Wednesday, March 17, 2010

DWI and blood testing

I read a story earlier this week about the Dallas police considering a new policy when it comes to DWI cases: blood tests in every case. Here's the story.

So I guess show it works is: you get pulled over and the cop suspects you have been drinking. He does the usual tests and if you fail, you are arrested. He then asks if you would consent to a blood test, and if you refuse he goes in search of a warrant to draw blood.

I sat and thought for a while before writing this, because I know that the forced taking of people's blood is a little draconian, even dracula-onian, to many. But I think I like the policy, and here's why:

-- it offers certainty. Experienced drunks can get through the SFSTs (Standardized Field Sobriety Tests) just well enough to raise reasonable doubt, and anyway juries often seem hesitant to base a conviction, certainly at the felony level, on these tests alone. But there's no fooling a blood test. And, remember, the man who has a bum leg and insists he's not drunk, that he just has no balance, runs no risk of a DWI conviction if he is, in fact, sober and is given a blood test.

-- it will be a deterrent. I have always thought that DWI is one of those crimes that can be deterred, mostly because it's a compound crime that requires both drinking and driving - and most people are more interested in the first half, so can possibly be persuaded against the second. And if you know that a flashing light in your rear view mirror means a certain conviction, then you will be more careful.

-- if I'm right that it's a deterrent, then it will save lives. Enough said.

Now, there's the case against, which I'll try to address:

-- it's a violation of civil rights. I agree that it seems invasive, at first blush. But we already do it and I don't see any successful legal challenges (and if it were truly a violation of the Constitution, you can bet they'd be flying). And unless someone consents the officer will need probable cause for a warrant; in other words, before he can have blood drawn, he'll need some other evidence that the person is intoxicated. So, it's not like we'll be randomly jabbing innocent people along the road side. Really this is just evidence collection, something we do in every criminal case. We take DNA, fingerprints, blood, hair samples, etc in all different types of cases. Why should DWI be excepted? (I am assuming here that the person drawing the blood is a properly trained individual, of course.)

-- it's expensive. At first, maybe. According to the Dallas Morning News it'll cost at least an additional $360,000 a year. But I think those costs will be offset. First, the story mentions that there will be fewer trials which means less overtime for testifying cops. It also means less time (and therefore money) lost by judges, court admin, prosecutors, jurors etc when one of these cases go to trial. And, in my experience, these cases get tried more than any other (two of my five last trials were DWIs). This would free up the court system to try other cases, speed dockets along, and provide more sure justice to those accused of DWI.

What do you think? Did I miss anything?


  1. I actually haven't thought through fully my own stance on blood taking - I have conflicting sentiments on it. But I disagree specifically with a couple of things you've said:

    "if I'm right that it's a deterrent, then it will save lives. Enough said."

    "It saves lives" has been long been the primary excuse for the withering away of individual rights. That's why Ben Franklin suggested that those who valued security more than liberty were not worthy of the former.

    I'd also take issue with your premise that:

    "it will be a deterrent ... mostly because it's a compound crime that requires both drinking and driving - and most people are more interested in the first half, so can possibly be persuaded against the second. And if you know that a flashing light in your rear view mirror means a certain conviction, then you will be more careful."

    Youth as much as inebriation and other factors may impair judgment, and judgments of decisionmakers about transportation policy (providing no practical option to get to most bars but driving) also play into the mix in ways that a DWI prosecution doesn't absolve or remedy. Also, as many repeaters as there are popping up in your new cases posts, on what do you base this belief that they "will be more careful" after an arrest, when the fact that people are not is why you have a job?

    Will bloodletting stop addicts from being addicts? Will it make public transport magically become a convenient alternative? Will drunks suddenly have lots of sober friends stepping forward to drive them around? IMO there are limits to the extent we can arrest our way out of this problem.

  2. I'm also unsure. I don't mind the practice provided it's done in a sanitary way--needles are nasty things. At the same time i would have zero confidence that my blood won't be kept or used or stored in illegal or overbroad ways (Cf blood from newborns, DNA databases, etc).

  3. Damn, just remembered - what am I doing quoting Ben Franklin to a Brit? Sorry if that's some sort of faux pas. ;)

  4. I'm also less confident that officers have honest-to-God probable cause when making these arrests and blood draws. The police officer who, in a different case, kept the Houston Texans player from seeing his dying in-law, falsely testified in a Denton DWI case that he smelled alcohol on a driver's breath. It was only because he was stupid enough to tell another officer on tape captured by his dashcam that he didn't smell any alcohol but was going to arrest the guy anyway that the case didn't hold up. But I assume most police officers willing to lie about probable cause are also smart enough not to say out loud and on tape that they're going to lie about it (and even though that officer is no longer with the DPD, he is still a sworn police officer in this state since, despite his clear perjury, no prosecutor thinks that getting corrupt police officers off the road is at all important. Certainly if he decided to falsify evidence again, he won't be blabbing about it to his dashcam).

  5. What bothers me most about DWI...about the whole DWI that we can put a man on the Moon and return him safely to Earth, but the automakers fail or refuse to engineer automotive ignition systems that require sobriety to operate. It can't possibly be "rocket science."

    And if we required every DWI convict to have an interlock device -- even at government expense -- I believe governments would save money, and streets and highways would be demonstrably safer. When you consider the cost to government of every DWI case, from cops to prosecutors and judges to probation officers, it's gotta be many times more than the cost of an interlock device.

  6. Grits: not only do you quote this "Ben Franklin" chappie, but you do it on St. Paddy's day, a general day of abuse for us Brits, in case you didn't know. :)
    As for the deterrent thing. I don't have the stats but we see a lot fewer cases here in felony court than in county court, which tells me something. Maybe they are all youngsters down there, and grow up before picking up more, I don't know. What I do know is that many felony DWI-ers get away with acquittals or having their cases reduced to misdemeanors, which seems like positive reinforcement for their behavior.
    And I'm not talking about arresting our way out of the DWI issue, this won't necessarily be more arrests, just more convictions and, importantly, more safe (as in accurate) convictions.

    Ryan: think of it this way: if a cop lies about probable cause to get a blood warrant, guess what happens? The suspect gets no conviction. But in the same scenario without a blood test, the suspect runs the risk of a conviction. Cops lie, but not very many, and of every bad apple that hits the press there are hundreds, thousands maybe, doing a great job.

    Donald: I think most people convicted of DWI and put on probation have to have an interlock, at least for some part of their probation. Half of it, maybe?

    Anyway, I like the public transport idea. Being a Brit, I would - it's a queue to stand in, and we love that!

  7. Why doesn't your boss get in front of this issue in Travis County? The police chief for APD is very protective on this issue and has done a great job of promoting highway safety. Is your boss too scared to upset the dope smoking hippies that elect the liberals?

  8. Mr. Confidential:

    It's an interesting idea. I don't know if you have heard, but there has been a big flap in D.C. over the reliability of two years' worth of breath tests administered by the D.C. police department. The prosecutor's office is now reviewing hundreds of cases and, in most cases, is dismissing the DWI charges and proceeding on DUI only.

    As I understand it, D.C. does not do blood tests because of some previous problems -- and resulting law suits -- with administering them. But the city may now need to reconsider. In Philly, blood tests were usually done for drug-related DUI only.

  9. Because the blood retrieved by the police could be used to create a perfect frame for a capital crime, I am against any measure that expands blood collection by authorities, much less makes it practically mandatory.

    I personally believe that a citizen should not be allowed or encouraged to provide DNA evidence without judicial order. Not because of today's police, but how that routine could be abused in the future.

    That may make me sound like a raving paranoid, but I think DNA use is at a crossroads and we should be careful about what traditions we establish.

  10. I don't trust the government to be able to competently administer this type of testing program.

    Mistakes will be made, innocent people will go to jail because of inadvertent and sometimes intentional mistakes on the part of the government people involved in the testing.

  11. DAC writes, "this won't necessarily be more arrests, just more convictions and, importantly, more safe (as in accurate) convictions."

    Well, to the extent that merely seeing the lights in the mirror will keep them from doing it the next time, according to your earlier logic, I'm not sure how much difference that "safe conviction" makes. Most DWIs are one-timers and don't recidivate, "safe" conviction or not. On that perhaps we can agree. Perhaps we can also agree that the relatively few repeaters don't appear to be successfully deterred by the justice system. After all, they've been convicted multiple times when they get to you. However, only the repeaters are remotely knowledgable enough to know anything about the relative likelihood of conviction vis a vis blood tests, etc.. For the vast majority, the arrest usually sends all the message that needs sending. For first timers, the rest is about lawyers' tribal rituals and mostly extracting money from the defendant in fines and driver responsibility surcharges.

    As for standing in a queue for public transport, it's sure no worse than Austin rush hour traffic. And you'd get to (legally) use the text functions on your cell phone. :)

  12. An bad idea is born; the protest of which falls on deaf ears; the implementation of which benefits with false fame and notoriety an elite few and to the lesser elite monetary gain; the burden of which falling on the vast overwhelming majority whose humanity is diminished by degrees.

  13. Who knows if these "no refusal" jurisdictions will reduce the number of DWI's. I tend to doubt it. DWI is not a crime people contemplate committing. It usually happens while they are doing something else.

    I have been out with people who were plenty smart and had the benefit of both me (a defense attorney) and my wife (a prosecutor) telling them to take a cab. Even after all our pleading and warnings, they thanked us, got into their cars and drove home. In some instances people have waited for us to leave first. DWI is still the only crime "good people" regularly commit.

    As for Dallas County, anyone who practices there will tell you it won't make a difference. Of the last ten DWI cases I have had in Dallas in all but one the police have lost the in car video or been so lazy in attempting to locate it that the judge has suppressed it thirty days after granting my motion to produce the video. If there is now blood evidence in each case you can expect similar situations.



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