Wednesday, July 13, 2011

It's only coercive if I say it's coercive


–verb (used with object), -erced, -erc·ing.
to compel by force, intimidation, or authority, especially without regard for individual desire or volition: They coercedhim into signing the document.
to bring about through the use of force or other forms of compulsion; exact: to coerce obedience.
to dominate or control, especially by exploiting fearanxiety, etc.: The state is based on successfully coercing the individual.

Supposedly the idea behind implied consent is that when someone applies for a driver's license, he is giving his consent to provide a breath or blood sample upon demand should a law enforcement officer request one following an arrest for driving while intoxicated. But that same motorist has a choice when, and if, that moment actually arrives. A motorist is "rewarded" for blowing over a .08 by having his license suspended for a shorter time period than someone who decides he'd rather not blow into the little black box.

Consent must be given voluntarily by the motorist. The police are not allowed to coerce him into blowing. To prevent the appearance of coercion, officers are required to read a piece of paper with a warning from Section 724.015 of the Texas Transportation Code -- the so-called statutory warning. Should the officer fail to keep to the script he runs the risk of a judge throwing out a breath test result.

Of course what one person perceives as coercive may very well differ from what someone in law enforcement, for instance, might find coercive. The statutory warning informs the motorist that should he choose not to blow into the breath machine, that refusal might be used in a subsequent criminal prosecution. So much for innocent unless proven guilty, huh? And anyone who's ever tried a DWI has heard the prosecutor tell the jury that their client had the opportunity to prove his innocence but chose not to - because he knew he was guilty.

So much for lack of coercion.

Then we had the evolution of Screw the Constitution No Refusal Weekends in which prosecutors lined up judges who were more than willing to rubber stamp search warrants authorizing forced blood draws on misdemeanor cases. They even found judges who were willing to make a complete and total mockery of the Fourth Amendment by accepting "affidavits" by fax - so they wouldn't be inconvenienced by actually having to listen to an officer recite why a blood draw was so necessary in a case that began with a routine traffic stop.

But I digress...

The publicized threat of being strapped down and having a needle jabbed in one's arm just because Officer Bob smelled alcohol on your breath might be seen as having a coercive effect on motorists' decisions whether or not to blow in the black box. In fact, the Texas Municipal Courts Education Center told judges who attended a seminar that

"If a suspect consents to a blood test in the face of a threatened warrant, the voluntariness of the consent may be an issue."

And that's from an organization whose mission is to assist municipal court judges, court staff and prosecutors in screwing defendants "maintaining professional competence."

The Texas Legislature, however, doesn't view it the same way. In its neverending quest to put everyone in the state under court supervision, our brilliant lawmakers in Austin decided to amend the statutory warning provided to anyone arrested on suspicion of driving while intoxicated to include the threat of a forced blood draw as a means of coercing motorists to blow.

SB 1787, which goes into effect on September 1, 2011, adds the following language to the statutory warning:
If the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person.
State Sen. Dan Patrick (R-Houston) authored a bill because he was worried that some judge might find the threat of a forced blood draw to be coercive. Apparently in Mr. Patrick's world, a coercive statement's not coercive if the government says it isn't. This comes from a man who claims to be a champion of limited government. Mr. Patrick's idea of limited government seems to be limited to how much the state can tax or spend but not how much the government can intrude when it comes to law enforcement.

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