New Police Anti-DWI Measure Unconstitutional?
By Ken Molestina
EL PASO — The city’s new “No Refusal” program seeks to further fight those who would get behind the wheel of a car while intoxicated, but some say the fight may be unconstitutional.
The program allows for police to have a DWI suspect’s blood drawn if the suspect refuses to submit to a breathalyzer test.
The new plan was implemented this month and eight suspects have already had their blood drawn for alcohol analysis. Now, one local attorney wants to challenge the legality of the measure.
“They are allowing an invasion of the human body and forcing them, dragging them,” said Salah George Al-Hanna, a criminal defense attorney.Al-Hanna said hebelieves the new efforts to thwart intoxicated driving are excessive.
Al-Hanna said there are plenty of other options available that would prove someone’s guilt or innocence of drunk driving, and are admissible in a court of law.
“If aperson smelled of alcohol, had slurred speech, was belligerent, had problems finding their driver license,” are means that a prosecutor could use to prove someone’s guilt, Al-Hanna said.
Al-Hanna said, under the Texas Transportation Code, only a crash involving serious injuries requires a driver to have their blood tested.
Officials with the El Paso Police Department defend their program by saying they obtain a search warrant first. “Of course, there are going to be people who’ll make that argument. That will be tested here in court, but we’re not the first agency to do this,” said police spokesman Chris Mears.
Mears also said getting a warrant from a magistrate judge gives more conclusive proof that a person was intoxicated while driving.
The concern is that alcohol leaves the body so very rapidly that a warrant is justification that at a given moment a person was shown to be drunk,Mears said, and that isevidence would otherwisebe lost.
Al-Hanna said that if the program continued, he would simply have another point of contention to challenge in court.”Where [the sample] has been, how long it’s been, making sure [the sample] hasn’t been tainted in any way and if so, we’re going to ask the judge to dismiss the case,”he said.
Mears said theNo Refusal program is still in its pilot stages, and officers are testing its accuracy and efficiency, butofficers expect to use it widely whileinspecting suspected drunk driving cases around New Year’s Day.
