Blood tests could become pricey

The Houston Chronicle reports that individuals in Harris County could soon be picking up the tab for their blood tests if convicted DWI (driving while intoxicated). The County, which has spent over $350k on these blood tests in recent years, is seeking to recoup some of these losses from the fines of those convicted of the pertinent offenses.

County Commissioner Jack Cagle, a Republican representing Precinct 4 (northeast quadrant), seemed supportive of the measure but felt it would be ideal to rather encourage the Legislature to revise the law. The easiest solution, he pondered, would be to make the blood test a standard component of “court costs,” which are normally included in the fines assessed to those convicted.

As the Chronicle article notes, the District Clerk’s office was supportive of the idea, while the District Attorney’s office noted that Judges could already assess the fines if the “arresting agency” requests it. Judge Sherman Ross was tepid about the proposal, however, as were criminal defense attorneys.

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Pressure mounts for Lehmberg to resign

Rosemary Lehmberg, the Travis County District Attorney stopped for DWI, has plead guilty, and immediately convicted and sentenced to 45 days in prison.

Lehmberg’s blood alcohol content was 0.23, which, if you are not familiar with the scale, is really freaking drunk (0.08 is illegal). According to the Statesman, the punishment was “Without a doubt, the harshest sentence for a first-time drunken driving charge in the history of Travis County.” 45 days is pretty harsh, but then again, this is a Class A, not a Class B, because the BAC was greater than 0.15%.

The Tribune discusses the politics behind whether or not Lehmberg stays in office. A spokesperson for the Governor indicated that Perry would be happy to replace the DA, while Gilberto Hinojosa, Chairman of the Texas Democratic Party, stated that “Anybody that Rick Perry appoints is going to be far less qualified than our current district attorney in Travis County, even if you take in to consideration this mistake that she’s made.”

I was surprised to hear the Editorial Board of the Statesman would support Lehmberg’s resignation. Considering how liberal that paper is, I am at a loss for words. I really don’t want another F.O.P. (friend of Perry) in the Travis DA’s office, but we may be stuck with that. The articles state that the replacement would serve the full term (until end of 2016), but I was under the impression he or she would only serve until a Special Election could be held concurrent with the 2014 elections. Is that true? Anyone? Bueller…?

Warrant required for DWI blood test

The Washington Post carried this BIG story yesterday, and I meant to get to it, but never had time. In an 8-1 opinion, written by Justice Sonia Sotomayor (Thomas was the lone dissenter), the court ruled that police must try or have a reasonable duty to obtain a warrant before forcing a blood test to test for BAC. I have no idea how “try” or “reasonable” will be interpreted by the states.

The case, Missouri v. McNeely, denoted that the extraction of blood for the purposes of testing constituted a “search” under the fourth amendment. Accordingly, a Judge’s warrant would be required before said extraction.

I did not think that this really applicable to Texas law, but, evidently, it is. Texas (especially Houston) generally allows for defendants to refuse BAC test (the individuals would then incur an automatic license suspension), but it is becoming less common in recent years. I have a hunch that back in the good ole’ boy days, since half the legislators seemed to be defense attorneys in their other jobs, exemptions and the like were a lot more ubiquitous.

However, times have changed and the average legislator nowadays is a Republican businessman from the suburbs, instead of a Democratic attorney from the country. Localities now have broad power to set “no-refusal weekends” during certain big-events, as well as the State providing exemptions from the privilege of refusing BAC tests for a variety of categories (repeat offenders, children in the vehicle, etc). The Statesman had a good article about all this. Austin generally uses warrants, and the article insinuated Houston did as well, but it suggested that rural areas rarely did.

The Statesman article stated that Austin PD will not be doing any more warrantless blood tests. I wonder if HPD will follow.