McNeely strikes again

The State urges that we balance the public and private interests that are implicated in serious DWI cases and find that Texas’s mandatory blood draw statute, section 724.012(b), is a reasonable substitute for the Fourth Amendment’s warrant requirement. -- Weems v. State, No. 04-13-00366-CR, (Tex.App.--San Antonio 2014)

That is a scary argument found in the San Antonio Court of Appeals decision in Weems v. State. The Fourth Amendment is quite clear in its meaning - warrants shall be required to conduct a search. But, even though the language is absolute, our courts have, over the years, whittled away at the edges to such a degree that the Founders wouldn't even recognize what has happened to their Bill of Rights.

And, leading the charge to chip away at the meaning of the Fourth Amendment is the old balancing test. If you don't already realize whenever the Supremes break out the scales in a criminal case, the outcome is not going to be favorable for either the defendant nor the Constitution.

One of the seminal cases in DWI law is Schmerber v. California, 384 US 757 (1966) which made an end run around the Fourth Amendment by finding that a warrantless search may very well be reasonable depending on the totality of the circumstances. The most popular of these circumstances turned out to be exigency. Prosecutors argued for generations that warrantless blood draws were reasonable because alcohol tended to dissipate out of the bloodstream and, if the blood weren't drawn quickly enough, there would be no evidence left to test.

The development of better, more efficient gas chromatographs and the newfound popularity of retrograde guesstimation made exigency less and less of a factor. Meanwhile, states like Texas began enacting so-called implied consent laws as another way to get around the warrant requirement. Texas also enacted a law that made the taking of a blood specimen mandatory when a person died in an alcohol-related crash, when a person was seriously injured in an alcohol-related crash of if the driver suspected of being intoxicated had two or more prior DWI convictions.

And this is where things stood at the time of McNeely.

Then everything changed. As a refresher, in McNeely, the Supreme Court held that the dissipation of blood by itself was insufficient to justify a warrantless blood draw. The Court pointed out that with the advent of No Refusal Weekends and with the decision that affidavits for warrants could be transmitted to the judge via fax, phone or e-mail, it was relatively easy to find a compliant magistrate who would sign on the dotted line and authorize the blood draw.

Texas then began to argue that the implied consent law was its end run around the warrant requirement. Since, in the eyes of the state, every motorist had given their consent to submit to a breath or blood test merely by getting on the road, then the police had a built-in exception to the warrant requirement - consent.

That bit of intellectual dishonesty crashed to earth when the Supreme Court overturned a conviction in Aviles v. State and sent the case back down to Texas for a new trial in line with the holding in McNeely.

In Weems, the defendant was driving after he had been drinking with a friend. He managed to flip his car on the way home. His friend was injured and taken to the hospital. Mr. Weems fled from the scene but was found a short time later. No sobriety tests were performed because Mr. Weems needed medical attention. After Mr. Weems declined to provide a blood specimen, the arresting officer took him to the hospital where a forcible blood draw was conducted. The result showed that, at the time of the accident, Mr. Weems was about three times the legal limit. He was subsequently convicted of driving while intoxicated.

The San Antonio Court of Appeals then proceeded to reverse Mr. Weems' conviction and held that neither the implied consent law, the mandatory blood draw provision of the Transportation Code nor the dissipation of alcohol justified a warrantless blood draw without a showing that an established exception to the warrant requirement existed.

Invalidating the Fourth Amendment, Texas style

In Missouri v. McNeely, the US Supreme Court held that the natural dissipation of alcohol in blood is not in and of itself an exigent circumstance that does away with the need for a search warrant to draw blood. The Court did say, however, that it could be one of the factors considered when trying to determine whether there were exigent circumstances that could justify a warrantless blood draw.

In Texas if a person is arrested for driving while intoxicated and has two prior DWI convictions, the Transportation Code provides that the police may take a sample of his blood without a warrant.

And that's exactly what happened to Clayton Reeder in September of 2012. He swerved to avoid hitting a deer that had run out into the road and ended up in a ditch. A state trooper arrived on the scene to investigate the accident and decided that Mr. Reeder was intoxicated. Mr. Reeder was arrested and, since he had two prior DWI convictions, he was charged with a felony DWI.

He declined the offer to provide a blood sample at the hospital so, based on Section 724.012(b)(3)(B) of the Texas Transportation Code, the officer obtained a blood sample anyway. Naturally the alcohol concentration was above the legal limit.

At trial Mr. Reeder asked the court to suppress the results of the blood test on the grounds that the mandatory blood draw violated his Fourth Amendment protection against unreasonable search and seizure. The trial court wasn't so moved and denied his motion. Mr. Reeder was later convicted and sentenced to six years in prison.

On appeal to the Sixth Court of Appeals in Texarkana, in Reeder v. State, the question was whether or not the mandatory blood draw provision of the law violated the Fourth Amendment by requiring warrantless blood draws in all felony DWI cases regardless of whether exigent circumstances did or did not exist.

The court, however, had a different idea. Sidestepping completely the issue of whether or not there were exigent circumstances present in Mr. Reader's case, the judges decided that the Implied Consent law in Texas trumped any need for a warrant. The court reasoned that a search was constitutional if it was conducted with the consent of the suspect. Since Texas law states that all motorists are considered to have given their implied consent to providing a sample of their breath or blood if the officer had either reasonable suspicion to stop or probable cause to arrest for DWI, then the forced blood draw was "consensual."

In other words, a statute that threatens a motorist with legal sanctions for not voluntarily giving up evidence to be used against her, trumps a constitutional protection. The decision is yet another example of a court bending over backwards to affirm a conviction regardless of the rationale.

To claim that a statutory provision of the Transportation Code that is not explained to anyone applying for a driver's license trumps a constitutional protection against unreasonable search and seizure is either laughable on its face or deeply disturbing in its application. Either way it is yet another hole punched through the Fourth Amendment.

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).

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.

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.

Cops packing needles

Police in Arizona and Idaho are now carrying needles along with their sidearms in an attempt to limit further the rights of those arrested for suspicion of driving while intoxicated. It's not enough that states strengthened penalties for those citizens who exercised their right not to incriminate themselves by refusing to submit to a breath test, now they want motorists to submit to blood draws by police officers in the field.

In Idaho, about 20% of the motorists arrested for suspicion of drunk driving exercise their right to refuse to submit a sample of their breath (the national average is 22%). Prosecutors say breath test refusals are the reason they still have to try as many DWI cases as they do. On the flip side, maybe the cops are a bit overzealous in arresting motorists for drunk driving. Of course, couldn't happen, right? All that state and federal grant money doesn't have any effect on the number of motorists arrested for DWI, does it?

According to the Associated Press, NHTSA is in contact with the Houston Police Department to institute phlebotemy training for DWI task force officers here in the Bayou City.

So now we have the Harris County District Attorney upset because people who plead guilty to driving while intoxicated are choosing to pay a fine and deal with a license suspension rather than opting for 12-18 months of probation (and headaches). We have prosecutors in Idaho upset that motorists are electing to take their DWI cases to trial. What we don't have is any acknowledgement from law enforcement that sometimes, believe it or not, they don't get it right - that sometimes they arrest innocent people.

According to the Bill of Rights, we are innocent unless proven guilty -- perhaps someone should examine the curriculum at the police academy and baby prosecutor school.

Forced blood draws in Texas

If you are arrested on suspicion of driving while intoxicated in Texas, Chapter 724 of the Texas Transportation Code authorizes a peace officer to request a sample of your breath or your blood for testing.  In fact, Section 724.012(b) requires an officer to request a sample of your breath or blood if you're arrested on suspicion of violating the state's DWI statute.  Per Section 724.012(c), the officer gets to decide whether to request breath or blood.

Section 724.019 allows a citizen accused to request an independent blood test within two hours of providing a sample pursuant to a request from a peace officer.  I have yet to speak to a client who was informed of this right after blowing into the state's breath test machine.

Section 724.017(a) only authorizes a physician, qualified technician, chemist, registered professional nurse or license vocational nurse to take an evidential blood specimen from a citizen accused of DWI.  Interestingly enough, per Section 724.017(c), the term "qualified technician" does NOT include emergency medical technicians or service workers. The blood must be drawn in a sanitary place. Neither the back of an ambulance, the police station nor the county jail are considered to be sanitary places.

While the results of blood tests are looked upon as more accurate that breath test results, there are several avenues available to attack the results.  The state, for instance, must prove up the chain of custody for the blood sample and, based on Crawford, affidavits will not suffice.  The prosecutor will have to bring in every person who handled the blood specimen.  The state will also have to prove that the sample was collected, stored and tested in accordance with the procedures for the particular sample kit used to collect the specimen.  Expiration dates, tube caps and placement of labels become important issues in attacking the validity of a blood test result.  

The warrant authorizing a forced blood draw must be signed by an impartial magistrate and must contain the allegations within the four corners of the document.  On many "No Refusal" weekends, either MADD or a victims' rights group will donate the funds to supply a judge and registered nurse in case a citizen accused declines a breath test.  How neutral and impartial is a judge who's being paid by MADD going to be?

As I have said many times before, and will continue to say, the best way to avoid being arrested for driving while intoxicated is NOT to drink and drive.  But, if you do, and if you're falsely accused of DWI, contact my office.

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.

Just say no to the intoxi-liar

In Texas, the implied consent laws found in the Transportation Code, state that if a driver is asked to provide a breath or blood specimen, provided the officer has probable cause to arrest him for DWI, his refusal to do so may be used against him in a criminal proceeding and he may be subject to a license suspension of 60-180 days. Nowhere in the Code, or in the statutory warning given by the officer, does it state that a driver MUST provide a specimen.

To listen to Harris County prosecutors you would think that by exercising a right not to blow, a citizen is automatically guilty of driving while intoxicated. The drivel that comes out of their mouths usually amounts to telling the jury that the defendant had the opportunity to prove his innocence but that, by refusing, he is admitting he is intoxicated.

Nothing could be further from the truth.

A citizen accused is under no obligation to prove anything at all. He is presumed innocent unless the state can prove beyond a reasonable doubt that he is guilty of a criminal offense. The burden is on the state to produce the evidence to support its claim. That argument is an improper comment on the defendant's exercise of his right to remain silent based on the instruction the judge will give to the jury to stop any discussion of why the defendant did not take the stand. The only reason the prosecutor can get away with his assertion is because the Legislature and the Judiciary don't have the guts to stand up for the rights of the citizenry of Texas.

Furthermore, if the citizen accused has arrived at the point where he is asked to blow into the state's little black box, it means that the only thing his prior cooperation with the officer netted him is an arrest.

Finally, never forget that a jury is free to accept in whole or in part, or reject in whole or in part, any evidence or testimony presented to them.

The advice, as always, is DON'T, under any circumstances, blow into the little black box -- don't make the prosecutor's job any easier.

Implied consent or forced incrimination

The 5th Amendment to the U.S. Constitution states that:

"No person...shall be compelled in any criminal case to be a witness against himself..."

By protecting the citizen accused from self-incrimination, the State is put to its required burden of proof - proof beyond a reasonable doubt. In essence, the 5th Amendment is telling the State they cannot rely on forcing a confession out of the citizen accused to meet their burden but that they must, instead, build a case and assemble evidence independent of the citizen's own words.

But you may not have realized that by applying for a Texas driver's license you are, in the eyes of the State, waiving your right against self-incrimination should you be stopped on suspicion of DWI!

The Texas Legislature came up with the notion of implied consent and created a legal fiction that when you applied for your license you knowingly, intentionally and willingly consented to provide a breath or blood specimen upon request. As an additional weapon to subvert your 5th Amendment rights, the State declared that, should you refuse to provide the requested specimen, that we will suspend your driving privileges for at least six (6) months. The State can also tell a jury that they may infer that you had something to hide if you refused to blow into the State's breath machine.

The courts have been all too willing to play along with this charade, fearful of the lobbying power of MADD and victims rights organizations. Now no one is going to stand up and say they support drunk driving - but, once you start to take away the rights of one undesirable group, it makes it easier to take them away from the next group we don't like.

During the 1930's the Nazis played the same game -- they went after the groups the public had no sympathy for... and when no one opposed their repressive measures against those groups, they expanded their program. And, at the end of the day, there was no one left to fight to defend anyone's rights.

I'll leave ya'll with this to chew on: The State cannot compel an accused murderer to provide the evidence that will be used against him, but they can compel a citizen accused of DWI (a misdemeanor) to provide all the evidence the State needs to convict.