There Will Be Blood

August 25, 2009 7:57 AM

"I was just sick and tired of Texas law that allowed the defendant to destroy the very evidence that we need to protect society." Starting September 1st, police in Texas will be able to draw blood for alcohol testing from anyone involved in an auto accident without a warrant. Lauded by law enforcement officials such as Williamson County DA John Bradley (quoted above), and Dallas Police Chief David "we believe in the no-refusal process," Kunkle, it has others worried about what happens if someone refuses the test.
posted by nushustu (121 comments total)

i'm just sick and tired of texas law that allows texas law to destroy the very rights that we need to protect society
posted by Think_Long at 7:59 AM on August 25 [13 favorites]

From the first story:

The Williamson County D.A. says he approached Senator Dan Gattis of Williamson County about authoring S.B. 328 after the December 2003 arrest of Gary Gibbs, a truck driver who was stopped in Georgetown because other drivers saw him weaving while he was driving an 18-wheeler truck.

Gibbs had seven prior D.W.I. convictions and on his 8th he was sentenced to life in prison.

It may or may not be reasonable to do a blood draw in such cases, but it would seem that there is a very pressing public interest in preventing people like Gary Gibbs from drunk driving (in a semi truck, no less).

How can we respect personal rights and protect society against such cases?
posted by boo_radley at 8:04 AM on August 25

I would do everything I could to prevent them from sticking a needle in my arm...that to me is an unnecessary violation of my rights and also it is assault. I had an incident as a child that has left me with an extreme paranoia of needles. Even when I have to have blood drawn at a doctor's office I will get extremely tense and usually pass out, having to be revived with smelling salts...usually it takes a few moments for me to even realize where I am afterwards. So to me this would be cruel and unusual punishment for a crime I haven't even been convicted of. I would fight them until they had to taze me, unfortunately. Thankfully I don't live in TX but sadly I do live next door.
posted by GavinR at 8:04 AM on August 25

You really don't want to get caught allegedly committing any crime in Williamson county (county directly to the north of Austin, part rural, part suburban Austin), trust me. They're notoriously tough.
posted by tippiedog at 8:05 AM on August 25 [3 favorites]

"Bottom line is if you take a taxi, walk home, have a designated driver, call dial-a-ride, or take the bus you'll never have to worry about us."

If I don't drink, and don't want to be forced to take a blood test, I can take a taxi, walk home, have a designated driver, call dial-a-ride or take the bus. Otherwise, yes, I would worry about a policeman forcing me to give blood. So much for presumed innocence.

This isn't the law in Missouri, but I wouldn't put it past them. Adding yet another reason to the list of why I won't visit Texas.
posted by Antidisestablishmentarianist at 8:06 AM on August 25 [4 favorites]

I can think of one case where this would have helped, though this wasn't in Texas. I have an acquaintance who was hit by someone who was probably drunk but was a powerful member of the local legal community. The hitter, who ran a stop sign, was allowed to leave the scene of the accident after police arrived, and their spouse returned shortly thereafter to deal with the police and take the car home. My acquaintance was badly hurt and required significant rehabilitation afterward. No charges were ever filed against the hitter. If the law made it mandatory to take blood in the event of injury, the hitter would have been held accountable for the damage that they did despite their local power.
posted by procrastination at 8:06 AM on August 25

What's wrong with breathalysers as an alternative?
posted by jzed at 8:08 AM on August 25 [3 favorites]

Pfff, the outrage. Show me in the Constitution where there's a right to be secure in my person.
posted by DU at 8:10 AM on August 25 [26 favorites]

Who is going to draw the blood? I can't imagine there are a lot of phlebotomists just waiting in line for this great opportunity to stick a needle in an angry drunk*. So does this involve a local ER, sedation, etc?

(*not saying I agree with this policy. I was once administered a DUI test when I was stone cold sober - ran a red light, just stupid, not impaired. I passed easily but if they had tried this I would have been mighty irked)
posted by pointystick at 8:11 AM on August 25

A state that opposed Real ID / national ID cards, citing concerns about privacy, the security of personal information and cost, now wants to collect and store drivers' DNA. Right.

Also.... every once in a while, there's a gem in the sidebar of an linked article: "You know, I used to be a cheerleader."
posted by zarq at 8:14 AM on August 25 [3 favorites]

pointystick - they are giving the police Phlebotomy classes. I'm sure they will be very gentle.
posted by Antidisestablishmentarianist at 8:15 AM on August 25 [2 favorites]

This does not surprise me that Texas would do something like this. (Ex-commander in chimp was their governor at one time). I'm sure that the feds will over turn this law when it takes effect. However the post is a bit misleading for those that do not read the links. It states that they can draw blood if:

"anyone involved in a crash, whether they're suspected of drunk driving or not and where there's bodily injury, severe or not, or has a child in their car, or previous D.W.I. convictions, will have blood drawn automatically within a matter of minutes. "

So if you are involved in an accident they will draw blood. Just to clear that up.

It is still a violation of rights if you ask me. I'm sure somewhere in this country it says something to the lines of our persons, places, and things are free from unwarranted search and seizure. Taking blood without probable cause seems unwarranted to me. But again it is Texas and they are kinda special (super-conservative) down there.
posted by Mastercheddaar at 8:16 AM on August 25

What does this have to do with presumption of innocence? I didn't read all the links in the post, but wouldn't this just be collection of evidence? If someone was pulled over for erratic driving or some other such, then why is there not a reason to collect evidence for the case?
posted by franklen at 8:16 AM on August 25

This reminds me of a post I read on Unfogged a couple of days ago, about Oklahoma's desire to legally require vaginal ultrasounds for pregnant women planning to get an abortion. I think once the law requires sticking things into people's bodies against their will, the whole idea of democracy kind of goes down the tubes.
posted by Dr. Send at 8:16 AM on August 25 [5 favorites]

Geesh, in NY, refusing a Breathalyzer test constitutes an admission of guilt. What's so difficult about that? Instead of some fat #$#% of a cop forcing people onto the ground to draw blood? What the hell is wrong with this country? OK, Texas.
posted by etaoin at 8:17 AM on August 25 [1 favorite]

It may or may not be reasonable to do a blood draw in such cases, but it would seem that there is a very pressing public interest in preventing people like Gary Gibbs from drunk driving (in a semi truck, no less).

How can we respect personal rights and protect society against such cases?

The normal policy for this kind of thing is to make consent to do alcohol testing part of the requirements for a drivers license. Then, if someone refuses to consent for a blood test, their license can be suspended for several months. If they continue to drive on a suspended license, that would result in criminal penalties.

If the law made it mandatory to take blood in the event of injury, the hitter would have been held accountable for the damage that they did despite their local power

Wouldn't they have just been held accountable for the DUI charge? Running the stop sign is a crime regardless of whether or not the driver was drunk, and the driver could have been sued for damages in civil court either way as well.
posted by burnmp3s at 8:17 AM on August 25 [1 favorite]

Dr. Send, you don't know what a BCS is, do you.
posted by Antidisestablishmentarianist at 8:18 AM on August 25

So if you are involved in an accident they will draw blood.

Because nothing can possibly go wrong with having semi-trained non-professionals drawing blood from people while standing outdoors in non-sterile surroundings. Especially, say, next to a cow pasture, where there certainly isn't going to be any airborne fecal bacteria. I am positive that the average police officer is going to have the training and resources required to maintain appropriate standards of sterility, and that nobody is going to get any raging infections.

Oh, state of Texas, what human rights won't you violate?
posted by Sidhedevil at 8:19 AM on August 25 [10 favorites]

So this basically means that police can smash their car into yours, then hold you down and steal your blood. Cool.
posted by Damn That Television at 8:21 AM on August 25 [19 favorites]

Ah! With Godric gone the Texas vampires have become greedy and infiltrated the Texas legislature!
posted by geoff. at 8:23 AM on August 25 [26 favorites]

I'm in favor of just walling it off -- if there's something really need in there, we can always send in Snake Plissken to get it.
posted by kittens for breakfast at 8:23 AM on August 25 [14 favorites]

I suppose I'd rather they use a needle to get my blood than any of the other methods of blood extraction used by the police.
posted by Astro Zombie at 8:24 AM on August 25 [6 favorites]

Who is going to draw the blood? I can't imagine there are a lot of phlebotomists just waiting in line for this great opportunity to stick a needle in an angry drunk*.

From the article, it looks as though they're training current employees to become "phlebotomists," including in some places, the arresting officer.

Williamson county has been at the forefront of repressive authoritarian police tactics since, like, forever so I'm not surprised to see them spearheading his. In general, anyone who lives in, or drives through, Williamson county is scared shitless of the constabulary. No one speeds at all up there. I drove around easter Wm. co. for several hours last week, and didn't see one single car going one single mile over the speed limit. I have heard personal stories that would curl your hair -- one friend spent a year fighting felony charges because he took a picture of an accident while waiting for backed-up traffic to funnel around it. The judge finally tossed the cop out of her courtroom on his ear, but he made my friend's life miserable for quite a long time. Another friend got a ticket for a "rolling stop" made in a quiet neighborhood at 3:30 AM when there were literally no cars on the road within half a mile of him. It just goes on and on.

They've got themselves a nice little Stepford Community going, there. I hope to g*d someone takes this to court and shuts it down because those are already some power-drunk assholes who don't need syringes added to their arsenal.
posted by Devils Rancher at 8:24 AM on August 25 [3 favorites]

How is this different from Implied Consent?
posted by ZenMasterThis at 8:27 AM on August 25

So, it's OK for government employees to stick hypodermic needles into me, as long as they're not filled with medicine? Gotcha.
posted by Atom Eyes at 8:27 AM on August 25 [24 favorites]

It may or may not be reasonable to do a blood draw in such cases, but it would seem that there is a very pressing public interest in preventing people like Gary Gibbs from drunk driving

You've got two unrelated things going on in this sentence. How does forced drawing of blood prevent Gary Gibbs from drunk driving? How about:

It may or may not be reasonable to dance around naked, but it would seem that there is a very pressing public interest in preventing people like Gary Gibbs from drunk driving

Or

Ghosts may or may not exist, but it would seem that there is a very pressing public interest in preventing people like Gary Gibbs from drunk driving

Or

A or not A, but it would seem that there is a very pressing public interest in preventing people like Gary Gibbs from drunk driving
posted by DU at 8:28 AM on August 25 [3 favorites]

This is bizarre and disproportionately intrusive. The UK has an offence which gets round this problem, refusing to provide sample / specimen for analysis. The tariff for this offence is the same as for the equivalent driving offence with no need for Leviathan to take blood from its subjects under duress.

The UK’s legal system is far from perfect – the DNA database is much more intrusive, draconian and worrying than its US counterpart – but this is unattractive in the extreme.
posted by dmt at 8:29 AM on August 25

You know what? I really don't see a problem with this. The only real outcome is that more drunk drivers will go to jail.

Sure, DNA database, blah blah blah. Well, I don't know, maybe use a condom the next time you rape someone?
posted by Sys Rq at 8:33 AM on August 25 [3 favorites]

The UK has an offence which gets round this problem, refusing to provide sample / specimen for analysis.

Many, perhaps most, US states have similar laws. I am not sure why Texas adopted this solution instead.
posted by Sidhedevil at 8:34 AM on August 25

What's wrong with breathalysers as an alternative?

I would imagine that the push for blood draws is to broaden the scope of driving while intoxicated cases to include drug users. You could give drivers roadside urine tests to screen for drugs, but those are not ideal for alcohol testing as alcohol evaporates from the urine very quickly making it impossible to retest the specimen at a later date for a false positive.
posted by The Straightener at 8:35 AM on August 25 [2 favorites]

Hi.

Imagine my surprise to come by for the first time in a long time and see the first post being about con law and Texas! I think it is a sign!

Just to contribute, I thought I would link to the US Supreme Court case written by Justice Brennan of all people [Schmerber v. California, 384 US 757 (1966)] which already addressed most of these legal issues, and really ought to be read if the Constitutional implications want to be discussed. Maybe that would be more interesting discussion than the usual, tired, and offensive Texas hate-fest.

Ok. Good to see you. See you around!
posted by dios at 8:36 AM on August 25 [11 favorites]

You know what? I really don't see a problem with this.

Seriously? I see some big problems with having police officers draw blood from people in unsterile conditions. I have had pretty debilitating reactions to blood draws from trained phlebotomists in sterile medical offices, and I don't even have a compromised immune system. Semi-trained nonprofessionals drawing blood outdoors is a recipe for some serious infections.

Also, not everyone who gets into an accident has been drinking. They're going to draw blood from everyone who gets into an accident, not just those who are suspected of drinking. Again, that seems like a public health disaster waiting to happen.
posted by Sidhedevil at 8:37 AM on August 25 [1 favorite]

Is it LOLTEXAS time again?
posted by kmz at 8:37 AM on August 25 [1 favorite]

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

You know what? I really don't see a problem with this. The only real outcome is that more drunk drivers will go to jail.

If we got rid of the fourth amendment a lot more guilty persons would go to jail. But the number of innocent ones would also go up.

This will last all of 5 minutes in federal court. A no fucking brainer. Reversed.
posted by Ironmouth at 8:38 AM on August 25 [2 favorites]

burnmp3s: "The normal policy for this kind of thing is to make consent to do alcohol testing part of the requirements for a drivers license. Then, if someone refuses to consent for a blood test, their license can be suspended for several months. If they continue to drive on a suspended license, that would result in criminal penalties."

I don't think that tactic is present in the bill (a pdf here). It does say that a specimen of blood or breath shall be taken, but it doesn't specify why or when an officer would collect one over the other.
It does specify that a sample shall be taken only in certain circumstances, although it seems pretty broad; if someone could poptentially die or go to the hospital, or if the officer gets information about a suspect having a history of drunk driving.

argle bargle texas is dumb; it is not useful or helpful
posted by boo_radley at 8:38 AM on August 25

"Similarly, we are satisfied that the test chosen to measure petitioner's blood alcohol level was a reasonable one. Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. See Breithaupt v. Abram, 352 U.S. at 352 U. S. 436, n. 3. Such tests are a commonplace in these days of periodic physical examination, [Footnote 13] and experience with them teaches that the quantity of blood extracted is minimal, and that, for most people, the procedure involves virtually no risk, trauma, or pain. Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the "Breathalyzer" test petitioner refused, see n 9, supra. We need not decide whether such wishes would have to be respected.

Finally, the record shows that the test was performed in a reasonable manner. Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment -- for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain."

Schmerber v. California, 384 US 757, 771-72 (US 1966) (emphasis mine)
posted by kosem at 8:40 AM on August 25 [11 favorites]

My understanding is that blood tests are currently the only evidence accepted in court, since the law is based on your B.A.C., your blood alcohol content. Breathalyzers can be thrown off by many things, including mouthwash.

This doesn't mean cops start stabbing you, they drive you to a hospital or in the case of DWI stings, a truck with a waiting phlebotomist.

How can we respect personal rights and protect society against such cases?"

What I don't understand is why tests like this aren't in wider use. Light is used to analyze the content of alcohol in your blood. All the subject needs to do is hold their arm on it for 30 sec.
posted by fontophilic at 8:40 AM on August 25

You know what? I really don't see a problem with this.

I would posit that this is because you've never had direct experience with law enforcement in Williamson county, Texas. These are you basic buzz-cut bubbas who will put a knee in your back and brandish their syringe with gleeful abandon. People will probably get injured, and the officers will probably laugh.
posted by Devils Rancher at 8:40 AM on August 25

[On preview: hi dios!]
posted by kosem at 8:41 AM on August 25

If we got rid of the fourth amendment a lot more guilty persons would go to jail. But the number of innocent ones would also go up.

Um, what? Are there a lot of innocent people driving around with illegal blood alcohol content?
posted by Sys Rq at 8:41 AM on August 25

it looks as though they're training current employees to become "phlebotomists,"

The are looking into training officers to be phlebotomists. The school has not agreed to teach them yet, and it's not clear if they might risk their accreditation for endorsing what could be medically un-ethical behavior.

Put me in the camp of not understanding why "refusal = guilt" isn't good enough for Texas.
posted by nomisxid at 8:41 AM on August 25

DU: "You've got two unrelated things going on in this sentence."

Yes, well spotted. Would it have been more palatable for you if I said "Irrespective of how you feel about blood draws, how would you address the issue the legislation is trying to address?"
posted by boo_radley at 8:42 AM on August 25

Why don't they just put the lethal injection stuff right in the needle they use to draw the blood?
posted by drjimmy11 at 8:44 AM on August 25

No one speeds at all up there.

Seriously? People routinely drive 60+ on FM 620 where the limit is 55. And I don't think you can be outraged for getting a ticket for a rolling stop. Everybody does it, sure, but if you get caught you can't really complain.

There's plenty of reasons to hate on Williamson county but I never got an impression (from living there for 10+ years) that there's any Arpaio like shenanigans there.
posted by kmz at 8:47 AM on August 25

than the usual, tired, and offensive Texas hate-fest

I like Texas. A beautiful, unique place with a lot of cool people. I don't see criticizing ignorant-ass attempts to revert to 16th century law as "hating Texas." I never considered any anti-prop 8 comments as "hating" California- quite the opposite, actually.
posted by drjimmy11 at 8:49 AM on August 25 [6 favorites]

(slightly off-topic:

I've lived in Texas for 14 years -- that's a significant chunk of my lifetime. And I've been all over this great state, from the westernmost points to the easternmost, way up damn near in that dubious state to its north and way down south in the valley. I really like Texas, and I've met a lot of amazing people here.

But when Texas does f*cked up things, we need to be called on it. Especially since good things about the state are promoted with effusive praise that's not too far off from "This is the greatest Texas thing ever Texas done in the Texas state of Texas and is Texas-unique to Texas! Texas."

Now that doesn't mean I think it's cool when people act like their own states have excrement that smells of roses. But this whole never criticize Texas qua Texas thing is messed up. )

Anyway, I just don't see this working out at all, even aside from the constitutionality of the thing. I know many people who have serious vein and/or psychological issues with the drawing of blood, and I just don't see police officers having the ability or patience to draw a valid blood sample in an environment where everyone is already tense and out of sorts.
posted by lord_wolf at 8:52 AM on August 25 [5 favorites]

America...
America...
America, FUCK YEAH!
Coming again, to save the mother fucking day yeah,
America, FUCK YEAH!
Freedom is the only way yeah,
Terrorist your game is through cause now you have to answer too,
America, FUCK YEAH!
So lick my butt, and suck on my balls,
America, FUCK YEAH!
What you going to do when we come for you now,
it’s the dream that we all share; it’s the hope for tomorrow
posted by P.o.B. at 8:54 AM on August 25

But this whole never criticize Texas qua Texas thing is messed up.

Granted.

But even more messed up is the repeated, belabored and predictable "always criticize Texas qua Texas" thing that Metafilter gets off on. Because for whatever reasons, there is a pronounced history of individuals treating Texas qua Texas as the strawman representation of everything they hate in this country.

Being critical is one thing. Taking every bit of news as "look at this screwed up thing those screwed-up backwards idiots are doing in Texas" is entirely different thing. And one does not have to read Metafilter long to see the history of that.
posted by dios at 8:56 AM on August 25 [5 favorites]

I never considered any anti-prop 8 comments as "hating" California- quite the opposite, actually.

The kind of comments in "California the state did a dumb thing" threads tend to be much less generally dismissive than "Texas the state did a dumb thing" threads. At least, that's in my general experience. I won't pretend I'm entirely unbiased.
posted by kmz at 8:58 AM on August 25

Maybe they'll make a Taser that can suck your blood while it shocks you. That would make it more convenient for the cops. They can call it the "Transyl-Tasia".
posted by orme at 8:58 AM on August 25 [18 favorites]

Finally the lobbying efforts of TVSDD (Texas Vampires Supporting Drunk Driving) have paid off.
posted by The Bellman at 8:59 AM on August 25

Texans are so sensitive.
posted by Sys Rq at 8:59 AM on August 25 [3 favorites]

Texas has an almost pathological desire for greater forms of authority, like some lunatic narcotic delivered in chains.
posted by plexi at 9:01 AM on August 25 [1 favorite]

This doesn't mean cops start stabbing you, they drive you to a hospital or in the case of DWI stings, a truck with a waiting phlebotomist.

No, if you read the article, they want the cops themselves to take blood. Which is a real problem.

Taking people to a hospital or clinic, or having EMTs do it in their van, would certainly address the public health risk aspect of why this is A Bad Idea. That's not what they're planning to do.
posted by Sidhedevil at 9:03 AM on August 25

oh, man, I can't wait to see the next thing they try to justify this way.

"I just got so tired of criminals getting away with their crimes just because we didn't have any evidence that they'd committed it. So that's why I support doing away with the due process of law entirely."
posted by shmegegge at 9:05 AM on August 25

IF YOU DIDN'T WANT YOUR BLOOD TO GET TOOKEN, YOU SHOUDLNT HAVE LET THAT PERSON CARSH INTO YOU WHEN THEY WERE MAKING A ~~PATRIOTIC~~ LEFT HAND TURN ACROSS 3 LANES. HAVING YOUR BLOOD STOLEN BY POLICE HEROES IS ONLY A PROBLEM IF YOU HAVE SOMETHING TO HIDE, LIKE CRIMES OR SPECIAL MUTANT BLOOD THAT MAKES YOU MORE POWERFUL + 50% RESISTANT TO ICE MAGIK. ALSO IF YOU CAN'T AFFORD YOUR OWN LAWYER, YOU SHOULDNT HAVE DONE A CRIME!! KEEP THE STATE "OUT" OF MY RIGHT TO AN ATTORNEY LIKE THE CONSITUTION SAYS. WHERE IS THE BIRTH CERTIFICATE OBAMA
posted by Damn That Television at 9:12 AM on August 25 [36 favorites]

Gibbs had seven prior D.W.I. convictions and on his 8th he was sentenced to life in prison.

Seems to me this points to a failure of law enforcement/prosecution/sentencing rather than any vital need to have cops draw blood. 7 DWI convictions and the guy was still driving? WTF?

Yeah...let's draw blood. That'll put a stop to that.
posted by Thorzdad at 9:13 AM on August 25 [6 favorites]

If there is a traffic accident with injuries, I'm all for the drivers being immediately sampled. There will be an ambulance or first responder present to draw the blood. The accident is proof that one or both drivers is guilty of being a bad driver, and the chances that one of them is impaired is pretty damn high.

Driving is a privilege, not a right. In the USA, 10x as many people die in car accidents each year than died in the WTC collapse. For that event, you allowed your government to remove the right to a fair trial, engage in an unwarranted war that has become an interminable quagmire, and set the ball rolling for the financial collapse this past year. And all for a one-time fluke.

It's time for our society to grow up and treat driving with the respect and care it deserves. Having to give up some blood if you're the driver of a car involved in an accident that causes bodily harm seems like a helluva good idea to me. Let's get impaired drivers the hell off our roads.
posted by five fresh fish at 9:19 AM on August 25

Silly Television, there's no such thing as a patriotic LEFT hand turn.
posted by rokusan at 9:19 AM on August 25

Texans are so sensitive.

I thought that was penguins.
posted by rokusan at 9:20 AM on August 25 [1 favorite]

Texans are so sensitive.

Some of us do get a little cheesed at being lumped into one big idiot pile. We've been down this road before, and I've said my piece on the matter already, but really. I don't think ALL TEXANS have banded together to pass this legislation and more than ALL WOMEN [anything goes here].
posted by Devils Rancher at 9:21 AM on August 25 [1 favorite]

*any* more (edit window, grar)
posted by Devils Rancher at 9:22 AM on August 25

The chief of police had another viewpoint about the drawing of blood authorized under the implied consent laws. "I don't know how to break it to people, but when you break the law you lose some rights," Acevedo said.

Is it not the case that you have those rights until it has been proven that you have broken the law?
posted by jeffamaphone at 9:23 AM on August 25 [12 favorites]

Just bring your attorney with you every time you drive.
posted by jeffamaphone at 9:24 AM on August 25 [1 favorite]

Put me in the camp of not understanding why "refusal = guilt" isn't good enough for Texas.

So, forced blood draw is unconstitional and horrible, but you and your civilized state think that refusing an unconstitutional search should be a legal admission of guilt?

I live in Texas and think this is a stupid, wrongheaded law that will get rightfully demolished in Federal court, and I think the problem that this is (poorly) trying to solve is big enough that some creative, desperate thinking needs to be done. But to act like "refusal = guilt" is some sort of enlightened practice is just nuts.

Also, FWIW: The city of Austin lies partially in Williamson County, which is complicated and odd.
posted by dirtdirt at 9:27 AM on August 25 [1 favorite]

“Show me in the Constitution where there's a right to be secure in my person.”

Well, to be fair, the 4th amendment does say that people have the right to be secure in their persons, but we don’t know what they really meant by that, and there’s no way the founding fathers could have envisioned that people in the future would have blood.
“You know what? I really don't see a problem with this. The only real outcome is that more drunk drivers will go to jail.”
&
"I don't know how to break it to people, but when you break the law you lose some rights," Acevedo said.”

Yeah, that whole “innocent until proven guilty” thing is so passé. And of course, no one innocent ever gets pulled over, and only the guilty have something to hide, QED.

“If someone was pulled over for erratic driving or some other such, then why is there not a reason to collect evidence for the case?”

Because the crime is not necessarily related. If I sneeze and that causes me to weave, why does that give the police the power to take my blood?

This particular change from the first link - a blood test is required where there’s been an accident. That is fairly reasonable. Debatable, but at least you’re already probably in the hospital, so there are medical technicians and so forth.

But forcibly taking blood from people who are stopped on suspicion of drunk-driving, bit too far.
You do have Florida police pushing to draw blood at checkpoints for example.
So I’m driving along, the police stop me at a checkpoint and demand my blood. Why is this not a 5th amendment (much less a 4th) violation? Why do I have to prove I’m innocent with no due process when there’s no victim and I have to waive my rights just because I happen to be driving on a road?

Breathalyzers and other data, at least in some states, are not admissible if they don’t substantiate the prosecutions case.
So if they draw my blood or my breath and I don’t have any alcohol or any other foreign substance in my body – why then can’t I use that to prove my innocence?

Furthermore – what about HIPAA protection?

Indeed, what if I’m a hemophiliac? What if I get an infection?

Just seems like there’s too many problems with the police forcibly performing medical procedures because, really, how – if in any way – are their powers restricted under this law?
posted by Smedleyman at 9:28 AM on August 25 [3 favorites]

[few comments removed - if all you have to say is "texas sucks" you can say it in meta or just tell it to your cat.]
posted by jessamyn at 9:32 AM on August 25 [6 favorites]

I vehemently proposed this legislation - it's frightening and it's wrong and I hope that the rightful challenges in Texas courts create such a problem that they have no choice but to roll it back. I'll tell you right now - I'd go down for kicking a peace officer in the jimmy before I'd let him stick me with a needle.

That being said, Williamson County is indeed a TERRIBLE county to get pulled over for anything. Even the municipal police departments for Round Rock and Georgetown are pricks, and the Williamson County Sheriff's department is just downright scary.

Regardless, Texas is NOT the embodiment of redneck evil that others here on MeFi seem to think it is. Oklahoma, Arkansas and Louisiana are the trifecta of back-asswards, spooky, thumb-less redneck behavior. Texas just makes the news more often because we seem to have more prominent, mouthy politicians.

(Here's hoping Ronnie Earl can make a successful gubernatorial run against Kay-Baby as a Democrat.)
posted by PuppyCat at 9:32 AM on August 25

If I sneeze and that causes me to weave, why does that give the police the power to take my blood?

That would not be allowed under the rules they are suggesting. They are not getting rid of the probable cause element.

Why is this not a 5th amendment (much less a 4th) violation?

I provided the case which explains it above. That at least sets forth the explanation of the Brennan majority.

Furthermore – what about HIPAA protection?

HIPAA does not apply. Generally, it only applies to covered entities, which are specific things, which probably do not include whatever is doing this. But even if it did, there is a law enforcement exception to the Privacy Rule. See 45 C.F.R. s 164.512(f).

Indeed, what if I’m a hemophiliac? What if I get an infection?

The law cannot protect against all exigencies. Cops can still use flashing lights despite the fact that someone may be prone to seizures. They are also able to incarcerate people who might be claustrophobic. All that can be done is to have policies and procedures to protect against most of them.
posted by dios at 9:40 AM on August 25 [2 favorites]

I can't wait to see the youtube of some rookie highway patrolman getting blood sprayed in the face while fumbling for a draw. This is a truly terrible idea. There are reasons for the level of oversight that goes into phlebotomy, like HIV and HepC.
posted by a robot made out of meat at 9:40 AM on August 25

Driving is a privilege, not a right. In the USA, 10x as many people die in car accidents each year than died in the WTC collapse.

Oh, who fucking cares? Yes, more people die on the freeways, mainly because many millions of people don't drive to work in fucking bombed-out skyscrapers. Can we please get an expiration date on meaningless invocations of 9/11?
posted by Skot at 9:48 AM on August 25 [10 favorites]

I've a feeling there are going to be a lot more unreported car accidents in TX henceforth
posted by edgeways at 9:55 AM on August 25

Can we please get an expiration date on meaningless invocations of 9/11?

It's one of those weird cultural measures in the US now: the number of people who died on 9/11 is a special unit. That's one 9/11 of people.

Similarly, some people insist on measuring everything by how many "football fields long" it is.
posted by rokusan at 9:59 AM on August 25 [4 favorites]

Where's the blood test to show the person causing an accident was talking on their cell phone or texting immediately prior? That would be a good test.
posted by contessa at 10:06 AM on August 25

Here is everything you need to know:

State Senator Bob Duell is running for re-election in 2010.
posted by vapidave at 10:07 AM on August 25

PuppyCat: I vehemently proposed this legislation - it's frightening and it's wrong

What the hell did you do that for, jerkface?!?!
posted by hincandenza at 10:13 AM on August 25 [1 favorite]

Hey, DU, I'm sorry about my previous reply to you. The conversation was frustrating me, and I snapped at you. You really didn't deserve it.
posted by boo_radley at 10:15 AM on August 25

rokusan: It's one of those weird cultural measures in the US now: the number of people who died on 9/11 is a special unit. That's one 9/11 of people.

Technically, wouldn't eleven ninths of that number be one unit?
posted by hincandenza at 10:16 AM on August 25 [1 favorite]

Hah. Typing too fast. Spell check initially rejected my first typing of "opposed" and my brain reached for the next word instead of fixing the one that was wrong.
posted by PuppyCat at 10:21 AM on August 25

By the way, here is the bill. And after reading, it is clear THE POST IS WRONG. This should have set off my radar earlier. Usually when things are italicized and outrageous, they are typically incorrect.

Anyhow, the post says this: "police in Texas will be able to draw blood for alcohol testing from anyone involved in an auto accident without a warrant

That is incorrect. See page 15-16 of the above .pdf What the statute does say is that:

if an individual is arrested for DWI

AND

the individual refuses a test

AND

the person was in an accident

AND

either (1) someone will die or seriously injured because of the accident {which was already the law in the state} OR (2) there was a minor in the driver's car {new part} OR the cop has reliable information from a credible source that the individual has been previously convicted for DWI {new part}

THEN

the cop shall take a specimen of blood OR breath.

As you can see, the law does not say that everyone who is in accident may get their blood drawn.

All this new bill says is that if you are arrested (which requires probable cause) for DWI following an accident, and there is a kid in the car or the cop has a reasonable belief you have past conviction, then the cop can force you to take a breath or blood test. The more important part is that warrants now may be issued by any judge instead of specific judges. Not exactly a dramatic change in the law, if you ask me.
posted by dios at 10:25 AM on August 25 [9 favorites]

Why is everyone so pissed at TX threatening to secede? Fucking go ahead and leave.
posted by Scoo at 10:27 AM on August 25 [1 favorite]

Ok reading Dios case, the rule appears to be that if the arresting officer determines that evidence could be destroyed by metabolism, then blood can be taken, if it is done by a hospital in a medical setting.

Bullshit ruling, but them's the breaks.
posted by Ironmouth at 10:30 AM on August 25

Just to show the point, read the bill I linked. The changes to the existing law are evident either by deletion (strikethrough) or additions (underlining). You can compare the new law to the old law which is section 724.012 of the Transportation Code.

The law already required that police take a breath or blood example if a driver arrested for DWI was in accident in which another driver was killed or seriously injured. All the law does with respect to that is now also allow it if there is an accident and a minor in the car or credible information the person has been convicted previously of DWI. That is not dramatic change.

And again, from the police's perspective, the more important change is that now any judge can issue a subpoena instead of specific ones, which in the past may have been difficult to get ahold of when issuing subpoenas.
posted by dios at 10:31 AM on August 25

I can't wait to see the youtube of some rookie highway patrolman getting blood sprayed in the face while fumbling for a draw. This is a truly terrible idea. There are reasons for the level of oversight that goes into phlebotomy, like HIV and HepC.

Then the person will be charged with attempting murder of a police officer.
posted by ryoshu at 10:31 AM on August 25

Then the person will be charged with attempting murder of a police officer.

I'm suggesting that inexperienced blood drawers in bad conditions are likely to have accidents, not that HIV positive people will purposely squirm. It's good to see that breath will actually be used.
posted by a robot made out of meat at 10:41 AM on August 25

Two things though:

1. In Schmerber v. California, the suspect was taken to a hospital and had his blood drawn by a physician. This seem far more sanitary and safe then having blood drawn in the field by a non-medical professional, even if they've received some cursory phlebotomological training.

2. As was mentioned upthread, what's the matter with less intrusive laws in other states, wherein refusing a breathylizer = admission of guilt?
posted by Marisa Stole the Precious Thing at 10:43 AM on August 25

the matter with less intrusive laws in other states, wherein refusing a breathylizer = admission of guilt?

Because refusing a breathylizer is NOT an admission of guilt? I think there are pretty workable reasons one might not want to take a breathylizer that don't involve "I'm drunk and don't want to incriminate myself", but even still - you are not required to incriminate yourself. Refusal should not be legal equivalent to guilt.
posted by dirtdirt at 10:50 AM on August 25

I phrased that wrong, sorry. What I meant was, refusing a breathylizer resulting in your license being suspended.
posted by Marisa Stole the Precious Thing at 10:51 AM on August 25

As was mentioned upthread, what's the matter with less intrusive laws in other states, wherein refusing a breathylizer = admission of guilt?

Because, according to our constitution, no one can legally compel us to admit guilt.
posted by Devils Rancher at 10:53 AM on August 25

Same thing. Suspend your license for exercising your constitutionally guaranteed rights?
posted by dirtdirt at 10:54 AM on August 25

Thank god this is only happening in Texas, and not somewhere important.
posted by Eideteker at 11:00 AM on August 25

I'm not defending the practice per se, but this law does exist in other states, apparently, so I'm guessing it's stood up to the Constitution test or no one's filed a suit yet.
posted by Marisa Stole the Precious Thing at 11:02 AM on August 25

I'm suggesting that inexperienced blood drawers in bad conditions are likely to have accidents, not that HIV positive people will purposely squirm.

I think ryoshu's point was that even if it's entirely the officer's fault and the suspect is completely unconscious and immobile, he or she would probably still be charged with* attempted murder of a police officer.

*Or at least threatened with.
posted by ROU_Xenophobe at 11:40 AM on August 25

I had an incident as a child that has left me with an extreme paranoia of needles.

I used to have such a strong reaction to needles that I would instinctively fight when a needle came near me. I could stay still until the needle came close, and then I would start to flinch and struggle. Once I kicked a nurse in the face - completely on accident; I jerked when they poked me.

Luckily, I managed to get over that fear, but not everyone can do that. I wonder what they would charge them with?
posted by Kutsuwamushi at 11:51 AM on August 25

Sorry about the 9/11 reference. But for the sake of 4000 people, you lost habeas corpus and a ton of other real essentials of freedom; while for the sake of 40000 people, you get your panties in a bunch because someone who is arrested for DWI and gives the cop a reason to suspect this accident is also a DWI offense, might have to involuntarily give up a blood sample before he can metabolize the evidence out of his system.

When it comes to OutrageFilter, it seems to me that what Texas is doing is safe, small potatoes, while real big issues with lost freedoms is going largely unmentioned.
posted by five fresh fish at 11:52 AM on August 25

if all you have to say is "texas sucks" you can... just tell it to your cat.

My cat almost died in Texas. I try not to bring it up.
posted by fleacircus at 11:56 AM on August 25

"Sorry about the 9/11 reference, please allow me to reference it again the exact same way."
posted by fleacircus at 11:57 AM on August 25

When it comes to OutrageFilter, it seems to me that what Texas is doing is safe, small potatoes, while real big issues with lost freedoms is going largely unmentioned.

Do you really think the stripping of civil rights in post-9/11 America has gone "largely unmentioned" around here? Really?
posted by Marisa Stole the Precious Thing at 11:57 AM on August 25 [2 favorites]

The Breathalyzer refusal test in New York results in suspension, for, I believe, the same length of time as a DWI conviction, and your insurance rates go up as if you'd been convicted.
posted by etaoin at 12:02 PM on August 25

[few comments removed - if all you have to say is "texas sucks" you can say it in meta or just tell it to your cat.]

Administering blood sampling by threat of force is not a very American thing to do, particularly within a state whose denizens, by majority, pride themselves on respecting individual rights to the point of carrying concealed weapons and threatening secession.

Further, any law enforcement official performing medical procedures on injured parties, whether in Texas or anywhere else in the world, doesn't sound like a very smart idea. I hope Texas spends adequate funding on training its officials on sterile and safe blood sampling procedures. I somehow doubt training and equipment will begin to be adequate, though I'm certain they will have ample funds for lawyers to defend liability cases caused by misapplication of medical equipment to the point of causing further injury and mistaken incarceration.

Still further, there is little promise that any blood samples will be used solely for the purpose of measuring BAC, and that the possibility is raised that drawing blood samples by force allows the government to collect genetic data without respect for the suspect's privacy. This is just a subsample of questions of contamination and safety, which come back to the aforementioned procedural issues.

Yet further, the troubling way that John Bradley describes the situation is that anyone suspected by the police is in the process of willfully destroying evidence by simply metabolizing primary chemicals of interest in the bloodstream, as well as any downstream products. Metabolism is no more "willful" than breathing is the "willful" combustion of ATP by way of taking in oxygen. This clever reinterpretation of biochemistry raises troubling issues of precedent for how other natural functions could be reinterpreted as criminal activity, for the purposes of further intruding upon individual rights and making a police officer's job more difficult and time-consuming.

The new law does seem to make Texas a worse state than it was prior to its being enacted. But it will make its lawyers some money and get its tough-on-crime officials reelected, so it won't be bad for everyone.
posted by Blazecock Pileon at 12:13 PM on August 25 [3 favorites]

Why is everyone so pissed at TX threatening to secede? Fucking go ahead and leave.

They've already been told secession is unconstitutional.

if there's something really need in there, we can always send in Snake Plissken to get it.

I thought he was dead.
posted by kirkaracha at 12:14 PM on August 25 [1 favorite]

If all you have to say is "texas sucks" you can say it in meta or just tell it to your cat.

My cat concurs.

Too fucking hot.
posted by rokusan at 12:15 PM on August 25

"When it comes to OutrageFilter, it seems to me that what Texas is doing is safe, small potatoes, while real big issues with lost freedoms is going largely unmentioned."

Did Prince Charming just kiss you, Sleeping Beauty?

(Thank God for Dios finding the text of the bill—I thought it was an OR clause, not an AND clause.)
posted by klangklangston at 12:18 PM on August 25

Thanks for that, dios, but I'm a little confused. On page 15, lines 14-16, it says "A peace officer shall require the taking of a specimenof the person ’s breath or blood under any of the following circumstances..." And then follows with the passage you quoted above, including all of the AND's. I'm having trouble understanding what "ANY of the following" means if it has to include all of them.

Plus, even if you're interpretation is correct, it would appear from the police and DA interviewed that they seem to think that the police will be able to take blood "within minutes" instead of hours.

So maybe this story is turning out to be less about laws that trample our Constitutional rights and more about cops and lawyers misreading laws and thus trampling our Constitutional rights.
posted by nushustu at 12:47 PM on August 25

Gibbs had seven prior D.W.I. convictions and on his 8th he was sentenced to life in prison.

How can we respect personal rights and protect society against such cases?

Perhaps first change the law that allows someone with seven prior DWI convictions back on the road?
posted by GhostintheMachine at 1:08 PM on August 25 [5 favorites]

“And after reading, it is clear THE POST IS WRONG.”

Ah, so, end of story. Point ceded.

But I still don’t accept incidental harm in the course of one’s duty (flashing lights/seizures) as the equivalent of potentially causing harm by deliberate physically intrusive act.
I’d argue tasers as a perfect example of abuse and misuse of the intended method.

But with the givens here, no, it’s pretty reasonable to draw someone’s blood if they’re on the hook for a DUI and in an accident, but again, I’d want the procedure to be done by a medically trained individual.
Otherwise you’re subject to a whole host of potential assumptions (which are still being contested, as I mentioned, such as the checkpoint stop which leads to blood being drawn).

And yeah, they didn't take the 7x loser guy's license, car, etc?
posted by Smedleyman at 1:23 PM on August 25

Thanks for that, dios, but I'm a little confused. On page 15, lines 14-16, it says "A peace officer shall require the taking of a specimenof the person ’s breath or blood under any of the following circumstances..." And then follows with the passage you quoted above, including all of the AND's. I'm having trouble understanding what "ANY of the following" means if it has to include all of them.

Well, to explain, let's look at the statute again written out without all the marks:

A peace officer shall require the taking of a specimen of the person ’s breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer's request to submit to the taking of a specimen voluntarily:

• 1. the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and at the time of the arrest, the officer reasonably believes that as a direct result of the accident:
• (a) any individual has died or will die;
• (b) an individual other than the person has suffered serious bodily injury; or
• (c) an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment;


• 2. the offense for which the officer arrests the person is an offense under Section 49.045, Penal Code [DWI with minor child in car]; or


• 3. at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:


• (a) has been previously convicted of or placed on community supervision for an offense under Section 49.045, 49.07, or 49.08, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections; or
• (b) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.

So when it says "any of the following" then--referring to their list numbers--it means 1(a) OR 1(b) OR 1(c) OR 2 OR 3(a) OR 3(b) OR any combination thereof. If any or all of the conditions are met, then the cop shall take a breath or blood test.

Plus, even if you're interpretation is correct, it would appear from the police and DA interviewed that they seem to think that the police will be able to take blood "within minutes" instead of hours.

Well, it's hard for me to say because the language you are referring to is the reporters' words and I don't think the story is clear the context they are referring to when that language. I think the Dallas Observer article is clearer in that the "holdup" was due to having to find a judge would could take hours. Now they have any magistrate at the police station issue warrants nearly immediately.

Again, if you look at the bill, the "no consent = automatic testing" was already the law and is not changed in this bill (see 1(a), 1(b), and 1(c)). I linked to the current law to show that. The only thing this adds on that front are 2 and 3(a) and 3(b).
posted by dios at 1:26 PM on August 25

Also, as an aside, I did not know what html markup to use to make the list like that where the subparts are indented so i used ul and li tags. I'm sure there is something better or a more correct way of using them. Any pro want to let me know for the future? Thanks!
posted by dios at 1:39 PM on August 25

i hate that i tend to chicken little things when it comes to the government/the military/the police...

but here i am wondering what happens if they don't find booze in your blood, but they do find weed? will they use that to strengthen a DUI case, even if you smoked a week or two earlier? will they be able to use those results to search your house for drugs?
posted by nadawi at 1:58 PM on August 25

What do you expect for a state whose official motto is friendship
posted by klangklangston at 2:00 PM on August 25

Texans can disabuse me if my memories are incorrect, but I think that a few decades ago thre were no speed limits on highways outside of towns/cities, and that open alcohol containers in a car were not an offense. All that went sideways from the general direction of most other states. I rather admired their rebellious take on what was sensible for a state with strong "cowboy" traditions and huge, wide-open spaces that you wanted to get through as quickly as possible. So, are we now to trash them for addressing 21st century norms?
posted by path at 2:56 PM on August 25

Guess I'm in dios' killfile after all, or my points weren't deemed worthy of responding to.
posted by Marisa Stole the Precious Thing at 3:07 PM on August 25 [1 favorite]

How soon before the introduction of the:

Hypo Taser! Draw blood from dwi suspects while experiencing the unparalleled rush of tasering an unsuspecting citizen. Ask for it by name.
posted by any major dude at 3:09 PM on August 25

Texans can disabuse me if my memories are incorrect, but I think that a few decades ago thre were no speed limits on highways outside of towns/cities, and that open alcohol containers in a car were not an offense.

The speed limit thing is common misconception, but is nevertheless not the case. You are correct about the open containers law and the fact that it used to not exist in Texas. However, the over-bearing and intrusive federal government had tied funds from the federal government on compliance with the federal regulations on such laws. So the state had the option to either come into compliance and pass an open container law or to lose federal funds for highways. Texas chose to come into compliance. This is the same reason that Louisiana raised its drinking age from 18 to 21.
posted by dios at 3:51 PM on August 25 [1 favorite]

And to be clear, it was September 2001 when the state finally implemented the open container laws. So it was only 8 years ago that the law changed making it an misdemeanor to have an open container in the car.
posted by dios at 3:53 PM on August 25

so now breathalyzer is the fallback, middle-road position. UGH. you've all been trained well.
posted by brandz at 6:27 PM on August 25 [1 favorite]

The solution in Australia (at least in Western Australia) is to make refusing a breath test an equal offence to drink driving.

If you do accept a breath test and blow over the limit, you are then blood tested (again, you can refuse, but it is an offence). You're also permitted to use your own doctor (and it is best if you can find a family doctor that takes a few hours to get out of bed ;).
posted by ianbanks at 8:17 PM on August 25 [1 favorite]

Silly Television, there's no such thing as a patriotic LEFT hand turn.

They're SINISTER turns.
posted by ActingTheGoat at 3:10 AM on August 26

I have been under the impression (and the articles seem to agree) that previously a warrant from a judge was required for a forced blood draw. And that this law weakens that requirement. I find this far more disturbing than the widening of circumstances where a blood draw is required.

Cops in Texas are at their discretion when arresting somebody for DUI. Smell of alcohol is enough. Unusual speech, combative attitude, and many physical criteria are enough. This law allows them to take blood by force on the flimsiest of reasons, before a judge even knows about the case.

Standard advise in Texas is to always refuse breath and blood. A 0.0 breathalyzer reading is not a defense against DUI. To put it another way, breath and blood tests can never free you, they can only convict you.

Given how notoriously easy breathalyzers are to manipulate, how can you trust a blood test?
posted by mad bomber what bombs at midnight at 5:49 PM on August 26

Forced Catheterization Used In DUI Case
posted by homunculus at 6:48 PM on September 4

Okay, yeah, I'm against that.
posted by Sys Rq at 9:14 PM on September 4