Public shaming, part deux

First there was the Twitter campaign by the Montgomery County (TX) District Attorney's Office. To refresh your memories, the MCDAO made a big to-do about tweeting the names of motorists arrested on suspicion of drunk driving in Montgomery County. Strangely enough, the MCDAO doesn't seem to tweet the names of those fortunate folks who have been acquitted by Montgomery County juries.

Now it's time for another social media campaign aimed at motorists arrested on suspicion of drunk driving. Now it Huntington Beach, California and Facebook.

City Councilman Devin Dwyer wants to shame motorists arrested for driving under the influence more than once  by posting their mugshots on the police department's Facebook page.

There is a saying: Come to Huntington Beach on vacation, leave on probation. -- Randall Bert, local attorney

Interestingly enough, Huntington Beach Police spokesman, Lt. Russell Reinhart, thinks the idea is a bad one.

We see no value in doing that. Law enforcement is not about public shaming. - Lt. Russell Reinhart

Again, I ask Mr. Dwyer the same question I asked Warrenn Diepraam of the MCDAO: are you going to issue apologies to those folks who aren't found guilty?

The vampires' sleight of hand

From Fastline: the Official Blog of the US Secretary of Transportation comes this gem:

Refusal rates in Texas have dropped from nearly 50 percent down to 10 percent. And, when a case does go to trial, conviction rates are higher. As [Montgomery County, Texas] Asst. D.A. [Warren] Diepraam said, "We give 100 percent scientific evidence to our juries."

Ray LaHood is the Secretary of Transportation. Mr. LaHood took an oath to uphold the Constitution. Mr. LaHood is a public employee - we pay his salary.

The Department of Transportation, Mr. LaHood's bailiwick, is funded by the taxpayers.

And your tax money is being used to water down the protections laid out in the Bill of Rights all in the name of making it easier for prosecutors to brand motorists criminals for life.

When Mr. LaHood and his fellow travelers speaks out in favor of No Refusal Weekends they are playing the public for fools. The object is to make motorists accused of driving while intoxicated the enemy - the "them" to our "us."

Letting "them" choose not to blow in the state's breath test machine is an affront to "us." Forcing "them" to choose between blowing and bleeding is a benefit to "us." The vampires and their friends are using the ultimate sleight of hand trick to get the public's support for their end run around the Fourth and Fifth Amendments. Of course, by demonizing motorists accused of drunk driving, the bloodsuckers can distract your attention from the real issue at hand.

For you see, it may very well be "us" versus "them," but not in the way the vampires want you to envisage. We, the people, are "us." The Bill of Rights protects our rights from the avaricious hands of the government we created. Thomas Jefferson and the anti-Federalists insisted upon the Bill of Rights because they foresaw a government that would seek to expand its powers into the daily affairs of man.

And that's just what those pushing No Refusal are doing -- seeking to expand the power of the state. The act of standing up for one's rights is the most revolutionary thing a person can do. The act of refusing to give the state the evidence to convict oneself is a noble deed and serves to protect all of us -- not just the accused.

Allow the state to take away one's right not to incriminate oneself when accused of DWI, and it's just a matter of time before the state comes to take away another of your "inalienable rights."

Floggings at noon

Law enforcement agencies in and around Plantersville, Texas have announced a crackdown aimed at suspected drunk drivers leaving the Texas Renaissance Festival the last two weekends in November. This festival, that celebrates an era that has absolutely nothing to do with the history of this great state, has slowly morphed into a beast attempting to eat the town of Plantersville.

A crowd of folks who play Dungeons & Dragons and World of Warcraft and walk around talking in lousy British accents would seem fairly harmless provided I'm not forced to attend; but the local constabulary has decided that the festival's attendees make the roads in and around the hamlet a bit too hazardous for the local folk.

To catch the drunken drivers, the number of patrol officers on this task will increase from 20 to 30. Roads with extra patrols will include Texas 249, Texas 105, FM 1774, FM 1488 and FM 1486.

"We will not have random security checkpoints for vehicles," Diepraam said. "but we will be stopping anyone who violates traffic laws."

Two BAT (Breath, Alcohol and Transport) vans from Houston and Montgomery County will be available to offer Breathalyzer tests on the spot. If the driver refuses, authorities will seek a search warrant and then transport the driver to Magnolia's police station where a nurse will be on standby to do a blood test.

And so, much as was the case with the Salem witch trials, the motorist who is pulled over for a random traffic violation will be subjected to trial by deed with the officer's unscientific opinion being the linchpin upon which his constitutional rights rest.

Let the witch hunt begin!

Montgomery County District Attorney Bret Ligon and his assistant, Igor, Warren Diepraam are on a mission from God -- at least that's what they believe. Mr. Ligon has declared that his number one priority is to rid the roads north of the San Jacinto River of drinking drivers.

Montgomery County District Attorney Bret Ligon said Warren Diepraam has been described by others as “the mad scientist of DWI detection, suppression and prosecution.”

Mr. Diepraam spoke recently at a DWI seminar put on by the Texas District and County Attorneys Association that was sponsored by Annheuser-Busch. I figure that much like the tobacco companies started telling people to quit smoking, the alcoholic beverage industry will mouth the lines "don't drink and drive" in order to fend off new legislation that might affect their bottom line. After all, "here we go!"

The problem with Mr. Ligon's witch hunt is that it targets individuals who aren't even breaking the law. There is no law in the State of Texas that says it's illegal to consume an alcoholic beverage and then get behind the wheel of a car. The law says you can't drive that car if you've lost the normal use of your mental or physical faculties due to the consumption of alcohol, not that you're breaking the law if you drive with the odor of an alcoholic beverage on your breath.

“Warren’s efforts are actually unique, not only in this county, but I think people are beginning to realize that we have a resource here within Montgomery County that the rest of the state is starting to grab on to,” Ligon said.

Listening to Mr. Ligon and Mr. Diepraam you would think that drunk driving is the scourge that threatens to rip the very fabric of our society apart. To combat this apocalyptic threat, the crusaders want to shred the Bill of Rights. Fourth Amendment? That just gets in the way of gathering evidence. Fifth Amendment? It's much easier to convict someone if we can compel them to incriminate themselves. Sixth Amendment? Those lawyers will just tell their clients not to cooperate with the officers.

The District Attorney has put many tools in the hands of law enforcement since his election, such as a Hawk-Eye System which videos eye movements during a DWI field test. He has also implemented No-Refusal Weekends through the end of the year- hiring nurses to draw blood, which saves the time it otherwise takes officers to go to a hospital for the same process.

Does it really make you feel any safer knowing that the police are forcing your fellow citizens to submit to blood draws all because an officer smelled booze on their breath?

There is no other crime for which an individual has less protection against the power of the state than driving while intoxicated. The vast majority of drivers arrested on suspicion of DWI are guilty of nothing more than a minor traffic infraction, such as failing to signal a lane change or speeding.

The more we sit back and accept this assault on our personal liberty and privacy, the more the nation's roadways will begin to resemble airport terminals -- full body scan, anyone?

Constitution, be damned! Man the roadblocks!

Never let it be said that Montgomery County Assistant District Attorney Warren Diepraam is one to let the law get in the way of his crusades. In fact, after this past weekend, never let it be said that Mr. Diepraam would let the Constitution get in his way.

Sobriety checkpoints were deemed unconstitutional by the Texas Court of Criminal Appeals back in 1985 (See Meeks v. State, 602 SW2d 504 (Tex.Crim.App. 1985)). The problem the Court found was that the checkpoint allowed officers to stop motorists without so much as reasonable suspicion and that the process runs afoul of the 4th Amendment prohibition on unreasonable search and seizures.



Mr. Diepraam's latest attempt to skirt the Constitution involves setting up checkpoints in Montgomery County to determine if a motorist stopped for a traffic violation is intoxicated. Sitting at the checkpoint will be a mobile blood alcohol testing truck staffed by two nurses. Also at the checkpoint will be Montgomery County prosecutors and judges all-too-willing to sign a "check-box" warrant application so that the vampires can do their work. Don Quixote's rational is that an officer had at least reasonable suspicion to stop any motorist brought to the checkpoint and, if anyone sniffs alcohol, it will be game on.

You sure you want to refuse that breath test, son?

According to a little bird up in MoCo, prosecutors met with judges to get their okay before announcing this scheme (apparently white smoke was spotted coming out of the chimney). How's that for neutral and detached?

Same song, different verse

Main Entry: ac·ci·dent

Pronunciation: \ˈak-sə-dənt, -ˌdent; ˈaks-dənt\

Function: noun

Etymology: Middle English, from Middle French, from Latin accident-, accidens nonessential quality, chance, from present participle of accidere to happen, from ad- + cadere to fall — more at chance

Date: 14th century

1 a : an unforeseen and unplanned event or circumstance b : lack of intention or necessity : chance
2 a : an unfortunate event resulting especially from carelessness or ignorance b : an unexpected and medically important bodily event especially when injurious c : an unexpected happening causing loss or injury which is not due to any fault or misconduct on the part of the person injured but for which legal relief may be sought d —used euphemistically to refer to an involuntary act or instance of urination or defecation
3 : a nonessential property or quality of an entity or circumstance

Warren Diepraam is at it again - criminalizing traffic accidents and trying to brand a driver who made a mistake as a felon.

Of course Mr. Diepraam has now taken his traveling circus act up the road to Montgomery County where he's hoping the powers that be won't have noticed the headaches he left behind in Harris County.

For Warren, there is no grey. Everything is black and white. Traffic accidents are called accidents for a reason. No one intended for them to happen. Accidents occur because one or more drivers were negligent in the operation of their car -- the fact that some was injured doesn't make it any more likely that the other driver intended to hit him.

Waiting on Ligon

Word from up north is that a chief prosecutor in one of Montgomery County's felony courts was asked to pack up her desk and not come back. As we all know by now, Montgomery County District Attorney Brett Ligon and his chief crony, Warren Diepraam, dreamed up the idea of tweeting the names of motorists arrested for suspicion of DWI in MoCo.

These folks whose names are being bandied about haven't been proven guilty of anything and are presumed innocent. If you're firing someone, however, there's got to be a reason. Not to mention that the firing of a chief prosecutor in a felony court is a newsworthy event (one of Mr. Diepraam's justifications for the new policy).

To date, Mr. Ligon's Twitter account is silent on the matter.

An offer you just can't refuse

"The purpose of the complaint, then, is to enable the appropriate magistrate... to determine whether the 'probable cause' required to support a warrant exists. The [magistrate] must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime." -- Girodenello v. U.S., 357 US 480, 486 (1958)

"An affidavit for a search warrant is sufficient to establish probable cause if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed." -- Serrano v. State, 123 SW3d 59-63 (Tex.App. -- Austin 2003, no. pet.)

A magistrate is to view an affidavit in support of a search warrant in a neutral and detached manner in order to ensure that a person's rights under the United States Constitution, the Texas Constitution and the Texas Code of Criminal Procedure are protected.

MontgomeryTXDAO

New Years Eve No Refusal Info: 2 nurses, 2 prosecutors, 1 judge and 100s of officers working DWI enforcement. DWI blood warrants in effect.12:32 PM Dec 28th from web

One judge to review all of the affidavits in support of a warrant for the forcible blood draw of a Texas motorist? Does that sound like a neutral and detached magistrate? Who are we kidding? Everyone knows the game this weekend -- the cops will arrest motorists they suspect are driving while intoxicated and should that motorist exercise his 5th Amendment right not to incriminate himself by submitting to a breath or blood test, the officers will fill out a cookie-cutter affidavit that the judge will sign because that's what he's there to do.

Meanwhile, if you're out and about this holiday weekend -- be careful out there.

DA defends tweeting names of DWI arrestees

Last night, Warren Diepraam of the Montgomery County District Attorney's Office appeared on MSNBC to talk about his department's use of Twitter to embarrass motorists arrested for suspicion of driving while intoxicated.

When asked whether he thought the plan was problematic because those arrested for DWI were innocent until proven guilty, Mr. Diepraam commented that "We aren't the ones committing DWI, it's the suspects."

So much for the presumption of innocence.

Visit msnbc.com for breaking news, world news, and news about the economy

And so it begins...

Carrying through on his threat/promise to post the names of motorists charged with driving while intoxicated in Montgomery County, DA Brett Ligon's Twitter feed now lists the names of everyone charged with DWI over the weekend.

I find it curious that assistant prosecutor Warren Diepraam says the idea is to embarrass people charged with DWI but that he doesn't think tweeting the names of the accused will poison the jury pool. Well, Warren, if you intend to embarrass someone by tweeting their name then you must anticipate that enough people in Montgomery County will see the feed to have the desired effect. And, if that's the case, then you are attempting to poison the jury pool.

I seem to recall reading about something like this back in high school. That's right -- The Scarlet Letter.

Brett, when one of those cases is dismissed or the jury comes back with an acquittal, are you going to post the name of the prosecutor handling the case or the officer who wrongly arrested the driver? If not, I would encourage my Montgomery County brethren to provide me with the information and I will gladly post it for the world to see.

By the attention Mr. Ligon and his minions are placing on DWI arrests, you would think driving while intoxicated is the most heinous crime in Montgomery County. Let's see, are there any other crimes in which the accused (who is presumed innocent) is humiliated in public, subjected to a forcible blood draw, denied the right to remain silent and is not eligible for deferred adjudication?

See also:

• Bad ideas never die, they just drag on and on (The Defense Rests, 12/26/09)
• Police to put drunk drivers' names on Twitter (C|Net News, 12/26/09)
• Texas county to name drunk drivers on Twitter (IDG News Service, 12/26/09)
• To the top of the page we go (The Defense Rests, 12/19/09)
• Drink. Drive. Tweet. (The Defenses Rests, 12/18/09)

Bad ideas never die, they just drag on and on

Well, here we are a week after the Montgomery County District Attorney announced plans to post the names of those arrested on suspicion of DWI on Twitter and we have yet to see any names appear.

Despite criticism of the plan, Warren Diepraam, the idea's generator, doesn't see a problem. On the one hand he believes it will serve as a deterrent to motorists while, at the same time, he doesn't see any problems with tainting the jury pool.

Mr. Diepraam, if you don't know, also had the brilliant idea to charge a bus driver with vehicular manslaughter after a child was killed in an unfortunate accident while he was driving. Diepraam's comeuppance? A not guilty verdict.

Drink. Drive. Tweet.

The Montgomery County District Attorney's Office has found a new way to humiliate those unfortunate motorists who have been arrested on suspicion of driving while intoxicated -- they are posting their names on Twitter.

Assistant District Attorney Warren Diepraam said that the "public humiliation" should act as a "deterrent" to others who might get behind the wheel after drinking.

Nevermind that being arrested is a very different thing than being convicted and that a person who's been arrested is still innocent unless proven guilty. And of course the police never make wrongful arrests. And of all people, Montgomery County DA Brett Ligon should know better -- after all, he used to be a criminal defense attorney.

My question is should the DA dismiss a case against a motorist or should a motorist be acquitted by a jury of his peers, will Mr. Diepraam offer a public apology on Twitter as well? Even more important, will a person filing for an expunction in Montgomery County need to serve Twitter and other social networking sites, or will the judge sign an order requiring the DA's Office to notify those sites to remove all reference to the arrest of that individual?

DA looking into traffic fatality prosecutions

The Harris County District Attorney's Office is in the middle of reviewing over 100 traffic fatality cases to determine if proper protocols were followed in bringing criminal charges against drivers deemed at fault.

The vehicular crimes section was started up under disgraced former District Attorney Chuck Rosenthal and was seen as former prosecutor Warren Diepraam's baby. Mr. Diepraam is now working for the Montgomery County District Attorney's Office

According to a statement released by the DA's office, prosecutors in the vehicular crimes section "deviated" from office policy in filing criminal charges in the cases that are under review.

"The Vehicular Crime Section had deviated from the long-standing practice of this office concerning what was necessary to raise a civil negligent traffic accident case to that of criminal negligence." -- Harris County DA's Office statement

In response to claims from law enforcement personnel that this case review would make Houston's roads more dangerous for motorists, the DA's office said, in a written statement, that streets would not be made less safe if the office followed the law when deciding when to bring criminal charges against a motorist.

The sad reality of living in a major metropolitan area is that with more cars on the roads, accidents are more likely to happen -- including fatality accidents. In Houston we like to drive fast, and that leads to accidents. But that's what they are, for the most part -- accidents. There is a difference between civil negligence and criminal negligence when it comes to accidents.

It's one thing to cause an accident because you're driving too fast, it's quite another to cause an accident because you're under the influence of drugs or alcohol or because you're involved in a high-speed race on the freeway.

Brace yourself for another "No Refusal" weekend

Here's a preview of NHTSA's anti-drunk driving campaign for the holiday season.  I don't have any specific dates for when the enforcement campaign will be put in place in Texas, but rest assured there will be another "No Refusal" weekend over New Year's.

If you are stopped on suspicion of driving while intoxicated on New Year's Eve, you will be asked to submit a breath sample on the state's breath test machine.  Should you refuse, a judge will sign a warrant for a forced blood draw.  While the results of these tests can be challenged on both scientific and legal grounds, the process can be both humiliating and painful.

Warren Diepraam, the head of Harris County's Vehicular Crimes section, described the genesis of the "No Refusal" Weekend in this article published on the Texas District and County Attorney's Association website.

The question is, should you refuse the breath test if asked on a "No Refusal" Weekend?  My colleague Mark Bennett provided this advice and I can't say that I disagree with him.

My advice, as always, is the best way to avoid being arrested for driving while intoxicated is not to drive if you've been drinking.  But, if you are arrested for DWI, contact my office immediately.

"No Refusal" weekend

The best way to avoid a DWI in Harris County (or the surrounding counties) this weekend is NOT to drive if you've been drinking -- call a cab or call a friend. It's not worth the headache, the hassle or the money you're going to have to pay an attorney.

Houston-area police start holiday DWI crackdown
'No refusal' program allows quick warrants to take blood, if drivers refuse
By ERIC HANSON Copyright 2008 Houston Chronicle
Aug. 29, 2008, 8:14AM

Jessica Kourkounis For the Chronicle
Harris County Assistant District Attorney Warren Diepraam says blood samples provide powerful evidence in DWI cases.

RICHMOND — Police in several Houston-area counties will conduct special DWI operations over the Labor Day holiday weekend, including a program in which officers can get search warrants to obtain blood samples from drivers.

The "no-refusal" program allows a police to contact a judge, in person or by phone, and obtain a search warrant if a motorist suspected of driving while intoxicated refuses to provide a breath or blood sample.

Some counties, including Wharton and Waller, obtain blood samples through warrants on all cases. Others, such as Fort Bend and Harris counties, do it during special enforcement periods.
Assistant Harris County District Attorney Warren Diepraam said a blood sample is much stronger evidence.

"Juries really just don't question blood. They expect scientific evidence," he said. "We know they trust blood more than anything else."

Although a special operation will be conducted this weekend to draw blood, police can seek a search warrant for body fluids any time a judge determines there is probable cause.
Diepraam said the first official Harris County no-refusal program was conducted on Memorial Day 2007.

Fort Bend County will begin its no-refusal operation today, said District Attorney John Healey.
Healey said a person certified to draw blood, such as a nurse or emergency medical technician, will take the samples. Judges will be available to issue warrants in person or by fax, he said.
Texas courts have ruled that the no-refusal programs are legal, he said.

Healey added that providing a blood sample can be beneficial for drivers who are not intoxicated. In at least one instance, he said, a DWI charge was dismissed because police obtained a blood sample that showed an alcohol level below the legal threshold.

"This individual might have gone through a trial, and potentially could have been convicted, but for the fact that his blood was drawn and analyzed," Healey said.
But, some defense attorneys, including Patrick McCann, former president of the Harris County Bar Association, said sanctions already are in place for people who refuse to provide blood or breath samples.

State law allows a person's driver's license to be taken away for refusing to provide a sample, he said.

And, McCann said, the no-refusal process makes judges part of the prosecution team.
"It removes any pretense of a neutral magistrate and an objective ruling," he said.

In Montgomery County, District Attorney Michael McDougal said county law officers will conduct no-refusal operations from 8 p.m. Saturday until 5 a.m. Sunday.

"Saturday night is probably the busiest night," McDougal said.

Harris County's anti-DWI operations will be centralized at the old Houston police headquarters at 61 Reisner.

Diepraam said judges, nurses and prosecutors will be stationed there and police from all Harris County agencies can bring DWI suspects to the station.

Unlike in Fort Bend County, police in Harris County will be seeking blood samples rather than breath samples.

"If they refuse to provide a sample of blood to the police, that is when we get involved," Diepraam said. "We draft a search warrant and present it to the judge and if the judge signs it, we give it to the nurse and take the suspect's blood."

Diepraam said police must have evidence of intoxication, such as slurred speech, bloodshot eyes, alcohol odors and lack of balance.

"There are all sorts of protection in place," he said. "They are not pulling over people and arresting them and taking blood. That couldn't be further from the truth."

On a busy holiday weekend, he said, police may bring in 15 people in one night.

Although Brazoria and Galveston counties are not conducting no-refusal operations, they will have extra enforcement on the roads over the holiday weekend.

The Impaired Driving Mobilization Program, funded with grant money from the Texas Department of Transportation, puts additional officers on the street during peak hours, said Sheriff Gean Leonard.

The Texas Department of Public Safety also is increasing enforcement efforts over the Labor Day weekend.

State officials said all available troopers will be on duty Friday, through Monday looking for drunk drivers and other violators.

"Alcohol is a big concern this time of year, because this is the last big recreational weekend of the summer," said DPS Director Col. Thomas A. Davis Jr.

During Labor Day last year, DPS troopers arrested 912 people on DWI charges and issued nearly 16,000 speeding citations and more than 3,000 seat belt and child restraint tickets.
In all, troopers wrote almost 34,000 tickets and 12,000 warnings during the Labor Day holidays last year.

eric.hanson@chron.com

Criminalizing automobile accidents

While flipping channels late last night I came across a taped speech by Warren Diepraam of the Harris County DA's Office on one of the municipal channels. He was speaking to some group about traffic issues. Diepraam said he went to Chuck Rosenthal, the disgraced former district attorney, and asked to set up a vehicular crimes division of the office.

Diepraam went on to talk about the innovative methods being used by the attorneys in the vehicular crimes division.

When prosecutors talk about innovative methods they're really talking about finding ways to charge citizens with criminal offenses for accidental conduct or to enhance existing penalties by piling on additional charges.

Most car accidents are the result of negligent behavior on the part of one or more drivers - not criminal conduct. It's a sad fact that people who did nothing wrong die in car crashes. And although the burden is often devastating on the deceased's family, charging another person with a criminal offense because he was involved in a wreck doesn't change what happened.

Diepraam also made an interesting comment regarding "no refusal" weekends -- he stated that they were necessary because of the large number of suspects in Harris County who refuse to provide evidence to the police after being arrested for DWI. That speaks volumes to Diepraam's attitude toward the constitutional rights of citizens in Harris County.

Section 724.012 of the Texas Transportation Code governs the taking of specimens. The police may request one or more specimens of a driver's breath or blood if there are reasonable grounds to believe he was operating a motor vehicle in a public place while intoxicated. Section 724.012(b)(3) states that a peace officer is required to take a specimen of breath or blood if, at the time of the arrest, any individual died, or will die, as a result of the accident, an individual other than the suspect suffered serious bodily injury or the driver refuses to provide a specimen voluntarily when asked.

If the specimen is of blood, per Section 724.017(a), only a physician, qualified technician, chemist, registered professional nurse or licensed vocational nurse may take the sample. Additionally, the blood must be drawn in a sanitary place. Per Section 724.017(c) emergency medical services personnel are not qualified to take the sample.

A person who is incapable of refusing to submit a specimen is deemed to have consented to the request per Section 724.014(c). In other words, if you are rendered unconscious in the accident, the police can take a blood sample without even asking for it.

So much for your right against compelled self-incrimination.