NO REFUSAL BLOOD DRAWS AND SOBRIETY CHECKPOINTS-CONSTITUTIONAL DILEMMAS

Law Enforcement Willing to Lessen Constitutional Protections to Appease Mothers Against Drunk Driving

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

For the past fifteen years the State of Texas either led the nation or ranked in the top five states in DWI fatalities. The Century Council reported in 2008 there were nearly six-million traffic accidents reported in this country to the police which took the lives of 37,361 people—11,773 of the deaths involved crashes in which a driver had a blood-alcohol reading of .08 or higher. A blood alcohol level (BAL) of .08 is considered intoxicated in the State of Texas.

DWI-related traffic fatalities, thus, is a serious problem across the country and particularly in the State of Texas.

Led by former Assistant District Attorney Warren Diepraam, the Harris County District Attorney followed the lead of other law enforcement agencies and set up in 2007 what has become known as “no refusal” DWI weekends.  Diepraam led the creation of an initiative formally called Vehicle Assault Team (VAT) which allowed a stand-by judge to issue a search warrant authorizing law enforcement officers making a DWI stop to take a blood sample from any motorist who refused to voluntarily submit to the “blood draw” so long as the officer’s actions were consistent with state law. ADA Diepraam’s belief went a step beyond VAT: he believes that every motorist stopped in the State of Texas for suspicion of DWI should be required to provide the police with a “chemical sample.” Not even former DA Chuck Rosenthal could buy into that belief so his office kept VAT confined to what it called “no refusal” weekends (most often staged on major holiday weekends).

The Diepraam-led VAT initiative had little respect for either Texas statutory requirements or case law precedent. First, Art. 724.017 of the Transportation Code provides that “only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse” can take a blood sample at the request of a peace officer. Although the District Attorney’s office elected to have a nurse present to make the actual draw, Diepraam lobbied the notion that a “jail nurse” or a “paramedic” was qualified under Art. 724.017 to make such a draw because the draws were “not mandatory.” As for the DA’s office lack of respect for case precedent, the Texas Court of Criminal appeals in the case of Juan Enrique Sanchez held that “roadblock checkpoints” violate the Fourth Amendment of the United States Constitution, although Diepraam would argue that “no refusal” weekends were not “sobriety checkpoints”.  Sanchez remains controlling law to this day.

While law enforcement agencies hailed the “no refusal” weekends as a spectacular success, judges became increasingly concerned about their constitutional implications. They began making themselves scarce when “no refusal” weekends rolled around. This prompted Mothers Against Drunk Driving (MADD) and other proponents of “get tough on DWI”  to lobby Texas lawmakers to pass legislation that would make “no refusal” weekends a fulltime law enforcement initiative to combat drunk driving. The DWI law, as it existed at the time, allowed motorists to refuse blood or breath samples unless they were involved in an accident which caused death or serious injury. The proponents of fulltime “no refusal” got a tremendous boost, albeit a tragic one, in December 2008 when Nicole “Lilly” Lalame stepped off her school  bus here in Harris County and was struck and killed by a suspected drunk driver who had run a stop sign. That was enough incentive for the legislature to enact the Nicole “Lilly” Lalame Act (LeLame Act) which allows the police to take a “warrantless” blood sample from a motorist arrested for a DWI offense who refuses to give a voluntary blood sample when one or more of the following conditions exist:

  • The suspect caused an accident in which someone died, is likely to die, someone suffered severe bodily injury, or someone was taken to the hospital with severe bodily injury
  • The suspect is arrested for driving while intoxicated with child passenger
  • The suspect has a previous DWI conviction with a child passenger, intoxication assault or intoxication manslaughter, or
  • The suspect has two or more DWI convictions, flying while intoxicated, intoxication assault or assembling/operating an amusement ride while intoxicated.

The Lalame Act took effect September 1, 2009, and it was embraced by law enforcement agencies across the state, although some MADD officials were less than enthusiastic about it. Former Dallas Police Chief David Kunkle immediately announced his department would make “no refusal” weekends a full-time law enforcement initiative. “It does make me happy,” Kunkle told the local media. “It’s a bill we supported and we believe in the no-refusal process … One of the biggest advantages of the no-refusal program is it does create an environment where people don’t believe there’s a way to not be accountable for drunk driving.” But Mary Kardell, the director of the North Texas MADD group, criticized the bill, saying: “They just watered it down and just wouldn’t do the right thing. Texas is going to continue to lead the nation in deaths if the House won’t take a stand.”

Even before the Lalame Act was passed, some police chiefs, like Austin’s Chief Art Acevedo, said they wanted their officers to be taught how to draw blood themselves. That is a difficult concept for any rational thinking, constitution- respecting person to wrap their minds around: allowing officers who make a DWI offense arrest, often under contentious circumstances, to jam a needle into an arrested motorist’s vein and forcefully draw blood from it! And think about this: the arrested motorist may not even be intoxicated or ever charged with a DWI offense. If he/she is involved in an accident and a child is in the vehicle and the officer “suspects” alcohol may be involved, that is enough for a warrantless blood draw—and by the policeman himself if Chief Acevedo has his way.

Well, if it was good enough for Chief Acevedo, it also had to be good enough for former Houston Police Department Chief Harold Hurtt who actually put in place a program to train HPD officers on how to draw non-voluntary, warrantless blood samples. Are you still with us here, folks? The police—not a physician, not a registered nurse or a qualified technician—being trained to forcefully take a warrantless blood sample from you. And where were the HPD officers being trained to draw these warrantless blood samples: on inmates housed at a psychiatric facility in the Texas Department of Criminal Justice. Fortunately, this past June newly-elected, and rational-thinking, Mayor Annise Parker scrapped the program, electing to follow the rule of law as set forth in Art. 724.017: blood draws must be made in a sanitary place and by a qualified person.

The proponents of “sobriety checkpoints” and the Lelame Act (no refusal) frequently cite the 1966 U.S. Supreme Court decision in Schmerber v. California as constitutional authority in support of these law enforcement initiatives. In that case a DWI suspect was hospitalized following an accident. A police officer detected the smell of alcohol on the suspect’s breath and noticed other symptoms of alcohol impairment at both the scene of the accident and at the hospital. The officer placed the suspect under arrest and directed a physician to draw a blood sample from the suspect. The suspect’s attorney advised against giving consent to draw the blood. An analysis of the blood sample indicated intoxication. The suspect was convicted of DWI based upon the blood analysis. The U.S. Supreme Court held that while the taking of a blood sample implicates the Fourth Amendment prohibition against unreasonable searches and seizures, the police in this particular case had sufficient probable cause to order the blood sample taken by the physician.

Some Texas law enforcement agencies have taken great liberty with Schmerber. For example, the Dalworthington Gardens Police Department set up a program before the Lelame Act which permitted the police to forcefully take a blood sample when a DWI suspect refused to consent to the draw. Set and supervised by a doctor of osteopathy, there was no peer review of the program nor did any governmental or regulatory agency approve the program nor was there any curriculum or anyone to monitor any rules of compliance. Dalworthington Gardens officers were simply required to take fourteen hours of “classroom lecture,” given a “standard phlebotomy text,” and supplied with photocopies of “articles on venipuncture as outside reading material.” In conjunction with these materials, the officers are required to do a minimum of “fifty venipuncture draws at a hospital.”

The Texas Court of Appeals, sitting in Fort Worth, in the case of Christi Lynn Johnston just last year held that “’ … this course of study falls short of the minimum requirements for a person to become a phlebotomy technician” and agreed with Johnston that while the search warrant was reasonable under Schmerber, it was executed in an unreasonable manner: forceful drawing by arresting officers. The facts of the Johnston case are straightforward: Officer Brett Stinson pulled her over after observing her driving and noticing that her vehicle registration had expired. Johnston exhibited signs of intoxication, enough so to prompt Officer Stinson to administer “field sobriety test.” The officer then took Johnston to the police station where she was given a second sobriety test on video and read her the standard statutory DWI warnings. Stinson then asked Johnston if she would consent to a blood draw. She refused. Stinson prepared an “affidavit” to obtain a search warrant authorizing a blood draw. The warrant was issued by a local judge. Johnston physically resisted the blood draw, and was forcefully restrained by Stinson and a fellow officer (securing his legs and arms to a chair) while the second officer took the blood sample.

There was never any question that Officer Stinson had probable cause to not only arrest Johnston but secure a search warrant for the blood sample. But as the trial court pointed out in suppressing the evidence against Johnston, the officers were not acting as “professional medical care provider[s]” when they took the blood sample but as officers “acting in their capacity of peace officers gathering evidence for a criminal prosecution.” Further, the trial court pointed out that a “phlebotomist” is “not automatically a qualified technician under § 724.017;” that completion of the police department’s ‘blood draw” program did not make an officer “a qualified technician” under § 724.017; and that while the blood draw had been taken in a sanitary place, it was unreasonable in violation of the Fourth Amendment because it was not “taken by medical personnel in a hospital or medical environment.”  The appeals court endorsed these trial court findings.

The Johnston ruling is a slap at Warren Diepraam and Chief Avecedo’s philosophy that “police officers” or a “jail nurse” are qualified to take a blood draw even with a probable cause search warrant. But this hasn’t slowed Diepraam who left the Harris County District Attorney’s Office in the wake of the election of current DA Pat Lykos and secured employment with the Montgomery County District Attorney’s Office. Just this past Labor Day weekend, he, with DA Brett Ligon, set up the state’s first “sobriety checkpoint”. Days before the weekend ADA Diepraam warned potential DWI motorists on local television station KTRK: “You will be stopped, you will be arrested and you will be successfully prosecuted.” The “crime-fighting” ADA added: “We’re taking what narcotics officers, interdiction officers, do to find drug traffickers and we’re using that to stop DWI drivers.” Although Diepraam knows that such checkpoints are illegal in Texas under the Sanchez ruling, he nonetheless told KTRK reporter Andy Cerota that law enforcement authorities have the “legal authority” to saturate a targeted area with patrols that stop drivers who commit traffic violations. Saying he knows the program will invite criticism from the public, the ADA explained “we’ll continue to save lives, and our detractors, they’ll fuss about it, but they won’t offer any solutions.”

We disagree with Diepraam  based on our years of experience with these type of saturation “sobriety checkpoints” and believe that nearly every motorist stopped will be arrested and subjected to a blood draw or breath test whether true probable cause exists or not.

The results of the Labor Day weekend checkpoints have not been disclosed to the public thus far. But what is clear is that these checkpoints will produce convictions as Diepraam suggested and that will lead to appeals. It will be the courts of appeals that have the final say in this matter, but it is scary that a law enforcement official like ADA Diepraam would place DWI offenses at the same level as narcotics trafficking. The only similarity between the two offenses is that they are both crimes, but to equate the crime of DWI, even with the 11,000-plus deaths it causes each year nationally, to the crimes of violence and social damage wreaked by drug trafficking is ludicrous. That’s like equating the theft of a pizza to the theft of the Mona Lisa.

The Diepraam-like “sobriety checkpoints” and police officers taking warrantless blood draws is not effective law enforcement. Rather it smacks of a totalitarian police state.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair