Is it time for Texas to consider making drunk driving a potential capital offense?

The question in the title of this post is prompted by this new Wall Street Journal article, which is headlined “Texas Blood Test Aims at Drunk Drivers.”   The focus of the piece concerns the trend in Texas for local official to demand “that drunken-driving suspects who refuse to take breathalyzer tests submit to blood tests that measure the amount of alcohol in their systems.”   But the chart reprinted here and some stats from the article, combined with the historical affinity of Texas for capital justice and my own belief that drunk driving is a kind of crime that could (and should) be readily deterred, prompts the question.  Here are the stats:

Over the July 4 weekend, almost 500 law-enforcement agencies in Texas participated in a no-refusal campaign that netted about 1,500 DWI arrests. Bexar County, which includes San Antonio, recently implemented mandatory blood testing year-round….

Last year, about 800 traffic deaths in Texas involved a legally intoxicated driver, and that number has steadily increased in recent years, according to the Texas Department of Transportation. In 2009, Texas had the most people killed in alcohol-impaired crashes, according to the most recent data from the National Highway Traffic Safety Administration.

Perhaps Grits for Breakfast or some other Texas criminal justice bloggers can help me understand why there have been hundred more drunk driving death in the Lone Star State in recent years. Whatever accounts for this trend, the fact that there is evidence that thousands of drunks drive on Texas roads over a holiday weekend suggest to me that getting tougher on this offense is needed in order to try to save innocent lives.  I have often said to my students that I think simply making just one repeat drunk driver who kills someone in an accident simply eligible for a death sentence might greatly reduce the number of drunk driviers and potentially save a significant number of lives.  With a number of holiday weekends coming soon, perhaps it is time for Texas to test my hypothesis.

UPDATE:  In response to some early comments expressing constitutional concerns with my suggestion, let me articulate a bit more fully what kind of drunk driving offense I think might be subject to being a potential capital offense.  I am imagining a drunk driver with a lengthy criminal history who, with a very high BAC and perhaps also with a minor in his car and with no possible need to be driving after heavy drinking, drives very recklessly and kills multiple people. 

Though I do not know Texas capital murder law very well, it seems possible that the existing state felony murder laws might already be read to make such an extremely reckless and deadly case of drunk driving a capital offense.  (I think Texas law makes driving drunk with a minor in the car and a third DWI offense a felony, which in turn could be the basis for a felony murder capital charge if/when such a drunk driver were also to kill multiple victims.)  And, under existing SCOTUS jurisprudence, I think it is constitutional to make a capital offense of any felony that causes a death as long as the defendant’s underlying felonious behavior involves extreme recklessness with respect to human life.

Notably, though not even involving a death, this ABC News article from last year discusses a case in which a repeat drunk driver received a life sentence for his ninth DWI offense.  I think capital punishment might be constitutionally permissible for an offender like this who caused multiple deaths.