(my apologies to Steve Earle) Now that the New Braunfels City Council has passed its infamous container ban ordinance, many people are trying to find a way that they can get involved in the effort to repeal it. I received phone calls this week from some guys who are pretty plugged into the repeal effort and who could use your help.
Why do you hate New Braunfels? I don’t ask this question to be smart-alecky or sarcastic. As I watch the latest tourism-related debate unfold, this time over a proposed disposable container ban on the Comal and Guadalupe Rivers, I get the sense that there is something more fundamental going on. New Braunfels is a unique place, and the impression I get is that there something about its very uniqueness that makes you feel genuinely frightened and uncomfortable.
I won’t spend a whole lot of time here debating the proposed ban. Many others have already laid out the arguments against it. The proposal is a pretty transparent attempt to regulate the consumption of alcohol on the rivers. Your own comments during the last council meeting indicate that banning alcohol is the proposal’s real purpose. And if you think for a moment that a court cannot see that, then you either underestimate the intelligence of state district judges or you reside in an alternate Alice-in Wonderland universe.
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.