Concerning the new "Blood Test" DWI law in Texas...

Before going any further, I will explicitly state that I DO NOT condone the act of intoxicated driving. This criminal act was responsible for the death of my mother's oldest son, on my 17th birthday, and it changed the life of myself and the rest of my family in ways indescribable.

It was announced yesterday that the police in Texas now have the authority to order a blood test for drivers who refuse to submit to DWI testing via a Breathalyzer, without gaining a warrant.

To the best of my knowledge (because the State legislature's website hasn't been updated yet), this bill only covers "repeat alcohol offenders" (I think this covers ALL alcohol offenders, not just DWI offenders), those driving with a child younger than 15, or those in an accident involving death or serious bodily injury. For those not covered under this portion of the new law, there is also a clause that expands the definition of "judge" to include local unelected magistrates (to the best of my knowledge, their only requirement is being a licensed attorney in this state) who are available at the jail 24/7.

Okay, sounds good, right? Well, NO. But how can this be bad? It's gonna cut down on drunk driving, right? NO. Why? Because even today, right now, the state doesn't even need a genuine BAC level to arrest or even convict you of a drunk driving offense.

Yes, that's right. The state has the lawful authority to arrest someone for DWI, and can subsequently convict that person of DWI, WITHOUT needing any physical evidence of the driver's Blood Alcohol Concentration. The Texas Penal Code states that, in addition to a "blood, breath, or urine" sample showing a BAC of .08 or higher, a person can also be found guilty if that person does not have "normal use of physical or mental faculties".

That's the evidence that would have been presented against me in 2007, following my arrest in 2006, had the DA decided not to drop the charges down to a seatbelt violation. Apparently, they realized that a man getting noticeably angry at a state trooper's verbal baiting does not equate to a loss of "mental or physical faculties".

But enough about my experiences on that end. Let's talk about why this law is an awesome failure.

First and foremost, let's go over a few little facts about what is and is not legal in the state of Texas. You CAN lawfully drive a vehicle, immediately after drinking an alcoholic beverage. You merely cannot drive a motor vehicle with an open container in the cabin of the vehicle (unless it is a van, hatchback, or SUV, where said container must be out of reach of the driver), and cannot drive while being intoxicated. As stated above, the DWI law in Texas says you are legally "intoxicated" if you present a blood alcohol concentration test sample of .08 or higher, OR you are not "in possession of normal mental or physical faculties".

Anyone who knows anything about the mechanical workings of a breathalyzer knows to NOT EVER blow into a breathalyzer, because it is the LEAST accurate way of testing the Blood Alcohol Concentration. It relies upon a proprietary software that uses no less than six different ASSUMED variables that are different for every human body, calculates them using the same exact bargain-basement microprocessor found in the Atari 2600, and does not do any actual chemical analysis on the breath specimen.

How does it analyze your breath to detect alcohol, if it doesn't do any chemically-reactive testing? It shines a light through the breath sample and measures reflectivity. Then, it does serious calculations of the reflectivity amount through those six different variables that are different for EVERY human body, and assumes that these are correct. Of course, it takes that measurement of light reflectivity, and then calculates it against one of these assumed variables. Then it calculates that product against another assumed variable. It does this four more times.

Imagine that the average man drives a vehicle 75mi per week. Imagine that his vehicle gets 25mpg. Imagine that this vehicle can carry 4 people in its cabin. Imagine that this man has 4 people in his family (including himself) that always ride with him. Imagine that this man runs his air conditioning whenever he drives. Imagine that this man always pays $2.24 per gallon for gasoline.

In this scenario, the "average cost per person, per week" is $1.68. However, this is taking into account the assumption that every man's automobile gets 25mpg, he carries 3 passengers at all times, always runs his air conditioner, and always pays $2.24 per gallon for gasoline. Change any one of those variables, and shit changes drastically. If he's carrying additional cargo, or only two passengers, or doesn't run the air conditioner, et cetera the "cost per person per week" has been altered. The Intoxilyzer 5000 is no different, which is why you should NEVER blow into one if you are suspected of being intoxicated while driving.

The portable breathalyzer results are not admissible as evidence of intoxication in court, but merely allowable as probable cause for arrest. Why? Because they are even less accurate than the "big machine" at the station. Think about it...if it were really "accurate enough", why would they even have the "big rig" at the county jail? There wouldn't be any reason for it.

There are three tests admissible in court, and these are the NHTSA's "Standardized Battery of Field Sobriety Testing". They include the One Leg Stand, the Walk and Turn, and the Horizontal Gaze Nystagmus test. Of the three, only the HGN provides accuracy greater than the chances of surving a round of Russian Roulette. Unfortunately, it is also the ONLY field sobriety test that has results unable to be seen on a dashboard-camera arrest video, making it the officer's word against yours. Even the lower accuracy ratings of the other two tests have been repeatedly discredited by numerous studies that have actually been submitted for peer review (The NHTSA's findings have NEVER been submitted for peer review), because the NHTSA's results were gathered in extremely controlled environments without taking into account inclement weather, unassociated health issues of the driver, or even the type of shoes being worn. This, of course, is why you should NEVER submit yourself to a "Field Sobriety Test". There's a 95% chance that if the officer is willing to ask you to submit to one, he's already made up his mind, and your performance of the FST isn't likely to change it.

Now, we must look at the most important factor of WHY we have so many DWI arrests in Texas. MONEY, of course! The Texas Department of Public Safety is, perhaps, the only LE organization in Texas that benefits directly from a DWI arrest...which is why they make the majority of them in Texas, per officer. If you are convicted of DWI, they're going to get a minimum of $3,000 in "license surcharges" alone. Even a DWI arrest (just the arrest, not an actual conviction) will net them several hundred dollars if you attempt to keep your driver's license from being suspended while you await trial.

Local and county departments also arrest people for DWI, but they are quick to tell you "We aren't doing it for the money." Fines from a DWI conviction go into the county treasury, which does help to fund that county's Sherrif's Office. So what about the local cops? Do they not get any of the procedes?

OF COURSE THEY DO! You see, any cop will tell you that there is no such thing as a "ticket quota", which is technically true. However, that same cop would be lying if he were to tell you that his job does not come with "performance reviews", and that his supervisors do not look at arrest and citation statistics when it comes to promotions. On top of that, these same arrest and citation statistics are what creates the data sent to the higher levels of government, so that these departments can be considered for grants in the form of money and equipment.

If your local chief is claiming he needs additional funding for his department in order to fight "Crime X", he has to be able to show that "Crime X" is a big problem in his jurisdiction. It holds true for drug interdiction, DWI, and everything else. This isn't some sort of "grand conspiracy", it's merely common knowledge.

An officer has a definite need to arrest and/or cite someone on a daily basis, for some sort of "criminal activity", because failure to do so is evidence that he really isn't "necessary" for the general good.

Now, let's move on to "alcohol-related" traffic fatalities in Texas. To be considered an "alcohol-related" incident, it doesn't have to involve an intoxicated driver in order to be included in our state-issued statistics, nor does it have to be proven that alcohol was the actual cause of the accident. It merely has to involve the presence of alchohol. If Billy Bob gets off work, stops off at the Kwik-E-Mart to grab a beer on the way home, and dies in an accident because he was doing 60mph around that 35mph curve, it became an "alcohol-related traffic fatality" because he was able to drink half a beer before crashing his truck. NHTSA defines "alcohol-related" as having a driver with a .01BAC or greater. That's roughly half a beer for a man my size.

The majority of traffic fatalities involving an intoxicated driver DO NOT involve a driver with a BAC of anywhere near that arbitrary .08 mark. Most of them, in fact, involve a driver with a BAC of .16 or more. NHTSA won't, of course, release any data beyond that.

One interesting point of data I did actually find, however, was that "alcohol-related" traffic fatalities involving a BAC of .08 or higher comprised only one third of ALL traffic fatalities in 2004, which was the last year I could find data on both of these points. What does that mean?

You are twice as likely to be killed by a SOBER driver, than you are by someone who is "legally intoxicated"...which leads me to believe that maybe, just maybe, all this talk about "drunk driving" being so much of a problem just really isn't true. Perhaps we need to be more worried about people obeying traffic regulations in general, as opposed to hiding out down the road from bars waiting for closing time.

The thing that bugs me the most about the new mandatory blood test law, however, isn't merely the fact that it's really unnecessary. It's the fact that an officer can now threaten you with an invasive medical procedure based upon a nonsensical "implied consent" law (the one that says we "imply consent" to provide such evidence by driving a privately-owned automobile on roads that our tax dollars pay for), if you refuse to provide potentially damaging (not to mention inaccurate) evidence via a breathalyzer. If you resist having a needle stuck in your arm against your will, they will strap you down and take it. If you resist this, they can use any force necessary to strap you down...including the use of a Taser and/or nightstick. That really scares me.