Monday, January 13, 2014

Reality, not law, barrier to charging DWI defendants for blood tests

Harris County officials want to charge defendants for the cost of blood tests used to gather evidence against them in DWI cases, reported Kiah Collier at the Houston Chronicle (Jan. 13). "Bill Murphy, spokesman for the District Clerk's office, which assesses court fees, said there do not appear to be any laws on the books allowing or disallowing the collecting of fees for blood draws or other lab tests in criminal cases." Precinct 4 Commissioner Jack Cagle suggested the Legislature should pass a new law authorizing the charge.

But the Twitter feed of the Texas District and County Attorneys Association notifies us that this is "Already in law; see CCP Art. 42.12 Sec. 11(a)(19)," and indeed, that provision authorizes judges to require defendants to "[r]eimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense." It does seem like "analysis" of "raw materials" and "controlled substances" would get you there.

Another solution looking for a problem.

The real issue appears to be that the Harris County DA doesn't seek reimbursement. Reported Collier:
Criminal Court-at-Law Judge Sherman Ross, presiding judge for misdemeanor courts, said he never has gotten a recommendation from prosecutors to include the cost of blood draws in restitution orders. It is not a concept he would advocate for, he said, but it "doesn't sound unreasonable" and he would consider accepting a prosecutor's recommendation, assuming the defendant could pay for it.

"I don't think anybody's interested in ordering something that's simply uncollectable," he said. "I think it's part of the cost of doing business as far as the agencies are concerned, and if there was a way to do it without diminishing our effectiveness, then I think that decision should be made by the district attorney."
Ironically, decisions by the new DA Devon Carter are driving higher costs for DWI lab testing, Collier reported:
Last April, District Attorney Devon Anderson began enforcing "no refusal" traffic stops every day.

That decision and other factors mean the county toxicology lab's case load will continue to grow, officials said.

"We pride ourselves on becoming increasingly more efficient," crime lab Director Roger Kahn said, "but there comes a point when our responsibilities begin to exceed our capability and our capacity."
The reason DWI defendants aren't charged for blood tests isn't that the law won't allow it but that, in reality, the state already soaks DWI defendants (in addition to fines, probation fees and court costs they still have to pay their Driver Responsibility Surcharge) and the juice typically isn't worth the squeeze.


Anonymous said...

For years CSCDs didn't collect restitution for DPS for blood analysis in DWI cases. All of a sudden, with the increase in mandatory blood draws, suddenly DPS is sending restitution requests with blood results the way they've done with drug results. What I've noticed in my jurisdiction is the blood analysis restitution is being ordered in felony DWI cases but not in misdemeanor cases. Could be a cultural difference between the different prosecutors' offices, but it's been an odd shift.

Anonymous said...

Sec. 11 of Art. 42.12, CCP, deals with a defendant who is placed on community supervision. Section 11, including Subsection (a)(19), does not apply to a person who is convicted of the offense, but not placed on community supervision. I'm pretty sure I've read on GfB that many defendants prefer to not be placed on community supervision because of the conditions that would be imposed on them by the court. This seems like another disincentive to community supervision.

Anonymous said...

A trial court can only order a defendant to pay restitution to a victim of a crime. The DPS crime lab is not a "victim," so an order that a defendant repay lab fees to DPS as part of the restitution order was unlawful. See Aguilar v. State, 279 S.W.3d 350, 353-54 (Tex.App.--Austin 2007, no pet.). This was not a probation case.

Gritsforbreakfast said...

We're not talking about restitution, 8:50. The statute referenced by TDCAA allows courts to order reimbursement for "analysis" of "raw materials" and "controlled substances."

The Homeless Cowboy said...

Well I am of the opinion that if a person is placed on probation or parole, they should be able to try and rebuild their life and family then become a productive citizen. The rub is that since the 80's people have been adding fines, penalties and fees to their conditional freedom to the point where it becomes impossible to keep up with. Here we go with round 8,768,974(I made that number up) to add another fee to their already overloaded plates. I agree that any one of these penalties by itself, is not a bad idea and by itself no one would have a problem with it. when you add them all together, it can be overwhelming. 70 a month for probation, 170 for interlock installation on your car and 70 a month to monitor it MADD fee of 100 bucks. and that is just for a DWI, which we all agree is a serious offense but if you are going to probate this sentence you have to allow the person to pay rent, make a car payment and eat. In these times where everything is criminalized, it seems like a regular citizen is living in abject fear of how law enforcement will come for them. 6:51 is correct in saying people do not want to be on community supervision, because the cant afford it. In Harris County where I did get a DWI in 2005, the probation officer told me on our 1st meeting that I would report to her every 2 weeks, I would pay 70 dollars each month as a probation fee I would pay 170 dollars for installation of an interlock device for my car. I would pay 70 dollars a month to have that device monitored and I would pay a 100 dollar fee 50 for MADD and 50 for something else I have forgotten. I was sentenced to 40 days probated for 2 years, which was going to cost me several thousand dollars all told. I said thanks but no thanks and I never went back. I did do 20 days in jail, the jail was overcrowded (Who'd of thunk it) and all sentences were 2 for 1 so I served 20 days and saved my family over 2 thousand dollars and did not have to subject myself to their tobacco spitting justice. I guess I said all this to ask where does it stop? when is it enough? Just another little bit of ruination in what used to be America. but I still believe in her, Lady Liberty is still my role model, and I her humble servant.

patriotindisguise said...

Since section 11 refers to "community supervision" and appears to be management of a probationary or paroled guest of the system, would this really apply to charges incurred before a defendant is found guilty? Especially since this was not a voluntary condition of arrest and/or conviction?

Gritsforbreakfast said...

@patriotindisguise - Since they're reimbursing the LEO, not the probation department, for analysis of materials "seized in connection with the offense," I'd say so. Of course, IANAL, but TDCAA thinks so, too.

Anonymous said...

Let's charge those arrested for the cost per cop/per hour to process them and while we're at it put meters on every fire truck so the city can bill me use of that city water for putting out my flaming abode.

As for the widow Anderson, may her tenure at Harris County DA's office be short.

Anonymous said...

I'm facing a DWI charge right now. I've paid $245 a month for pre trial release. My blood was taken with out a warrant because I was charged with a felony 3rd or more. After 6 months the state admitted I couldn't have committed a 3rd because I have never had a second! So the charge was dropped to a misdeamenor 2nd. The officer did not see me drive nor was this arrest the result of a traffic stop. I was not driving a motor vehicle in a public place. I was in a public place arguing with my wife when the officer came up on me. He stated in his original narrative that he saw me operating the vehicle he testified to the contrary at the ALR hearing and the state submitted a Brady Avidavit also to the contrary of the original report. There is no justice when in Texas you are guilty until proven innocent!