Conroe Criminal Lawyer Blog

It was a rough week for law enforcement officials in Texas.  In San Antonio, three local law enforcement officers were arrested on Thursday night within hours of each other.  Police officers Gena Rodriguez and Harold Thomaston were both arrested for driving while intoxicated.  San Antonio Police Chief William McManus was quoted with saying, “Anytime an officer gets arrested for anything it’s disappointing, but DWI is just so preventable and there is no excuse for it.”

Rodriguez was an eleven-year veteran who was driving with her three children in the vehicle when she crashed into another car.  Police officers on the scene stated that Rodriguez was slurring her speech, was unsteady on her feet, and smelled like alcohol.  Later that night police veteran Harold Thomaston was also pulled over for driving while intoxicated.  Police say that Thomaston swerved into the lane of another police officer and then ran a red light.  Chief McManus stated, “SAPD officers were arrested by SAPD officers, so absolutely not, they are not held to a different standard, they are held to a higher standard.”

Bexar County Deputy Sabrina Moreno was also arrested Thursday night for DWI.  Bexar County Sheriff Javier Salazar said, “I am furious, there is no other way to put it, I am just furious.”

So, what is the Intoxilyzer 9000? This is a new breath test device that is being transitioned into use in Texas. This new unit will eventually replace the decades old Intoxilyzer 5000. The new device will be used in the prosecution of drunk driving cases. However, as the machine is new and being transitioned in, it is still plagued with problems including software issues and bugs. Clearly, this is cause for concern as it may lead to wrongful convictions for DWI.

It works like this. Say you are arrested for suspicion of drunk driving in Walker, Harris, or Montgomery Counties. Typically, the arresting officer will ask you if you wish to provide a breath or blood sample. On a first offense, the penalty for refusal of one of the two tests will result in a 180 day Texas driver’s license suspension versus a ninety-day suspension for those that comply. Lately, most officers have opted for blood over breath due to the problems with the old Intoxilyzer machines. By the way, it’s the officer’s choice not yours as to the breath or blood election. Many people are confused by this distinction. People say, I offered to give breath in lieu of blood because I am afraid of needles. Too bad, that’s considered a refusal.

In Georgia, the new Intoxilzer 9000 recorded seventy-four tests in the first two month in one area. Of the seventy-four tests, fifty-one of the tests generated error messages. In other words, a brand-new machine was wrong almost seventy percent of the time. When you are prosecuting someone for DWI or any other crime for that matter, any error is unacceptable.

Okay, no it hasn’t gone that far.  But where do we draw the line at how far police can go to collect evidence in a driving while intoxicated arrest?  This issue is being pushed to the limit.  Texas law enforcement agencies argue that alcohol testing is legitimate requirement for being allowed the privilege of driving on our publicly owned Texas roads.  Some have argued that the burden for obtaining a search warrant in DWI cases is too big of a burden for law enforcement.  But even in the rural counties that I work in, including Walker, Madison, and Leon Counties, there is almost always at least one judge on call.

How extreme has the matter of DWI blood draws become?  In Georgia, police have been strapping down citizens to a gurney as they forcibly draw blood from the victim.  One such video shows the victim screaming, “What country is this?”  One victim stated, “We are all American citizens and you guys have me strapped to a table like I’m in f***ing Guantanamo Bay.”

As Texans, it was hard to ignore the case in Southlake last year where the victim was tasered.  Hannah Fossier, a twenty-one-year-old Keller, Texas woman states that she refused repeatedly to have her blood drawn on the night of her DWI arrest.  Thus, officers hit her twice with the Taser.   Once incapacitated, the nurse performed a blood draw.  “I must have told them at least 10 times no,” Fossier told reporters after her arrest. “One officer said if you don’t cooperate, I’m going to Tase you, and he did.”