Harris County Goose-Stepping to the Beat of a MADD Drum
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Law enforcement authorities in Texas, and at least six other states, this past New Year weekend engaged in an aggressive anti-DWI campaign. It’s called “no refusal” weekends. In most states, including Harris County, Texas, a judge is on standby at these coordinated DWI traffic stops prepared to sign a warrant permitting the police to take a blood sample if a suspected DWI driver refuses to take the standard breathalyzer. Texas’ “no refusal” programs take it a step further: law enforcement officers can forcibly take a blood sample when a suspected DWI driver refuses to give what is called a voluntary “blood draw.”
Anti-DWI activists strenuously argue these kinds of invasive programs help reduce DWI-related traffic deaths. The National Highway Traffic Safety Administration (NHTSA) reports that 10,839 people died in DWI-related traffic accidents in 2009, and that 22.4 percent of motorists suspected of driving under the influence refused to take the breathalyzer test when asked to do so by law enforcement. ABC News reported NHTSA as saying the “no refusal” traffic stops have resulted in “more guilty pleas and fewer trials.” While that is doubtful, “no refusal” programs are becoming very popular.
The Harris County District Attorney’s Office has announced that it will extend the “no refusal” program to every weekend for the next three years, thanks to a grant awarded to the DA’s office by the Texas Department of Transportation. The “no refusal” weekends will be in effect from 10:00 p.m. to 6:00 a.m. both Fridays and Saturdays.
The San Antonio Police Department, and other Bexar County law enforcement, have become so enamored by the “no refusal” weekend programs that they plan to implement them every weekend through this year. The Bexar County “no refusal” program is being spearheaded by District Attorney Susan Reed and has been warmly embraced by the local chapter of Mothers Against Drunk Driving (MADD).
Daniel Garza, a MADD representative, could barely contain his enthusiasm about the coming year: “We’re pretty excited about that. It was a great pleasure to hear that this morning law enforcement is going to get another good tool to be able to combat drunk driving here in San Antonio. When they’re announced and everyone knows that they’re coming, they serve as a deterrent.”
San Antonio appears to have legitimate reason to believe they have a DWI problem. Local media reports that Bexar County has more DWI-related traffic deaths per 100,000 (159 deaths in 2008) than any other county in Texas although the Texas Department of Transportation saysHarris County led the state in 2009 in the number of such deaths. These sobering facts are reflected by the 6,000 drunken driving arrests made in the Bexar County alone in 2010. While local criminal defense attorneys recognize the DWI problem, they foresee problems with the Bexar County law enforcement “no refusal” efforts.
“I guess the message they’re sending is, ‘Get drunk during the week,” attorney Jamie Balagia told KSAT, a local television station.
Another criminal defense attorney, George Scharmen, agreed, telling KSAT: “They’re saying, ‘You give us a breath specimen or you give us a blood specimen or we’re going to take it anyway.’” The demand angers Scharmen who said contrary to popular belief the new policy will only stretch out DWI cases, not induce expedited plea bargains. He should know. He has some DWI cases which have been waiting five years for trial. “You have motions to suppress breath and blood draws on the basis of a bad search warrant, on the basis of involuntariness,” he added.
DA Reed countered this criticism by releasing statistics from nine “no refusal” weekends between May 2008 and July 2010. A total of 312 blood draws were taken with an average alcohol level of 0.159, or nearly twice the limit. 29 of the tests were below the legal limit. It is that latter statistic which has drawn the criticism of not only criminal but civil rights attorneys as well.
“There are two problems with this,” Marjorie Esman, executive director of the ACLU of Louisiana (one of the seven states that operate “no refusal” programs) told ABC News. “One is the potential invalidity of the search warrants. If they’re being issued assembly-line style, there may not be the kind of individualized investigation in each particular case that’s necessary for a valid search warrant. The other concern is the medical privacy issue. We don’t know what they’re doing with the blood samples – whether they’re data banking it, what kind of information they’re going to glean from it.”
The “no refusal” programs thus boil down to individual rights versus group rights. There is no longer much question about the effectiveness of such programs. The Centers for Disease Control recently examined 23 studies dealing with regular “sobriety checkpoints” and found they reduced alcohol-related traffic accidents by 20 percent. Advocates for “no refusal” programs, especially on holiday weekends, point to a AAA Foundation for Traffic Safety study that shows alcohol-related traffic deaths surge by 150 percent on New Year’s Day alone demonstrating the need for such no refusal programs.
While we are mindful of both the need to reduce alcohol-related traffic deaths, especially in Texas which continues to lead the nation in such deaths, and the effectiveness of “sobriety checkpoints,” we must draw the line on forced blood draws. In one of our most recent columns, “America: Big Brother is Watching!”, we expressed our concerns about the increasing advances law enforcement has made into our personal lives under the “war on terror” guise. We see the same authoritarian trend in “no refusal” blood draws”: assembly-line search warrants; restraining uncooperative motorists by “traffic cops” who forcibly take blood samples based solely on suspicion driven by refusal to cooperate; and no accountability as to what happens to the blood samples taken from ordinary citizens in such cases.
We also are mindful that on issues of public safety the rights of the group often take precedent over the individual. But we are a professed democracy, and in democratic societies the rights of the individual are highly respected. These rights have strong constitutional protection against government intrusion and interference in our criminal law system. We simply cannot buy into the argument that because nearly 11,000 people die each year in alcohol-related traffic accidents, law enforcement is justified intruding upon individual rights through “no refusal” blood draws. If loss of life is the only justification for such governmental intrusion, then what about the 80,000 lives lost each year through medical malpractice, as reported in a 2007 Harvard medical study while theCivil Justice Resource Group reports that between 25,000 to 120,000 patients die each year from negligence due to medical malpractice. The CJRG also reports that as many people die in work-related accidents (11,000 annually) as die in alcohol-related traffic accidents.
The question, then, is how many of these negligent medical-related and work-related deaths were caused by alcohol or drug impaired medical personnel and work supervisors? Do you see law enforcement gearing up to protect the American public from this kind of “negligent” (and in many instances quite criminal) individual behavior? No! Why aren’t Texas law enforcement officials conducting “no refusal” blood draws of medical personnel in hospital corridors and of supervisors and co-workers in the workplace for alcohol/drug impairment?
We certainly would not agree with such aggressive law enforcement efforts designed to “save lives” in these areas any more than we agree with the “no refusal” blood draws to prevent traffic deaths. These kinds of law enforcement strategies are not only an invasion of personal privacy but offend our traditional constitutional principles against unnecessary governmental intrusion. We believe these law enforcement strategies are just further evidence that our society is embracing the “war on everything” mentality which inevitably could lead to a tightly controlled police state where individual rights cease to exist. Bear in mind that there is no end to the “no refusal” concept.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair