Five years ago, when Austin police launched a controversial effort to draw blood from suspected drunken drivers on certain holiday or high-traffic weekends, they claimed the evidence would help clinch their cases and lead to the conviction — and punishment — of more DWI suspects.
While an American-Statesman analysis of two years of data shows that appears to be happening in Travis County, it is not by a large margin.
Seventy-five percent of drunken driving suspects subjected to court-ordered blood tests on high-traffic weekends in 2011 and 2012 were eventually punished for that crime, compared with 65 percent of all others arrested for DWI in those two years, the newspaper found.
That statistic provides a first glimpse into one way of gauging the effectiveness of such no-refusal weekends, a signature effort of Police Chief Art Acevedo in his quest to reduce drunken driving on Austin streets.
Despite the growing use of blood evidence in DWI cases and its cautious acceptance by a wary public, little research has been conducted statewide on the outcome in the courtroom.
Using data provided by the Police Department, the American-Statesman examined all DWI arrests from “no-refusal weekends” — when police obtain a search warrant for a suspect’s blood after he or she declines a breath test — and the outcomes of more than 400 cases that were resolved.
Though the American-Statesman spent several months analyzing thousands of local cases, it was hindered in answering several pertinent questions because Travis County courts lack the necessary data.
One of the questions involved how frequently suspects from no-refusal weekends plead guilty, thus easing the burden on the court system, versus how often they went to trial and were found guilty by a jury.
Additionally, the larger pool of DWI suspects to which the newspaper compared no-refusal ones might also have included an unknown number of instances in which a driver had blood drawn or provided a breath test. Police said that generally, less than 50 percent of drunken driving suspects submit to a breath test, but they did not have an estimate on how frequently they seek blood draws for traffic stops not occurring on no-refusal weekends.
What the newspaper did find — that no-refusal arrests are more likely to end in a DWI conviction — raised further questions for some, especially defense lawyers and blood draw opponents, about the effectiveness of no-refusal programs.
“Sticking a needle in someone is pretty invasive, and when you are getting percentages (of suspects punished) like that, to me, it’s not worth it,” said Brian Roark, an Austin defense lawyer who previously prosecuted misdemeanor cases at the Travis County attorney’s office.
The comparatively higher rate of DWI convictions from no-refusal weekends comes at a time when the percentage of fatal crashes linked to intoxication has increased. In 2011, police estimated that about 25 percent of fatal crashes involved intoxicated drivers — a percentage that they said rose to 35 in 2012.
The number of blood samples also led in recent months to a chronic backlog at the Police Department crime lab, causing the City Council this spring to pass an emergency resolution to hire more staff.
At a minimum, police say, their efforts serve as a deterrent for people who might otherwise drive drunk, particularly on no-refusal weekends, which include New Year’s Eve, Mardi Gras, Memorial Day, July Fourth and Halloween.
“I am convinced that people make better choices because it is a no-refusal weekend,” Acevedo said.
Prosecutors cite numerous advantages with blood evidence. Among them, they said, is that jurors appear to favor the results of a blood analysis more than a breath test.
“There is a lot of room for argument with the breath test, but your average jury is familiar with blood tests and their accuracy,” said Dan Hamre, a Travis County misdemeanor prosecutor. “There is a comfort level because we all do blood tests in our daily lives.”
New legal frontier
The use of blood evidence in DWI cases — and later, the advent of no-refusal weekends — was controversial from the moment it began.
Under Texas law, police were already required to take blood samples from DWI suspects who had been involved in a car crash that led to a serious injury or death; generally, they did not have to obtain a search warrant to do so.
But with most other DWI suspects refusing to take a breath test, making prosecutions more difficult, officers and prosecutors in the Texas Panhandle expanded their use of search warrants — usually reserved to search someone’s home or business in more serious crimes — to gather blood evidence on those more routine traffic stops.
Prosecutors and law enforcement officials said at the time that their use of blood evidence represented a toughened approach in reducing the number of alcohol-related deaths in their communities.
Yet defense attorneys and others said obtaining blood samples from drunken driving suspects was an unnecessary invasion. They contended that police should be confident in their cases without taking that step and that they should rely on an officer’s observations or a suspect’s demeanor on a videotaped roadside sobriety test to prove their case.
Despite the controversy, the notion of obtaining blood evidence began sweeping the state, and police and prosecutors in the Houston area branched out even more, beginning no-refusal weekends and launching a practice that was soon adopted in other Texas cities.
The use of blood evidence in DWI cases also has opened a new legal frontier: In courtrooms across Texas, it changed how DWI cases were handled. In some instances, prosecutors and defense lawyers had to become novice scientists and chemists, learning the laboratory details of how blood should be drawn and stored in order to avoid altering test results.
In April, the U.S. Supreme Court ruled that police officers cannot always take blood samples without a search warrant. Although Austin police had routinely sought warrants on no-refusal weekends, they did not have a policy requiring them do so at other times for suspects who had been in a serious or fatal crash. Acevedo enacted such a policy after the Supreme Court ruling.
Even before Acevedo arrived in Austin in July 2007, local police had begun seeking blood samples more frequently from suspects who refused breath tests. A little more than a year later, Acevedo solidified the practice, announcing plans for the city’s first no-refusal operation for Halloween in 2008.
Such operations have since continued about 10 to 12 times a year.
Officials said that while the no-refusal efforts have made Austin streets safer, they also have come at additional cost to taxpayers: Since January 2011, police have paid about $150,000 in overtime to patrol during no-refusal weekends.
This spring, the city of Austin also hired three new chemists for its crime lab for about $320,000 annually in response to complaints from judges and prosecutors of a backlog of more than 1,100 blood samples waiting to be tested in misdemeanor and felony cases.
As of last week, officials said that backlog had been reduced to 105 cases.
Looking at evidence
Statewide, there has been little research on the outcome of DWI cases that involve blood evidence, no-refusal weekends or both.
Montgomery County Assistant District Attorney Warren Diepraam has done perhaps the most conclusive research. He said that in his county last year, cases that had no blood or breath evidence resulted in a not-guilty verdict about 30 percent of the time, but that the county had no not-guilty verdicts in blood cases.
Tarrant County assistant district attorney Richard Alpert, one of the state’s leading experts on DWI prosecution, said he recently began tracking such data — information he hopes will help his county retain a federal $300,000-per-year grant to combat drunken driving.
Alpert said for his study, he is comparing DWI blood cases to those without blood evidence, and he thinks the number of convictions will be significantly higher for those with blood evidence.
In May 2011, the American-Statesman reported that about 30 percent of DWI cases filed in Travis County courts in 2009 and most of 2010 were thrown out. The newspaper reported that in many instances, prosecutors dropped the DWI case but refiled it as another crime, such as obstruction of a highway or reckless driving, because they did not have enough evidence to obtain a DWI conviction. In other instances, prosecutors dismissed the case completely, the newspaper found.
That report did not specifically address the outcomes of blood draw cases. However, newly obtained data from Travis County courts has enabled the newspaper to review the outcomes of DWI cases resulting from no-refusal weekends in 2011 and 2012.
For its analysis, the newspaper obtained from Austin police the names of about 750 suspects who had their blood drawn as part of those operations. Then those names were matched with those of nearly 600 defendants in a Travis County court database.
Of those matches from no-refusal weekends, 402 cases had been resolved, with 300 defendants, or 74.6 percent, receiving some sort of sentence for DWI. Most of the other cases — nearly 15 percent — were dismissed, but were refiled as another crime. Fewer still were dismissed outright because of a lack of evidence, including a blood test that did not show intoxication.
Meanwhile, the newspaper reviewed records for 23,094 defendants who were arrested for DWI during the same two-year period, but not on a no-refusal weekend. Of those, 14,994, or 64.9 percent, received a sentence for DWI. Nearly a quarter of the cases, 5,418, were dismissed but refiled as another charge, while about 3 percent were dismissed completely. Less than 1 percent were found not guilty by a Travis County jury.
Prosecutors and defense attorneys, many of whom handle such cases on a daily basis, said they were not surprised by the Statesman’s findings.
Defense attorney Mindy Montford has handled blood draw cases over the past several years and has six in her practice now. Clients are often more inclined to plead guilty to DWI if there is blood evidence, she said.
“With a jury, there is always a chance for acquittal, but I think the blood draw makes it less certain,” she said.
In fact, Hamre said he is eager for the county to more formally review how many cases involving blood evidence led to plea agreements instead of costly trials — what he sees as a major, but not yet studied, potential benefit to the court system.
“Any amount of reduction in those cases is a plus for everybody — the courts, the prosecutors,” he said. “It clears up the docket for the cases that really need to be tried.”
Investigative reporter Tony Plohetski has covered law enforcement and criminal justice for nearly a dozen years. Recently, he has written about local judges granting personal bonds to some defendants with no input from prosecutors and Travis County constables serving warrants for towns in other counties.