Beating a DWI case may soon get a lot tougher

I'm going to screw up, Andrea says to herself as she walks a straight line in front of a Dallas police officer. Only hours into what was supposed to be a relaxing Memorial Day weekend, Andrea is on the side of the road near the bar she just left on Lower Greenville Avenue. She thinks she's sober, but she has to prove it to this cop, and she's starting to doubt herself. I'm going to screw up.

It's a cold Friday night just after 11 p.m., and the 29-year-old now engages in a balancing act. She closes her eyes, holds out one leg and touches her nose. The officer points a flashlight at her face as her eyes track a red penlight that he moves back and forth. He asks her to count backward. Finally done, she thinks she has passed the tests.

DWI lawyer David Burrows in the hallway leading to his corner office, surrounded by framed not-guilty verdicts.
Mark Graham
DWI lawyer David Burrows in the hallway leading to his corner office, surrounded by framed not-guilty verdicts.
A woman arrested for DWI during a no-refusal weekend braces inside Lew Sterrett jail before being stuck with a needle. In her left hand she clutches a search warrant
that orders her to give up her blood.
Dallas Police Video
A woman arrested for DWI during a no-refusal weekend braces inside Lew Sterrett jail before being stuck with a needle. In her left hand she clutches a search warrant that orders her to give up her blood.

The officer thinks otherwise. He handcuffs her and places her in the back of a squad car headed to the Dallas County jail. Still in handcuffs, she's brought to a room to take a breath test, which she refuses. "I'd always heard that if you've had anything to drink, do not take it," she said recently at a restaurant, as she nervously toyed with a ring. "Don't blow! Don't blow!"

The immediate penalty for refusing the test is light: a 180-day license suspension, which a decent lawyer can easily reduce. But her refusal to take the breath test means the officer will be denied a valuable piece of evidence to prove she had been driving drunk if her case later goes to court.

This night in 2008 is different, though, and it's not over yet.

Andrea sits on a bench in a long hall inside Lew Sterrett jail. After about an hour, a cop hands her a fax. "We have a warrant for your blood."

"I'm not signing this," she says. Are you freaking kidding me?

"It doesn't matter," the officer says. "Either way, your blood is getting drawn tonight."

Andrea, who recounted her story with the condition that we not publish her full name, has the dubious distinction of being perhaps the first person arrested during the premiere weekend for an experimental Dallas Police Department program called "no refusal." Since last Memorial Day, the DPD has had four more no-refusal weekends, most recently this St. Patrick's Day. So far, 404 people have been arrested and, in some cases after being physically restrained, forced to give a blood sample.


In the video above, police draw a driver's blood for evidence in a DWI case.

Drivers stopped on suspicion of DWI can refuse to take roadside sobriety and breath tests, and about half of the nearly 4,000 people arrested annually in the city of Dallas for DWI refuse the breath test. The number of "total refusals" of both kinds of tests have been skyrocketing in the last year and a half, say officers, judges and lawyers. Drivers are getting smarter about the law, and DWI cases are getting tougher for police and prosecutors to win.

To counter that, police have arranged to have judges standing by on no-refusal weekends, ready to sign search warrants that allow officers to get blood from drivers whether they like it or not. The weekend before this St. Patrick's Day, 32 people were arrested for DWI, and about half refused to give up their blood voluntarily to a certified medical technician stationed at the jail. Two resisted even after being served with search warrants and were cuffed and strapped into a chair so their blood could be drawn.

Dallas' no-refusal program is part of a trend in DWI policing that is picking up momentum statewide—one that could quickly go beyond the experimental stage here if legislation crafted by the Dallas County District Attorney's Office passes in the Legislature. It cleared the Senate on March 30. Dalworthington Gardens, a small Tarrant County community, was the first arresting agency to go full-time with a blood-draw program in 2005, and more than 30 agencies across the state have contacted the town since then to learn how to replicate the program. Most recently, the Austin police chief announced he is ready to go full-time with the program, although he is being met with resistance from the American Civil Liberties Union and a grassroots group named Stop the Vampire Cops.

It's not hard to understand why police and prosecutors are looking for a new weapon to help get drunken drivers off the road. In 2007, Texas led the nation in the number of people killed in alcohol-related accidents, according to the latest statistics available from the National Highway Traffic Safety Administration. More than 100 people were killed in alcohol-related traffic accidents in Dallas County last year, or about 49 percent of traffic fatalities.

Alcohol floods the courts too. Around the courthouse, when lawyers talk about misdemeanors, what they really mean is DWI. That's not surprising, considering that two-thirds of the 875 misdemeanor cases that went to court last year were DWIs—which include drivers intoxicated by alcohol, drugs or both. Fully three-quarters of misdemeanor jury trials involve DWI, and defendants won 57 percent of cases heard by judges or juries.

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