The first No Refusal Boating While Intoxicated cases in the Montgomery County courts went to trial this month. Both cases resulted in guilty verdicts by Montgomery County jurors. In an unusual twist, both trials were handled by Tyler Flood, a defense attorney whose DWI advice to refuse a breath test is displayed on billboards around the area. The No Refusal Program ensures that those who refuse a breath test instead face the prospect of a search warrant for a blood sample. The program uses police, prosecutors, judges, and medical professionals to obtain search warrants in appropriate cases for blood samples from suspected impaired drivers and boaters who illegally refuse to provide breath samples after being arrested. Prosecutors and judges work to review probable cause warrants in all DWI arrests that enable law enforcement to acquire blood samples to present solid scientific evidence of guilt or innocence in court.
The first case was handled by Misdemeanor Prosecutor Echo Coleman in Judge Dennis Watson’s court. In that case, the prosecution alleged that Allan Peters was stopped for a water safety inspection during No Refusal on July 4, 2009 on Lake Conroe. During the inspection, Game Warden Dean Fitzpatrick noticed signs of intoxication, including bloodshot eyes, an odor of alcohol, and unusually poor balance. Warden Fitzpatrick saw an open beer can next to the Defendant’s seat. After Peters failed some simple tests on his boat, he was taken back to the station for additional tests which he failed. Peters then refused a breath test, so Fitzpatrick obtained a search warrant for his blood from the prosecutors working No Refusal. The blood was taken two hours after the defendant was stopped, and the results were 0.21 blood alcohol concentration.
The State called five witnesses including two Game Wardens, a nurse, and a forensic toxicologist who interpreted the blood results. The Defense called a hired expert, Gary Wimbish, to testify. Flood elicited from Wimbish that the blood must have been contaminated. The jury disregarded the testimony from Wimbish in about an hour and convicted Peters of DWI.
The second case was handled by misdemeanor prosecutor Tiana Sanford in Judge Keith Stewart’s court. In that case, the prosecution alleged that Marc Rodriguez of Houston was stopped for a water safety inspection during No Refusal on September 6, 2009 on Lake Conroe. During the inspection, Game Warden Alan Biggerstaff noticed numerous empty beer cans on the floor of the boat. Biggerstaff noticed several signs of impairment on Rodriguez who claimed to be a firefighter and asked for “professional courtesy” when it became apparent he was going to be detained for a BWI investigation. Rodriguez was taken to shore for additional testing. Rodriguez refused all sobriety tests so Biggerstaff presented the facts to the No refusal prosecutor who drafted a search warrant and obtained his blood sample. The lab report revealed that Rodriguez’s blood sample was 0.18 almost two hours after the stop.
The State called several witnesses including Biggerstaff, a No Refusal nurse, and a forensic toxicologist. Flood was the defense attorney in this case as well. He called a different defense expert on this case who testified that the blood was contaminated with alcohol producing bacteria. Sanford pointed out that the existence of alcohol producing bacteria is a practical impossibility because of the procedures followed during No Refusal. In fact, Sanford pointed out on cross examination of Flood’s expert that the studies relied on by the defense are basically only applicable to corpses.
The jury once again disregarded the defense testimony and convicted with a little over two hours of deliberations. District Attorney Brett Ligon stated that the No Refusal Program was created for situations just like this where highly intoxicated boaters endanger the lives of those wishing to safely enjoy Lake Conroe. Ligon stated that both these individuals made poor choices that day including their decisions to refuse a police officer’s lawful request for a breath sample thereby resulting in blood samples being taken. Ligon points out that as a result of the No Refusal Program, Lake Conroe has had no Boating While Intoxicated fatalities for almost three years now and the lake can once again be enjoyed by law abiding citizens during holiday periods. The Texas Parks and Wildlife game wardens patrolling the state’s lakes have recently removed Lake Conroe from the list of Texas’ most dangerous lakes.