Tuesday, August 31, 2010

The floor is yours

I've heard through the grapevine that I upset some of my colleagues with a recent post regarding defense attorneys (who also serve as municipal judges and prosecutors) volunteering to review blood search warrants on No Refusal Weekends (click here). One attorney, for whom I have a great deal of respect, told me he thought my post was "bad form."

No, leaving aside the debate as to whether it's worse form to collaborate with the state in its efforts to trample the rights of the citizenry or to expose those who choose to do so, if either of the attorneys I mentioned in that post wish to respond, the pages of this blog are open to you.

If either attorney wishes to respond, rebut or offer enlightenment on the issue, forward it to me and I will run it unedited -- though I do reserve the right to comment in a future post.


Will Freeman said...

How, exactly, is getting a legal warrant trampling the rights of the citizenry? The courts have said blood warrants are constitutional, as are search warrants for homes, businesses, or even asses. If the court says its' constitutionally permissible, how is it trampling one's rights?

Houston DWI Attorney Paul B. Kennedy, said...

The problem is that the entire No Refusal Weekend program is designed to coerce motorists into waiving their rights to remain silent, not perform roadside sobriety tests and not to submit a breath sample.

Will Freeman said...

"waiving their rights to remain silent, not perform roadside sobriety tests and not to submit a breath sample."

Actually, a motorist can remain silent, not do field sobriety tests, and not submit a breath sample---and if the state can articulate why they need a blood warrant, then they can do that. It doesn't just have to be on a no refusal weekend--the state can get a blood warrant any time, if the judge signs it.

Bottom line is that a motorist can refuse all day long, but if the cops seek a warrant and they get one, the motorist loses. Just as if I refuse to let the cops search my house, and they go get a warrant---I lose.

Houston DWI Attorney Paul B. Kennedy, said...

DWI is the only crime in Texas for which a person is penalized more severely because they exercise their right not to incriminate themselves. It is the only crime in Texas in which the state gets to ask the jury to infer that the defendant is guilty solely because the defendant exercised his right not to blow. It is the only crime in Texas for which members of the judiciary volunteer to assist police and prosecutors in gathering evidence. In obtaining blood warrants, the police routinely just place check marks in the boxes that apply on the affidavit and judges blithely accept them over the fax machine without bothering to question the officers on the veracity of their stories.

And, if that's not enough for you, a first-time DWI is a misdemeanor -- one step up from a traffic ticket - yet the state is more than happy to strap a motorist down and conduct a forcible blood draw because a motorist won't volunteer the evidence.