The Prosecutor, September-October 2009, Volume 39, No. 5

Making no-refusal holidays float

2009

 

Montgomery County has taken no-refusal weekends from the streets to the water so that boaters, like drivers, must submit a breath or blood sample if suspected of intoxication.

Thanks to some enterprising law enforcement officials almost a decade ago in Hereford, the use of search warrants in driving while intoxicated (DWI) cases has become an accepted part of Texas law enforcement practice. Appellate cases on the issue are becoming more common and approving of the practice. The “no-refusal holiday program,” where law enforcement and prosecutors designate a holiday weekend, such as July Fourth, as a high-publicity time to seek search warrants for blood when DWI suspects refuse breath samples, has been expanded to many Texas counties, and I have spread the gospel to seven other states with more lining up to join. The legislature arguably approved of the program through recent legislation making it easier to obtain mandatory blood samples and blood search warrants. (See W. Clay Abbott’s article on the subject on page 8.) Now, the Montgomery County District Attorney’s Office has expanded the no-refusal program to Lake Conroe, thereby increasing the flotilla of tools available to impaired driving and boating enforcement.

Lake Conroe is one of the smaller of the Texas lakes. Addition-ally, the City of Houston has a possessory interest in the lake, and the area surrounding the water is close to that city’s jurisdiction. This means that the lake is swamped with recreational weekend and holiday boaters who are not necessarily the most skilled at boating rules and safety. The one theme that echoed when Brett Ligon, the district attorney, began to focus on impaired driving and boating was that the locals refused to go on the lake during the summer weekends due to the large number of impaired boaters. The facts bore this out with several recent incidents of serious boating crashes. Furthermore, no police officer who patrolled the lake could remember a summer holiday when there was no major boating incident. This situation was tailor-made to deliver a broadside on impaired boaters through implementation of a no-refusal program.1

Implementating this program required some significant planning on the part of the Montgomery County District Attorney’s Office. The first area of concern identified by the planning prosecutors (Frank Barnett, Brett Ligon, and myself) was the Texas Penal Code. The laws regarding boating while intoxicated (BWI) are not necessarily the same as those that cover drivers of cars. What constitutes a motor vehicle is a simple maneuver that requires little thought. However, the same does not hold true for the definition of a watercraft.2 It’s a no-brainer that a motorized boat is a watercraft, but the definition is particularly broad in that water skis, rowboats, aquaplanes, or any other vessel is a watercraft unless it is designed to be propelled only by the water current. Because the operation of a motorized boat by an impaired skipper is the most dangerous of the potential BWI conduct, we decided to limit search warrants to people suspected of operating motorized vessels. While an impaired skier is not automatically excluded for warrant consideration, we decided to allow them to be processed with more traditional approaches. Almost all the serious crashes on Lake Conroe involved impaired boaters, further justifying the focus on these individuals.

We also decided which law enforcement agencies to contact. The Texas Parks and Wildlife through Captain Ron Vanderroest and Montgomery County Constable Don Chumley were the obvious choices because they knew the ropes when it came to boating safety. Both of their agencies have a long history of law enforcement on the lake, and their input was extremely important in the process.

Field sobriety tests

One area of concern was field sobriety testing (FSTs). With boating, impaired driving facts are often absent (in contrast with DWI cases, where such facts are often part of the prosecutor’s case in chief). This absence of impaired driving facts would need to be addressed through other means to justify intrusion upon boaters on the lake. The lack of ability to perform the National Highway Traffic Safety Administration’s (NHTSA) standard tests is a further complicating factor in BWI cases that seriously affect the prosecution’s chances of prevailing at trial.

All of the FSTs adopted by NHTSA require that the subject be tested on a flat and solid surface. This requirement is difficult on a lake or other waterway. In fact, officers involved in BWI cases prefer that the NHTSA FST battery not be performed until the subject has been on dry land for at least 15 minutes. Considering tow time to the shore and this 15-minute wait, we needed a method to solidify an officer’s decision to detain. Therefore, we decided that officers would employ some of the traditional but non-standardized FSTs used before the three NHTSA FSTs (one-leg stand, horizontal gaze nystagmus, and the walk-and-turn) became the mantra of DWI enforcement. To justify a detention and quickly release those not requiring further investigation, the hand-slap, finger-touch, alphabet recitations, and penny pick-up were used as part of the testing retinue on the water. In addition to these tests, patrol officers employed portable breath testing instruments (PBTs). These devices are the bane of prosecutors in DWI cases but come in handy for BWI cases as an effective tool to minimize delays to innocent boaters. The fact is that a failed PBT may currently be admissible as an indicator of impairment at trial.3 The standard line of questioning by defense lawyers on the use of PBTs does not hold water when countered with an informed officer advocating for the quick release of a boater. By employing these tests on the boat immediately after detecting signs of impairment, officers could develop more evidence to justify the detention and bolster the chances of succeeding in court. When onshore, the completion of the standardized battery of FSTs and the subject’s refusal to provide a breath test4 further bolstered the detention decision and seeking a search warrant.

Once on dry land and after the 15-minute observation period for FSTs had passed, the procedure was generally handled the same as on any other no-refusal weekend with the notable exception of the Houston Police Department’s Breath Alcohol Testing Mobile Unit (or BAT-mobile) operated by Officers Paul Lassalle and Don Egdorf at Lake Conroe. (See photos of it on the next page.) The deployment of this vehicle has been a tremendous success in all Montgomery County DWI or BWI initiatives because the equipment has a significant deterrent effect on both DWI and BWI offenders and has resulted in a greater reduction in refusal rates as compared to nights without the BAT-mobile.5 In fact, HPD’s use of this equipment and saturation patrols by the Texas Department of Public Safety, the sheriff’s department, and local police agencies ensure that impaired individuals will be captured whether on land or on water.

Once suspects are detained

As mentioned, those detained faced the standard processing. Each subject was given the opportunity to perform the FSTs, the implied consent document was read, and the refusal was obtained. Then the officer contacted the prosecutor for preparation of the warrant and presentation to the on-site or available magistrate.6 A nurse or paramedic was at the lake patrol station to ensure that the blood evidence was quickly obtained. The blood was submitted to the relevant law enforcement agency for analysis. The Montgomery County Sheriff’s Department provided a jail transport van for faster processing of the arrestees.

The blood results so far have been supportive of the need for this type of program. All of the arrestees have had a blood alcohol level above 0.08, and comments from the general public and business community are overwhelmingly positive. How-ever, some problems developed after the first event over Memorial Day. For example, one boater complained that he was stopped twice by less than even-keeled game wardens while attempting to go from one marina to the next; also, a local business owner complained that business was slow because of the large law enforcement presence in the area.

To address the first issue, we implemented a procedure whereby all boat stops were recorded through a central dispatch center so that patrol officers would know if a boat had already been contacted by law enforcement. However, police officers should be cautious with this practice: One boat was stopped and the operator tested with a PBT. After providing a sample of 0.04, he was released. The same boat was stopped two hours later with another operator. This time, the test result was 0.18. Note that reasonable suspicion to detain a boater is not needed because law enforcement or Coast Guard officials can conduct boating safety checks at any time and for any reason.7

As to the concern of the business owner, we will heavily publicize the availability of a new business in the area. DD4Hire will provide a designated skipper (or driver) for a nominal fee to those requesting the service. By promoting a designated skipper or driver, citizens can have their fun and not endanger the public.

Conclusion

The expanded use of search warrants has been a boon to prosecutors in our state and across the nation. As Texas appellate decisions begin to mount in favor of search warrants and as people become accustomed to the approach, the best evidence available in DWI cases, blood evidence, will be used more and more frequently. One statistic that is not difficult to fathom is that when the program was in operation, there were no alcohol-related boating crashes on Lake Conroe for the first time in recent memory. The nation’s first no-refusal BWI weekend has been an overwhelming success, and it too should be considered state- and nationwide as an important boating safety program.  i

Endnotes

1 See “Anatomy of a DWI ‘no-refusal weekend,’” The Texas Prosecutor, September-October 2007, Volume 37, Number 5; and “Boating While Intoxicated,” The Texas Prosecutor, September-October 2008, Volume 38, Number 5.
2 See Texas Penal Code §49.01 (4)
3 Fernandez v. State, 915 S.W.2d 572 (Tex. App.—San Antonio 1996, no pet.).
4 As with DWI no-refusal initiatives, it is strongly suggested that prosecutors and officers obtain a refusal before mentioning or seeking a search warrant.
5 According to Houston Police Department and Montgomery County Criminal District Attorney statistics, when the BAT-mobile is used on a DWI or BWI initiative, the refusal rate drops to less than 20 percent. The average refusal rate on no-refusal holidays is about 30 percent, compared to an almost 50-percent refusal rate on other nights.
6 The fill-in-the-blank warrant forms in the TDCAA book DWI Investigation & Prosecution by Richard Alpert were used and changed to reflect the use of a watercraft.
7 Tex. Parks and Wildlife Code §31.124(a).