APD's DWI initiative chalks up 27 arrests

The Austin Police Department arrested 27 individuals over Labor Day weekend under the department’s “No Refusal” initiative conducted Friday night and a new state Driving While Intoxicated law enacted Sept. 1.

APD Cpl. Scott Perry said the initiative was not conducted last Labor Day but attained more arrests than this year’s crackdown on the Fourth of July.

The initiative is an 8-hour program in which if an individual arrested for a DWI denies either a breathalyzer or blood test, an APD officers is able to take the subject to a temporary blood alcohol test “command center” and have a detective fill out a search warrant request.

That request is processed by a magistrate, available 365 days a year, 24 hours a day, that same night. Though the command center is used on a weekly basis, it does not normally contain the man power used during special events, such as Halloween night, the Fourth of July and Super Bowl Sunday.

The initiative lasted from 9 p.m. Friday to 5 a.m. Saturday and amassed 27 total arrests consisting of nine blood search warrants, five consented blood draws, 12 consented breath tests and one mandatory blood draw based on the new DWI felony law.

“It’s still DWI officers aggressively targeting intoxicated drivers and keeping them off the streets to keep the rest of us safe,” Perry said. “There is nothing unique about the fact that we can try to attain a search warrant from a judge. The thing is it is a time-consuming process — it isn’t something that happens in a matter of minutes. That is why it becomes a bigger event when we decide to do [this initiative].”

The Driving While Intoxicated law passed Sept. 1 states that warrants to draw blood are not needed when a person has died or is near death, has suffered bodily injury, or the driver has a passenger under 15 years of age.  Individuals with two previous DWI convictions or one previous DWI conviction where a child was present are also subject to the new law.

Senate Bill 328 enacted on Sept. 1 was authored by State Sen. John Carona to address boating while intoxicated but was amended several times and expanded to operating any vehicle while intoxicated. The bill granted magistrates the ability to issue a warrant for a blood draw of a DWI arrest, but before the legislative session ended, it was expanded by another bill, authored by State Sen. Bob Deuell and called the Nicole “Lilly” Lalime Act.

Though the second bill died in the Calender’s Committee, it was still used to amend Carona’s bill by waiving the requirement for a warrant under certain conditions.

Local DWI lawyer Jamie Spencer said since the legislation is new, there have not been any cases contesting its constitutionality, but he expects for defendants to appeal decisions convicting them based on the new law within a year’s time.

“I don’t think it’s just, but legal ‘just’ means whatever the appellate court says cops can do,” Spencer said.

APD’s “No Refusal” initiative was the sixth conducted since Halloween weekend. It set up a Blood Alcohol Test command center located at the corner of Barton Springs Road and South First Street, where subjects arrested for DWI had blood drawn.

The streets of Austin were patrolled by a DWI unit comprised of 14 officers, but any officer was allowed to bring subjects to the command center.

“We can do a search warrant on every single DWI arrest strictly for evidentiary nature — that is lawful and legal,” said APD Lt. David Mahoney. “Is it practical? Not necessarily, because it takes a lot of effort. You got to write it, you got to go see a judge, etcetera. That’s why we only do [the initiative] on this one day.”

Deuell explains the intent of his bill in a brief analysis.

“Frustration with the high breath test refusal rate in Texas has prompted jurisdictions across the state to employ ‘no refusal’ policies,” Deuell said in the analysis. “The Texas Court of Criminal Appeals has approved the use of the search warrant as a lawful method for obtaining blood samples. Evidence of intoxication is often crucial to the conviction of a DWI offender, for judges and juries prefer to be certain of the defendant’s guilt, especially in felony DWI cases.”

After Senate Bill 328 passed in the Senate, State Rep. Larry Phillips sponsored the bill in the House. He said the older act was amended onto the bill at the end of the session due to legislative calendars taking more time than originally allotted.

He said he was not against the initiative as long as it follows a person’s constitutional rights and that any evidence attained against a subject unfairly can always be suppressed in court.

“The Supreme Court has said clearly if there is probable cause, you can [get a blood search warrant],” Phillips said. “If the officers are doing that, I don’t have a problem with that, as long as they are following [the public’s] constitutional protections.”


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