Tuesday, April 5, 2011

Maybe their faces will turn up on milk cartons

Neutral and detached magistrates are looking more and more like an endangered species -- particularly in Missouri, according to this piece in the ABA Journal.

In southwest Missouri law enforcement types have decided to declare open season on motorists' 4th Amendment rights and run No Refusal Weekends at DWI checkpoints. That's right, not only will motorists be subject to being stopped without probable cause, they will be compelled to produce evidence that will be used to prosecute them.

Once again we have the police pontificating about the dangers of drunk driving and that motorists should be aware that it's against the law. Points taken. It is dangerous, and illegal, to get behind the wheel of a car if you're intoxicated. The problem is that everyone of us is different and our bodies process alcohol in different ways. Checkpoints don't prevent folks from breaking the law. All they do is allow the police to cherry pick whomever they wish to stop - absent any evidence of bad driving.

But I digress. The new twist in Missouri is the appearance of prosecutors and judges at these checkpoints. Now the officers can fill in check-the-box formatted search warrant affidavits and have a judge sign them on the spot without ever questioning the need to execute a forced blood draw. The presence of the prosecutors allows the state to have little confabs with the men in black robes before the motorist ever gets to speak with an attorney.

If we're going to be fair, then there should also be court-appointed attorneys or public defenders present to consult with the motorists whom are facing the needle and to argue the merits of a search warrant before the judge. But, of course, we'll never see that because our presence would just gum up the works and might actually cause the police and prosecutors to work to obtain convictions in DWI cases.

It's always so nice to see judges who are willing to prostitute themselves out in order to favor curry with the voters for being so tough on crime. If these judges cared one iota about the Constitution they swore to uphold when they took their oath of office, they wouldn't accept fill-in-the-blank or computer generated "auto-texted" search warrant applications for forcible blood draws. If these judges were interested in being neutral and detached, they would question the officers for the need to strap a motorist down and extract a blood sample for a misdemeanor that's just one step removed from a traffic ticket.

But they don't.

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