A group, Texans for Accountable Government, has developed a resolution to the City Council of Austin to prohibit police officers from being trained to withdraw blood from DWI suspects who refuse to take a breathalyzer test, and to stop the practice of "no-refusal weekends" which directs officers to seek warrants to withdraw blood in every instance that a suspect refuses a breathalyzer.

The resolution points out that the "no-refusal weekend" practice is at odds with Texas Law.  That has not stopped Austin police chief Art Acevedo, who has called for sobriety checkpoints and DNA collection from Class B misdemeanor suspects.

The text of the Austin resolution follows.  The NMA is alerting all Texas members in case the proposed practice by the Austin police spreads to other communities.

If you are in the Austin community and want to join the opposition efforts of Texans for Accountable Government, call their office at 512-773-6102.

The resolution:

Whereas the State of Texas allows law enforcement officers the tools needed to protect the public safety and collect evidence for prosecuting people driving while intoxicated and who are most likely to cause an accident or injury, specifically Sec. 724.012 of the Transportation Code relating to the taking of breath and blood specimens;

Whereas Sec. 724.013 of the Transportation Code specifically prohibits taking a blood specimen from any person who refuses to submit to the taking of the blood specimen, with certain exceptions involving
driving while intoxicated, namely, having a child passenger, having prior convictions involving driving
while intoxicated, or causing an accident resulting in serious bodily injury, hospitalization or death;

Whereas Sec. 724.035 of the Transportation Code provides that any person who refuses to submit to the taking of a breath or blood specimen will have their license suspended for 180 days, or for two years if at any time in the previous 10 years (a) the person had refused to submit to the taking of a specimen, (2) the person had a DUI or DWI conviction, or (3) the person’s breath or blood specimen after a DWI arrest showed a too-high alcohol level;

Whereas the City of Austin believes in vigorously protecting the rights, liberty, and freedom of its people under the Texas and U.S. Constitutions, especially the right of privacy to be free from unreasonable
governmental search and seizure and intrusion into their personal lives and bodily integrity;

Whereas no empirical studies show aggressive blood taking beyond that required by law significantly
diminishes injuries caused by drunk drivers;
 

Whereas city resources are better spent in preventative measures to avoid drunk drivers from getting
behind the wheel, such as public education campaigns like “Friends Don’t Let Friends Drive Drunk” and proactive efforts which offer a safe ride home;

Whereas participants at a town hall meeting on a police department program to withdraw blood forcibly if the suspect refuses to allow a specimen to be taken, including a proposal to train officers to become phlebotomists, overwhelmingly opposed such a measure;

Whereas the City of Austin believes that the phlebotomist-training program, which lacks holistic medical training and skill, might exacerbate a person’s medical condition by negative consequences of a blood draw, to the injury of the individual and financial liability of the City;

Whereas “mandatory blood draw weekends” are at odds with Sec. 724.013 of the Transportation Code
prohibiting the taking of a specimen if the suspect refuses to submit; 
 

Whereas an individual’s right of refusal to submit to testing on a “mandatory blood draw weekend” is not in and of itself justification for an officer to obtain a search warrant to draw blood, and no officer should seek a search warrant to obtain blood by force where a state statute prohibits the taking of blood; and

Whereas the City of Austin respects and abides by state law with regard to mandatory blood specimen
draws, but also when such draws are prohibited under state statute, and furthermore, the policy of the city should decidedly favor the individual’s constitutional and common law rights of privacy and bodily
integrity;

Therefore, the Austin City Council directs the City Manager:

(1) not to permit the training of officers to become certified phlebotomists or other similar use of
officers for that purpose, and

(2) not to permit police officers or other City employees to draw blood, or to instruct others to draw
blood, for law enforcement purposes from a person who refuses to submit to the blood withdrawal, unless otherwise mandated by state statute, and

(3) to instruct the police department and city magistrates that the police are not to spend time or
resources seeking search warrants to draw blood except where the state statute requires a specimen,
and that an individual’s right of refusal to submit to testing is not in and of itself justification for an officer to obtain a search warrant to draw blood.

We have been hearing more from members and seeing more mention in the press about new "drunk driving" legislation; legalizing DUI roadblocks where they are not now legal, requiring ignition interlocks for first time offenders, making DUI a felony, increasing fines and mandating jail time. Most citizens do not realize that these initiatives and existing laws apply to people who have had as little as two or three drinks over an extended period of time. Many people drink and drive but do not see themselves as "drinking and driving," and certainly not driving drunk. But existing and new laws now make these people "drunk drivers," so here are a few reminders on avoiding a drunk driving conviction.

The presence of alcohol in your system remains for several hours after the cessation of drinking and your blood alcohol content will continue to increase for one to three hours (or longer under certain circumstances). Consequently, even though you may have not had anything to drink for hours, you may still have an illegal Blood Alcohol Content, if you are tested.

Many DUI convictions result from traffic stops that were not related to any sign of impairment. Speeding, burned out tail lights or license plate lights, failure to come to a complete stop, and not signaling a turn or lane change are typical events that lead to a "drunk driving" conviction, even though the driver was not impaired. Therefore, even if you only consumed two or three drinks over a period of hours, make sure all your lights are functional, pay attention to the speed limit, come to complete stops at stop signs, and signal your intentions.

If you are stopped, and you have had something to drink in the prior five or six hours, do not make self-incriminating statements. If the officer asks if you have been drinking, politely ignore the question and ask the officer if he would like to see your license and proof of insurance. If the officer persists, simply state that you do not wish to answer such questions, or ask "why are you asking me that kind of question?" The officer knows full well that you do not have to engage in a dialogue with him, nor answer self-incriminating questions.

You can be required to exit the car. You are not required to perform any kind of roadside sobriety test and there is no penalty for refusing to do so. The only purpose for these tests is to build a case against you and give the officer an excuse to arrest you. No matter how sober or athletic, you cannot pass a roadside sobriety test. Do not take the test.

If arrested you are required to submit to a chemical test to determine your blood alcohol content. If you refuse you will suffer severe penalties, unless you can prove the officer had no reasonable suspicion or probable cause that you were drinking and driving. In some states you can be physically forced to give blood for a BAC test.

The most common chemical test is done with a Breathalyzer that measures the alcohol in your breath and from that calculates the percentage of alcohol in your blood. Breathalyzers are inherently inaccurate, by as much as 50 percent, in determining blood alcohol content. The more and harder you blow into a breathalyzer, the higher the reading to be generated. You will be cajoled to blow as hard as you can. If your blood alcohol content is just borderline illegal, demand a blood test for a more accurate determination.

These suggestions have been made before, but we continue to receive calls from members who, thinking they were innocent and in no way impaired, made self-incriminating statements, took roadside sobriety tests, and readily accepted Breathalyzer results and then found themselves convicted of drunk driving. We urge you not to make these same kinds of mistakes. The current state of drunk driving laws and the enforcement of these laws puts the vast majority of responsible motorists, who exercise good judgement when it comes to drinking and driving, in jeopardy of being arrested, charged and convicted of drunk driving. We do not want you to be one who suffers these punitive and often devastating consequences.