Travis County has dismissed a higher percentage of drunken driving cases than other major Texas counties in part because prosecutors said police filed weak charges or prosecutors let suspects plead to other crimes.
Officials in 2009 and during the first eight months of 2010 threw out about 30 percent of misdemeanor drunken driving cases, while those in Tarrant County, where the dismissal percentage is lowest among the state's biggest counties, dismissed less than 5 percent during that period.
When and how counties tally such cases as they enter the court system likely influences the dismissal percentages. But during four months of interviews, prosecutors, police and defense lawyers also raised concerns of either flawed arrests or lenient prosecutions.
The dismissals come amid what police say is a critical public safety threat, as alcohol contributed to more than half of the city's deadly crashes last year. They said they are trying to combat that trend by aggressively plucking such motorists from the road; on a per capita basis, new drunken driving cases in Travis County roughly doubled those in four other urban counties during the 20-month period.
But prosecutors and defense lawyers say such efforts have at times led to the arrests of drivers who did not appear intoxicated, costing those drivers hours in jail, thousands of dollars in attorneys fees and the social stigma of a DWI arrest.
"Generally speaking, I think if you have alcohol on your breath in Austin, Texas, you are going to jail," said Brian Roark, an Austin defense lawyer and former county prosecutor.
Prosecutors at the Travis County Attorney's office, which handles most drunken driving cases, said they have seen cases in which arrested motorists did not appear drunk on videotaped sobriety tests and passed an alcohol breath test, leaving the prosecutors only an officer's word that the driver appeared intoxicated. They provided examples of such instances from recent months.
They declared many other cases "borderline" — suspects may have blown just below the state legal limit on an alcohol breath test and were able to complete much of a sobriety test, for example. In those cases, prosecutors dismissed the drunken driving charges through deals in which suspects plead guilty to another crime and agreed to alcohol counseling.
But prosecutors said they also have taken that step when certain defendants — even those who have failed blood alcohol tests — had some other weakness in their case, or in rare instances, lawyers successfully argued that their clients deserved another chance. They sometimes allowed such suspects to plead to other crimes, as well, in exchange for mandatory alcohol treatment, they said.
Prosecutors interviewed, all of whom work on drunken driving cases, also said they do not exclude such cases as early as some other counties, likely making the dismissal percentage higher. Those in some counties look at evidence before the cases are formally filed with the courts, weeding out those that would likely be later dismissed. Tarrant County has such a procedure, as does Harris County, whose dismissal percentage was about 17 percent during the 20 months through last August.
Austin police agree that they are targeting drunken drivers.
They defend their work, saying that among suspects who gave a breath or blood sample last year, fewer than 5 percent were under the legal limit of 0.08. Police said they compiled that statistic for the first time recently because of questions from reporters.
They say that on a nightly basis, they must confront the decision of whether to arrest a possibly drunk motorist or let them drive away. Allowing them to stay behind the wheel is too big a gamble, even if it means sweeping up drivers whose cases are later dismissed, they said.
Police also said that they must only have probable cause to arrest a driver, a standard much lower than the reasonable doubt prosecutors must prove.
"The bottom line is, it is not an exact science, but it is a pretty good science," Austin Police Chief Art Acevedo said. "There are going to be times when you arrest somebody that displays objective symptoms of alcohol intoxication or being under the influence of alcohol, and once we conduct our investigation, they may turn out not to be.
"I venture to guess the majority of our arrests are very good arrests."
State and local statistics provide a glimpse into the seriousness of Austin's drunken driving problem and show the outcome of cases after they reached prosecutors.