Drunk License Holder in Friendswood Arrested

[wharvey]

I want to reiterate that I'm very pro-LEO and very anti-DWI. (Although I don't agree that LEOs should be doing blood draws.)

Drawing blood, not for donations like to a blood center, but for testing is a very simple thing to do. No license is required in Texas. There is definitely a skill to doing it and some are better than others, but the amount of training is extremely minimal to become proficient enough for this.

I rarely drink and don't drive when I do but, while drawing blood may indeed be simple I have to agree, a LEO has no business doing it. If they want a blood draw then take the person to a medical professional and have them do it. LEOs get upset when amateurs try to do their job, well I don't want an amateur poking me with any needles.

[wharvey]

EVERYBODY knows the dangers of drunk driving. My thought has been to elevate a DWI death to a murder charge as that foreknowledge shows intent. I have noticed some being prosecuted as second degree murder. That's where it should be for ANY dwi death IMHO.

I couldn't agree more. It has always totally infuriated me when a drunk driver kills some one and gets off with probation. That happened a few years ago in Louisville. A girl hit a car a couple were driving knocking them off a bridge. Got a couple of months and "shock" probation.

If she had gotten drunk and killed the two with a gun she would have been thrown under the jail. Either way the couple would be just as dead and the drunk should receive the same penalty.

[apostate]

If she had gotten drunk and killed the two with a gun she would have been thrown under the jail. Either way the couple would be just as dead and the drunk should receive the same penalty.

The same argument could be made if she wasn't drunk. (If she was sober and killed the two with a gun...)

[wharvey]

If she had gotten drunk and killed the two with a gun she would have been thrown under the jail. Either way the couple would be just as dead and the drunk should receive the same penalty.

The same argument could be made if she wasn't drunk. (If she was sober and killed the two with a gun...)

Depending how she did the killing. If she had shot the two in a drunken rage, then in my opinion it is murder and should be charged as such, just as she would be charged for the act if sober. If on the other hand she had gotten drunk at a party and some of the party goers go outside and she starts shooting a gun in the air. A couple of her bullets hit the couple killing them. This is an accident caused by stupidity and impaired judgement. (Sober and doing it is simply caused by stupidity and no judgement.) The shooting of the couple is accidental.

My point was that in each case the accidental deaths were at least partially caused by impairment due to intoxication. I think that both accidental deaths should be punished as severely. At this time deaths resulting from driving drunk result in a slap on the wrist compared to a drunken accidental shooting death.

(As an aside with regard to shooting guns in the air. I admit to having done it and I suspect many on the forum did at one time or other. Location and choice of weapon has a lot to do with how stupid it is. Of course the state of being sober or drunk plays a role in just how stupid one is being.)

[bayouhazard]

I think someone who kills someone because they were driving while drunk should get the same prison sentence as someone who kills someone because they were driving while texting.

I'm not sure what his has to do with a drunk standing in a parking lot who doesn't fight police and informs them he's carrying a gun.

[gigag04]

They are not randomly pulling people over because they feel like it.

. . . but what's to stop them?

I want to reiterate that I'm very pro-LEO and very anti-DWI. (Although I don't agree that LEOs should be doing blood draws.) I know DWIs are a serious problem, but making it easier to circumvent our rights to privacy and due process aren't the solution. That doesn't mean I have a good alternative, though.

I definitely support mandatory sentences for alcohol or illicit drug-related DWIs that result in injury or death. . . and I don't think the current penalties are stiff enough.

Regarding the OP, we're all crossing our fingers that CHLers will behave and stay out of the media, but the longer the program goes and the more popular it becomes, the percentages start to say that we're due for some high-profile incidents. It makes me sick to think about the power one reckless individual could have to change the course of public opinion on the matter. I doubt I'm alone in hoping a few people in my class wouldn't pass the test. . . the questions some of them asked in class showed they just didn't "get it".

Can you elaborate how the blood draw practice circumvents individual rights and due process?

[fickman]

They are not randomly pulling people over because they feel like it.

. . . but what's to stop them?

I want to reiterate that I'm very pro-LEO and very anti-DWI. (Although I don't agree that LEOs should be doing blood draws.) I know DWIs are a serious problem, but making it easier to circumvent our rights to privacy and due process aren't the solution. That doesn't mean I have a good alternative, though.

I definitely support mandatory sentences for alcohol or illicit drug-related DWIs that result in injury or death. . . and I don't think the current penalties are stiff enough.

Regarding the OP, we're all crossing our fingers that CHLers will behave and stay out of the media, but the longer the program goes and the more popular it becomes, the percentages start to say that we're due for some high-profile incidents. It makes me sick to think about the power one reckless individual could have to change the course of public opinion on the matter. I doubt I'm alone in hoping a few people in my class wouldn't pass the test. . . the questions some of them asked in class showed they just didn't "get it".

Can you elaborate how the blood draw practice circumvents individual rights and due process?

They are not randomly pulling people over because they feel like it.

. . . but what's to stop them?

I want to reiterate that I'm very pro-LEO and very anti-DWI. (Although I don't agree that LEOs should be doing blood draws.) I know DWIs are a serious problem, but making it easier to circumvent our rights to privacy and due process aren't the solution. That doesn't mean I have a good alternative, though.

I definitely support mandatory sentences for alcohol or illicit drug-related DWIs that result in injury or death. . . and I don't think the current penalties are stiff enough.

Regarding the OP, we're all crossing our fingers that CHLers will behave and stay out of the media, but the longer the program goes and the more popular it becomes, the percentages start to say that we're due for some high-profile incidents. It makes me sick to think about the power one reckless individual could have to change the course of public opinion on the matter. I doubt I'm alone in hoping a few people in my class wouldn't pass the test. . . the questions some of them asked in class showed they just didn't "get it".

Please do some research on the matter. No refusal blood draws are authorized by judged from courts of record via search warrants. All stops have to be based on probable cause of traffic code violation or reasonal suspicion I penal code or HSC violation.

I know. . . I wrote most of my point thinking about checkpoints, which weren't brought up in this thread.

I still disagree with LEO doing the blood draws. That needs to be done in a sterile environment by a medical professional. . . even if that means a paramedic in an ambulance.

[pcgizzmo]

Can you elaborate how the blood draw practice circumvents individual rights and due process?

To throw a chink into things how does a blood draw work if your a Jehova's Witness and it's against your religion to give blood? I'm not but someone could be. This would be very sticky if they were forced to give blood. Individual rights could be circumvented if you tied them to religion I would think.

[srothstein]

Can you elaborate how the blood draw practice circumvents individual rights and due process?

I can, sort of. And it is not one many people have considered yet, I think. It comes under the law of unintended consequences.

I have a right against unreasonable search and seizure. Clearly, this search is of questionable reasonability or some many would not be against it. This does not make it unreasonable, just call it into question. I also have the right to waive that right and consent to a search if I desire.

But my waiver must be given of my own free will. It cannot be coerced or forced. The SCOTUS has ruled this several times. It has also ruled that threatening to get a warrant is a form of coercion.

Now, Bexar and Comal counties have been heavily advertising that they have started no refusal policies every day. This is even flashed on the TxDOT street signs as a message in the area.

So, suppose a person is stopped in one of those counties, or somewhere that has a no refusal policy going on for a holiday, and asked for a breath sample. As he is considering this waiver of his rights and consent to a search, he remembers the advertising. He consents since he knows he really has no choice anyway. The consent should be thrown out by the court along with the results of the coerced search.

I am opposed to no refusal weekends because I see this as costing more than it is worth. It could throw out a lot of consensual breath tests putting a lot of drunks back on the street. It is also a violation of the principle of the law that specifically says I can refuse the breath and blood test.

It may be the libertarian in me, but I see it as a bad start on how we protect our rights. I also see it as unnecessary. For me, it is easier to make a DWI case when the person does not blow since my observations now carry more weight. Of all my DWI cases, the only one I remember losing (after a trial - I don't know about the ones that were plead out) was one where I had the suspect fail a breath test. She blew a .11 when the limit was .10 and the jury felt she wasn't drunk enough.

[johnson0317]

To throw a chink into things how does a blood draw work if your a Jehova's Witness and it's against your religion to give blood? I'm not but someone could be. This would be very sticky if they were forced to give blood. Individual rights could be circumvented if you tied them to religion I would think.

I routinely admit Jehovah's Witnesses that gave blood samples of part of their diagnostic run. I have never heard one say it is against their religion. They do, however, get a sticker on their chart stating they will not accept blood (after being asked if they wish that directive to be applicable).

RJ

[speedsix]

...don't have a cite, but I think we agree to be alcohol tested as part of the privilege of the driver's license...and can lose it if we refuse...one of the Texas LEOs'll come up for another donut and will know...

[Keith B]

...don't have a cite, but I think we agree to be alcohol tested as part of the privilege of the driver's license...and can lose it if we refuse...one of the Texas LEOs'll come up for another donut and will know...

That is where the rub comes in. There are conflicting laws in place. One statute states you have the right to refuse a BAC it is an automatic suspension of your license. However, when you get a drivers license it is supposed to be a consent that you will submit to a BAC test by signing it.

I personally am against the mandatory blood draw as I feel the law that states if you refuse to submit to a BAC it is an automatic suspension of your license. Either way, refusal or DWI you lose driving privileges if enforced properly. And, if only your first offense DWI, the judge might allow you hardship driving privileges.

Of course we all know that once someone has no license that they will not be driving.. yeah right.

[srothstein]

...don't have a cite, but I think we agree to be alcohol tested as part of the privilege of the driver's license...and can lose it if we refuse...one of the Texas LEOs'll come up for another donut and will know...

That is where the rub comes in. There are conflicting laws in place. One statute states you have the right to refuse a BAC it is an automatic suspension of your license. However, when you get a drivers license it is supposed to be a consent that you will submit to a BAC test by signing it.

Thank you both for getting me to reread the law. I found an interesting point in there about this discussion that we need to consider later.

But, this is not actually a contradictory law. The law is chapter 724 of the Transportation Code (http://www.statutes.legis.state.tx.us/D ... TN.724.htm" onclick="window.open(this.href);return false;) if anyone wants to read it.

The law says that the consent is presumed and still allows for a refusal under some conditions. It does specify when a draw can be forced, such as when there is a fatality involved. But it is just a suspension if you refuse under normal conditions. I honestly find this to be reasonable.

The part that I found and did not remember was in there makes the search warrant illegal. Well, it causes some confusion on the issue anyway. Section 724.013 says "Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer." The exception mentioned is the listing of mandatory blood draw cases like the fatality. This could really be an interesting court argument.

[Keith B]

...don't have a cite, but I think we agree to be alcohol tested as part of the privilege of the driver's license...and can lose it if we refuse...one of the Texas LEOs'll come up for another donut and will know...

That is where the rub comes in. There are conflicting laws in place. One statute states you have the right to refuse a BAC it is an automatic suspension of your license. However, when you get a drivers license it is supposed to be a consent that you will submit to a BAC test by signing it.

Thank you both for getting me to reread the law. I found an interesting point in there about this discussion that we need to consider later.

But, this is not actually a contradictory law. The law is chapter 724 of the Transportation Code (http://www.statutes.legis.state.tx.us/D ... TN.724.htm" onclick="window.open(this.href);return false;) if anyone wants to read it.

The law says that the consent is presumed and still allows for a refusal under some conditions. It does specify when a draw can be forced, such as when there is a fatality involved. But it is just a suspension if you refuse under normal conditions. I honestly find this to be reasonable.

The part that I found and did not remember was in there makes the search warrant illegal. Well, it causes some confusion on the issue anyway. Section 724.013 says "Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer." The exception mentioned is the listing of mandatory blood draw cases like the fatality. This could really be an interesting court argument.

I got a lesson on the conflicts when I sat in a void dire for a mandatory blood draw case. Defendant was forced to give blood after refusing a BAC and no accident with injury/fatality involved. Interestingly it appeared that I was quickly scratched by the prosecution and seemed to be favored by the defense attorney when they found out I had a law enforcement background. This is backwards to what they usually do in a criminal case, but I guess they felt I might be good at pointing out the contradiction in the laws. I think the thing that finally caused the defense to drop me from selection was when I said I would lean heavily in favor of the LEO if I had no other evidence to prove they were in error for the arrest.

[gigag04]

Any felony DWI will get a mandatory draw:

3rd or more

Child passenger

Additionally, for a collision, there doesn't have to be injury, just a person being taken to the hospital, either by friend, family, or medics.

Else, you need a warrant. And The law needs a clarification, since legislative intent is to allow for blood warrants signed by judges of a court of record. See the updated DIC-24 form - it will include warning about a warrant.