Statewide, no-refusal is expanding and here to stay

The defense bar naturally grouses over no-refusal. "Just having bloodshot eyes, the odor of alcohol on your breath, and the fact that you refused a field sobriety test. That gives them the right to take your blood," said Jamie "DWI Dude" Balagia, a local DWI defense attorney. "It's offensive."

Attorneys like Balagia have been challenging breathalyzer results in court for years, and recently even sought to get hundreds of cases dismissed over a former county contractor and breath test analyst, George McDougall, who retired last year after being diagnosed with "mild cognitive impairment."

Clay Abbott, DWI prosecutor with the TDCAA, says he doesn't understand the resistance to blood testing. "We have all these commissions looking at actual innocence, screaming and yelling that prosecutors should test any and everything possible and that we should never try any case without scientific evidence," Abbott said. "Yet the DWI defense bar has to feel the exact opposite way."

Whether the blood tests are any stronger in court is yet to be seen – local attorneys have yet to try a misdemeanor blood-draw case. However, last year Austin attorney Sam Bassett, former state Forensic Science Commission chairman, publicized problems with one no-refusal case in which his client's blood was tested in an Austin PD crime lab. While the initial test revealed a blood alcohol content at 0.10, Bassett, after a 10 month fight, got a court order to have the blood retested at an accredited, independent lab. The subsequent test put the driver's BAC at 20 percent lower, right at the legal limit.

Local DWI attorney George Scharmen pushed the Bexar County ME's office to allow tours with local defense attorneys to review the lab's blood-testing protocol. But after two tours with about 10 attorneys, the practice abruptly ended this summer without explanation, he says. Scharmen claims he saw faulty procedures that could possibly skew results.

"We've learned that no-refusal is not the end of defense," Scharmen said. "These machines can be very precise, but they can also be precisely wrong."

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