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Will Bexar County’s no-refusal blood draws dismantle the effectiveness of traditional DWI defense?

Photo: Chuck Kerr, License: N/A

Chuck Kerr

District Attorney Susan Reed has been on a steady crusade for over two years to push Bexar County into full-time no-refusal territory, setting up a legal framework to draw blood from any suspected drunk drivers who refuse a breath test any day of the week. And by late October, just before Halloween weekend, she got her wish when, according to her office, San Antonio became the state’s largest metro area to implement a round-the-clock no-refusal policy. It was made possible by a $1.4 million one-year Texas Department of Transportation grant paying for overtime sheriff’s deputies, city cops on DWI patrol, and nurses ready to draw blood from DWI suspects should a judge approve it.

Like many DWI lawyers across the country, local attorney Phil Stauffer cries foul over the policy, calling no-refusal “barbaric” and an affront to civil rights. “I think Susan Reed has way overstepped her bounds. She’s now attempting to do the job of the Legislature and not the district attorney,” he charges.

The county first rolled out so-called no-refusal weekends in May 2008, at first only during major holiday weekends known to see an influx in sauced drivers, then pushing for no-refusal every weekend (like clockwork, from 5 p.m. Fridays to 6 a.m. Mondays) by the start of 2011. And since the start of Reed’s no-refusal experiment, Bexar County has seen intoxication manslaughter cases cut in half, along with a sizable decrease in DWI arrests, according to Assistant District Attorney Chip Rich with the DA’s DWI Task Force. “I handle all the intoxication manslaughter cases in the county, and we just see the death, we see the serious bodily injury cases continually coming in,” he said. “If we’re reducing those types of results, having less and less of those victims, than it’s worth it.”

No-refusal went full-time, seven days a week on October 24. Today, if drivers refuse to blow into a breathalyzer in Bexar County, cops cart the suspect off to the Bexar County magistrate’s office where they are forced to give up blood if an on-call judge approves a search warrant. Rich says the DA’s office keeps someone staffed at the magistrate’s office around the clock to process and push for blood warrants. That blood’s then tested by the county medical examiner’s office and entered into evidence against a driver if charges are filed.

The impetus is two fold: DWI cases can languish in county courts for years, Rich insists, clogging the system while defense attorneys take advantage of the failing memories of arresting officers called to testify on arrests. And no refusal, he says, scores more convictions and quickly, all the while scaring drunks out from behind the driver’s seat.

Stauffer says he still advises drivers to “refuse everything, even in light of this no-refusal garbage, because something can always go wrong with a warrant.” And defense attorney Jamie Balagia, who dubs himself the “DWI Dude,” took out a full-page Express-News ad this spring along with another local DWI lawyer slamming no-refusal policies. Egregious DWI cases, he notes, already call for a mandatory blood test, like if a suspect’s found driving with a child in the car or in cases of intoxication manslaughter. “One of my biggest complaints is the fact that these magistrates, what kind of review are they getting? How many warrants have they refused to sign? We’re never given that information,” Balagia said.

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