminal Court Judge and a former HPD DWI task force officer confirmed this week that HPD is in the process of training police officers to draw blood from suspects arrested for DWI / DUI.  Wow - the police are now going to be in charge of arresting citizens (normal police function) and also performing a medical procedure (not a normal police function) on a person who is presumed to be innocent (supposedly).

Is it just me, or do others find this to be an incredibly disturbing new revelation?  I expect that a person drawing my blood (for whatever reason) would have medical training and experience in dealing with the problems that might arise when drawing blood.  The police should stick to what they do - arresting people - and let medical personnel handle the taking of blood.

I'm no medical professional, but what if a citizen suffers from hemophilia or any other blood clotting disorder?  Is the cop that takes the blood going to even ask any questions before he/she sticks a needle in someone?

Unfortunately, Houston is not the only city trying to train its officers to forcibly take blood from Texas DWI suspects.  Austin is right there with Houston and there are bound to be many others.  Let me know your thoughts.

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The new Texas DWI law that allows police officers to take blood without a search warrant or any other judicial involvement went into effect September 1, 2009.  According to the Harris County District Attorney's office, over the Labor Day weekend the police forced 6 citizens to give blood - even though they refused to allow the blood sample and the police did not have a warrant.  They also forced 32 other individual to give blood pursuant to a search warrant.

As a group, we should renounce the new law and tell our legislature we do not condone our government intruding into our bodies.  Our founding fathers are turning over in their graves thinking that our state legislature has given the Government so much power.

When are we going to say enough is enough?  Let's keep the government out of our homes and out of our bodies.  The government has no business intruding into our bodies and homes.  Each and every time the legislature meets, more and more of our freedoms are taken away.  Let's also remember that a DWI in Texas is a misdemeanor, barring prior convictions, serious bodily harm / death, or a if there is a child passenger.

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I had a motion to suppress scheduled for a hearing last Thursday in Harris County.  The hearing was scheduled to determine the admissibility of blood results from a hospital blood draw in my Houston DWI case.  I show up and approach the Judge with the prosecutor that was handling the case.  The following is the dialog that transpired:

Prosecutor:  Judge, this is the case we talked about yesterday.

Me:  Judge, I don't remember being a party to that conversation.

Judge:  I don't remember anything about a conversation about this case.

The problem is, there is not suppose to be any communication between the Judge and a party to the lawsuit without the other party being present.  These are the rules that we are all suppose to play by.  Unfortunately, not all of the Judges, prosecutors and I'm sure defense lawyers always play by those rules.  All I ask for in my profession is a level playing field where everyone follows the rules - including prosecutors and most importantly Judges.

So what was the outcome of the hearing you might wonder?  The case was reset for the second time at the request of the prosecutor over our objection both times.  Go figure.

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Our firm attended the above DWI seminar last week.  The seminar focused on the ever increasing number of DWI arrests that involve blood tests and the challenges that can be made to the admissibility of the blood test results.  While some of the discussion was very technical, most of the material presented was pretty straight forward.

I obtained a few nuggets of knowledge that will help many of my blood test cases.  Unfortunately, I believe the number of blood test cases in Harris County will continue to increase over the foreseeable future.  While I don't like this fact and think that the mandatory blood tests are too Constitutionally invasive, they are becoming more and more prevalent. 

DWI blood draw warrants have become more and more pervasive in Houston and other Texas counties.  Law enforcement officers are advocating the use of mandatory blood draws in even the most mundane DWI cases.  It is incumbent upon those of us that fight DWI cases to be vigilant in our efforts to educate ourselves to effectively defend our DWI clients.  We all must do our part to fight against these mandatory blood draws either with a warrant or without a warrant.

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The most recent Texas Legislature has again given the State more power over its citizens to invade a persons body without a search warrant.  Senate Bill 328 allows the police to take your blood in a Texas DWI case WITHOUT a search warrant in the following situations:

1. When an individual involved in a wreck causes any bodily injury to another person;
2. When an individual is arrested for DWI with a child passenger under 15 years of age;
3. When an individual has 2 or more convictions for DWI; or
4. When an individual has been previously convicted of DWI with a child passenger under 15 years of age, intoxication assault or intoxication manslaughter.

At first glance, this new law seems to make sense.  However, let's look a little closer.  What the statute allows our government to do is force you to give your blood - yes, strap you down and forcibly take your blood without a search warrant.  There will be no independent review of the officers actions before they force this blood draw. 

My concern for our citizens is that a police officers will use this DWI statute to make marginal arrests and force individuals to give blood without a search warrant when they otherwise would not have made an arrest at all. We are giving the police more and more power every day.  Now the interested party - the arresting officer - makes the decision to draw our blood, not a Judge as was previously required.

Anytime we let an officer invade, probe or take fluids from our bodies, there should be a warrant required.  We all have a protected interest in our bodies and the legislature has deprived us of our right to require at a bare minimum a search warrant that is signed by a detached and neutral judge.  Instead, we are allowing an interested party, the police officer making a DWI arrest, to make a decision with no oversight.  Shame on our legislature giving the police the ability to search and seize our blood without a warrant.

The hope is that through DWI lawyers fighting this type of legislation, the legislature will realize the threat to our constitution and change the law or that the judiciary will strike the law down as an unconstitutional invasion on our right to be free from unreasonable searches and seizure.

Image:  Sharon Gott 

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Before requesting a breath sample or blood sample in a DWI case, an arresting officer is required to provide information about the consequences of the breath test.  Section 724.015 of the Texas Transportation Code requires the officer to inform a DWI suspect that his license can be suspended for 180 days if the person refused a breath test and that that refusal can be used against the person in court.

Lately, however, it seems the police have been asking "You going to give a breath test?"  When the client says "No", the police mark it as a refusal.  The cops seem to be getting lazy and not following the law.  I have heard this story far too many times lately for it not to be true.  This can be a reason to get a DWI case dismissed. 

It is a shame that the police are not required to video tape this admonishment.  In fact, it is a shame that everything the police do is not taped.  Through our investigations, we have found that some cops are just not to be trusted.  As Houston DWI Lawyers, we should not have to investigate the cops to see if they have the capability to video our clients.

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On the eve of our July 4th Independence Day, the Harris County District Attorney's Office has announced another "no refusal" weekend will be in effect.  Understandably, many citizens hear this news and think that it is a great idea to get drunks off the road. However, let's take a closer look at exactly what a "no refusal" weekend really is.

Mandatory blood draws are exactly that - the police now have the ability to literally strap you down and forcibly take blood from a citizen.  I think this is absolutely the type of intrusion into our lives as citizens that should be prohibited by our Constitution.  In fact, the Fourth Amendment to our Constitution says,

the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

First, a citizen has to be arrested for DWI in order to have a search warrant drawn up to draw the blood from that person.  Let me reiterate, the person is already arrested and in custody for Driving While Intoxicated before the search warrant is obtained.  Obviously, if the person is already in custody and under arrest for DWI, the police have removed that citizen from our streets.  Therefore, no more "drunks" are taken off of the streets as a result of this program.

Additionally, our Constitution is designed to protect all of those accused - both those that are guilty, but also those that are innocent.  We have represented clients that have been accused of drunk driving and had their blood forcibly taken from them that are below the legal limit or have had no alcohol in their system at all.  You can't tell me that strapping an innocent person to a gurney and drawing his blood against his will is not protected by our Constitution. 

Finally, Texas has a specific statute (at least for now) that forbids the Government from this type of intrusion on our lives.  Section 724.013 of the Texas Transportation Code says, "a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer."

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This week in the Melendez-Diaz decision, the United States Supreme Court confirmed and guaranteed our Sixth Amendment Constitutional right to confront witnesses. 

Melendez-Diaz was charged with possession of a cocaine.  At his trial, the government relied upon a sworn affidavit by a lab analyst to prove what the substance was, the amount of the substance and the quality of the substance.  The lab analyst was not called as a live witness and the affidavit was used to convict the defendant.  The Supreme Court overturned the conviction stating, the Defendant was entitled to "be confronted with" the persons giving this testimony at trial.

This decision could have far reaching implications for DWI defendants in Texas.  More and more often, we are seeing the government force DWI defendants to give blood pursuant to a search warrant.  Also, there are many cases where the government relies upon hospital blood draws as evidence in a Texas DWI case.  In Houston, Texas, the Harris County District Attorney's Office often relies upon the hospital records and a business records affidavit to prove the results of the blood alcohol test. 

The Melendez-Diaz decision insures, that in these DWI cases where the government is trying to introduce the results of a blood test, that we will have the right to demand the chemist appear in court and justify the results and be subject to cross examination.

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