Bloody New DWI Policy Makes Allies of Defense Lawyers, Houston Cops
When Mike Anderson won the race for Harris County District Attorney, the Houston Police Officers’ Union was delighted. Anderson promised to bring back old-school law enforcement with none of the namby-pamby resource conservation or legal hand wringing that had earned the incumbent, Pat Lykos, so much disdain. (Read here about how Anderson resumed prosecuting “trace” drug cases.)
But now that Anderson has applied his take-all-prisoners approach to drunk driving, the police union is upset. Houston, like many cities, regularly designates weekends and holidays “no-refusal” periods during which anyone suspected of drunk driving who won’t take a breath test is forced to give a blood sample. (Why drivers aren’t just forced to give a breath sample is a question for another blog.) In April, DA Anderson made the no-refusal period permanent and round-the-clock for all of Houston. And thanks to the pesky U.S. Supreme Court, which recently ruled that cops need a warrant to search your bloodstream, this takes resources.
None of the legal bodies debating this change seems to object to it as a potential erosion of civil liberties. To them, it’s all a matter of money and time, and both sides have engaged in less-than-airtight reasoning to justify their positions.
The Houston Police Officers’ Union says 24/7 no-refusals waste time because HPD officers don’t know how to handle the process efficiently. “They’re not going to be as savvy on how to do these warrants,” HPOU president Ray Hunt told the Houston Chronicle, “so it’s going to take them six to eight hours, and that means the officer is off the street for that entire time. It’s a major issue.” Notably, Hunt doesn’t say the process takes six to eight hours but that lack of officer savvy would make it take that long. But that’s weird for two reasons. One, HPD has done no-refusal weekends regularly for years, so many patrol officers are likely familiar with the process. Two, even if they aren’t, why couldn’t they be trained?
Prosecutors say the 24/7 no-refusal policy will actually save officer time because drunk driving cases involving a blood sample are more likely to end in a plea deal. That means sparing officers hours in court. Todd Keagle, chief of the DA’s vehicular crimes section, told the Chronicle, “If two officers are (in the courthouse) for six hours, for two days, that’s 24 hours of overtime.” Yes, and if three officers are in court for six hours for three days, that’s 54 hours of overtime. But most HPD patrol officers ride alone, so unless a back-up officer was also asked to testify, it seems likely that in many cases only one officer would be stuck in court. And while Keagle says judges often ask officers to stay for an entire trial, rather than just the part where they testify, that’s not standard, so it’s unclear how many hours officers are actually spending at trials that would have been avoided if the prosecution had a blood sample.
Defense lawyers say the policy change wastes resources because it would only apply to misdemeanors. In felony DWI cases, such as when someone has been seriously hurt or killed by a suspected drunk driver, blood draws are already standard if that driver refuses a breath test.
But in a letter to Byron Schirmbeck of Texas Campaign for Liberty, the DA’s office says the change won’t require any new resources at all. But even if it did, writes Assistant General Counsel Scott Durfee, “…money spent ensuring that sufficient evidence is gathered from intoxicated drivers to convict the guilty and exonerate the innocent is money well-spent.”
If any new money were being spent.
Which it’s not.
Unlike the rest of the voices in this conversation, Schirmbeck, whose group leans libertarian, also questions the policy’s cost to civil liberties. In his letter to the DA’s office, Schirmbeck asked what the county planned to do with its new influx of civilian blood. Durfee admitted that he “raises a difficult question.” “We recently asked the Attorney General for clarification on when such blood samples can be destroyed,” Durfee wrote, “and the Attorney General ruled that Texas law currently authorizes police agencies to destroy stored blood samples only in limited circumstances.”
The letter concludes, “Finally, we are not aware of any proposals to use these stored blood samples to create a DNA database.”