Using Blood Warrants: The "No Refusal" Weekend
You may have noticed in the larger urban areas of the state the increased use by prosecution of "no refusal" weekends, especially during holidays that are considered high risk for impaired driving. In an effort to combat the increasing trend toward breath test refusals, law enforcement and prosecution have targeted these high-risk weekends and have arranged to have a search warrant issued for the blood of any suspected impaired driver who does not consent to a breath test.
Although the process varies slightly from jurisdiction to jurisdiction, generally if a driver arrested for DWI has refused to provide a breath sample, an officer can call an available judge (the jurisdictions typically have a few judges “on call” at all times of the day and night) and request a warrant. The judge then swears in the officer over the phone, and the officer faxes the warrant forms to the judge. The judge reviews the information and can sign the warrant and fax it back to the officer. The officer then takes the arrested driver to a physician, nurse, or phlebotomist (a person trained in drawing blood) to obtain the sample. In a few jurisdictions, law enforcement officers are being trained as phlebotomists. Initially, blood samples were being taken to the Department of Public Safety for analysis; however, because of significant backlog and resultant delay, most jurisdictions are now submitting blood samples to private labs for analysis, and receiving a three to five day turnaround on results.
A disadvantage of the warrant system is that it can add several hours to the arrest process because the officer has to complete the forms, contact a judge and wait for warrant approval, and transport the offender for the blood draw and then wait for the sample.
Another disadvantage is that there are monetary costs involved with obtaining blood samples, either paying qualified people to draw the blood sample, or phlebotomy training for officers. There are also the costs of blood kits and lab fees for analyzing the samples. Some jurisdictions are considering offsetting these costs by having the defendant reimburse the County through offender fees if the defendant is granted probation.
A significant advantage is that the percentage of defendants who consent to submitting a breath sample has increased significantly, and the blood draw cases have resulted in excess of a 90% conviction rate.
For more information on this subject, NHTSA has published a short report entitled The Use of Warrants for Blood Draws: One Promising Solution to the Issue of Breath Test Refusals in DWI Cases. Click here to view the report.
Do Variations in How the HGN Is Administered Affect the Validity of the Test?
Recent research conducted by the Southern California Research Institute looked at several factors to determine if their variation would affect the validity of the HGN test. The factors considered were: variation in the speed of the stimulus, variation in the vertical position of the stimulus, distance of the stimulus from the participant’s face, and variations in the participant’s vision.
Some courts have accepted arguments that variations from standard procedures in HGN administration may affect its validity and as a result render HGN testimony inadmissible. The effect of deviations from standard procedure on HGN scores has never been systematically studied. In addition, questions have been raised about the validity of the test when a suspect has functional vision in only one eye. To ascertain whether minor variations in procedure affect the validity of HGN tests, the Southern California Research Institute, under contract from NHTSA, examined variations in HGN administration through laboratory experiments and field data collection.
The results of the research indicated that minor variations in the administration of HGN (one second stimulus speed vs. the standard two second stimulus speed, or varying the level of stimulus from the standard 2 inches above the eyes to 4 inches above the eyes) did not significantly affect in the officer's ability to predict impairment. Additionally, those errors that did occur were in the defendant's favor, with the officers failing to find impairment when it was actually present.
You can access the entire research monograph, entitled The Robustness of the Horizontal Gaze Nystagmus Test (36 pages plus appendices), from www.nhtsa.dot.gov.
The National Center for DWI Courts Is up and Running
For many years, judges and DWI court team members who desired training and support had to rely upon the National Drug Court Institute, a subsidiary of the National Association of Drug Court Professionals. NDCI has always been a marvelous job designing and implementing DWI court team training, based on the successful drug court model, but specifically designed for dealing with addicted alcoholics. Because of their success in dealing with this troublesome population, the number of DWI courts is growing exponentially across the United States. Recognizing this, the Board of NADCP, earlier this year created the National Center for DWI Courts and hired its first Executive Director. The first issue of the newsletter from the National Center for DWI Courts, entitled The DWI Court Reporter was published in March of this year. Further information about NCDC and its website are contained in the newsletter.
Are Mexican Drivers Licenses and Insurance Policies Valid in Texas?
Our friends at the Municipal Courts Education Center have provided us with a copy of their journal which contains several excellent articles discussing the validity of drivers’ licenses and insurance policies issued in Mexico, and also discussing the firearm admonishments for family violence convictions in misdemeanor courts. To read these and other excellent articles, check out The Journal.