The sorcerer's apprentice: HPD version

Somewhere deep inside the HPD fortress at 1201 Travis...

Chief: So, we're looking for someone to take the helm of the DWI task force in Houston. What makes you think you're up for the task?

Candidate: I have experience in investigating high-profile DWI incidents. We had to deal with one involving one of my officers earlier this year - and I think we did a bang up job taking care of it.

Chief: I'm intrigued. Do continue.

Candidate: As you may recall, we had a veteran officer get involved in an accident on his way to work one afternoon. The other vehicle was a school bus. My officers jumped onto it right away. They secured the scene. They preserved evidence by covering up the open alcohol containers with blankets and threatening to arrest anyone who took pictures of the bottles.

Chief: (moving to the edge of his seat) Go on.

Candidate: We cited the bus driver for causing the accident - and then we took our officer back to the station to sober up, I mean, to continue our investigation away from the crowds and cameras and the like.

Chief: Tell me about the investigation.

Candidate: The officer admitted to drinking. It's not like he had a choice, because he did have an odor of alcohol on his breath. But, as you know, Chief, it's not against the law in Texas to have a little drink and then drive.

Chief: What else did y'all do?

Candidate: Reluctantly we drew blood. The test result came back showing an alcohol concentration of over .20. I'm pretty sure there were some issues with that blood draw. Maybe the blood wasn't stored properly. Maybe he was still in the absorption phase at the time of the accident. Maybe there was a problem with the testing equipment. I don't know - but I do know we handled that investigation in the most professional manner possible.

Chief: And you realize that I only reprimanded y'all because the public demanded it. If it was up to me, I'd have handed out commendations for the way your officers handled that case. And, hey, it gave some of the guys a day off to take care of errands or to work extra jobs.

Candidate: Yes, sir.

Chief: You've convinced me that you're the right person for the job. I'm putting you in charge of the DWI task force. If you can handle a case like that one as cleanly and professionally as you did, I think you're more than capable of clearing the road of those drunken civilians.

Of course, nothing like that could ever happen, could it?

A pandemic plague sweeping over Harris County

So Harris County is in the midst of a "pandemic plague" according to Harris County District Attorney Pat Lykos. What is this plague you might ask? Is it swine flu? Is it meningitis? Is it encephalitis?

No, according to Ms. Lykos, it's driving while intoxicated.

pan⋅dem⋅ic

  [pan-dem-ik]

–adjective

1.	(of a disease) prevalent throughout an entire country, continent, or the whole world; epidemic over a large area.

2.	general; universal: pandemic fear of atomic war.

–noun

3.	a pandemic disease.

plague

  [pleyg] noun, verb, plagued,pla⋅guing.

–noun

1.	an epidemic disease that causes high mortality; pestilence.

2.	an infectious, epidemic disease caused by a bacterium,Yersinia pestis, characterized by fever, chills, and prostration, transmitted to humans from rats by means of the bites of fleas. Compare bubonic plague, pneumonic plague, septicemic plague.

3.	any widespread affliction, calamity, or evil, esp. one regarded as a direct punishment by God: a plague of war and desolation.

4.	any cause of trouble, annoyance, or vexation: Uninvited guests are a plague.

But this is where the situation beings to become surreal. On the one hand, as Ms. Lykos proclaims that the situation is getting out of control, she advocates, on the other hand, a program offering pretrial diversion for first-time DWI offenders.

Lykos hopes to lower DWI rates by offering first-time offenders a pretrial probation term that avoids a conviction, in hopes of getting more into treatment. In recent years, most of those charged with drunken driving in Harris County have pleaded guilty, served jail time and paid a fine, rather than be placed on supervised probation where alcohol education and treatment assessment is mandatory. Probation for DWI fell from 4,700 cases in 2000 to 2,150 in 2007, according to the district attorney’s office.

It's no secret why probation for DWI offenders has fallen over the last 10 years -- why would anyone voluntarily subject themselves to county supervision for a period of one to two years when they have the option of paying a fine and calling it a day? There are some judges who will probate the mandatory license suspension if a defendant accepts probation in exchange for a guilty plea, but most will suspend your license.

In fact, you can argue, that an attorney might be committing malpractice by advising a client to accept probation instead of time served and a fine. Now I understand that every case is different and time served and a fine is not always available for clients with multiple DWI's or who were involved in accidents.

I would argue that the reason behind 10,000 DWI arrests a year in Harris County is not because there are that many people out on the road breaking the law, but because there is a financial incentive to arrest motorists for DWI.

Houston’s DWI task force receives about $480,000 a year in grants to pay overtime for officers to catch and process drunken drivers, said task force member Don Egdorf, also HPD’s liaison with the district attorney’s vehicular crimes unit. “I don’t know if there are more drunks on the streets, but there are more officers looking for the drunks so there are more of them getting picked up,” he said.

As my colleague, Troy McKinney, points out, in Harris County, if the officer thinks you're drinking and driving - which is not against the law in Texas - you're going to jail. The attitude among law enforcement is to let the courts take care of the carnage.

Breath test operator under investigation

Last October, Dee Wallace, at the time a technical supervisor for the Texas Department of Public Safety in charge of maintaining breath test machines, was fired after it was disclosed she had filed false maintenance records on the machines under her supervision. Now it's Officer Michael Wick of the Houston Police Department on the hot seat as a result of a case in which he falsely accused a passenger in a vehicle of intoxication manslaughter.

On January 12, 2007, Officer Wick was involved in the investigation of a fatality accident in which he charged a passenger with intoxication manslaughter. That case was dismissed and the actual driver pled guilty last week and was sentenced to three years in state jail (not quite as good as the deal the daughter of a juvenile court judge received for causing the death of her boyfriend).

"I don't think...people are going out of their way to make cases for productivity reasons." -- Gary Blankinship, president, Houston Police Officer's Union

Wick has been with HPD since 1984 and has been involved in hundreds of DWI investigations. As a certified breath test operator, Officer Wick must provide a statutory warning to anyone arrested for driving while intoxicated before he can administer a breath test. His testimony that he provided the warning and that the driver refused the breath test can be used by the state to infer guilt at trial. That same testimony at a license suspension hearing can bring about a 180 day (or longer) suspension based on the driver's decision not to blow into the machine.

Harris County prosecutors were notified on January 28, 2009 that there may be Brady material (evidence in the state's possession that might tend to cast doubt on the citizen accused's guilt). Donna Hawkins of the Harris County District Attorney's Office said that the material would be turned over to any defense attorney or citizen accused upon request (another reason to file those discovery motions and get rulings prior to trial).

Just how out of control is the state's breath testing program? Are these just "isolated incidents" or are they just the tip of the iceberg?

Spring Break, no refusal-style

Got word from a source inside the Houston Police Department that they will be running a "No Refusal Week" beginning on Friday, March 13, 2009 and continuing through Sunday, March 22, 2009. The campaign will focus on the Kingwood area and will involve law enforcement agencies from Montgomery County as well.

I don't know at this time whether the campaign will be county-wide or just in the Kingwood area. HPD is also in the process of training new officers for the DWI task force and is expected to double-up officers in the upcoming weeks to prepare them for the "No Refusal" campaign.

CRU and the assault on the Constitution

HPD's Crime Reduction Unit (CRU) is making the city safe from the likes of hardened criminals like jaywalkers and bicyclists. It's the cops' version of the lottery -- harass, cuff and search minorities and hope you find a stash of drugs in their pockets, socks or shoes.

Officers in this $5 million unit are targeting those committing Class C violations and using that as their ticket to violate their 4th Amendment rights against unreasonable search and seizure. The cops figure someone in that neighborhood is up to no good and so they create a pretext for a warrant check and a search - for without probable cause, the case won't stick.

CRU operates much the same as the DWI Task Force -- watch someone long enough and they're bound to give you a reason to stop them. Most of the DWI arrests I've dealt with weren't the result of bad driving -- they were the result of someone getting stopped for failing to signal a lane change, squealing their tires leaving an intersection and speeding. The cops know that going out on DWI duty on a weekend night near an entertainment district is like shooting fish in a barrel -- but they have to create a reason for the stop.

Combine this with courts' narrowing definition of a seizure and it adds up to an erosion of our rights as citizens. Sure, no one wants drunks driving on the streets and no one is in favor of a drug dealer setting up station across the street from them, but when we allow the State to strip the rights of those accused of unpopular crimes, we make it easier for the State to strip our own rights.

For an example look no further than the hysteria following 9/11. In the name of fighting terrorism the American people meekly stepped aside and allowed the federales to tap our phones and our e-mail, to engage in domestic espionage and the limit our freedom to travel. Our government calls al-Qaeda a bunch of savages, yet we say nothing as our government authorizes the torture and humiliation of prisoners -- including our own citizens.