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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

County and police officials have yet to release records for how many blood warrants have been granted versus those requested by police since full-time no-refusal went into effect — the only true way to determine if judges are “rubber stamping” no-refusal blood warrants, as Balagia and Stauffer charge. When the DA’s office announced the new 24/7 no-refusal policy this fall, it said blood samples were secured in nearly 2,000 DWI cases so far this year, over half of which were taken under no-refusal blood warrants. And the no-refusal warrants the DA’s office pushes for typically fly, Rich says. “I’d say that for the most part it will be the majority [of warrants],” he said. “We have a very good success rate in securing those warrants.”

Nationally, about one in four of drivers pulled over for suspected DWI cases refuse to take a breath test, says the National Highway Traffic Safety Administration. By 2010, the NHTSA started posting no-refusal “tool-kits” on its website, even providing sample blood-draw warrants in hopes of exporting no-refusal policies around the country. And the Administration points to the “Texas Example,” noting that statewide refusal was at about 50 percent before several Texas jurisdictions started conducting no refusal weekends in 2005. For instance, in 2010 in Montgomery County, they say, test refusal rates dropped from a peak of 50 percent to 10 percent in 2010.

Statewide, the Texas District and County Attorneys Association insists that the increase in blood search warrants has led to fewer jury trials in DWI cases, more guilty pleas, and plenty more convictions. In a legislative update to members in 2009, TDCAA executive director Rob Kepple wrote, “If it bleeds, it pleads.”

It may be to early to predict how these no-refusal blood-draw cases fare once, and maybe even if, they start heading to trial en masse. Balagia has yet to go to trial on a no-refusal case, but currently has about two dozen cases on deck, with more coming in daily, he said. Since the rollout of the new policy, Stauffer says his office sees some 15 to 20 no-refusal cases walk through his door monthly. “It’s all we see now, and I’m certain we’re gonna start seeing a lot more of them,” he said, predicting it will be at least a year before any of those cases start to hit trial.

But in March, the DA’s office lauded its first no-refusal blood-warrant trial, perhaps offering an indicator for how these cases could play out down the road. A jury returned a guilty verdict in less than 30 minutes, Reed’s office said, when test results from a search-warrant blood draw showed the defendant had a .22 blood alcohol content, nearly three times the legal limit of .08. D


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