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Data from blood warrants indicates 'good stops'

By Judith Pannebaker BCC Editor

Bandera County Attorney John Payne recently discovered something after statistics were analyzed from so-called "blood warrants" and breath analysis tests performed on motorists suspected of driving while intoxicated.
The "hot off the press" statistics of the past year were revealed during the 2010 DWI Regional Training, sponsored by Payne's office. The all-day session, geared for prosecutors and law enforcement officers, was held Wednesday, Feb. 16, at the Purple Sage Ranch Conference Center.
Of a total of 59 blood warrants drawn from Oct. 24, 2009, through Dec. 26, 2010, toxicology reports indicated that 54 motorists had blood alcohol levels in excess of 0.08, the point at which a driver or motorcyclist is considered legally intoxicated. The highest levels of blood alcohol concentration included 0.39, drawn in early May 2010; 0.35, drawn in early December 2010; and 0.34, drawn in late December. The remainder of the blood draws showed blood alcohol levels ranging from 0.13 to 0.32, which represented 91.5 percent of the total number of blood draws.
During that same time period, two motorists had blood alcohol levels of 0.08 - or 3.4 percent of the total - which is still considered legally intoxicated, according to Payne. At 0.027, 0.060 and 0.05 blood alcohol levels, three motorists' reports were less than 0.08, representing just 5.1 percent of all motorists' tests.
According to W. Clay Abbott, who serves as resource prosecutor for the Texas District and County Attorneys Association in Austin, as of Sept. 1, 2009, Chapter 724 of the Texas Transportation Code requires an officer to draw blood without a warrant if:
• the subject, arrested for an offense under Penal Code Chapter 49, refuses to provide a breath sample and a person other than the suspect "has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment";
• the suspect is arrested for DWI with a child passenger under Penal Code §49.045;
• the officer credibly believes that the suspect can be charged with felony DWI due to two prior Chapter 49 DWI offenses or one prior intoxication manslaughter; or
• the officer credibly believes that the suspect committed DWI and was previously convicted of intoxication assault or DWI with a child passenger. This offense would be enhanced to a Class A misdemeanor.
In a report prepared in 2009, Abbott wrote: "When making a DWI arrest, the officer must request a breath or blood sample. If he has a reasonable belief that any of the above additional circumstances exist, then a blood sample must be drawn. It's that simple. The officer has no discretion to call an early end to the shift, nor does he need a search warrant for blood."
Abbott served as the main speaker for last week's DWI training session. In an interview, he said that the first "no refusal" warrant on a suspected intoxicated driver was issued in Lubbock County in 2004 "Now they're routinely conducted across the state," Abbott said
In Bandera County, the first mandatory blood draw for alcohol testing took place on Feb. 27, 2010, after a suspected inebriated motorist refused to participate in an intoxilyzer test.
Payne also offered statistics taken from breath analysis or intoxilizer tests performed from Dec. 24, 2009, through Dec. 31, 2010. Two separate tests were conducted on each suspected inebriated motorist or cyclist. In each instance, both tests indicated nearly the same level of intoxication.
Of the 53 motorists tested, 51 or 96.2 percent of the sampling blew above 0.08 with the three highest being 0.255, 0.251 and 0.215. Two motorists - 3.8 percent - blew 0.060 and 0.027.
Patrol deputies with the Bandera County Sheriff's Office routinely use the Breathlizer after conducting field sobriety tests.
"Stats in this county show you're doing a good job," Abbott told the law enforcement officers attending the conference. "If the blood alcohol level turns out to be below 0.08, it doesn't mean you made a bad call."
"I am very pleased with the current statistics and results of our 'no refusal' policy which was instituted last April. Since that time, in over 100 combined breath and blood tests, only four suspected and arrested drivers exhibited less than the .08 blood alcohol level, indicating intoxication as defined in our Texas Penal Code," Payne wrote in an email. "I believe that this is clear evidence that our officers - including the Bandera Sheriff's Department, Bandera Police Department, DPS, constables and game wardens - are doing an outstanding job with regard to their DWI or BWI stops."