The policy means that when a driver is arrested for DWI, the driver can no longer refuse blood testing to determine their blood alcohol concentration.
If a breathalyzer test requested by the police officer is refused by the driver, the officer will then deliver paperwork to a justice of the peace who will then immediately sign a warrant ordering a blood test administered on the driver at Otto Kaiser Memorial Hospital.
County Attorney Robert Busselman said that all four Karnes County justices of the peace were not only willing to take on the additional job responsibilities of signing the warrants whenever needed, but they are all excited about being part of an effort aimed at making Karnes County highways and roads a safer place to drive.
“Now, they are going to have to get up sometimes at three o’clock in the morning to do this warrant thing, and they have all agreed that it’s great,” Busselman said.
Busselman said he consulted with local DPS troopers and the county judge and together they came to the conclusion that there were no legal impediments that would prevent implementing the no refusal policy in Karnes County.
Busselman and Shaw explained during an interview with The Karnes Countywide last week that the reason why DWI defendants are often acquitted by local juries is due to the fact that many times there is no breathalyzer or blood test evidence that can be presented to the jury.
Individuals arrested for DWI in the past have had the option of signing a form showing that they refused a breath test and/or blood test, although in doing so, this meant their drivers license was immediately suspended.
With the “no refusal” policy now in place, that option will no longer be available to any driver arrested for DWI inside the county lines of Karnes County.
Under the new policy, there will be conclusive scientific evidence showing jurors the exact blood alcohol content of the defendants in virtually every DWI case.
County officials say this new policy will hopefully improve public safety and reduce the number of drunk driving related injuries and fatalities in Karnes County.
The county judge and county attorney pointed to a recent DWI trial as an example of how sometimes jurors will acquit a person accused of drunk driving because there was no hard scientific evidence to indicate the precise blood alcohol concentration (BAC) at the time the person was driving the vehicle.
In this particular case, the county attorney believed there was more than enough evidence presented to the jury for them to reach the conclusion that the driver was over the legal limit.
An experienced DPS trooper took the stand and testified that the man exhibited several clues indicating that he was intoxicated during the field sobriety test and horizontal gaze nystagmus test administered at a location on US Highway 181.
The jurors watched video of the man as he completed the field sobriety test tasks under the directions of the trooper and listened as he told the trooper he had consumed seven or eight beers that night before getting behind the wheel.
Although the man was not stumbling or falling down in the video, t here were other factors for the juror to consider, as well, such as the fact that the man wasn’t sure where he was, or that he was driving unusually slow and swerving over the parking line. He told several different stories to the trooper about where he had been and what he had been doing that night, and that he was unable to find his drivers license.
In the case that Busselman and Shaw pointed to as an example, even with what seemed to be a preponderance of evidence indicating that the man was legally drunk, all six jurors voted to acquit the defendant.
The county attorney explained that when portable breath tests are administered, the law does not allow the jurors to know the exact results of the test when the case goes to trial. They are only allowed to know whether or not the results of the test show that the person was intoxicated or not intoxicated. With a breathalyzer test, however, the numbers indicating the BAC are allowed to be presented as evidence to be considered in making a determination of guilt in the case.
Defense attorneys can be very persuasive in raising doubts about whether or not the accused is legally intoxicated, Busselman and Shaw explained, which makes it harder to get a conviction. Without conclusive breathylyzer or blood test evidence, it has become more and more difficult to get juries to find defendants guilty in DWI court cases.
New county deputies have been hired recently and additional DPS and other law enforcement officers have been assigned to Karnes County and officials expect these resources will help with implementation of the new policy.
Several other communities in South Texas have recently begun similar no refusal policies such as San Antonio and Nueces County. The costs associated with implementing the new policy are expected to be minimal, Shaw explained, but she said that these costs will be well worth the extra expense in order to increase public safety.
Shaw also noted that the county in the past has spent thousands of dollars trying DWI cases that ended in acquittal. She hopes that by getting more convictions, the general public will grow to understand and appreciate the message that the justice system wishes to convey, and that message plainly is that Karnes County is stepping up its efforts to hold people accountable for drunk driving.
“Somebody that drinks a beer or two with dinner, you better think about it,” Shaw said. “There are going to be a lot of people who aren’t happy about this.”
Shaw said that public safety is the concern that has led to the new “new refusal” policy. County officials hope that the new policy is will reduce the number of alcohol related accidents and alcohol related fatalities.
For those who think the charges may be dismissed because it will be too expensive or difficult for the county court to follow through, Shaw said that this is not the case.
“I want people to know that if they request a jury trial, it is not going to backlog my docket,” Shaw said. “We are going to bring them in here. We’re going to have that jury trial.”
Busselman said he has dismissed cases in the past because he felt it would have been impossible to get a conviction from a local jury, but with harder evidence under the new “no refusal” policy, he believes many of these types of cases can now move forward. In the past, it he said it has been rare for the prosecution to have breathalyzer or blood test evidence that could be presented to juries.
Under the new policy, there will be breathalyzer and blood test evidence for jurors to review in virtually every DWI case that goes to trial which he said will be a powerful tool for the justice system to use to get to the truth of whether or not the driver was legally intoxicated.
Busselman explained that about eight to ten DWI cases are brought forward in Karnes County each month. Although many defendants plead guilty, there are still several who plead not guilty. Many more will likely plead guilty instead of taking their chances with a jury, knowing the jurors will have harder evidence to consider. For the ones that do go to trial, having hard evidence increases the odds of getting a conviction.
“We take an oath to do the right thing,” Shaw said. “If we’re not doing the right thing, then something’s wrong. I would love to be the ‘hang ‘em’ judge because I don’t like drunk drivers, I was hit by a drunk driver.”
“What we want people to know that we’re not playing the ‘get you’ game, we want public safety,” Shaw said.
“It should be better for the whole community,” Busselman said, in regard to the no refusal policy.
In the past, Busselman said he has been sensitive to people’s rights and that there have been times he has held cases in efforts to give the arrested person a second chance. In some cases, the second chance was deserved and resulted in a happy ending, although these situations, he admitted happen very rarely.
The decision to prosecute or not to prosecute lies largely in the hands of the county attorney who uses his discretion, Busselman explained.
Busselman said he plans to retire at the end of this year, and as a result there will be a different county attorney making these decisions beginning Jan. 1, 2013.
Shaw said that being part of the local justice system means taking responsibility for keeping the public safe.
“It is hard to go talk to a family and tell them, ‘because somebody had no self control, your family member is dead,’” Shaw said.