DA wants to use new law to OK blood draws
By BARRY HALVORSON bhalvorson@journal-spectator.com

While a breath test is good, blood will tell the tale when it comes to determining just how intoxicated a driver might be behind the wheel.

And Wharton County District Attorney Josh McCown is determined to get the blood alcohol information one way or another by implementing a new Texas Law that went into effect on Sept. 1.

According to recently passed legislation, if a county has no justice of the peace or judge other than a district court judge that is required to be a licensed attorney, any magistrate in the county can sign an evidentiary search warrant to draw blood in a DUI or DWI case.

As a qualifying county, the county judge, municipal court judges and justices of the peace can sign such warrants.

Being able to add the blood warrant tool locally will play an important part in reducing alcohol-related traffic incidents, McCown said.

"We've had an inordinate amount of intoxication deaths in this county over the years," McCown said. "Drunk drivers have done a horrendous job on local citizens and travelers. People have to be more responsible than they have been and quit getting behind the wheel and killing people because they've been drinking."

Under the new law, a law enforcement officer doesn't have to go to the magistrate to obtain a warrant. It can be faxed to the magistrate and then the investigating officer can swear to the warrant over the phone.

County Judge John Murrile, Justices of the Peace Jeanette Krenek, Cynthia Kubicek, Dennis Korenek and Timothy Drapela along with Wharton Municipal Court Judge Mary Garcia were identified by McCown as those who have agreed to sign the warrants on a rotating basis.

There have already been a pair of test cases, one involving Judge Kubicek.

Department of Public Safety Trooper Royce Korenek made a stop and contacted her, Kubicek said. She signed the warrant, adding that in her particular case it involved drug rather than alcohol intoxication.

"I was a little skeptical about doing it over the fax, but went back and looked over the law and it is legal," Kubicek said. "I was a little more comfortable with the situation because I know Royce and this was a cut and dried case."

Kubicek said familiarity with the trooper involved added to her confidence, adding if she didn't know the officer requesting the warrant, he would be less likely to do things remotely.

"I'd make arrangements to meet them in person," she said. "I really want to be comfortable with the person and feel confident they had probable cause to make a stop in the first place. This wasn't set up just so the judges can hand out these judges can hand out these warrants. I don't want to step on a person's rights, either those of a citizen or the officer involved."

McCown said the most likely cases involving the new law would be those situations when a driver will not agree to a breath test.

"If they won't blow (a breath test), it is important to get the warrant," he said. "In about 45 percent of the cases involving refusals, we don't get a conviction. It makes a big difference and blood is better than a breath test for that. It should dramatically increase our conviction rate."

The legal limit in Texas is a 0.08 blood alcohol level.

If a person refuses to take a breath test, some of their options in terms of reaching an agreement with the district attorney's office will disappear, McCown said, adding with the blood work, his office can go for longer sentences.

"Actually, we'd like something that results in long term probation rather than a short jail sentence," he said. "The goal is to reform a person's conduct and a longer probation can have more impact. We're trying to a serious approach to what is a problem here."

About Blood Evidence Search Warrants

As part of Wharton County's implementation of new Texas legislation allowing judges who are not licensed attorneys to sign blood evidence search warrants, the district attorney's office has prepared a series of forms that can be faxed to a judge to provide the necessary information.

The law enforcement officer can then swear to the warrant over the phone to validate the information.

Those forms and the information requested include: