Friday, January 23, 2009

A little professional courtesy?

State District Judge Elizabeth Berry scored a victory in Johnson County (Texas), when the trial court ruled that blood samples taken after she was arrested for driving while intoxicated are inadmissible due to a defective warrant.

The affidavit said that after Judge Berry was stopped for driving 92 miles per hour, on Interstate-35W, officers saw eight beer bottles in the car.

The affidavit didn't say where the beer bottles were in the vehicle, if they were open or if they were hot or cold.  It did however state that Judge Berry refused sobriety tests and appeared confused and unstable, but didn't describe how the officer came to that conclusion.

The official paperwork also said that Judge Berry was, "unusually quiet due to intoxicated state."  When the affidavit was faxed to a local judge it was sent back, saying more detailed information was needed for a warrant to be issued.

After the arresting officer added that his partner said Judge Berry had the smell of an alcoholic beverage on her police were given approval to draw blood.

After reviewing all the information Thursday it was ruled that there was not enough evidence to give permission to draw blood, so the blood samples and intoxication levels are inadmissible in court.

The trial court's decision illuminates what is and what isn't probable cause to obtain a "blood" warrant in a DWI arrest.  I think it also points out that there is insufficient cause to arrest a citizen on suspicion of DWI based on a traffic violation (not noted as a "reliable indicator" of intoxication), the smell of an alcoholic beverage, the presence of alcohol in the car and a refusal to perform police coordination exercises. 

This decision provides further fuel to my advice to decline a police officer's "invitation" to perform coordination exercises at the scene and to refuse to blow into the state's breath test machine.

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