Fort Worth police won't take 'no' for an answer

Fort Worth Star Telegram ^ | December 29, 2007 | MELODY McDONALD

[Eric Blair 2084]

Drunken drivers, consider yourself warned: The cops will be out for blood.

Motorists on Fort Worth roads who refuse to take a breath test after being stopped for suspected drunken driving on New Year's Eve and New Year's Day will have their blood drawn to determine whether they are impaired.

"If you refuse to take that blood test, we are going to ask for a warrant from a magistrate and come back and take your blood," said Fort Worth Police Chief Ralph Mendoza. "Basically, we are going to get our evidence one way or the other."

For the first time, Fort Worth police are launching a DWI No Refusal campaign in an effort to keep drunken drivers off the roads during the holiday.

In a news conference Friday morning, Mendoza, along with officials from the Tarrant County district attorney's office, Dalworthington Gardens, and Mothers Against Drunk Driving warned motorists not to get behind the wheel if they have imbibed.

"If you are stopped by a Fort Worth police officer and you are arrested for DWI, we are going to get a sample," said prosecutor Richard Alpert, who specializes in the prosecution of DWI and intoxication manslaughter cases. "We are going to get the evidence we need in court to prove your guilt. There is no way around it."

Defense attorney Abe Factor who routinely defends those arrested for DWI, said he believes that the campaign is little more than a publicity ploy and that the results will be lackluster, partly because the process will take time and many will score below the legal limit of 0.08.

"To me, it's more sizzle than steak," he said. "It's a good for thing for them to have a press conference over, but the numbers are going to be fairly small. If they stop someone who is really intoxicated, they are going to have them videotaped all over the place anyway."

The idea for the no refusal holiday came from senior prosecutor Lloyd Whelchel of the Tarrant County district attorney's office.

Whelchel recently attended a training seminar and reminded officials that authorities in El Paso and Harris County had similar programs in place.

The campaign will run from 8 p.m. Monday to 5 a.m. Tuesday and from 8 p.m. Tuesday to 5 a.m. Wednesday. If a Fort Worth police officer pulls over a suspected drunken driver who refuses a breath test, the officer will seek a search warrant from a magistrate.

The suspect will then be taken to a room at the Fort Worth Police Department, where at least three officers with Dalworthington Gardens Public Safety Department will be on hand to take their blood.

[Bernard]

Wouldn’t it be easier to just shoot ‘em? Saves all that paperwork.

[Rider on the Rain]

Yeah, adios, 5th amendment.

[Calpernia]

No, I’ve never been stopped for anything serious by a cop. I’m also a girl, so I think that creates a different situation in how I’m treated vs. a man. Men can be more confrontational with each other without even intending it. So that may set a different stage with a traffic stop.

I’ve not been in this situation nor have I ever been given a breathalyzer. I also don’t drink so I’m not familiar with most that is being posted.

But I’m listening. Hence my questions.

[PresbyRev]

BIG BROTHER has the right to your blood, your urine, your breath. We are owned by the State. If we cannot refuse consent to being physically violated by the State, we cannot be free. Dickering about eminent domain, property rights or the free market is window dressing. You and I are property, not free citizens.

[Abundy]

I confess I only got to post #72.

The issue people have with this (including me) is that everyone, including you, have an absolute right to refuse to cooperate with the police. You don’t have to answer any questions that incriminate you, nor do you have to give any evidence that you are sober or not. You also have a right to privacy embodied in the fourth amendment - the police can’t just take your blood or breath without probable cause, which is why they ask for submission to a breathalyzer.

So, it is 2 am and you swerve your vehicle to miss a cat. You have been up for 24 hours so you are a little punchy. Police officer stops you for the swerve, but given the time of day and your groginess, asks if you have been drinking.

You say “no” because 1)you haven’t drinking, 2) you are being polite and cooperative, even waiving your right to refuse to answer the question about drinking, 3) and because you are just a little ticked that the cop doesn’t believe you even though you are being truthful - but the cop hears that on every traffic stop, especially from the guy on a 3 day bender.

So, he asks you to take a breathalyzer and you say no. He then detains you until he can draw your blood and determine you haven’t been drinking.

Hell, you didn’t have to answer the question as to whether you were drinking - it might incriminate you if you had been.

Sure, you have nothing to hide in my scenario, but it’s the principle of using the exercise of one right to get around the other that should have every person scared. This program will eventually make it to the Supreme Court as MADD pushes to implement it all over the country.

And if the Supreme Court of the United States determines that exercising your fifth amendment right (a refusal of a breathlyzer test) can be used as probable cause to get around your fourth amendment rights (forcibly drawing blood from your body) it will be past time to start a revolution.

For if this passes review, how many other rights will be violated in the same manner because some special interest group thinks it will be good for the country?

I’m in law enforcement, have been for almost 15 years now - this DA should be remanded to remedial constitutional law or have his license suspended. So should any judge that allows evidence seized under this program into evidence during a trial.

[PalestrinaGal0317]

Absolutely. In the case of the pilot, he'll have a copilot (if he flew commercially) for that very reason. But my point was that a drunk deliberately gets behind the wheel in a condition that renders him unfit for safe driving, while a pilot or driver in the situation you describe would not have been at fault unless he ignored the symptoms I described prior to taking off or starting the truck.

[G Larry]

If they use these gestapo tactics without probable cause, I hope somebody takes the time to sue the pants off of them.

[Calpernia]

>>>>Gargle with Listerine, or other alcohol laden mouthwash and take a breathalyzer test up to 30 minutes later...you’ll light it up like a Christmas tree.

If this is really an issue, may I suggest brushing your teeth with baking soda? It is cheaper than buying mouthwash, works better than mouth wash and won’t register on a breathalyzer.

[MarkL]

I do not agree with being physically forced to have blood drawn. That could be extremely dangerous (for cop as well as driver).

Actually, I seem to recall that there were some states where you could request a blood test, rather than a breath test, but eventually they did away with it. The idea was that if you were at or near "the limit," the extra time required in order to get the test done could allow your body to metabolize more alcohol, and get below the limit.

I'm pretty sure that the cop would NOT be doing to blood draw. The "suspect" would probably be taken to a hospital, or the PD might keep an EMT on call for this and other emergencies, or possibly just have an EMT do it.

Mark

[Calpernia]

In my state, right or wrong, it is illegal to drive while groggy.

Copy:

NSF Statement Regarding Maggie’s Law - Nation’s First Law Aimed At Drowsy Driving

Washington, DC, August 5, 2003 — The National Sleep Foundation (NSF) commends the state of New Jersey for its landmark legislation that addresses the dangers of drowsy driving. With “Maggie’s Law,” New Jersey has given the nation its first law that specifically states that a sleep-deprived driver is a reckless driver who can be convicted of vehicular homicide.

More:

http://www.sleepfoundation.org/site/apps/nl/content2.asp?c=huIXKjM0IxF&b=2428017&ct=3454691

So I think that renders your example moot in this case. It isn’t just MADD, it is the NSF influencing the laws too.

If you are in law enforcement, is there a way to find out if these groups are getting a kick back for creating their own laws? Do they get a piece of the ticket, percentage of the surcharge or something?

[Calpernia]

>>>The article said no such thing.

Yes it did.

“If you are stopped by a Fort Worth police officer and you are arrested for DWI, we are going to get a sample,”

[PalestrinaGal0317]

I'd imagine that any lawyer worth his salt (or his wallet) would jump pretty fast to get a phlebotomist down there if he smelled a potential lawsuit. :D

I'd also throw out there that it would be in the interests of the police department to have that blood drawn and tested, because it's pretty hard to fake a blood test. If it turns up positive for alcohol, then they can deal with the "gargled with Listerine" defense (I'm not saying that that couldn't happen, you understand--I'm just DAing here), but if it is negative, it would demonstrate that they were willing to believe you (but needed evidence to that effect due to liability issues) when you said that you might be blowing four times the legal limit on the breathalyzer but still hadn't had a drink in a week.

Constitutionally, I can see where this would be messy in the extreme. You would be incriminating yourself by taking the breathalyzer or by giving blood that indicated that you had been drinking, but what is the alternative? I'm not trying to advise ignoring the constitution here--I honestly want to know if there is a viable alternative. If so, I'm all ears! :)

[MarkL]

And if the Supreme Court of the United States determines that exercising your fifth amendment right (a refusal of a breathlyzer test)

You know, I would be willing to bet that this would not fall under a 5th Amendment protection of the Constitution... The SCOTUS has already determined that anything you put out in public, like trash, can be used as evidence against you. Your breath would probably fall under a similar ruling... Unless you can keep from exhaling for an extended period of time... Sort of like when a cop says that they smelled alcohol on your breath, or the smell of pot smoke on you and your clothing.

Mark

[Calpernia]

>>>If hillary socialized health care gets in, look for all sorts of mandated checks.

It has been getting in via states vs federally.

THIS is her health care initiative:

http://www.freerepublic.com/focus/f-news/1563271/posts
Healthy People 2010

Go to google, type in your state plus Health People 2010. You will see links return. There are also sister spin offs called Healthy Schools and Healthy Communities.

[ninonitti]

You have no recourse, silly citizen.

Can I submit a stool sample instead.....drawing blood is against my religion.

[rollo tomasi]

So the only probable cause police needs is driving at night?

I understand checks to look for PC but assuming your guilty already is opening up too many cans of worms.

[Joe 6-pack]

"If this is really an issue..."

It's not an issue with me...I don't drink and use alcohol-free mouthwash. There are a lot of people out there with dentures or other dental prostheses whose dentists prescribe alcohol based mouthwashes. Part of the problem is a dental prostheses may actual capture or hold trace amounts of alcohol which will give a false positive, especially if the police are sloppy...which they are on a surprisingly frequent basis.

IMHO, this announcement, as well as most check points, are little more than a, "show of force," by law enforcement.

[Jackknife]

Hey, you took my tagline !! HehHehHeh

[xc1427]

...and the direct opposite, if you are pulled over (and can remember to do it) eat a bunch of Reeses peanut butter cups. The scent they produce can mask anything (including asbestos and battery acid).

[Joe 6-pack]

Oh....and one other thing...again, this doesnt affect me specifically for the reasons stated above, but it does in principle. I imagine some people like Listerine, or Scope, and have used them for years or even decades. I would submit that asking them to change their routine, and surrender a regimen that they have enjoyed and grown accustomed to, and which is perfectly legal and some might even argue, healthy, merely so that they may avoid suspicion of a crime and having their blood forcibly drawn to prove that they are innocent is a little un-American....don't ya' think?

To use an example that might hit a little closer to home with you (and me as well), it would be like asking you to walk a pekingese instead of a Shepherd, because somebody in the neighborhood got bit by a German Shepherd.