By Andy Sevilla
What was supposed to be San Marcos’ first-ever “no refusal” weekend during the Labor Day holiday – a program aimed at keeping drunk drivers off the street – abruptly came to a halt after police officers took on the initiative’s first case.
Police officers were called out to investigate a minor vehicular collision just before 11 p.m. on Aug. 30 – the first night of the “no refusal” weekend – in the city square.
Officers investigating the wreck suspected one of the drivers involved in the collision – San Marcos attorney Kyle Maysel – of allegedly driving while intoxicated. Police officers arrested the suspect, who refused a breathalyzer and blood draw test, and transported him to Central Texas Medical Center (CTMC) where they awaited a search warrant for Maysel’s blood to identify his blood-alcohol content level.
District Judge Bill Henry, who volunteered to sign search warrants during the “no refusal” weekend, refused to sign a search warrant for Maysel’s blood draw, saying the Judicial Cannon of Ethics prevented him from involvement in a potential criminal case against his friend, according to San Marcos Police Chief Howard Williams.
Henry was with Maysel earlier in the day at a retirement party at the courthouse, according to police.
“Judge Henry stated since he has a working relationship with Maysel and knows about his (alleged) drinking problem, he felt it made him subject to being called as a witness should the case come to trial. Judge Henry decided not to sign the warrant for these reasons,” according to a report by San Marcos Police Officer Tony Scott, who took Maysel’s search warrant to Henry for review.
Because of these potential conflicts, Williams decided to call off the “no refusal” initiative in San Marcos. Williams said that because the conflict created a protected class – those acquainted with Henry would not be subject to blood draw search warrants – he felt the inequity was enough to do away with the program, at least for the Labor Day weekend.
“This (situation) called to our attention the problem – the problem existed from the day we said we were going to do this, we just didn’t recognize it because nobody thought about it – but it called to our attention that we have a problem: we need to have more than one judge lined up in case this judge can’t do it. We’ve got to have a fall back,” Williams said.
Only county and district judges, as well as appellate and supreme court justices, that practice in the county where the alleged violation occurred, are allowed to issue what are called "mere evidence" warrants, such as a blood draw warrant for a DWI suspect during a “no refusal” period, according to Williams. A justice of the peace cannot issue a “mere evidence” warrant and “there just wasn’t anybody to call,” he said.
Despite saying they felt they had sufficient probable cause to book Maysel in jail, officers released the suspect as they felt the evidence was not strong enough to guarantee a conviction due to the lack of a blood draw, Williams said.
“There is no controversy here,” Williams said. “The judge did exactly what the judge was supposed to do. The officers did exactly what they were supposed to do.”
“We didn’t have any other judge to take it to, and the officers decided that while they may have had sufficient probable cause to make an arrest … without the blood – the alcohol reading we get out of it – they didn’t feel they had enough to get a conviction, so they turned him loose,” Williams said.
Officers investigating the collision reported Maysel was “swaying and his speech was slow and I could smell the odor of an alcoholic beverage on his breath as I spoke to him,” according to San Marcos police officer J. Scott’s report.
Maysel told authorities he had “a couple” of drinks, but upon further questioning admitted to “three or four” drinks, according to police reports.
“After completing my accident investigation, I expressed my concern about Maysel’s ability to drive. I explained my observations and asked him if he would be willing to complete a Standardized Field Sobriety Test (SFST),” J. Scott said in his report.
Maysel, who told police his feet were swollen, said he was a “Texan” and was unwilling to perform the SFST, but agreed to the HGN (Horizontal Gaze Nystagmus) part of the test,” reports state.
“During the start of the test, Maysel had to be told several times to follow my finger with his eyes and not to move his head,” J. Scott said in his report. “Maysel had a hard time following my finger and said I was trying to trick him.”
Maysel admittedly backed his truck into a 2010 Ford Fusion in the 100 block of E. Hopkins Street in San Marcos, near Jimmy John’s on the city square, according to police reports.
Williams said officers drove Maysel home after the incident.
