by Trevor Goodchild trevorwgoodchild@yahoo.com

Thanks to ACLU, St David's hospital, Francis Montenegro, and to TAG for the forum on this. Tried to cover all sides. Below is the article I wrote in The Accent, paper newspapers available for free at all ACC locations.

http://www.theaccent.org/home/index.cfm?event=displayArticle&ustory_id=8...

Note: I interviewed Chief Art Acevedo personally at police HQ so not all the quotes in this article from him are ones he made at the TAG forum.

Enjoy:

Austin police out for blood

ACC phlebotomy certificates for cops a possibility
By: Trevor Goodchild

Austin Police Chief Art Acevedo backs Senate Bill 261, sponsored by Senator Bob Deuell, which amends laws to allow drawing blood from DWI suspects who refuse a breath test.

As of March 31 the bill is in the senate Criminal Justice Subcommittee and has not yet reached the House.

If Acevedo's plan to increase blood draws succeeds, ACC might be used to train Austin police officers to be phlebotomists. The City Counsel and the Austin Police Department are debating the issue right now.

"The program would require us to go to Austin Community College; it is one of two phlebotomy training programs that are nationally accredited in the country," Acevedo said.

The phlebotomy program at ACC is a one-semester, stand-alone program. The program can be taken without having a higher degree plan.

Eileen Klein, Dean of the Medical Technology and Phlebotomy department and Department chair Terry Kotrla, are aware of the police chief's plan to train officers at ACC.

"We [department chair and Dean] have been in constant communication about this...this is not set in cement yet. Until they [APD and City Council] have their ducks in a row we're not going to go for it," Kotrla said.

There are many ducks that need to be in many rows, as Austin's City Council cannot rewrite Texas law.

According to Texas Transportation Code 724.013, taking blood samples from DWI suspects who refuse to have it taken is illegal unless the criteria of death or serious bodily injury have been met.

Some of these issues were discussed at a public forum hosted by Texans for Accountable Government (TAG).

On March 30 at City Hall a forum was held with a panel comprised of Acevedo, Council Member Mike Martinez, American Civil Liberties Union (ACLU), Mothers Against Drunk Driving (MADD) and the TAG Executive Director John Bush.

The moderator, David Kobierowski, presented the Supreme Court case Beeman v. Texas as a possible way around 724.103 to the panel and audience of Austinites. Knowel Beeman appealed the drawing of his blood because his arrest didn't meet the Texas transportation code's criteria, but lost.

In an aside, Francis Montenegro, a criminal defense lawyer who attended the event called this "judicial activism," and stated it does not rewrite the Texas Law that is already in place. Bush spoke in detail in the panel about the rights guaranteed by the Ninth Amendment and the right to privacy he felt would not be protected with blood draws.

"I know if we continue this practice of forcible blood withdrawals, the city of Austin residents are not going to lay down without putting up a fight," said Bush.

The chief of police had another viewpoint about the drawing of blood authorized under the implied consent laws.

"I don't know how to break it to people, but when you break the law you lose some rights," Acevedo said.

He also justified wanting to train police officers at ACC because hospitals were refusing blood draws from DWI suspects due to liability concerns. Even the jail nurse at the Austin Police Department will not draw blood for the APD to prove if someone is over the legal limit.

"When you look at the economic toll, the emotional toll and the toll on our communities...I think personally it's kind of irresponsible [for nurses to refuse]," Acevedo said.

Brackenridge, Seton, and St. David's hospital were all mentioned at the forum, and identified for refusing to do blood draws when DWI suspects were brought in by APD. Dr. Steven Berkowitz, the Chief Medical Officer of St. David's hospital's five locations in Austin shared his perspective on Acevedo's proposed policy.

"A forensic lab has certain policies and procedures...they do a chain of custody. Everyone signs off on legal documents. Let's say you were accused of a DWI. How do you know that blood was actually yours? Because we don't have forensic capabilities, we cannot say in a court of law that that was your blood," Berkowitz said.

The federal grant to train officers at ACC would come from National Highway and Traffic Safety Association (NHTSA). Despite this, hospitals aren't alone in their scrutiny of this policy. Some of the City Counsel members criticize its price tag.

"It is going to cost millions upon millions of dollars to collect and store the DNA and maintain it in a secure process. There are too many questions and until those questions get answered I don't think the city of Austin should be engaged in taking blood samples and storing them," Martinez said.

Acevedo cited that Arizona has been doing blood testing since the 1990s and claimed they've had great results with only one lawsuit, which the plaintiff lost. When asked what his recourse was if the blood draw policy didn't pass, he brought up another tactic to decrease DWIs in Austin.

"I think we have to continue to work on the education component of it. We have to keep trying to educate the public," Acevedo said.

Recent cases involving people such as Jesse Owens, Sophia King, and Daniel Rocha have brought APD's use of force policy to the forefront of the public's eye. ACLU Central Texas Chapter President Debbie Russell questioned what would happen if someone physically refused a blood draw.

"What hasn't been brought up yet is the use of force issue when getting that blood from a person who is unwilling to give up their most precious identifier," Russell said.

Acevedo addressed this after confronted by panel members and multiple Austinites that spoke at the podium and yelled out from the crowd regarding APD using physical restraints to obtain blood from a person who might be intoxicated.

"We're not going to beat on somebody to get a blood test out of them," said Acevedo.

APD does not call their policy forced blood draws, they call it "non-consensual testing." The chief has initiated no refusal weekends on holidays when APD estimates there will be a lot of drinking. Acevedo concluded that there was a way to avoid the entire situation, "Bottom line is if you take a taxi, walk home, have a designated driver, call dial-a-ride, or take the bus you'll never have to worry about us."

Trevor W. Goodchild
Corporate Liaison BHHB
Accent Staff Writer