Want to Know If You Should Refuse an Alcohol Test? Ask an Elected Official

“To take or not to take an alcohol test?” That is the question that every person who is suspected of drunk driving must ask. When faced with such a potentially life-altering decision, perhaps its best to get some guidance from our elected officials. According to a report in the Austin American Statesman, the rate of refusal for elected officials in Texas, when accused of drunk driving, is 100%. Among the general public, the rate of refusal is about 50%.

Why would 100% of our elected officials, who are accused of drunk driving, refuse to take an alcohol test? According to the report, Rep. Mike Krusee, R-Round Rock, stated that he refused an alcohol test because, “I’d always heard from attorneys that you should refuse.” Representative Krusee’s decision to refuse resulted in his case being dismissed.

While I would agree with Representative Krusee that most defense attorneys, including this one, advise citizens to refuse alcohol tests, the reason most attorneys give such advice is because even if you take an alcohol test and pass you will still be charged with DWI.

Austin DWI defense attorney Jamie Balagia reiterated this point by stating, “Even a blood alcohol level below the legal limit doesn’t guarantee the driver will be released.” We have written about this very issue here before.

So, for anyone out there who wants to know whether or not to submit to alcohol testing the answer should be, “NO, refuse all tests!” Don’t take it from me; take it from our elected officials.

Below see the complete story from the Austin American Statesman.

Politicians know to say no to blood alcohol test When Texans are arrested on suspicion of DWI, about half refuse to provide a breath or blood sample. Among elected officials, practically all do.

By Eric Dexheimer AMERICAN-STATESMAN STAFF Sunday, February 01, 2009
State Rep. Mike Krusee was pulled over last April in Northwest Austin after police said they observed him driving erratically. Officers said he failed three roadside sobriety tests.

Krusee, whose DWI case was dismissed in November, disputes that. “I was shocked. I encourage people to look at the dashboard video.” Yet when police asked him to blow into a Breathalyzer to measure his body’s alcohol content, he refused.

He’s not alone. A review of public records and published reports turned up more than a dozen elected officials in Texas – among them representatives, senators, judges and commissioners – who in recent years were arrested on suspicion of driving while intoxicated. In each instance, police on the scene asked for a blood or breath sample to determine whether the driver’s blood-alcohol concentration exceeded the legal limit of 0.08.

With only two exceptions – both of which occurred outside Texas – the politicians refused to consent.

“Among the general public, the refusal rate is about 50 percent, but at the Capitol, the refusal rate is about 100 percent,” said Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association.

Police and prosecutors say politicians fall into a larger category of savvy citizens – such as Longhorn baseball coach Augie Garrido, who declined to give a breath sample when he was arrested Jan. 17 on suspicion of DWI – who know that while there technically are consequences to saying no, they are often mitigated with skilled legal advice.

“I’d always heard from attorneys that you should refuse,” Krusee said recently when asked about his arrest.

Critics say it is troubling when elected officials who have vowed to uphold the state’s laws refuse to give evidence crucial to enforcing drunken driving statutes.

“Many people refuse to blow; it’s a growing problem in Texas,” said Karen Housewright, executive director of Texas Mothers Against Drunk Driving. “But we like to think our elected officials would behave as role models and hold themselves to a higher standard.”

It also cuts to the heart of a vigorous debate that pits individual liberties against public safety. Texas leads the nation in the number of alcohol-related traffic deaths , and about 40 percent of all the state’s traffic fatalities are alcohol-related, according to the National Highway Traffic Safety Administration.

Yet the state is one of only 10 prohibiting sobriety checkpoints, and it has yet to join the growing number of states making breath and blood collection mandatory in suspected drunken-driving arrests. The highway traffic safety agency says at least 17 states now treat refusal as a separate crime.

In Texas, drivers give “implied consent” to submit to the tests when they obtain a drivers license. But with the exception of alcohol-related injury crashes, for which blood draws are mandatory, drivers can revoke that permission if arrested.

Police can obtain a search warrant to force DWI suspects to give blood, considered the gold standard for proving intoxication. In recent years, some jurisdictions have begun hauling detained drivers to hospitals or jails for blood draws.

Since 2005, Dalworthington Gardens, outside of Fort Worth, has trained its police officers to draw blood from DWI suspects. Last week, Williamson County announced it had hired full-time phlebotomists for that purpose. This evening, Austin police are enforcing their third “no refusal” initiative, for which a magistrate and nurse will be on standby for DWI arrests.

But the practice remains cumbersome and controversial. And even forced blood draws can be challenged by an experienced defense lawyer.

Last November, Alvarado police executed a search warrant to draw blood from Elizabeth Berry, a Tarrant County judge who refused a Breathalyzer test after police stopped her speeding SUV. Berry, whose attorney declined to comment, was subsequently charged with driving while intoxicated. In January , however, a judge ruled police had not produced enough evidence to justify the warrant and tossed the results.

‘Notoriously unreliable’

In April 2007, Austin police pulled over a Cadillac being driven by state Rep. Harold Dutton after observing it weaving and recording it speeding. Police asked him to provide breath and blood samples. Although he at first agreed, he ultimately refused, according to a police report.

Dutton did not return a call to his Austin legislative office. His attorney, former Travis County prosecutor and state Rep. Terry Keel, declined to comment on the still-pending case. He termed breath tests “notoriously unreliable.”

Defense attorneys say giving breath or blood can only hurt their clients’ cases. Even a blood-alcohol level below the legal limit doesn’t guarantee the driver will be released, said Jamie Spencer, an Austin lawyer specializing in DWI defense, “so it’s a lose-lose proposition.”

Drivers who refuse chemical tests are supposed to have their licenses suspended for 180 days, compared with only 90 days if they submit and fail. But the suspension can be challenged before an administrative judge – and, if denied, appealed again before a county judge.

Meanwhile, the defendant can keep driving with a temporary license. Krusee said he used one until his DWI case was dropped for lack of evidence – at which point his permanent license was returned.

“There are so many loopholes for someone to get his license back,” said Tom Gaylor of the Texas Municipal Police Association. “It’s a waste of time.”

Without chemical proof of drunken driving, prosecutors must make a case solely on a police officer’s observations – the driver’s breath smelled of alcohol, his speech was slurred, he could not walk a straight line – that are readily disputed in court. And thanks to TV shows like “CSI,” juries tend to expect forensic evidence of intoxication, said Clay Abbott, DWI resource prosecutor of the district and county attorneys group .

“Juries are not comfortable with opinion crimes,” he said.

Several bills addressing how and when DWI blood draws may occur have been introduced in this legislative session. Edmonds said the last bill that would have beefed up penalties for refusing to provide breath or blood died in the 2005 session. “Our legislators have shown no interest in exploring that issue,” he said.

Experts say one reason for the politicians’ reluctance may be that DWI is the rare crime that nearly everyone can envision themselves committing. “It takes away the ‘us-versus-them’ dynamic,” Edmonds said.

Just say no
Even supporters of tougher laws have balked at testing when they become the accused.

In May 2001, then-state Sen. Gonzalo Barrientos voted to increase the length of license suspensions for suspected drunken drivers who refused breath or blood tests. Six months later, an Austin police officer pulled him over as he drove away from the Four Seasons Hotel. When asked to take a breath test, the senator, like Dutton and Krusee, refused.

Reached at his Austin consulting firm, Barrientos declined to discuss the episode. In news reports at the time he said he regretted not providing a breath sample, explaining that he was nervous.

The senator eventually paid a fine, gave up his license for a time and performed community service. For those who choose to fight their charges, however, police and prosecutors concede that refusing a chemical test can help a defendant’s legal strategy.

Travis County Judge Samuel Biscoe was pulled over by Austin police in August 2004 when they saw his car “drifting,” according to the police report. Biscoe refused a breath test because, he explained in a recent e-mail to the Statesman, he was already in custody.

“I may have taken the test except when it was mentioned by the arresting officer, I was under arrest for failing the physical agility test, in the back seat of the patrol car, handcuffed,” he wrote. A year later the case was dismissed when a special prosecutor agreed with Biscoe’s explanation that his behavior could have been caused by a medical condition.

Published reports and police records show at least a half-dozen other elected officials who have refused breath tests in recent years; so far, none have been convicted of driving while intoxicated.

Two politicians arrested on suspicion of DWI while driving outside of Texas did give evidence when asked. When Oklahoma police stopped Tim Cole, district attorney for Montague, Archer and Clay counties, in 2006, his breath registered nearly twice the legal blood-alcohol limit. He pleaded guilty and resigned from office.

U.S. Rep. Kevin Brady of the Houston area blew into a Breathalyzer when asked after being arrested in South Dakota in 2005. A month later, he pleaded no contest and paid a $350 fine.

“No one is above the law,” he said at the time.

edexheimer@statesman.com; 445-1774

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