NEW BRAUNFELS — If you’re suspected of drinking and driving, the police may soon be able to make you an offer you can’t refuse.

The “no refusal” holiday weekend is back in time for Thanksgiving, but mandatory blood testing by warrant could become a year-round approach to discouraging those who imbibe and drive, said New Braunfels Police Chief Tom Wibert.

“We’re taking a hard look at becoming a ‘no-refusal’ department,’” Wibert said in a Friday interview. “Perhaps we can do that next year.”

Numbers culled from the Comal County District Attorney’s records show 344 misdemeanor cases for DWI in 2009.

There were 48 DWI (second offense cases) that year, and 25 DWI (third offense — felony cases).

The NBPD has been doing the blood search warrant procedure for a year on ‘no-refusal weekends’ on holiday weekends.

Here’s how no-refusal works:

If the police stop a suspected drunken driver and ask for a blood sample, and the driver refuses to give a sample voluntarily, the police process the suspect with a warrant. The officer drafts an affidavit of what he has observed — reasons for a warrant — and takes it to a judge, regardless of the time of day.

The judge then meets the officer and suspect at the hospital, signs the warrant, and the suspect is under a court order to give up a sample.

It’s a bit of extra work — at least initially.

Four years ago, under Tom Wibert’s leadership, the East Lansing (Mich.) Police Department went “no-refusal.” As it became known that the police weren’t just going to “roll over” when suspects refuse to give a sample, the system eventually gained cooperation from suspects, Wibert said.

“We made the decision we wouldn’t just stop (with a suspect’s refusal). The judge said, ‘Wake me up anytime.’

“The more we do it, the less we have to do it, because people know if they refuse, it’s going  to happen anyway,’” he said.

For police officers, faced with the gruesome task of being first on the scene at tragic accidents caused by drunken driving, there is strong support for a “no-refusal” policy, Wibert said.

“When you talk to cops about it, it’s like preaching to the choir. They’re the first ones on the scene. They’ve seen the carnage,” he said.

The 81st Texas Legislature passed a number of laws affecting DWI investigation and prosecution. Among them, significant changes to the mandatory drawing of blood in arrests in more situations. There’s implied consent if they’re passed out, or if it’s a potential felony DWI - the suspect has two prior convictions, or if they had a child in the car.

Now if a victim from an accident has been injured and transported, law enforcement officers can get a mandatory blood sample.

As a reliable method of determining blood-alcohol levels, blood drawing has become more highly regarded among jurors familiar with blood tests for medical conditions, said Mel Koehler of the Comal County Criminal District Attorney’s office.

“They trust it,” he said.

Koehler likes the idea of New Braunfels being a no-refusal zone.

Noting other sobriety tests like the horizontal gaze nastagmus test that measures jerky eye movements associated with intoxication and even breath analysis, Koehler said blood tests reign in the minds of jurors. He cited a grimly humorous quote he’d heard at the Texas District & County Attorneys Association: “If it bleeds, it pleads.”

“DWIs, unlike any other crime, are opinion crimes. Normally, you don’t have opinion in crimes. The most important thing with blood tests is we’ve got evidence people believe in. (Jurors) trust that blood test,” he said. “It makes our cases go light years beyond the reasonable doubt we’re required to prove ... Scientific evidence makes it easier to say ‘Guilty.’”

And even though first and second DWI offenses aren’t felonies, they get habitual drunken drivers to the felony prosecution stage, said Comal County Chief Felony Prosecutor Sammy McCrary.

“That’s where it will really have an impact,” he said.

Recalling a case where a drunken driver pulled over on I-35 in New Braunfels who was inebriated enough to think he was near the intersection of I-35 and I-410, McCrary said he would welcome a no-refusal policy year-round.

“If you get a blood test and it’s .30, it cuts down a lot of debate with the defense lawyers,” he said.

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(2) comments

John Wells

Internet research of this procedure shows that it actually levels the playing field. In Texas there have been very few of these cases that actually go to court no matter the income level of the person arrested. But with other DWI cases it seems that if you can afford a high priced DWI attorney you have a greater chance of getting off scott-free.

Pete Williams

Let's have a discussion on this. I certainly do not want tragedies to happen because of DWI offenders and especially repeat offenders.

But, regarding this report. how legal is this? Is this "blood test" rock-solid legal, without testing Constitutional limits?

Because, if it is questionable, this new "direction:" will mean more poor people suffer the consequences while richer peope have lawyers to get them off scott-free.

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