"...the importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great..." -- Schmerber v. California, 384 US 757, 770 (1996).While doing some research for a recent post I came across some information on the website for the Texas Municipal Courts Education Center dealing with blood warrants in DWI cases. It seems that the judges had a pow-wow last July and blood warrants were on the agenda.
Included among the written materials was a question-and-answer paper with some delectable little morsels regarding the signing of blood warrants by municipal court judges.
How do you obtain a blood search warrant?
An affiant/officer must present a qualified magistrate a written affidavit alleging facts amounting to probable cause that a specific person committed a specific crime and alleging why the blood sought will provide evidence regarding that crime
A magistrate has no legal reason to deny this request if the above criteria are met.It's scary that municipal court judges - whose job it is to raise revenue for the city from motorists - are authorized to sign blood warrants in DWI cases. But, starting with the last point in the answer to the question, while there may be no legal reason to deny the request - there is also no legal reason requiring the magistrate to sign the warrant. The affidavit may very well contain allegations that a specific crime occurred and that a specific person is believed to have committed the crime -- but it does not follow that the warrant must be issued based upon the allegations. The magistrate has the right to question the affiant to determine his or her truthfulness and to help decide whether or not to grant the warrant.
Furthermore, none of the search warrant applications I've seen in DWI cases have actually alleged why the blood is evidence of the crime. As far as the law is concerned, it's not a crime to have a BAC of .08 or higher at the time of the test. It's only a crime if it can be proven that the driver was over the limit at the time of driving.
Does a magistrate have to sign a blood search warrant if it is legally sufficient?
No. A magistrate never has to sign anything but there are potential consequences for declining to perform magisterial duties. The C.C.P. says "It is the duty of every magistrate to preserve the peace within his jurisdiction by all lawful means; to issue all process intended to aid in preventing and suppressing crime." Whether issuance of a blood search warrant helps to preserve the peace seems debatable. However, general public knowledge that a blood draw may be required if a person is arrested for DWI seems very likely to aid in preventing and suppressing crime by its deterrent effect.
So, while a magistrate does not have to sign a legally sufficient blood search warrant, it is arguably a dereliction of duty and a possible violation of the Code of Judicial Conduct. Clearly, a magistrate does NOT have to sign a blood search warrant (or any search warrant) he/she believes is legally insufficient.As I was saying, a magistrate is not compelled to sign a blood warrant. One thing is certain, however, it is not the job of a judge to be the waterboy for the police. A judge is not a crime fighter. A judge is supposed to be a neutral arbiter in a dispute between two or more parties. I find it interesting that TMCEC is making a veiled threat to municipal judges that they might be violating the Code of Judicial Conduct if they don't go along with the vampires.
It is even more ironic that the TMCEC makes this threat when Judge Killer of the Texas Court of Criminal Appeals walks away with a smirk on her face after violating court policy and procedure in the Michael Richard execution. The implication seems to be - if you act in good conscience you may be in violation of judicial canons but if you prevent a condemned man from filing a request for a stay you're okay.
Can a blood search warrant be faxed to a magistrate so the magistrate can sign a blood search warrant?
Various counties are already using faxed blood search warrants.
So, the answer is "Yes" you can use faxed blood search warrants. It is being done. C.C.P. Section 18.01 requires the "facts" of a "sworn affidavit" be presented to a magistrate who signs the warrant. Nothing in the code specifically requires the officer/affiant to appear personally before the magistrate. C.C.P. Section 2.26 declares electronic documents a written document for all purposes.
If law enforcement is depending on the magistrate to sign the affidavit, arguably, the officer may need to be "before" the magistrate. Tex.Govt.Code Section 312.011 defines an affidavit as a written statement of fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths and officially certified by an officer under his seal of office. Historically, that would mean "in front of" the magistrate, though that may not be true in this newer, high tech environment in which we operate.Well, of course, if someone else is doing it, it must be perfectly legal. Right? Interesting that the same government that fights against the expansion of constitutional protections for the citizenry due to "changing times" is more than willing to expand the power of the police state based upon the same reasoning.
One very interesting tidbit I came across I found in the slide presentation that accompanied the lecture. According to TMCEC a
Suspect should not be threatened with a warrant to gain "consent."I have yet to figure out how this statement gibes with the gibberish about how general knowledge of forced blood draws is a deterrent to DWI.
The police make a grand event out of every No Refusal Weekend. They put it on the highway signs in Montgomery County. Officers tell motorists that it's a No Refusal Weekend and that they will obtain a warrant to draw blood if the motorist doesn't consent to a breath test. The prosecutors line up the judges who volunteer to sign blood warrants and put out press releases that they will obtain a warrant to draw the blood of anyone who refuses to blow.
How is that anything but coercive behavior on behalf of the state?
Click here for the audio presentation.