Shortly before the Memorial Day Weekend, the Comal County District Attorney’s Office announced that all of Comal County would have a “no refusal” policy for Driving While Intoxicated cases for the entire Summer. This policy was touted as a powerful tool for law enforcement in its efforts to combat drunk driving. Ironically, though, it will probably result in fewer DWI cases being filed in Comal County. A “no refusal” policy means that a person arrested for DWI cannot refuse blood alcohol testing. If a person, after a DWI arrest, is offered a breath or blood test, and refuses, then law enforcement obtains a search warrant allowing an involuntary blood draw for alcohol testing. At first glance, this policy seems as if it would make it easier to prosecute DWI cases.
In practice, it will result in fewer people actually charged in court with DWI, for two reasons. First, all DWI cases will now have a blood alcohol level number attached to them. Gone will be the days when a case is filed simply on the basis of an officer’s subjective observations of someone out on the road. Instead, almost everyone arrested will have a blood test result, and some of these folks will invariably wind up being under the legal limit of .08. at the time they are tested. Because obtaining a warrant for a blood draw, as well as obtaining the actual blood sample itself, can be time consuming, people arrested who are “borderline” cases will have a period of time in which their blood alcohol levels are dropping, that is, between the time of the arrest and the time of the blood draw.
As a result, someone who may have been intoxicated out on the road may have a blood test result below the legal limit by the time his blood is drawn by a certified nurse or lab tech. This puts the State in the unenviable position of having to explain away the results of its own blood testing in court. If someone has a test below the legal limit, it’s just easier not to file a DWI case at all. Second, cops are human, and they like to proven right. No one wants to get a reputation as the cop who repeatedly arrests guys for DWI, and then, is repeatedly proven wrong by blood tests. This is not to say that cops will start putting people they suspect are intoxicated back on the road, but the number of people arrested who wind up getting formally charged with DWI, as opposed to some other, less serious, charge, is likely to go down. In short, rather than producing more DWI convictions, Comal County’s “no refusal” program will probably mean less.
A couple of months ago, the county court-at-law in Comal County began experimenting with something called "Driving While Intoxicated Accountability Court." (As if they weren't already DWI accountability courts.) The basic idea of the new court docket was well intentioned -- to give someone charged with a subsequent offense DWI case an extra incentive to volunteer for intensive outpatient treatment. In practice, the incentives to participate in the program don't outweigh the costs for many defendants. The program is supposed to work like this: if someone is charged with a subsequent offense DWI they are given an opportunity to go into intensive outpatient treatment through the Adult Probation Department. In exchange, the person receives a few months less than the maximum amount of probation, an automatic occupational driver's license, and a possible waiver of jail time as a condition of probation, as well as a possible reduction in fine.
Sounds like a great deal, right? Not so much. Many people simply can't do the program. DWI probation for someone with a subsequent offense already has a lot of hoops to jump through: DWI Intervention classes, outpatient counseling, a driver's license suspension, jail as a condition of probation, AA attendance, community service and participation at a victim impact panel. Probation through the new DWI docket, though, is like doing probation on steroids. Probationers are expected to report several times of week, which is often impossible to do if someone is trying to hold down a job. And the perks a person is supposed to get for participating in the program really aren't that significant. The length of probation being offered in the DWI court is similar to what we being offered to defendants before the new docket was started. Probationers were previously required to apply for occupational licenses anyway. The days of jail received as a condition of probation can usually be organized around work schedules.
All of the other conditions of DWI probation are still there under the new system. The single biggest concern that a person usually has when he walks into my office charged with a subsequent offense DWI is the possibility of losing his job. Picking up a subsequent offense DWI is a major threat to someone's job security as it is. Having to potentially miss work several times a week to report to a probation officer only makes matters worse. It's all well and good that the courts want to offer an opportunity for more treatment for those who wish to participate in the new program, but I suspect that most defendants will choose to take their lumps under the old system and keep their jobs, instead.
Just when you thought they couldn't get any more diabolical, I witness this at a felony Driving While Intoxicated sentencing hearing in Guadalupe County District Court: a portable breath test being given to a Defendant in court to determine what his sentence should be. This week I watched a defendant in the 25th District Court being sentenced for felony DWI. But before the judge would pronounce sentence, he ordered the probation department to administer a portable breath test to the defendant in court. In a felony DWI, when a person is going on probation, he is required to receive a certain amount of days in the county jail upfront as a condition of the probation. The judge in this case announced that, if the test turned out negative, the court would assess 10 days jail, but if it was positive, the defendant would get 30 days.
Now it bears pointing out that, in Texas, the results of a portable breath test are not admissible against a DWI defendant to determine his guilt or innocence. Portable breath tests are not considered scientifically reliable enough to be trusted for that purpose, and the people who give the tests are not always properly to trained to do so. And, sure enough, when the probation officer in this case tried to give the portable breath test in court, he couldn't get the device to work properly. The judge finally gave up and ordered 10 days. This raises the question, why is a local district court using something that isn't admissible in evidence because of its unreliability in order to decide what would be a fair punishment for a given defendant? Was the Magic-8 Ball broken?