Happy Fourth (or not)

Yesterday the Harris County Criminal Lawyers Association carried on a tradition born four years ago with the annual reading of the Declaration of Independence outside the Harris County Criminal (In)justice Center.

At the same time as the reading in Houston, there were readings at 73 other courthouses in Texas.

The reading is a powerful reminder of what the Fourth of July is all about and why we do what we do. It's an event that pulls us together and gives us a little kick in the ass to motivate us. It's also a stark reminder of how different things were 239 years ago.

Of course I would be remiss if I didn't point out that it was a roomful of wealthy, white landowners who signed the document and their promises of life, liberty and the pursuit of happiness didn't apply to women, the poor or those held in bondage.

A special shout out goes to John Raley who worked for years - for free - to obtain the release of Michael Morton. There is no higher reward in this profession than seeing an innocent man walk out of prison.

HCCLA President Carmen Roe opens the ceremony.

Robb Fickman delivers the keynote address.

But it's not all fun and games for down here in Houston we are in the midst of (yet) another No Refusal Weekend. The other day Mayor Annise Parker and the police got in front of the media and explained why we just need to pretend that the Fourth Amendment doesn't exist on Fourth of July weekend.

The anecdotes are horrific. There is nothing amusing or fun about folks dying in a car accident because someone was intoxicated. But there is also nothing to celebrate about making a mockery of what this holiday is all about. The Founding Fathers put their lives on the line by signing a document that laid out the abuses committed by the British government. Our own elected officials pat themselves on the back for conspiring to violate the Bill of Rights.

An interesting side note to all of this was former Harris County prosecutor (and current Montgomery County prosecutor) Warren Diepraam's appearing on KUHF's Houston Matters yesterday in which he told the radio audience that there was nothing wrong with having a drink or two with dinner and then getting in the car and driving home. I would like to hear Mr. Diepraam square that statement with the fact that once an officer smells alcohol on a driver's breath - and once that driver admits to having had a "couple" of drinks - that the investigation is over and someone's going to jail.

The other day while I was watching the US play Belgium (and apparently forget that the object of the game is to score a goal), I met a police officer from New Zealand who was here on vacation. He was amazed at how different the rules under which the police operate are. In New Zealand, for instance, an officer can pull any motorist over at any time to test them to see if they are legally intoxicated. No reasonable suspicion, no probable cause. No nothing. Get in your car to leave the bar and you just might be the unlucky soul who gets picked to be tested.

That's not a system under which I wish to live. But that's where we are headed with drunk driving laws. When we demonize one crime, we make it that much easier to take away the rights of folks accused of other crimes. Is that how we want to celebrate Independence Day?

Let's play cowboys and vampires

March is a busy time in the Houston area. First there's the Livestock Show and Rodeo that opened this past weekend with the World Championship BBQ Cookoff followed by three weeks of shows, music and carnival rides. There's also Mardi Gras down on the island and St. Patrick's Day (when we reduce all of Irish culture to a glass of green beer). Finally it's Spring Break time and folks will be flocking to the beach.

It's also time, once again, for the Harris County District Attorney's Office, local law enforcement and the black-robed members of the DA's Office to conspire to make a mockery of the Fourth Amendment with a No Refusal Month.

For those not familiar with this little game, the DA's Office recruits judges to volunteer to sign search warrants authorizing forcible blood draws for people arrested for DWI who decide not to give a breath or blood sample voluntarily. Note that I didn't say they would review the warrants. Nope. That's not part of the game.

If these judges actually performed their duty the whole No Refusal program would find itself on the ash heap of history. The only way to ensure that blood is drawn is for the judges to be compliant and ignore the shortcomings of the cookie cutter search warrant affidavits that are faxed to them.

Few of the affidavits contain anything more than boilerplate language and conclusory statements that are supposed to pass as articulable facts. But have no fear, there's no random assignment of judges during the No Refusal period, the judges that sign the warrants volunteered to be part of the program. They are advertised as being part of the team.

The DA's Office is quite clear about the purpose of No Refusal - they want to obtain as much evidence as they can to force a defendant to wave the white flag and plead guilty. But what is the judge's role in this farce?

The judge should have no interest in whether a motorist submits to a breath or blood test. Whether there is a test or not if none of the judge's concern. The judge is just supposed to be a neutral and detached arbiter - not a participant in the prosecution.

And finally, just to clear up any confusion that may exist out there, in order for a breath or blood test result to be admissible in court, the suspect must have been under arrest before the officer requested the sample. In other words, the breath or blood test has nothing to do with an officer's decision to arrest a motorist for driving while intoxicated - the officer has already made up his mind before he even asks the motorist to blow.

Just be careful out there.

Passing along the costs of blood testing

As if the costs associated with a DWI arrest aren't high enough, prosecutors with the Harris County District Attorney's Office are working on a plan to charge defendants with the cost of drawing, storing and analyzing their blood samples. As the number of blood tests in DWI cases has skyrocketed in the past few years, area crime labs are being overwhelmed with the kits.

Prosecutors seem to think that the answer to short-handed labs is to transfer the cost of hiring and training new analysts to the motorists accused of driving while intoxicated. The Code of Criminal Procedure would seem to allow the government to do so.

But why are there so many blood tests?

If you guessed "No Refusal Weekends" you are correct.

In an ongoing attempt to coerce motorists into agreeing to give up evidence to help the government's case, local prosecutors, law enforcement agencies and compliant judges have all teamed up to force motorists to submit to breath or blood tests. The reason why is quite obvious - too many motorists were challenging their arrests in court and (in the eyes of prosecutors and judges) too many juries were giving them the benefit of the doubt at trial.

The government, never shy about violating the rights of the accused when it serves their purpose, decided that the best way to obtain convictions was to pressure drivers into submitting to breath tests - even though it isn't against the law to decline the invitation to give the state more evidence. Nevermind the fact that prosecutors have been obtaining convictions in DWI cases for years without the benefit of breath tests or even NHTSA's roadside exercises on film.

Just like the casinos, prosecutors and law enforcement decided to improve the house's odds in a DWI prosecution. The courts played along by allowing officers to fax affidavits to judges and to allow officers to be sworn over the telephone.

Now we have a backlog of blood samples from simple Class B misdemeanors (one step removed from a traffic ticket) because the government decided it needed more evidence to rig the game. The motorist stopped for speeding or not signalling a lane change after leaving a restaurant or bar certainly didn't decide to contribute to the backlog. The decision was made by the officers involved in the stop, local prosecutors and judges who want to appear tough on crime.

No one forced prosecutors and local law enforcement agencies to have nurses on duty to draw blood. No one forced them to provide equipment to judges so they could make their "reasoned legal decisions" from the comfort of their own homes.

If the cost of testing all the blood that's drawn in DWI cases is prohibitive then maybe the government should think twice about pursuing these policies. Passing along the cost doesn't solve the problem. Taxing the citizen accused because prosecutors don't want to have to try breath test refusal cases isn't equitable. The cost should be borne by the parties who insist on coercing motorists to consent to chemical tests.

Blood tests aren't necessary in most DWI cases. The facts regarding the traffic stop, the officers observations at the scene and the motorist's performance on roadside exercises is enough for most juries to decide whether or not the state proved up its case. If prosecutors don't like losing DWI trials then perhaps that might want consider just what the presumption of innocence means. They might also want to consider why our nation's founders made the burden of proof for arresting someone a whole lot less than for convicting that same person.

H/T Grits for Breakfast

Time for the annual crackdown on the Fourth Amendment

Once again it's that time of year when law enforcement agencies get together to celebrate the demise of the Fourth Amendment and crack down on suspected drunk drivers.

Local law enforcement agencies in the Houston area were the recipients of a $295,000 state grant that will allow them to put an additional 50 officers out on the streets between now and New Year's. What that really means is that what's left of the Fourth Amendment is being shredded and we're footing the bill.

Of course the message given to the public through the media is that motorists who drink and drive, whether legally or not, are a menace to the rest of us on the roadways. But the truth of the matter is most drivers who are arrested on suspicion of driving while intoxicated aren't stopped because they're driving dangerously. They are pulled over because they failed to signal a lane change, they failed to signal a turn (even in a must-turn lane), they were speeding or their car had some sort of equipment issue (cracked taillight, burned out turn signal or expired plates).

A good number of these drivers will be subjected to various roadside calisthenics and then taken to a station where they are asked to blow into the state's breath test machine under threat of having a needle jabbed in their arm. The authority to jab that needle in the arm will be given by a judge who volunteered to sign "review" warrant applications regardless of whether the affidavit is a fill-in-the-blank or a form affidavit. Regardless of whether the affidavit is conclusory or even alleges probable cause exists to believe the blood is evidence of a crime.

And all of this for a crime that's one step removed from a traffic ticket.

The judges who volunteer to participate step across the line from a neutral and detached magistrate to a member of the law enforcement team. And in a county in which most of the judges are part of the same club, the odds of one judge ruling that his or her colleague signed a warrant application in error are slim and none.

Just remember that the judges who ignore the Fourth Amendment and rubber stamp warrant applications on No Refusal Weekends are the same judges who are going to decide if that traffic stop in that dope case was bad or if that 911 tape is coming in on that domestic assault case.

Ignoring the Fourth Amendment gets easier the more you do it. Fill-in-the-blank affidavit? No problem. Affidavit template on the computer? No one cares. Conclusory statements? You've got to do better than that, counselor.

But since the police and the judges set up drunk drivers as the bogeymen, few people bother to question whether the shredding of the Fourth Amendment is worth the benefit. And, once the public makes it known that they don't mind those drunk drivers being denied their constitutional rights, it makes it easier for the police to do it the next time.

Swearing on the telephone

A few days ago Scott Greenfield over at Simple Justice picked up on a piece written by Walter Olson decrying the use of a judge's gavel in an anti-drunk driving ad. The ad implied that the robed ones were in bed with the state when it came to DWI prosecutions.

Now anyone who has spent considerable time in the criminal courthouse knows that this relationship isn't strictly limited to drunk driving cases.

The latest example of this is a decision handed down earlier this year by the state appeals court out of Waco, Texas in which the court took everything you thought you knew about affidavits and tossed it out on its ear.

Ms. Katherine Clay found herself arrested by a state trooper on suspicion of driving while intoxicated. When the officer asked her to blow into the state's breath test machine, she exercised her right to say no. That, apparently, didn't sit too well with the officer who decided he wanted blood.

The officer then prepared an affidavit for a search warrant and called up a judge.County Court at Law Judge A. Lee Harris picked up the phone and, after an exchange of pleasantries, swore the officer to tell the truth. Now I have no knowledge as to whether the officer's fingers were crossed behind his back, but after "taking the oath," the officer faxed the affidavit to the judge who dutifully (we certainly can't have judges actually read and think about these things before blindly affixing their signatures to them) signed it and issued a warrant authorizing the officer to have a nurse stick a needle into Ms. Clay's arm for an offense one step removed from a traffic ticket.

In so doing, the berobed ones took a decidedly activist stance and redefined the meaning of the word affidavit. They also looked to how the federal courts handle situations involving the use of affidavits, telephones and trampling the rights of defendants. But I suppose that a little activism is alright when it serves the purpose of the state in a criminal prosecution and even Texas' long history of antagonism toward los federales is tempered if a way around that pesky little Fourth Amendment can be found.

Although the Government Code defines an affidavit as a writing signed by the maker and sworn to before an officer authorized to administer oaths, TEX. GOV'T CODE ANN. § 312.011(1) (West 2005), we agree with the Smith opinion that it is the act of swearing, the taking of the oath, that is essential to the validity of the affidavit. The purpose of the oath "is to call upon the affiant's sense of moral duty to tell the truth and to instill in him a sense of seriousness and responsibility." Smith v. State, 207 S.W.3d 787, 790 (Tex. Crim. App. 2006). The affidavit in this case provides, "The undersigned Affiant, being a peace officer under the laws of Texas and being duly sworn, on oath makes the following statement and accusations." It is signed by Ortega as the affiant and includes a signed jurat stating that it was subscribed and sworn to before the magistrate. In this instance, the personal familiarity of the trooper and the judge with each other's voice provides very strong indicia of truthfulness, trustworthiness, and reliability so as to call upon Trooper Ortega's "sense of moral duty to tell the truth and instill in him a sense of seriousness and responsibility." Id. 

Therefore, under the facts of this case, a face-to-face meeting between the trooper and the judge was not required and the making of the oath over the telephone did not invalidate the search warrant. Accordingly, the trial court did not err in denying Clay's motion to suppress.

But how did this entire scenario develop? What led to an officer calling a judge up on the phone to swear to his account of the traffic stop? Why was the officer faxing a warrant application to a judge in the middle of the night?

This was but a routine traffic stop - the same stop that occurs in town after town across this state every night of the week. There was no accident. No one was injured. If I had to guess I'd say that Ms. Clay was either speeding or didn't use her blinker to signal a lane change in the middle of the night.

If I were to hazard a guess, I'd say that Ms. Clay was caught up in the snare of a No Refusal Weekend. The judge would have been recruited either by prosecutors or the police to volunteer to sign (not to review and scrutinize - but just to sign) search warrants authorizing forcible blood draws if a motorist refused to blow into the breath test machine. The judge was made one of The Team - a team consisting of police, prosecutors and judges willing to ignore the Bill of Rights.

And if the appeals court were to have a backbone and a willingness to be an separate and independent branch of government, the No Refusal Weekend would be no more.

'Tis the season to give

If you're planning on drinking and driving over the holidays, you might seriously think twice. More and more counties will be conducing No Refusal weekends over the holidays.

The popularity of the initiative is no surprise given that most no-test drunk driving trials are a coin flip proposition. Add in a number on a piece of paper and, suddenly, the success rate for the prosecution soars. That number can be scary.

The attraction for law enforcement and prosecutors is that blood evidence is a powerful tool in front of juries. Armed with blood evidence of intoxication, prosecutors can win convictions in more than 90 percent of drunk-driving cases, said Houston police Capt. Carl Driskell, who works in the traffic enforcement division. 

And often, lawyers say, defendants faced with blood evidence admit their guilt and don't bother with a trial. "If it bleeds, it pleads," said Fort Worth prosecutor Richard Alpert.

But, it's only a number.

Blood tests are conducted by unbiased scientists wearing white lab coats. They're performed by employees of law enforcement agencies. The very people who are trying to convict your client are the ones performing the tests.

Just think about that for a second. Think about that before you walk your client up to the bench to plead out the case. You don't accept the officer's opinion that your client was intoxicated. You don't accept the premise that the coordination exercises he performed at the scene are conclusive proof of anything. But you will accept a number on a piece of paper signed by a lab technician in the employ of the crime lab or the DPS as proof positive that your client is up a creek without a paddle.

You realize they didn't even test the blood itself?

What? You didn't know that? Remember all that talk about Henry's Law with the alcohol jar attached to the back of the breath test machine? Remember that machine supposedly measured the amount of alcohol vapor in your client's breath? It was an approximation of an indirect measurement.

Guess what. That's all a blood test is. After they mix a bunch of chemicals and salt into the blood sample, the lab tech takes out a sample of... air. That's what's being sent through that fancy gas chromatograph. Not blood - air. It's as much an indirect measurement as a breath test.

Prosecutors around the state push for No Refusal weekends because they know that most defense attorneys will crumble when they see the number. Put the state to its burden. Force the prosecutor to explain to a jury how the machine works. It's only a number.

Blood or breath?

Is a blood test more accurate than a breath test? Is either one reliable when it comes to proving whether a motorist had an alcohol concentration of .08 or higher?

The answer in Austin may very well be no and no.

Are Blood Alcohol Tests Credible?: MyFoxAUSTIN.com

An Austin defense attorney reported that his client had a blood sample taken on a No Refusal weekend. That sample was tested by the Austin Police Department's crime lab. The result came back showing his client had an alcohol concentration of .10. The defense attorney had the blood retested by the Southwestern Institute of Forensic Science in Dallas. Their test showed an alcohol concentration of .08.

What happened?

While it is true that as alcohol metabolizes in the body the alcohol concentration decreases, when blood is stored in a sealed tube there is no way for the alcohol in the blood to metabolize. In fact, it is more likely that the alcohol concentration would increase due to contamination of the blood.

First a little primer on blood testing. When a blood sample is drawn in a DWI case, the person drawing the blood typically makes two draws in two separate tubes. One tube is the "state's" tube and the other tube is there in case the defense wants to retest it. The technician in the lab will prepare two samples from the tubes for testing in a gas chromatograph. This gives us four test results. Typically the lowest result is the alcohol concentration used at trial.

In Austin, however, they average the four results to come up with an alcohol concentration. That raises questions of which blood sample is the actual sample to be used at trial. It also raises questions about the validity of the method by which APD determines alcohol concentration.

APD officials weren't concerned about the 20% discrepancy in the test results. What's a couple hundredths of a gram anyone, right?

APD claims that the differing results could have been caused by evaporation of the alcohol in the test tube -- except that the tubes are supposedly sealed and refrigerated to prevent degradation of the samples. And what about that pesky Henry's Law that states whenever you mixed water and alcohol in a closed system, the concentration of alcohol in the water and the concentration of alcohol in the headspace is the same? A sealed test tube is a closed system.

Just a little something to think about.

Search warrants for dummies

Maybe it's because they're lazy. Maybe it's because they can't be trusted to do it right by themselves. Whatever the reason for it, this is blood search warrants for dummies:

MoCo Search Warrant

There's no such thing as a fill-in-the-blank and check-the-boxes search warrant affidavit for any other criminal offense. Judges reviewing warrants to search a house in a felony case take more time to review the affidavit for probable cause than do judges deciding whether or not to allow the state to jab a needle in a motorist's arm.

This is your government at work - against you and your rights.

The volunteer army

From: Bill Reed
Sent: Thursday, June 23, 2011 11:31 AM
To: Criss, Susan
Subject: FW: Needing volunteers for Galveston County "No-Refusal" weekend for July 1,2,3 @ Dickinson Police Department: 8pm-4am 

Judge: are you available? So far Lonnie and Ellisor are in. Grady is out of town. thanks, BR

*****

From: Bill Reed
Sent: Wednesday, August 24, 2011 9:59 AM
To: Ellisor, John; Cox, Lonnie; Mallia, Wayne; Criss, Susan; Dupuy, Christopher; Grady, John
Subject: looking for volunteers for No Refusal Weekend for Labor Day: 9/2/11-9/4/11 

Any takers? Thanks, BR

Looking for volunteers?

Or, are you looking for judges who will blindly sign a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit? Are you looking for judges who buy into your notion that a person accused of driving while intoxicated has fewer rights (or at least less-important rights) than a person charged with any other offense? Are you looking for judges who agree that we should do whatever it takes to coerce people into pleading guilty to DWI?

You see the DA's Office is hand-picking its judges. They're going back to the judges who have signed, without question, warrants in the past and who are more than willing to continue to do so. The last thing the state wants is a judge who might just question this practice.

No. The deck must be stacked against the citizen accused. Even if we have to make an absolute mockery out of a document we all took an oath to uphold.

What, you think these judges are actually reading these affidavits and asking themselves if the officer has but forward enough facts to support his arrest decision?

From: Chris Paschenko
Date: Friday, Dec 31, 2010 12:01 pm
Subject: DWI arrests
To: Judge Susan Criss 

We[re] you working and in what capacity when [L.B.] and [T.R.] were arrested? I'm told it was DWI. Also seeking on the record comment.
Thanks.
Chris

*****

From: judgecriss
To: Chris Paschenko
Sent: Fri, Dec 31, 2010 12:39 pm
Subject: Re: DWI arrests
I was the judge at the station last night there to sign warrants worked 8pm to 4 am. Rules do not allow me to comment on the cases. Signed LB blood search warrant. Other waived need for warrant.

What else needs to be said about the mechanics of a No Refusal Weekend. There you have a judge telling a reporter that she was at the station "to sign warrants."

Not to review them. But to sign them.

Sadly, most folks don't care. They see nothing wrong with jabbing needles in someone's arm because you think they might have been intoxicated. Hey, we're out there keeping you safe. And these are the same folks who are more than willing to suffer any indignity at the hand of TSA employees just so they can board a plane. Hey, gotta keep us safe from terrorists.

Maybe we're just so self-absorbed that we simply don't care if the government is intruding on someone's rights - so long as we're not the one being trampled upon. As long as it's then that the government is after it's okay. The only problem is that at some point there will be no more them to protect you from the coercive power of the state. And, by then, it will be too late.

Filling in the blanks

June 25, 2008 

"The Galveston County Criminal District Attorney's Office is coordinating another no-refusal weekend for Friday July 3 and Saturday July 4, 2009. Dickinson Police Department has graciously agreed to host the event again this year. Judge Lonnie Cox will be our judge for Friday night and Judge John Ellisor will perform those duties on Saturday night. The hours of operation will be from 8:30 PM on July 3, 2009 until 4:30 AM on July 4, 2009 and against at 8:30 PM on July 4, 2009 until 4:30 AM on July 5, 2009... 

I have attached the search warrants and affidavits for search warrants. The search warrant returns can be done immediately after the blood draw is performed." 

-- Galveston County Assistant District Attorney Joel H. Bennett

That's right. We've got your search warrant and affidavits right here. They're ready for you to fill in the blanks and type 'em up. No need to make an officer actually recite the facts in a case that gave rise to his belief that the driver was intoxicated at the time of driving. Nope. Just plug in your name and the motorist's name and we're in business.

I understand prosecutors and police wanting fill-in-the-blank affidavits, it allows officers to spend more time on the streets harassing citizens policing. But what's the judge's excuse for signing a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit. Somehow I'm not thinking that would cut it if a district judge were trying to decide whether or not to allow the police to enter someone's house to search for evidence of a crime. In fact, I know it wouldn't. But, then again, we're only talking about a misdemeanor. What's the big freaking deal, anyway?

I mean, all we're asking to do is to perform an invasive procedure on a motorist based on our hunch that she might be intoxicated and the fact that she exercised her right to refuse a breath test. Well, that and we can strap her down if she resists. But, c'mon, why all the hoops?

January 2, 2011 

"The morning of December 30, 2010, Fox 26 News began to air footage preparing the public for our initiative, as I addressed the public and presented a "warning and awareness" that our intentions were to increase public safety by removing DWI offenders from our roadways on Galveston Island and a Zero Tolerance No Refusal approach method would be in effect to combat this problem... 

"With the assistance of the following agencies the effort was a success:

• UTMB

• Galveston County District Attorney's Office

• District Judge Lonnie Cox

• District Judge Susan Criss

• County Judge John Grady

• The Galveston Police Department Command Staff

• The Galveston Daily News

• Fox 26 News

• Texas Highway Patrol

"Over the last month I have been in correspondence with the listed agencies and the initiative was proven a success. 

-- Chad Powers, Galveston Police Department

What could possibly be more clear as to the role of the judges in these assaults on the Fourth Amendment? It's not the job of a judge to assist in the arrest and/or prosecution of anyone. It is the role of the judge to sit as a neutral arbiter in a legal proceeding. When the police begin thanking judges for assisting in their initiatives, it's time to start questioning the role of those judges in our criminal (in)justice system.

Since most of these DWI cases will be filed in county court as misdemeanors, two of the judges (Grady and Dupuy) reviewing warrants on suppression hearings are two of the judges who volunteered to approve these fill-in-the-blank form affidavits. And just how do you think those rulings are going to go?

Slowly but surely the judiciary is being subsumed into the trial division of the district attorney's office. Maybe it makes for great copy during campaign season. Maybe the voters like it. You know, the voters who either blindly mark R or D on their ballot or think that judicial candidates should sound like they're running for sheriff or DA.

Should I bring a pen along?

Last August I wrote about documents I received through an open records request for documents related to No Refusal Weekends in Harris County. See here, here, here and here.

Today it's time to take a trip down the Gulf Freeway to the island to what Galveston County officials have been up to when it comes to making a mockery out of the Fourth Amendment.

June 27, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated preparations for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 8 pm through 4 am at the Dickinson Police Department. (Special thanks go to Chief Morales for his hospitality.) Bill has enlisted the cooperation of Judges Lonnie Cox, John Ellisor and Christopher Dupuy to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

The DA's Office has "enlisted the cooperation" of judges to "approve and sign" search warrants authorizing blood draws. As I have stated many times before, if the state is "enlisting" judges to participate in this spectacle, the deck is already stacked against anyone accused of driving while intoxicated. And, yes, that Christopher Dupuy.

Hmmm... how might that conversation go?

Prosecutor: "Judge, I was wondering if you'd like to volunteer to approve and sign search warrants for blood draws during our No Refusal Weekend?"

Judge: "Ordering a blood draw on a misdemeanor case? That's insane."


Prosecutor: "I'll take that as a no. Next!"

August 31, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 11 pm through 4 am at the Dickinson Police Department. Bill has enlisted the cooperation of Judges John Ellisor, Christopher Dupuy and John Grady to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

Please note, no one is talking about reviewing warrant applications. The judges are there to approve the warrants and subject motorists to an intrusive procedure. This is limited government? Oh, now I understand, they were talking about limiting the authority the judiciary has over the police, not the authority of the state over the individual. That makes so much more sense now.

An application for a search warrant should be reviewed by a neutral and detached magistrate. Once a judge accepts the pitch from the DA to be a part of the team for a No Refusal Weekend, that judge loses any claim to being detached. Either he was asked to participate or he volunteered - either way, the judge is far from neutral.

And despite "fill in the blank" warrant applications that are long on conclusions and woefully short on facts, these "neutral and detached" judges are more than happy to take pen to paper to authorize the shredding of the last remnants of the constitution.

It's all about that filthy lucre

If you ever had any questions about how much of a moneymaker DWI is, this article should put them to bed. A lawsuit has been filed in federal court in North Carolina over the bidding process for supplying ignition interlock devices to the state. 

In its suit, Monitech Inc. says DMV Commissioner Mike Robertson broke state bidding rules by withholding the renewal of its state contract.

Since 1989 the company has been the state's sole provider of ignition interlocks, which test the breath of convicted drunken drivers for alcohol before they can start their vehicles. The devices are often mandated for people convicted of a DWI to keep their driving privileges.

First there was Monitech, Inc. who, since 1989, had an exclusive contract with the state to provide the devices. Then came a company called Law Enforcement Associates (with some seriously connected investors) who sought to purchase Monitech and its exclusive contract in 2004.  

Mobley has previously alleged he faced retaliation from DMV officials after he refused in 2004 to sell his business to Law Enforcement Associates, a firm whose investors included then-Senate Majority Leader Tony Rand. The Fayetteville Democrat was co-chairman of the Governor's Highway Safety Program, which oversaw DWI prevention programs.

A close political ally of Rand's, then-DMV commissioner George Tatum, also owned LEA stock with his wife. Tatum was the state official with the ultimate authority to renew Monitech's contract with the state.

More than a dozen elected officials and their family members have owned LEA stock, including former Gov. Mike Easley, current Gov. Bev Perdue and her husband. Records also show that state agencies purchased at least $192,683 in surveillance equipment from the small company, much of it bought without seeking competitive bids.

Monitech declined the offer and alleges the state has retaliated against it ever since. In the meantime, Smart Start got into the game and filed suit to open up the bidding process to other companies.

DWI is a moneymaker for the states and for the companies seeking to profit on the misfortune of others. The almighty dollar has caused lawmakers and judges to disregard the Fourth and Fourteenth Amendments in their pursuit of the most draconian laws ever for an offense that is but one step removed from a traffic ticket.

Prosecutors recruit judges who volunteer to sit around and wait for search warrants for blood to come across their desk (usually at the jail or police station). The prosecutors prepare fill-in-the-blank form warrants replete with conclusory statements passing off as fact. The officer then hands it to a judge who looks for the signature line and signs it. Then it's off to the nurse to get a needle jammed up your arm.

The judge has ceased to be neutral and detached. The judge has become part of "the team."

Damn the Bill of Rights, keep those greenbacks coming.

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

co·erce

 [koh-urs]

–verb (used with object), -erced, -erc·ing.

1.

to compel by force, intimidation, or authority, especially without regard for individual desire or volition: They coercedhim into signing the document.

2.

to bring about through the use of force or other forms of compulsion; exact: to coerce obedience.

3.

to dominate or control, especially by exploiting fear, anxiety, 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.

Celebrating the Fourth (of July) by gutting the Fourth (Amendment)

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. -- Declaration of Independence

What better way to celebrate the anniversary of one of the most important documents in American history than to institute a statewide No Refusal Weekend for the Fourth of July?

Anyone who is pulled over for suspected drunk driving will have to either submit to a breath test or have their blood drawn. Officials say it takes as little as 15 minutes to secure a warrant for a blood draw and five minutes after that to get the blood drawn.

Fifteen minutes to eviscerate the rights of the accused. Just fifteen minutes to determine whether or not probable cause exists to open a vein. Just fifteen minutes to order an invasive procedure for an offense that is but one step removed from a traffic ticket.

We can celebrate the Fourth by pretending that our Fourth Amendment right to be left alone doesn't exist. We all know there's no such thing as an unreasonable seizure when a man wearing a badge smells alcohol on the breath of someone driving a car.

We can celebrate the Fourth by pretending that our Fifth Amendment rights to remain silent and not to incriminate ourselves doesn't exist. DWI is the only offense in which a person choosing to remain silent and not incriminate themselves is legally used against them.

We can celebrate the Fourth by pretending that the right to counsel under both the Fifth and Sixth Amendments doesn't exist. Heaven forbid a person accused of drunk driving be allowed to consult with an attorney before answering any questions or performing roadside coordination exercises.

However you choose to celebrate the Fourth, be careful, be safe and don't become a victim of the police state.

Mourning the loss of the Fourth Amendment

Mr. Alex Kozinksi, the chief judge of the Ninth Circuit Court of Appeals and his law clerk, Stephanie Grace, penned an article on Axis of Logic mourning the death of the Fourth Amendment (which also seems to be an ongoing theme here).

“We are gathered here today to mourn the loss of a dear friend, the Fourth Amendment. Born on the freedom-loving soil of early America, the Fourth Amendment will be remembered as the bulwark of the liberty we once called privacy. For ye, we mourn.”

As you can see, we’re working on a eulogy for the Fourth Amendment, the part of the Constitution guarding against “unreasonable searches and seizures” — in effect, a privacy provision.

When did the Fourth Amendment die, you ask?

Judge Kozinski's thesis is that we are to blame for the death of the right to be left alone by our own actions of convenience. We have eroded our reasonable right to privacy by using cellphones that track our movements -- either through the use of GPS or from cell tower signals.

Through our enrollment in supermarket loyalty programs we have created a trail of purchases that los federales have access to through the use of subpoenas. Our increased use of debit cards creates electronic records of our purchases.

If you think police have turned a blind eye to this wealth of information, guess again. Without the protections of the Fourth Amendment, the police are free to mine the commercial databases storing our personal information without any suspicion whatsoever. Consider the case of Philip Scott Lyons in 2004: Police arrested the firefighter for arson after discovering he purchased a fire starter with his Safeway Club Card. The charges weren’t dropped until someone else confessed; not everyone will be so lucky.

As I have written before, we have handed over some of our right to be left alone on a silver platter in the name of "security." We have allowed courthouses to become fortresses rather than buildings where people seek justice. We have restricted access to the people's buildings - erecting metal detectors and placing armed guards in the lobby of the state capitol building in Austin.

But there's more to the story than that. While we have certainly contributed to the demise of the Fourth Amendment by waiving our reasonable expectation of privacy in electronic communications and the like, the police, judges and legislators are the ones who struck the death blow.

Once upon a time it meant something that warrantless searches were unreasonable. Once upon a time the requirement of probable cause prevented the long arm of the state from intruding upon its citizens. But, just as if you place a frog in a pot of cold water and gradually heat it up, the frog will sit there and die without knowing what happened, we have stood and watched as the courts attacked the right to be left alone at the margins.

Terry stops. Searches incident to arrest. Protective sweeps. Exigent circumstances.The PATRIOT Act.  Implied consent. No Refusal weekends. Little by little. Bit by bit. By the time anyone caught on to what was happening, it was too late. Before you knew it, the Fourth Amendment lay dying on the ground, streams of blood trailing behind.

The Fourth Amendment died the death of a thousand cuts.

Highway fatality rates drop to lowest level since 1949

With state after state ramping up DWI enforcement and dreaming up new ways to violate motorists' rights comes news that the rate of traffic fatalities per 100 million miles has fallen to its lowest rate since 1949. In 2009 there were 33,808 traffic fatalities in the United States, last year that number dropped to 32,788 - despite an increase in the number of miles driven.

But those numbers are doubly interesting because of another NHTSA report I wrote about last December. That report stated that 45,230 motorists were involved in fatality accidents in 2009. It seems like NHTSA's playing around with its numbers. The prior report counted everyone involved in a traffic fatality accident -- regardless of whether or not they were responsible for the accident or injured or killed in the accident.

Some may point to the drop in fatalities as proof that stricter DWI enforcement (and gutting of the 4th Amendment) is working. Any such conclusion is not supported by the evidence, however. Safer cars and the increased use of seatbelts have played a large role in reducing the number of highways deaths. According to the report:

NHTSA has also taken action to improve vehicle safety. The agency has urged automakers to swiftly and voluntarily report safety defects to keep the driving public safe. NHTSA has also encouraged the development and use of technologies to prevent crashes, such as electronic stability control, forward collision warning and lane departure warning systems. The agency also unveiled an updated 5-star rating system in 2010, which established more rigorous crash-test standards and began providing consumers with improved information about which cars perform best in collisions. 

The U.S. Department of Transportation's Federal Highway Administration (FHWA) has also been encouraging the use of Safety Edge technology -- which reduces drivers' risk of running off the road by shaping pavement edge -- on new road and highway projects. FHWA has also promoted the use of rumble strips and cable median barriers to separate opposing directions of traffic to reduce the incidence of crossover head-on collisions.

The rate of highway fatalities decreased the most in the Pacific Northwest and in California/Arizona. Areas in the South where the assault on the Fourth Amendment has been more pronounced saw a much smaller drop in highway deaths.

The fact remains that most DWI stops involve driving behavior that an officer wouldn't think twice about during daylight hours. How many people do you see on the roads everyday that don't signal each and every turn and lane change? How many of y'all do? How many folks get pulled over for malfunctioning lights or turn signals during the day?

The roads are safer today than they've ever been. Too bad we can't say the same about the Bill of Rights.

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.