August 28, 2009
/24-7PressRelease/ --
Texas Ups the Ante against Drunk Drivers with New Law
Article provided by Leonard B. Gabbay, P.C.
Visit us at
www.lbglaw.com/
A new law permitting the police to take warrantless blood samples from certain drivers suspected of drunk driving goes into effect across Texas on September 1, 2009. Under prior law, the police were only permitted to take a warrantless sample in cases where the drunk driver caused an accident in which another person died or suffered severe bodily injury.
The controversial new law allows the police to take warrantless samples in limited situations when they arrest a driver for drunk driving and the driver refuses to consent to a voluntary sample. The limited situations include:
-When the suspected drunk driver is involved in an accident in which someone died or will die
-When the suspected drunk driver is involved in an accident in which someone suffered serve bodily injury or any bodily injury and was taken to a hospital
-When the driver was arrested for drunk driving and had a child passenger in the car under 15 years old
The law also permits the police to take a warrantless sample if the driver has had at least
one previous drunk driving conviction for:
-Driving while intoxicated with a child passenger
-Intoxication assault
-Intoxication manslaughter
Or at least
two previous convictions for:
-DWI
-Flying while intoxicated
-Intoxication assault
-Assembling or operating an amusement ride while intoxicated
Previously, Texas did not have an implied consent law - meaning that people pulled over on suspicion of drunk driving could not be forced to take a breathalyzer test. The police could merely request that a driver give a voluntary sample. Those who refused the test would have to pay a fine and would lose their driver's license.
These punishments, however, did not seem to be effective at curbing drunk driving. Some reports estimated that as many as 50% of drivers refuse to provide a voluntary sample to the police. Instead, many drivers opted to take their chances with the field sobriety test and hoped there was not enough evidence against them without the breathalyzer results to convict them of DWI.
In recent years, the police have begun requesting warrants from judges in order to take samples from suspected drunk drivers. This practice was criticized because of the concern that judges were rubber-stamping their signatures on the warrants without ensuring the police had sufficient probable cause for arresting the driver.
Law Meant to Deter Drunk Driving
The legislature passed the warrantless blood sample law in hopes that it will lower the number of injuries and deaths from drunk driving accidents across the state and that it will help the police secure more convictions against drunk drivers. Texas consistently ranks as one of the states with the highest number of drunk driving-related highway deaths. Forbes magazine recently rated Austin as the drunkest city in America. In 2008, 975 people were killed in drunk driving accidents. The Texas Department of Transportation (TxDOT) estimates that someone is injured or dies in an alcohol-related accident every 20 minutes in the state.
As the state's population continues to grow, more people are moving out into the suburbs and rural areas surrounding Texas' largest cities. As a result, many people drive further distances to get to bars, restaurants and other entertainment -- and there has been a rise in the number of rural drunk driving accidents.
Constitutionality of Warrantless Blood Samples Called into Question
Opponents to the law raise several important issues about the law's constitutionality. They are concerned about giving the police such broad authority without appropriate restrictions on their power. Under previous law, the police had to secure a warrant from a judge in most cases before taking a blood sample against the driver's will. Under the new law, no one must first approve the police officer's actions. Opponents fear this unchecked power will lead to abuses against drivers who may not have broken the law.
Those opposed to the law also are concerned about the constitutionality of taking a blood sample from someone who is refusing to give it. The federal and state constitutions provide citizens with protection from unreasonable government intrusion into their private lives. Some courts have ruled that citizens have a privacy interest in their bodies. State and federal laws protect individuals from unreasonable search and seizures by the police.
In passing the law, the Texas legislature relied upon the US Supreme Court case of Schmerber v. California, 384 US 757 (1966). In Schmerber, the Court held that a California police officer could take a warrantless blood sample from a driver suspected of drunk driving as long as the police had sufficient probable cause that the driver was in fact intoxicated.
Based on the Schmerber case, it is unclear whether a constitutional challenge to the warrantless blood sample law will be successful, but opponents promise to challenge the law nonetheless.
Article provided by Leonard B. Gabbay, P.C.
Visit us at
www.lbglaw.com/---
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