To be fair, the officer did provide a breath test of .02, but I have had clients give all zeros on the breath machine, to only be served with a warrant for their blood. Further, even a representative from the Association admitted that the officer wobbled during the walk and turn test and was stopped because the officer swerved into another lane.

Also, supposedly the officer had a physical impairment with one of his eyes, and that that may have lead to more tests. Well, when my clients have physical ailments that could affect the tests, the arresting officer always claims to “take it into consideration.” Now I am not sure how they do that, because even a young man I represented that only had one leg, still got arrested after the officer assured him he would “take it in to consideration.”

Now, don’t get me wrong, I think this officer, after blowing .02, should have been let go, but for heaven’s sake, let’s make the rule uniform. I find it hypocritical for the Association to complain that an officer had to give blood, but support a “No Refusal” policy. Like my grandma said, “what is good for the goose is good for the gander.”

Here’s the list for 2009, the address and the number of motorists who reported having their last drink at the locations:

J. Blacks, 710 W. Sixth Street, 27
The Ranch, 708 W. Sixth Street, 22
Rain, 217 W. Fourth Street, 17
Maggie Mae’s, 323 E. Sixth Street, 16
Blind Pig, 317 E. Sixth Street, 16
Oilcan Harry’s, 211 W. Fourth Street, 15
Fado, 214 W. Fourth Street, 15
Pure, 419 E. Sixth Street, 13
Cedar Street, 208 W. Fourth Street, 13
Union Park, 612 W. Sixth Street, 12
Fuel Nightclub, 607 Trinity St., 12
Lavaca Street Bar, 405 Lavaca St., 12
Key Bar, 617 W. Sixth St., 12
Jackalope, 404 E. Sixth St., 12
Sherlock’s, 9012 Research Boulevard, 11
Shakespeare’s, 314 E. Sixth St., 11
Antones, 213 W. Fifth St., 11
Gingerman, 304 W. Fourth St., 10
Lucky Lounge, 209 W. Fifth St., 10
Dizzy Rooster, 306 E. Sixth, 10
The Yellow Rose, 6528 N. Lamar Blvd., 10
Charlie’s, 1301 Lavaca St., 10
Groove, 101 W. Fifth St., 10
Ace’s Lounge, 222 E. Sixth St., 9
Red Fez, 209 W. Fifth St., 9
Molotov, 719 W. Sixth St., 8
Qua, 213 W. Fourth St., 8
219 West, 219 W. Fourth St., 8
Six, 117 W. Fourth St., 8
Speakeasy, 412D Congress Ave., 8
Stubb’s, 801 Red River, 8
Little Woodrow’s, 520 W. Sixth St., 8
Eddie V’s, 301 E. Fifth St., 8

Travis County’s central booking facility had been the place where APD took their suspected DWI folks for the forced blood draw. APD would rely on the Sheriff’s nurses to do the forced blood draw. (If the person refused, they would literally strap them in a chair so that the person couldn’t move their arms, and then stick them with the needle) The Sheriff’s Department nurses stopped taking blood samples on January 1. The Sheriff’s Department has finally realized that the nurses main function should be to treat inmates, not collect evidence. Further, they are deeply concerned about having to give nurse’s overtime pay to appear in court after having been the one that draws the blood.

Since the Sheriff’s Office stopped doing the blood draws, APD started taking suspects to the hospital for the blood draws. (I can’t verifiy this, but I heard that the hospital was charging APD $400.00 per blood draw.) The Hospital representatives have now told APD they don’t want them to bring suspects to jail for blood draws. The Hospital staff are worried about lawsuits, and are concerned because these types of blood draws are not being done for medical reasons. Further, the Hospitals are worried about who will pay for the nurse’s time when they are called to court to testify about the procedure they used to draw the blood.

Chief Acevedo thinks he has figured out a way around these problems. APD contracted with a private phlebotomist to draw the blood of folks on Halloween weekend and New Years Eve. APD agreed to pay the phlebotomist for three eight hour shifts during these weekends. What APD didn’t contract for was pay for this phlebotomist when she is drug into court to testify about the blood draws. I predict there will be a lot of screaming from the phlebotomist when she finally figures out that the money she received per hour will now be reduced by the number hours she has to sit in court.

In the Statesman article, an “expert in blood draws” states that “the state laws are clear that nurses and hospitals are protected from such suits. What the “expert” appears to be referencing is Section 724.017 of the Texas Transportation Code. The relevant section states:

The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures.

However, this “expert” left out the final sentence to section (b) “This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.” Now, what the “expert” seems to be forgetting is that it will ultimately be up to a fact finder (judge or Jury) to determine if negligence took place.

Also, I bet no one informed the phlebotomists that they could be help liable for the blood draws either.

APD is treading on thin ice on this issue, and the sad part is, they either don’t even realize it, or they don’t care.

In December 2006, Gregg County commissioners approved a grant to participate in the statewide “Drink, Drive, Go To Jail” campaign with the funding being provided by the Texas Department of Transportation.

Captain Ken Hartley with the Gregg County Sheriff’s Department says; “We’d just like to remind people to drive responsibly. Don’t drink and drive. Enforcement will be out there and it’s not worth that chance and certainly not taking a chance of hurting yourself or others.”

Well, here lies the rub….it is not against the law to drink and then drive as long as two things are true: 1) you are at least 21 years of age, and 2) you are not intoxicated. I believe that the Sheriff is setting up a great argument for the fact that people are going to be arrested that don’t meet the above criteria. The police and prosecutors always want to lower the standard, but it just isn’t the law. Another example of their attempt to shift the standard is the “Buzzed driving is Drunk Driving” billboards. Neither Buzzed driving, nor Drunk Driving is the standard…..Intoxication is. I certainly hope a defense attorney in Gregg County is paying attention to this and is willing to use this to show the juries there that THIS Sheriff’s deputies have the potential for making wrongful arrests.

While we all know the Austin Police practice a “Drink, Drive, Go to Jail” policy, the administration has been smart enough not to voice it publicly.

My client REFUSED THE BREATH TEST, but she performed the Standardized Field Sobriety Tests (SFSTs), which she was unaware she could refuse.

The officer reported that my client emitted a strong odor of alcohol from her breath and had bloodshot, glassy eyes. The officer said my client displayed all 6 of the possible clues of intoxication on the HGN (eye jerking) test. The officer said that my client displayed several clues on the Walk & Turn test, including: stepping off line, failing to touch heel to toe, stopping during the test and turning incorrectly. The officer further stated that my client exhibited 3 of the 4 possible clues on the One Leg Stand test, including: using her arms to balance, swaying and putting her foot down 4 times.

We took the case to court and let the State know that we were going to fight. Eventually the prosecutor agreed to DISMISS THE DWI and my client pled to a non-DWI offense and paid a small fine.

My client REFUSED THE BREATH TEST and some of the Standardized Field Sobriety Tests (SFSTs). However, she did perform the HGN (eye jerking) test, which she was unaware she could refuse.

The officer reported that my client emitted a strong odor of alcohol from her breath, had bloodshot, glassy eyes and confused speech. The officer further stated that my client admitted to having 4 tall rum and cokes. The officer said my client displayed all 6 of the possible clues of intoxication on the HGN (eye jerking) test. The officer stated that my client had trouble keeping her balance and that she refused to complete the remaining field sobriety tests, including the Walk & Turn test and the One Leg Stand test.

We took the case to court and let the State know that we were going to fight. Eventually the prosecutor agreed to DISMISS THE DWI and my client pled to a non-DWI offense.

My client REFUSED THE BREATH TEST, but performed the Standardized Field Sobriety Tests (SFSTs), which she was unaware she could refuse. She should have known she didn’t have to do that tests, since this was not her first DWI arrest.

The officer reported that my client emitted a strong odor of alcohol from her breath. The officer said my client displayed all 6 of the possible clues of intoxication on the HGN (eye jerking) test. The officer said that my client displayed 6 of the 8 possible clues on the Walk & Turn test, including: losing balance during the instructions, stepping off line, taking the wrong number of steps, failing to touch heel to toe, stopping during the test and turning incorrectly. The officer further stated that my client exhibited all the clues on the One Leg Stand test, including: using her arms to balance, swaying, hopping and putting her foot down.

We took the case to court and let the State know that we were going to fight. Eventually the prosecutor agreed to DISMISS THE DWI and my client pled to a non-DWI offense and paid a small fine.

My client REFUSED THE BREATH TEST, but performed the Standardized Field Sobriety Tests (SFSTs), which she was unaware she could refuse.

The officer reported that my client emitted a strong odor of alcohol, had bloodshot eyes, slurred speech and great difficulty standing and filling out the accident forms. The officer said my client displayed all 6 of the possible clues of intoxication on the HGN (eye jerking) test. The officer said that my client failed to touch heel to toe, stepped off line and used her arms to balance during the Walk & Turn test. The officer further stated that my client used her arms to balance, swayed and put her foot down four times during the One Leg Stand test.

We took the case to court and let the State know that we were going to fight. Eventually the prosecutor agreed to DISMISS THE DWI and my client pled to a non-DWI offense and paid a small fine.

My client REFUSED THE BREATH TEST, but she performed the Standardized Field Sobriety Tests (SFSTs), which she was unaware she could refuse.

The officer reported that my client emitted a strong odor of alcohol from her breath and that she had glassy, bloodshot eyes. The officer said my client displayed all 6 of the possible clues of intoxication on the HGN (eye jerking) test. The officer said that my client lost balance during the instructions, turned improperly, failed to touch heel to toe, stepped off line and used her arms to balance during the Walk & Turn test. The officer further stated that my client put her foot down and swayed during the One Leg Stand test.

We took the case to court and let the State know that we were going to fight. Eventually the prosecutor agreed to DISMISS THE DWI and my client pled to a non-DWI offense and paid a small fine. This will allow us to have the DWI arrest removed from her record.

My client REFUSED THE BREATH TEST, but he did perform the Standardized Field Sobriety Tests (SFSTs), which he was unaware he could refuse.

The officer reported that my client emitted a strong odor of alcohol from his breath and had bloodshot, glassy eyes. The officer said my client displayed all 6 of the possible clues of intoxication on the HGN (eye jerking) test. The officer said that my client refused to follow instructions during the Walk & Turn test. The officer stated that my client lost his balance during the instructions for the test, turned improperly, failed to touch heel to toe and began the test before being instructed to. The officer further stated that my client put his foot down, swayed and used his arms to balance during the One Leg Stand test.

We took the case to court and let the State know that we were going to fight. Eventually the prosecutor agreed to DISMISS THE DWI, this is particularly good because it will allow us to have the DWI arrest completely erased from his record. THis win was especially nice because my client is in the education profession and would have lost his job of 18 years had he been convicted.