Just looking for an excuse to affirm

In 2012, Milton Kay was driving in Orange, Texas without wearing his seatbelt and without having a current registration sticker on his windshield. He was pulled over by Officer McDonald of the Orange Police Department.

While conducting the stop, Officer McDonald smelled the odor of an alcoholic beverage on Mr. Kay's breath and noticed that Mr. Kay was slurring his words.

So, of course, what started out as a routine traffic stop turned into a full-blown DWI investigation -- even without any evidence of impairment while driving. As (bad) luck would have it, Mr. Kay had two prior DWI convictions - one in 1989 and one in 2000 - that turned a routine traffic stop into a felony DWI arrest.

Section 724.012 of the Texas Transportation Code states that if a person with two or more prior DWI convictions is arrested for a DWI and refuses to provide a breath or blood sample, a police officer may require the motorist to submit to a blood draw. In case you didn't know it, when you walked away from the DPS office with your driver's license you told the state that it was okay from them to jab a needle in your arm if you declined to cooperate in a DWI investigation.

And you thought that Fourth Amendment thingie applied, didn't you?

Well, of course it didn't apply in Mr. Kay's case because his alcohol concentration was .024 - three times the legal limit.

At trial Mr. Kay argued that the blood draw was illegal because he didn't agree to it and because there was no showing by the state of exigent circumstances per McNeely. The trial court wasn't inclined to ignore a high blood test result so Mr. Kay's objections to the admissibility of the blood test results were denied. Mr. Kay was subsequently sentenced to 19 years in prison which, if I may editorialize, was absurd given the circumstances surrounding the arrest.

The 1st Court of Affirms Appeals in Houston then got there shot at the case. In Kay v. State, No. 01-13-00595-CR (Tex.App.--Houston [1st] 2014) Justice Rebecca Huddle pointed out that Mr. Kay never specifically mentioned that the blood draw violated his Fourth Amendment protection against unreasonable search and seizure, the Court affirmed the conviction and told Mr. Kay to enjoy his time in prison.

Here is the relevant portion from Mr. Kay's motion to suppress the blood test result...

[E]vidence in this case has been illegally obtained . . . in violation of the United States Constitution, the Texas Constitution, and Texas Statutory Laws . . . [T]he blood specimen was extracted from [Kay] without his permission and without a search warrant. Generally, tak[ing] of a blood sample is a search and seizure within the meaning of the Fourth Amendment to the United States Constitution . . . Article I, section 9 of the Texas Constitution requires that a search warrant be issued . . . In addition, Article 38.23 of the Texas Code of Criminal Procedure forbids any evidence obtained in violation of the law to be admitted against an accused. 

Let's see, Mr. Kay mentioned that the blood draw violated the US Constitution. He mentioned that it violated the Texas Constitution. He mentioned that a warrantless blood draw falls under the purview of the Fourth Amendment. He even cited the Texas Statutory Exclusionary Rule.

Yet, to the First Court of Appeals, that wasn't enough to invoke the protections of the Fourth Amendment and the McNeely case.

Just the other day I praised the legal reasoning of Marc Brown in suppressing some pretty damning evidence because the police violated the accused's Fourth Amendment rights. I wrote that Justice Brown made his decision not on the evidence that was in question, but, instead, on the way in which the evidence was gathered.

Well so much for that type of legal reasoning from Justice Huddle. Instead of looking at whether the evidence was obtained legally, she looked for any reason she could find to justify the trial court's decision to deny Mr. Kay's motion to suppress. What she found makes a mockery of her title of "Justice."

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

No refusal isn't just for weekends anymore

No longer must we wait for holidays and three-day weekends to celebrate the evisceration of the Fourth Amendment. Now, in Harris County, we can celebrate it every day. That's because the Harris County District Attorney's Office has decided to make every day a No Refusal Day.

Going forward anytime a motorist is stopped and arrested on suspicion of driving while intoxicated and refuses to consent to a breath test, police will obtain a warrant to strap that motorist down and stick a needle in their arm. The expansion of No Refusal Weekends was announced by the Harris County District Attorney's Office but no one from the county judiciary had anything to say (publicly) about the plan.

It strikes me as quite interesting that the DA's office would announce a program expanding the use of search warrants to conduct forcible blood draws while the people who would actually sign the warrants said nothing. There just isn't any question that men and women wearing black polyester robes will take the warrant application from their fax machine and sign it unconditionally.

No Refusal Weekends only work when judges are compliant and willing to cast aside any shred of impartiality and join "the team." There is no random wheel that assigns judges to sit and wait for search warrant applications to come across the telephone lines. Judges are recruited to blindly sign search warrants authorizing forcible blood draws at the drop of a hat.

This willingness to sign warrants without scrutiny is a blatant violation of the oaths they took when they took they position on the bench. The name of the game isn't teaming up to rid the streets of drunk drivers - the name of the game is to ensure that the constitutional rights of the accused are protected. Judges who are worried about looking soft on crime are doing us all a great disservice by sitting on the bench in judgment of others.

High court says no to warrantless blood draws - or does it?

Tyler McNeely was heading home from a local watering hole one evening when a police officer stopped him for speeding and crossing the center dividing line. You shouldn't be surprised to find out that the officer noted Mr. McNeely had the smell of alcohol on his breath, red eyes and slurred speech. Mr. McNeely told the officer he had had a couple of beers.

Apparently Mr. McNeely didn't perform the roadside calisthenics to the degree of precision the officer desired and he was promptly handcuffed and stuffed into the back of a patrol car. The officer asked Mr. McNeely if he'd be willing to provide further evidence against himself by taking a breath test. Mr. McNeely declined the invitation so the officer headed to a nearby medical facility.

Now excuse me for a few seconds while I climb up on my soapbox. By not taking the officer up on his request to blow into a machine, Mr. McNeely violated the implied consent statute in Missouri. Now I'm guessing that Mr. McNeely wasn't told when he applied for his driver's license that he was agreeing to blow into the state's breath test machine whenever an officer thought he was intoxicated. I'm also guessing that none of y'all were told that when they handed you that laminated card with the awful picture on the front.

At the hospital the officer asked Mr. McNeely if he'd be willing to sit down and have a needle jabbed into his arm for the purpose of securing evidence that would be used against him. To no one's surprise, Mr. McNeely again declined the invitation.

The officer then grabbed a nurse who drew the blood. Left unsaid in the sanitized Court opinion is just how the officer managed to get the blood sample in the first place. If someone is unwilling to give blood voluntarily asking them pretty please with sugar on top isn't likely to change their mind. Was Mr. McNeely strapped down in a chair? Did an officer use his weight to subdue Mr. McNeely? Was he held down by orderlies?

Whatever the case, it certainly wasn't a pleasant experience and I'm guessing that if a judge were subjected to a forcible blood draw that the opinions we see on these types of cases would be very different. I'm not thinking a judge would find a blood draw to be "minimally invasive" when a person is tied down or held down. I don't think a judge would be so clinical if it was she was felt that needed go into the vein.

But I digress.

Mr. McNeely was charged with driving while intoxicated. He moved to suppress the blood test results on the grounds that the warrantless "search" was unreasonable. The state argued that there were exigent circumstances - namely that blood dissipates in the blood and if they didn't get their hands on that vial of blood it might make it harder for them to prove their case (or something like that). The trial court granted Mr. McNeely's motion as did the Missouri Supreme Court.

The state then appealed to the United States Supreme Court to determine whether or not the natural dissipation of alcohol in blood qualified as an exigent circumstance to circumvent that thing we call the Fourth Amendment.

Now let's just set aside the fact that for years prosecutors made DWI cases, and obtained convictions, with nothing more than the officer's testimony of what he or she observed at the scene. There are still plenty of cases tried today with nothing more than the officer's testimony and a videotape of the defendant doing a set of roadside exercises. Results from breath or blood tests are needed to pin a DWI on a motorist - they are more of a cudgel used to force a defendant to plead guilty.

There were no exigent circumstances in Mr. McNeely's case. In this day of No Refusal Weekends and judges willing to sign faxed warrant affidavits it's not a daunting task to convince a judge to sign a warrant authorizing the police to jab a needle in someone's arm. Which is precisely what the Nine in Robes decided.

Well, to be fair, the Court said that the facts in Mr. McNeely's case led them to conclude there were no exigent circumstances but they weren't prepared to stretch the ruling to other cases. Instead they decided that each case shall be examined based on the facts peculiar to the case. In other words, courts will be allowed to consider just how badly the defendant behaved before ruling on whether or not the Fourth Amendment applies to his case.

Would the decision have been different had there been an accident? What if Mr. McNeely's alcohol concentration had been higher than .015? Exactly what bad facts would have made this case come out differently?

The dissipation of alcohol in blood is not an exigent circumstance. It is a scientific fact. And, even if you want to call it an exigent circumstance - it's an exigent circumstance created by the police. As such there should be no exception to the Fourth Amendment's ban on unreasonable search and seizure. Decisions such as McNeely only serve to weaken our constitutional protections and turn our rights into balancing tests.

There is no balancing test for a constitutionally protected right. That right is either violated or not. The citizenry are either afforded protection from the state or they're not. Our rights are not ours through legislative fiat and it's high time the Supreme Court take a hard look at the damage to the Bill of Rights its endless variety of balancing tests have cause.

High court to decide case involving warrantless blood draws

Back in October 2010, Tyler McNeely was stopped for driving 11 miles over the speed limit by Missouri state police officer Mark Winder in Cape Girardeau County. The officer said he saw Mr. McNeely cross the center line three times before he stopped him.

Of course Officer Winder noted that Mr. McNeely had an odor of alcohol on his breath and red, glassy eyes. He then administered four field sobriety tests and concluded that Mr. McNeely was intoxicated. The officer took Mr. McNeely to a local hospital and asked him if he would consent to a "voluntary" blood draw. When Mr. McNeely exercised his right to say no, Officer Winder ordered hospital technicians to conduct a blood draw anyway.

There was no accident. No one was injured. And no one asked a judge for a warrant.

In a hearing before the trial court Officer Winder stated that he never asked a judge for a warrant to draw Mr. McNeely's blood. He also testified that he had applied for warrants to conduct blood draws on previous  occasions without any difficulty (a sign that many judges have all but forgotten that the Fourth Amendment even exists).

The trial court deemed the results of the blood draw inadmissible. The state appealed. The Missouri Supreme Court affirmed the ruling of the lower court so the state appealed to the United States Supreme Court. The Obama Administration then joined with the State of Missouri in arguing that there wasn't a damn thing wrong with strapping down a motorist and jabbing a needle in his arm without a warrant.

The state argued that there were exigent circumstances that necessitated conducting a warrantless blood draw. According to the state, because alcohol dissipates in the body, it is vital that the blood be drawn as soon as possible.

Note that argument wasn't that anyone's life was in danger or there was any type of emergency. The argument amounted to the state would really like to have a vial of blood to test because Mr. McNeely might have been intoxicated. He was off the road by the time he was held down and the needle jabbed in his arm. The state wanted evidence that might force Mr. McNeely to plead guilty without holding the state to its burden of proof.

Anyone who's tried a breath test or blood test case is quite familiar with the junk science that is retrograde extrapolation. Without knowing the specifics of a motorist's physiology, a government employee sits in the witness stand and proudly tells the jury just what the defendant's alcohol concentration was at the time of driving - even though the breath or blood sample was given hours after driving. Judges allow the testimony in either because they haven't the slightest clue what's going on or because they just don't give a damn.

But there are plenty of case tried every year in which there is no breath or blood test. There are plenty of cases every year in which a jury is asked to decide whether or not a motorist was intoxicated based upon the driving facts and the roadside exercises performed on video. There were also plenty of DWI cases tried before police cars were equipped with cameras. And prosecutors got convictions in those cases.

There were no exigent circumstances in Mr. McNeely's case. The state just wanted to make it easier on itself to obtain a conviction. And the courts have gone along with that for years. That's why we have implied consent laws on the books. That's why refusing a breath or blood test is held against a motorist and presented to the jury as an admission of guilt.

There are plenty of counties, cities and towns that conduct "No Refusal Weekends" with judges volunteering to sign off on warrants review warrant applications. Judges all across this country have gladly signed off on warrants based on fill-in-the-blank form affidavits that are conclusory and don't even spell out why the blood sought is evidence of a crime.

Officer Winder could very easily have found a judge who would issue a warrant based upon his statement that Mr. McNeely was speeding and failed a series of roadside exercises. It really is that simple. But Officer Winder couldn't be bothered to do so. He couldn't be bothered to comply with the requirements of a watered-down and neutered Fourth Amendment.

The refreshing thing about this case is that a trial judge and a state supreme court decided that the state had crossed the line.

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.

Court to weigh in on warrantless blood draws

A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he alters, destroys or conceals any record, document or thing with intent to impair its verity, legibility or availability as evidence in the investigation or official proceeding.
-- Texas Penal Code, Sec. 37.09

Just what does it mean to destroy evidence? The Texas statute would appear to mean a person has to do something with the knowledge that the evidence is wanted by the authorities. It requires a deliberate act on the part of the person being charged.

It doesn't, however, follow that involuntary bodily functions are a means of destroying evidence.

But somehow our police officers, prosecutors and legislators seem to be of the opinion that one can destroy evidence without intending to do so. And now it's time for the Nine in Robes to make the call.

Back in 2010, Tyler McNeely was stopped for exceeding the speed limit by 11 mph near Cape Girardeau, Missouri. The officer reported that Mr. McNeely did a poor job on the roadside calisthenics. He then had the gall to refuse to provide a blood sample.

That didn't sit too well with the Officer Winder who took him to a hospital and ordered a forcible blood draw. Of course the result indicated that Mr. McNeely was quite a bit over the legal limit.

At trial the state argued that it didn't matter that Officer Winder neglected to obtain a warrant to draw Mr. McNeely's blood because if he didn't, Mr. McNeely would destroy the evidence of his intoxication.  The trial judge wasn't buying it and neither were the judges on Missouri's supreme court.

The state is arguing that the natural elimination of alcohol in the body is an exigent circumstance as defined by the Supreme Court in a 1966 case - a case that typically created an exception to a long-standing precedent that turned the meaning of the Fourth Amendment on its ear.

If the police want to strap a suspect down and jab a needle in his arm, the very least they should do is obtain a warrant from a judge authorizing the infringement upon the suspect's rights. Of course they should also be required to submit an affidavit that actually lays out clearly articulated facts that would lead one to the conclusion that the suspect may have been intoxicated. But that might be asking for too much.

As much as I would prefer to see the Court to proclaim that warrantless blood draws in DWI cases are an unconstitutional infringement upon the public's protections under the Fourth Amendment. That's not what I think we'll get, however. What's more likely is the Court deciding that there were no exigent circumstances in Mr. McNeely's case and then laying out some examples of what might constitute exigent circumstances in a DWI case.

The end result will be an even more tangled mess of the Fourth Amendment and an expansion of the power of the state over the individual.

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.

Nevada high court tosses blood test

It is common, particularly with the rise of "No Refusal Weekends," for blood draws to be conducted long after a motorist has been arrested for suspicion of driving while intoxicated. The results of those blood tests are waved in front of jurors by prosecutors telling those jurors they can convict based solely on a number.

Judges are more than willing to allow the results of these tests into evidence based on the pseudo-scientific exercise of retrograde extrapolation - more commonly knows as throwing a dart at a board.

But this past December, the Nevada Supreme Court threw a monkey wrench into the works when it held that the results of a blood draw taken over two hours after an arrest weren't relevant.

In The State of Nevada v. The Eighth Judicial District Court and the Honorable Stefany Ann Miley, 127 Nev.Adv.Op. 84 (Nev. 2011), Mr. Bobby Armstrong collided with another car, causing serious bodily injury to the other driver. Almost two-and-a-half hours later a blood draw was conducted. According to the test, Mr. Armstrong had an alcohol concentration of .18. Mr. Armstrong moved to suppress the results of the test on the grounds that the blood was drawn outside the state's two-hour window, only one sample was conducted and that retrograde extrapolation was unreliable, irrelevant and unfairly prejudicial.

The trial court ruled that the test results were inadmissible but allowed prosecutors to introduce other evidence of Mr. Armstrong's intoxication. The state's writ of mandamus (thus accounting for the bizarre style of the case) followed.

The Nevada Supreme Court held that retrograde extrapolation was reliable. But the Court also found that the the relevance of the evidence was far outweighed by its prejudicial effect. In coming to its conclusion, the Court looked to the Mata decision in Texas in which the Court of Criminal Appeals laid out a list of factors to be considered when determining the reliability of retrograde extrapolation. These factors included the length of time between the arrest and the test, the number of samples taken and whether the expert had knowledge of the defendant's individual characteristics when guessing calculating the defendant's alcohol concentration at the time of the stop.

In this case the Court was concerned that the blood sample was taken more than two hours after the stop and that the state's expert had very little knowledge of any of Mr. Armstrong's individual characteristics. In fact, the state's expert based much of his testimony on the characteristics of an "average" person, not Mr. Armstrong. But the Court's biggest concern was that only one blood sample was taken - giving just one point of reference.

The Court reasoned that if two blood samples had been taken some time apart, then the results of those tests would tell whether Mr. Armstrong was absorbing or eliminating at the time of the accident. With but one sample, Mr. Armstrong's alcohol concentration could have been higher, lower or the same at the time of the accident as it was at the time of the test.

Crime lab loses federal funding

The honeymoon for Sam Houston State's Regional Crime Lab in The Woodlands is now over.

The lab was opened with the help of a federal grant and the understanding that the lab would become self-sufficient after three years. Owing to the iron law of budgeting (he who holds the iron makes the budget), that three year window ended about two years early.

The lab had charged Montgomery County, its largest customer, $200 for every drug or alcohol test in DWI cases. Without the funding from the feds, MoCo will pay $386 for alcohol tests and $290 for drug tests. Due to the increasing costs of operating the lab, all controlled substance evidence tests will be handled by the DPS. The switch will increase the wait time for test results.

But how to pay for the increased cost of testing is the question. The original idea was that MoCo would pay for the tests through sentencing fees for those who plead guilty or are convicted at trial. But that only covered about 3% of the cost. MoCo District Attorney Bret Ligon now wants to use the asset forfeiture fund to pay for the tests.

The problem, of course, is the increased incentive to seize property and file forfeiture actions against defendants. Forfeiture actions serve to tie up defendant's assets and make it that much harder to muster a defense against the state. You will also find out that the vast majority of defendants either default or negotiate settlements in which they receive just a portion of the value of the items seized. The asset forfeiture funds then become a private slush fund for whoever's running the DA's Office (just ask former MoCo DA Michael McDougal). Of course there's no telling where the property seized in Tenaha went.

In the meantime, however, defendants in MoCo will have to wait longer for lab results to come back in drug cases as it can take up to nine months for the DPS lab to release test results. In the meantime that's nine months of missing work to take yourself to court (if you're on bond) or (if you can't make bond) the prospect of sitting in a cell for nine months waiting to fight a case.

Some of the lessons from MoCo's crime lab are obvious. First, for entities involved in the criminal (in)justice system who rely upon government funds to operate - those funds will diminish or vanish at some point, even if the entity  is there to help the state. Second, the lab should have charged a more realistic rate for their services; the excess would allow for a "cushion" when the funding was cut or dropped. Third, no one gives a rat's ass about the people accused of committing a crime.

'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.

Isn't it ironic? (Don't you think?)

Sgt. Roy Marquez of the Houston Police Department's Traffic Enforcement Division (the guys in charge of the DWI task force) found himself on the opposite side of the line earlier this week in Pasadena. It seems that Sgt. Marquez ran a red light and ended up rolling his SUV after being struck by another car. It also seems that Sgt. Marquez had had a little bit to drink that night. After he declined the offer to blow into the breath test machine, a search warrant was signed authorizing the state to jab a needle into his arm and draw his blood. A blood test then showed an alcohol concentration of .127.

The most amazing thing about this story is not that a police officer was driving while intoxicated (we've already seen that), but that the blood test results were back within four days. I've got cases in which I can't get the results of fingerprint analysis for weeks or I can't get anyone to run a gun to see if it's been used in a crime -- but the lab can get the sample, catalog it, prep it, run it through the gas chromatograph and deliver the results to the DA in less than four days. Unbelievable.

Enjoy the irony...

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.

Into the belly of the beast

The other day I had the opportunity to go on a tour of the DPS Houston Crime Lab up on the northwest side of town. I would like to thank Mr. Robert Prince, Jr. for taking me around, not just the facilities in the new building, but also through the old lab next door.

We started off in the old work area. The lab moved earlier this year but there is still some equipment and furniture left across the parking lot (in the blue building you can see from 290). With the dim light and the old equipment lying around, the room looked like the perfect setting for a horror movie or a chase scene in some thriller -- you know, the scene where the girl finds herself running from the bad guy in the abandoned building.

We took a look at the old gas chromatograph which Mr. Prince opened up so I could see the columns inside. He pointed out the injector port, the Y-splitter and the flame ionization detector. I've read about the machines and I've seen pictures in both lectures and in books, but this was the first time I'd ever seen one up close.

As an aside, I'm always amazed when I see a machine that performs a complex task and think about how someone dreamed it up. There is an elegance to the machine. If you understand how it works, when you look at the components you can see a genius at work.

We looked at the old refrigerator where blood samples were stored. We went to the intake room. We saw the room where samples were stored after they were tested. Then it was on to the new building.

As it turns out, through coaching soccer I know a couple of guys who work at the architecture firm that designed the new building. It is a stunning building both inside and out.

Since my ticket to the tour was a court order allowing me to see the machine that my client's blood sample was tested in and the room in which the machine was housed, I didn't get to see the storage areas in the new building.

Mr. Prince showed me how the biological hood worked -- it's almost like something out of Get Smart. I saw the autosampler and he showed me how he seals the vials that are placed in the autosampler for testing. Again, you can read about the process all you want and look at pictures until your heart's content, but it's no substitute for actually looking at the equipment.

Twisting and contorting by the pool

Just when you thought the courts had injected some sanity into the DWI "crisis," an appellate court finds a way make it go away. Take State v. Geiss for instance.

This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.

Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:

"for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples . . .." It further alleged that "[s]aid property was used to commit the offense [of DUI] . . . a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense."

In response to Mr. Geiss' motion to suppress, the trial court threw out the blood test results on the grounds the warrant violated Mr. Geiss' right to privacy under the Florida Constitution, violated the state's implied consent law and violated the state's warrant statute.

This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."

The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:

However, Florida's implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so.

The appellate court did, however, find that the language of the state's warrant statute prohibited the state from obtaining a search warrant to draw blood in a misdemeanor case since a warrant can only be used to obtain "property...used as a means to commit a crime." Had Mr. Geiss been charged with a felony at the time the warrant was issued, though, the statute would have permitted a warrant to draw the blood.

It would appear that Mr. Geiss had won after all.

But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.

Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).