Drink, Drive, Go to Jail maybe the policy, but it isn't the law!

Drink, Drive, Go to Jail maybe the policy, but it isn't the law!

This past weekend, the Gregg County, Texas sheriff issued a press release that stated that if  you drink and drive this independence day weekend - you will go to jail.

In December 2006, Gregg County commissioners approved a grant to participate in the statewide “Drink, Drive, Go To Jail” campaign.  This grant provides resources necessary to conduct DWI enforcement throughout the holiday periods to increase the arrests of folks that drink and drive.

Captain Ken Hartley with the Gregg County Sheriff’s Department says; “We’d just like to remind people to drive responsibly. Don’t drink and drive. Enforcement will be out there and it’s not worth that chance and certainly not taking a chance of hurting yourself or others.”

What they are totally ignoring is the fact that is not against the law to drink and then drive as long as  you are at least 21 years of age, and  you are not intoxicated. I believe that the Sheriff is setting up a great argument for the fact that people are going to be arrested that don’t meet the above criteria.
The police and prosecutors always want to lower the standard, but it just isn’t the law. Another example of the attempt to lower this standard is the “Buzzed driving is Drunk Driving” billboards. Neither Buzzed driving, nor Drunk Driving is the standard…..Intoxication is.
I certainly hope a defense attorney in Gregg County is paying attention to this and is willing to use this to show the juries there that THIS Sheriff’s deputies have the potential for making wrongful arrests.

While we all know the Austin Police practice a “Drink, Drive, Go to Jail” policy, the administration has been smart enough not to voice it publicly.

Travis County Hospitals and Sheriff's Department have finally figured out that Forced Blood Draws are a bad idea. When will Chief Acevedo figure it out?

Travis County Hospitals and Sheriff's Department have finally figured out that Forced Blood Draws are a bad idea. When will Chief Acevedo figure it out?

The Austin American Statesman reported in today's paper that Austin's Hospitals and the Travis County Sheriff's Department have informed the Austin Police Department (APD) that they will no longer collect blood for APD.

 Travis County's central booking facility had been the place where APD took their suspected DWI folks for the forced blood draw.  APD would rely on the Sheriff's nurses to do the forced blood draw.  (If the person refused, they would literally strap them in a chair so that the person couldn't move their arms, and then stick them with the needle)  The Sheriff's Department nurses stopped taking blood samples on January 1.  The Sheriff's Department has finally realized that the nurses main function should be to treat inmates, not collect evidence.  Further, they are deeply concerned about having to give nurse's overtime pay to appear in court after having been the one that draws the blood. 

Since the Sheriff's Office stopped doing the blood draws, APD started taking suspects to the hospital for the blood draws.  (I can't verifiy this, but I heard that the hospital was charging APD $400.00 per blood draw.)  The Hospital representatives have now told APD they don't want them to bring suspects to jail for blood draws.  The Hospital staff are worried about lawsuits, and are concerned because these types of blood draws are not being done for medical reasons.  Further, the Hospitals are worried about who will pay for the nurse's time when they are called to court to testify about the procedure they used to draw the blood. 

 Chief Acevedo thinks he has figured out a way around these problems.  APD contracted with a private phlebotomist to draw the blood of folks on Halloween weekend and New Years Eve.  APD agreed to pay the phlebotomist for three eight hour shifts during these weekends.  What APD didn't contract for was pay for this phlebotomist when she is drug into court to testify about the blood draws.  I predict there will be a lot of screaming from the phlebotomist when she finally figures out that the money she received per hour will now be reduced by the number hours she has to sit in court.

 In the Statesman article, an "expert in blood draws" states that "the state laws are clear that nurses and hospitals are protected from such suits.  What the "expert" appears to be referencing is Section 724.017 of the Texas Transportation Code.  The relevant section, section (b), states:

The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures.

 However, this "expert" left out the final sentence to section (b):

This subsection does not relieve a person from liability for negligence in the taking of a blood specimen. 

Now, what the "expert" seems to be forgetting is that it will ultimately be up to a fact finder (Judge or Jury) to determine if negligence took place.

 Also, I bet no one informed the phlebotomists that they could be held liable for the blood draws either. 

APD is treading on thin ice on this issue, and the sad part is, they either don't even realize it, or they just don't care.

Changes in DWI Law in Texas

Changes in DWI Law in Texas

As of today, September 1, two new laws go into force that deal with DWIs in Texas.  Section 724.017 of the Transportation Code is now expended to allow more situations where police can do a forced blood draw without a warrant.  Mandatory warrantless blood draws are now allowed if a person is arrested for DWI, or BWI, the person refuses to submit to the taking of a specimen volutarily, and: 1) an individual other than the person arrested has suffered bodily injury and was transported to a hospital or other medical facility for medical treatment; 2) the person is arrested for DWI with a child passenger under 15; 3) the officer has reliable information that the person has been previously convicted of DWI two or more times; or 4) the officer has reliable information that the person has been previously convicted of DWI with a child passenger under 15, intoxication assault, or intoxication manslaughter.
The Legislature also tried to give some assurance to the health care providers that actually draw the blood persuant to a blood warrant, or mandatory blood draw.  Section 724.017 of the Transportation code was amended to provide protection to those who take blood specimens according to "recognized medical procedures."  However, this change in the law DOES NOT relieve a person from lability for negligence in the taking of a blood specimen.  And there lies the danger to anyone that takes blood under these intrusive warrant/warrantless blood draws.

Travis County is going to start doing more blood draws at the jail

Travis County is going to start doing more blood draws at the jail

The Austin American Statesman reported today that the Travis County Commissioners voted to enter into an agreement between Travis County and the City of Austin that will allow for a phlebotomist to be at the jail from Tuesday night through Sunday morning.  These folks have reported that they anticipate the cost of this service to be approximately $60,243 per year.  What they are not taking into account is the added cost of having those folks present to testify in the cases for which they drew blood.  I was told that they plan to contract with a "phlebotomy service", rather than hire a single phlebotomist.  The logical nightmare will be when the actual person that took the blood no longer works at the contracted service.  Further, who do they think is going to pay for their time.
The article states that the phlebotomist(s) will work from 9:00 p.m. to 5:00 a.m.  Well, we shall see how they feel about waking up to be in court at 9:00 a.m.   Further, who is going to pay for the blood to be tested.  Chief Acevedo has been pushing for a full time no refusal policy, and I think this is just one step towards his goal.  As I have stated in past posts, this isn't Williamson County.  Folks, in general, are against people being held down and stabbed with a needle.  Sooner or later, Acevedo will have to realize that.  Either that, or maybe another city will consider him for their Chief, since Dallas apparently didn't want him.

The Legislators are warming up to attack DWIs in Austin, TX

The Legislators are warming up to attack DWIs in Austin, TX

The Dallas Morning News reported that some Legislators are already beating their drums regarding their proposals to fight DWIs. In the past, Legislators have thought the only solution was to make the punishment for DWI more harsh. They are not realizing that this isn’t the answer.

The real issue is what works and what doesn’t. In the past, the Legislators just passed tougher and tougher laws. There was an attitude that if you put someone in jail long enough and fined them enough, they would change their behavior. This is what I call the Williamson County approach. But, Legislators are now realizing that this isn’t very effective. They have also tried to deter it by making it very expensive. The problem with that approach is that folks end up choosing jail over probation to save themselves money. Many folks in the system now realize the best way to deter the undesired behavior is to get folks in substance abuse treatment.

The two ideas that are certain to rear their ugly heads as road blocks and the requirement of Ignition Interlock on first time DWI offenders.

On a side note, one legislator out of Lewisville will be pitching an idea that if someone is convicted of a second DWI, then they should have their license permanently revoked. What she isn’t taking into consideration is that folks HAVE to be able to drive to work. Also, folks are going to drive, whether they have a license or not. And, if they don’t have a license, they won’t have insurance, so we end up with a bunch of non-licensed, non-insured folks on the road.

The main problem with roadblocks, is that every Legislator that has put for the idea has had to admit, that they just don’t work as well as roving patrols. So, if they don’t work as well, why do them. They are also more expensive to man, and bottling up traffic at 2:00 a.m., when folks are leaving the bars, just doesn’t seem very smart.

Increasing the Ignition Interlock requirements always seem to be on the Legislators' agenda. The problem with this idea is that it punishes the masses for the problems of the few. If a person has a drinking problem that would make the Ignition Interlock a good idea, the Judge can currently order it. The way the system works now, is on a case by case basis, where the Counseling and Education folks, the prosecutors, and the Judge can look at each case and make the determination as to what is appropriate. The IID folks want to remove the discretion from the Judge. The majority of folks arrested from DWI never reoffended, so we should leave it to the folks involved with each case to make the determination as to what is appropriate, not the Ignition Interlock companies that have lobbied the Legislators.

Austin DWI

There are serious consequences that come along with a DWI (driving while intoxicated) conviction in the state of Texas. Your license may be suspended. You will be required to pay expensive fines and court costs. You will even spend time in jail.

Austin DWI law is very intricate. If you have recently been arrested for drunk driving, you must immediately find an attorney who is well-versed in Texas’s drinking and driving laws. A good attorney may mean the difference between life-altering penalties and the life you knew before your arrest.

A first-time DWI offense is a Class B Misdemeanor. The law states that “a person commits an offense if the person is intoxicated whole operating a motor vehicle in a public place.” The prosecutor may make his or her case by demonstrating that the driver did not have the normal use of physical faculties, mental faculties, and had a BAC (blood alcohol content) of .08 percent or higher.

It is important to note that even if you have a prescription, if a substance makes you intoxicated, you may be found guilty of DWI.

There are additional elements that may make your case more difficult. If you have had a previous DWI conviction, you are facing increased jail time, fines, and a longer driver’s license suspension. You will also face more problems if you assaulted someone or committed manslaughter with your vehicle while intoxicated.

You will also face charges of “endangering a child” if you are arrested for Austin DWI with a minor in the car.

Amando Pena is here to help you. Mr. Pena is a member of the State Bar of Texas.

Mr. Pena has been trained by the National Highway Traffic Safety Administration on how to administer standardized field sobriety tests. This is the same training that law enforcement agents receive. He uses his inside knowledge of police procedures to benefit his clients.

It is important to remember that you can fight your Austin DWI charges! If you are interested in discussing your case with Mr., please fill out our online form today.