Mayor pulls plug on HPD vampire training

Houston Mayor Annise Parker pulled the plug on an HPD initiative to train officers to become licensed phlebotomists so they could draw blood from suspected drunk drivers. As part of their training through UTMB (University of Texas Medical Branch) and Lone Star College, seven Houston police officers first practiced drawing blood from artificial limbs, then each other and finally inmates in the psychiatric ward at Jester IV prison near Richmond. (See video.)

That's right, police officers practiced drawing blood from inmates in the psych ward of a state prison. Were the inmates informed that rank amateurs would be sticking them with needles? Were the inmates asked to consent to  being used in target practice? Did they select Jester IV so that none of the victims subjects would complain?

How far will this lunacy extend? What will the state do next to combat citizens from exercising their rights? What's the next step to ease the state's burden of proof in DWI prosecutions?

Why are motorists suspected of DWI presumed guilty?

It shouldn't be easy for the state to take away the liberty of a person accused of committing a crime. We shouldn't be bending over backwards to make it easier. Where are our "less government is better government" tea party-ites when we're talking about undermining our fundamental constitutional rights? Can you think of any type of government intrusion that is bigger than allowing the police to stick a needle in your arm just because they suspect you might have done something wrong?

Of course don't get too excited over Mayor Parker's actions. Her opposition wasn't the idea of setting vampire cops loose in the city, she didn't like the price tag of the program.

See also:

"Police train to draw suspects' blood," KPRC-TV (Nov. 11, 2009)

Austin city council says no to vampire cops

The Austin city council passed a resolution this past week stating that it is the council's "clear will" that Austin police officers not personally take blood specimens from motorists arrested for driving while intoxicated. Council members originally sought a vote on a proposal that would have directed the city manager to block officers from collecting such samples from drivers.

After being told by the Austin City Attorney's Office that such a proposal would conflict with provisions in the criminal code authorizing officers to use all lawful means to enforce the law, the council decided to vote on the non-binding resolution.

Austin Police Chief Art Acevedo told the city council that the department had abandoned plans to train officers to become licensed phlebotomists.

The new resolution directs the City Manager to develop clear guidelines by February 2010 for the collection of blood specimens by Austin police. Meanwhile, the Austin Police Department is in talks with the Travis County Sheriff's Office about training personnel at the county jail to draw blood from DWI suspects.

More vampire propaganda

Here's a clip of a story NBC ran on the Today Show about states implementing no refusal weekends. The story focused on Houston and Montgomery County.

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

Once again we have the spectacle of the federal government pressuring states to implement no refusal policies to combat the scourge of drunk driving. We are treated to the sight of an officer swearing to a search warrant application before a judge -- they don't show us officers faxing "sworn" statements to judges sitting at the fax machine in their homes. The story doesn't mention that the judges who blindly sign these warrants volunteer to do so -- where's the hue and cry for neutral and detached magistrates?

We also see a nurse on location at a police station preparing to draw blood from a motorist suspected of DWI. What about the requirement that the specimen be taken in a sterile location?

We're told that about half the motorists arrested for DWI in Texas refuse to blow into the state's breath test machine. We're told it's because they don't want to give the state any more evidence. We're told that's a bad thing.

Please explain to me how exercising a constitutional right is a bad thing? Young men and women are sent overseas for the alleged purpose of "fighting for democracy," yet our own government pressures local jurisdictions to trample on the constitutional rights of the citizenry.

Nowhere in this piece do we hear about the motorist wrongly arrested for drunk driving who had to undergo a forced blood draw and the stress of fighting a case. Nowhere do we hear about the times officers made mistakes and arrested someone who wasn't intoxicated.

Have a safe and happy New Year's celebration and remember that the best way to avoid being arrested for driving while intoxicated this weekend is not to drive if you've been drinking.

Here's a scary notion for you this Halloween

The Harris County DA's Office has announced that every weekend for the next three years will be a Shred the Constitution No Refusal Weekend.

Thanks to a $669,000 from taxpayers across the United States, the DA's office will be able to employ two additional persecutors prosecutors, an administrative assistant and a blood-drawing vampire nurse to bully motorists into blowing into the state's breath test machine under threat of a forced blood letting draw. And doesn't that just top it all? Your money is being used to undermine the Bill of Rights.

Now the Fourth Amendment says that any warrantless search is a big no-no. In the name of allowing the police to push the citizenry around, the US Supreme Court decided that unless a person had a reasonable expectation of privacy there was no such thing as an unconstitutional search. Maybe that's what's driving the expansion of the Repeal the Fourth Amendment No Refusal Weekends.

Go to the airport. You have no reasonable expectation of privacy. The lackeys from TSA can search you by use of the metal detector or the full-body scanner. You went into the airport knowing you would be searched so you can't challenge the search.

Go out to Miller Outdoor Theatre on a summer weekend to see a concert. If you fire up a blunt you've got no argument when the cops come and bust you for possession of marijuana. You have no reasonable expectation of privacy in a public place.

Make a phone call at the jail. The cops and the prosecutors are listening to every word. They even tell you that all calls are monitored. You have no reasonable expectation of privacy in your conversation.

Announce to the public that from this day forward if you are stopped on suspicion of driving while intoxicated on a Friday, Saturday or Sunday night and you choose not to blow into the breath test machine that vampires the police will get a sample of your blood, you have no reasonable expectation that your body fluids are yours and yours alone.

How long until the inevitable argument that no warrant is needed to draw blood because a motorist has no reasonable expectation of privacy when driving on a public roadway? How long until the argument that there is no warrant necessary because the alleged drunk driver can "destroy" or "alter" the evidence if the police don't seize it on the spot?

How long until we see a No Refusing to Answer Questions weekend?

Federal government cheers as the Bill of Rights burns

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. - 10th Amendment

The US Department of Transportation has decided to jump on the vampire-driven bandwagon of No Refusal true believers. So much for federalism and the principle of limited government.

Drunk driving is a state crime, not a federal issue and los federales have no business trying to impose a program that makes a mockery of the Constitution on the states.

The idea of someone skirting the law and walking away from a drunk driving offense by refusing a breathalyzer test is an insult to the tens of thousands of people who have been killed by drunk drivers over the years. -- US Sec'y of Transportation's official blog

No, I must disagree. The Fifth Amendment says one may not be compelled to incriminate himself. I find it an insult that a cabinet official treats the Bill of Rights in such a manner. Mr. Secretary, anyone accused of a crime is innocent unless the state can prove beyond all reasonable doubt that he broke the law. I hate to break it to you, sir, but not everyone accused of driving while intoxicated is guilty. The police make mistakes. That's why we have trials.

Tactics like these by the government serve no purpose other than to poison jury pools. Beat the drum loudly enough, long enough and you can pound your message into your listeners.Of course there are few voices pointing out that these decisions often are made in the middle of the night by a person who is scared and who is not allowed the opportunity to consult with an attorney.

As NHTSA Administrator David Strickland said, "The 'No Refusal' strategy supports prosecutions and improves deterrence--both of these outcomes mean fewer drunk drivers on the road."

And that I think is the meat of the matter - supporting prosecutions. Never forget that it's "The State of Texas" versus the motorist charged with DWI. The prosecutor has the entire force of the government behind him or her - a government that isn't interested in a motorist's civil liberties or constitutional rights. No Refusal is all about making it easier for the government to brand a motorist a criminal for life.

What's a qualified vampire, er, technician?

Section 724.017 of the Texas Transportation Code governs the admissibility of evidentiary blood samples in DWI cases. The codes says:

(a) Only a physician, qualified technician, chemist, registered professional nurse or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place...

(c) In this section, "qualified technician" does not include emergency medical services personnel.

The State of Texas does not oversee the regulation of lab technicians, but most labs require certification from associations such as the American Society for Clinical Pathology (ASCP).

To earn certification from ASCP as a medical laboratory technician, a candidate must meet the following requirements:

1) Have an associate degree or at least 60 semester hours of academic credit from an accredited school.

plus

2a) Complete a NAACLS accredited program within the last five (5) years; or

2b) Have 6 semester hours of chemistry or 6 semester hours of biology and CLA certification; or

2c) Have 6 semester hours of chemistry or 6 semester hours of biology and completion of a fifty (50) week U.S. military medical laboratory training course with official notarized documentation; or

2d) Have 6 semester hours of chemistry or 6 semester hours of biology and three (3) years of full time clinical laboratory experience in Blood Banking, Chemistry, Hematology, Microbiology, Immunology, and Clinical Microscopy in the U.S., Canada, or CAP/The Joint Commission accredited laboratory within the last ten (10) years.

Satisfying one of the 1) plus of one of the 2a-2d allows you to sit for the MLT (ASCP) exam.

Exam: Pass the ASCP’s Board of Registry’s examination for Medical Laboratory Technician

The Texas Department of State Health Services regulates the licensing of emergency medical services personnel. In order to become a licensed EMT, a candidate must meet the following requirements:

(1) At least 18 years old
(2) Complete high school or GED certificate (Texas Education Agency approved or out-of-state equivalent)
(3) Successful completion of a DSHS approved EMS training course
(4) Submit EMS Personnel Certification Application and fee
(5) Pass National Registry exam
(6) To gain paramedic licensure status, you are required to follow the steps above and submit proof of either a two-year EMS degree or a four-year degree in any field.

Contract this to the training the officers with the Dalworthington Gardens Police Department received...

(1) 14 hours of classroom lecture,

(2) Articles on drawing blood,

(3) Basic phlebotomy test, and

(4) 50 blood draws at a hospital.

If the statute says that a licensed EMT is not qualified to draw blood, then police officers who are provided minimal training and who do not meet the minimum training and education requirements to obtain a medical lab tech certification surely can't be considered qualified enough to conduct forced evidentiary blood draws.

And we haven't even touched on the issue of what qualifies as a sanitary place.

Mine eyes have seen the glory that used to be the 4th Amendment

What better way to celebrate Memorial Day than making a mockery of the 4th Amendment?

In 1868, General John Logan, Commander of the Grand Army of the Republic declared May 30, 1868 a day to remember those who died in defense of the United States during the Civil War. General Order No. 11, issued on May 5, 1868, was the birth of what we now know as Memorial Day.

Once again law enforcement officials will be out in full force over the holiday weekend looking to arrest motorists on suspicion of driving while intoxicated. Those who exercise their right to decline to blow into the state's breath test machine will be subject to forced blood draws pursuant to warrants signed by judges who agree to ignore the right of an individual to be free from unreasonable search and seizure.

"If you have concerns or fears about needles, just know you'll have one chance -- and one chance only -- to provide a breath sample first." -- Catherine Evans, Chief, HCDAO Vehicular Crimes Section.

As usual, the Harris County District Attorney's Office shows its general disdain for the citizenry's right not to incriminate themselves. Heaven forbid the state be required to obtain its evidence legally without the help of the "second prosecutor in the courtroom."

The lone saving grace to this continued effort to eliminate the rights of motorists accused of DWI, is that the process of drawing blood is far more complicated than huffing and puffing into the state's little black box and that it therefore affords the state more opportunities to screw up.

As usual, the best advice on how to avoid becoming a victim of the state's vampire squads is not to drink and drive over the holiday weekend. Be safe out there, wear cloves of garlic around your neck, replace the fuzzy dice with a silver crucifix and make sure you have an extra hammer and stake (I'll take mine medium) in the trunk.

One of these days we may be honoring the 4th Amendment along with the dead on the fourth Monday in May.

Wanted: a neutral and detached magistrate

Vampire-mania is coming to the Houston area for the Fourth of July Weekend. Ride the gauntlet of local law enforcement officers just waiting to pounce on you for the slightest infraction. Watch as the 4th Amendment is ripped to shreds by judges all too willing to sell their souls. Thrill to being strapped into a chair and having a needle rammed in your arm.

According to the Multi-Jurisdictional DWI Task Force

During the July 4^th weekend law enforcement agencies will be participating in a No-Refusal DWI enforcement program. This is a coordinated effort between local law enforcement, the County Sheriff and our District Attorney. Throughout Southeast Harris County, law enforcement officers will be drafting evidentiary search warrants for blood when intoxicated drivers refuse to submit to a breath alcohol test.

According to WWL Radio in New Orleans, vampires are expected in the area over the weekend, too. Of course they are a little more blunt about what happens when a motorist declines to volunteer evidence that can be used against him.

This holiday weekend, many local police jurisdictions will again be enforcing a "no refusal" campaign against drunk driving. 

On both sides of the lake, suspected drunken drivers who refuse a breathalyzer test will be asked to voluntarily give blood for a test. 

If the driver refuses, police will have a local judge available around the clock to issue a warrant to take blood from the DWI suspect. 

So if you're in the Big Easy for the weekend, no need to think of that pesky little requirement that a neutral and detached magistrate must review an application for a search warrant to determine if the request is reasonable -- because that's already been determined. Nevermind that most search warrants for blood don't even state why the blood specimen the police are demanding is even evidence that a crime was committed.

Fort Worth area motorists aren't safe from the infestation, either. The Dallas Morning News reports that vampires will be on the lookout for motorists in Tarrant County and that

Anyone suspected of driving while intoxicated who refuses to submit to a blood-alcohol test will have a blood specimen drawn under a search warrant.

"People should know that when the see those red, white and blue lights behind them they will be stopped," Alpert said, "and if they refuse, they will be arrested and prosecuted."

They don't need any neutral and detached magistrates up north to decide if they're going to disregard something like the 4th Amendment. Nope, just line 'em up and prick 'em. I'm still trying to figure out what Mr. Alpert of the Tarrant County District Attorney's Office is talking about -- in order to refuse a breath test in Texas, the driver must already be under arrest. Hey, Richard, check out Chapter 724 of the Transportation Code.

Vampires to wear blue

If you're a Houston motorist you might consider replacing the fuzzy dice hanging from your mirror with garlic cloves because soon vampires will be infiltrating the Houston Police Department. According to this story that ran on KPRC-TV, seven HPD officers are taking a 40-hour class at Lone Star College to become licensed phlebotomists.

"What we want to do is make it so onerous for people to drink and drive that they won't take that risk." -- HPD Assistant Chief Vicki King.

The plan calls for the vampire officers to conduct blood draws at the old police station at 61 Reisner, home of Central Intox and the city jail. Does anyone believe that qualifies as a "sanitary place?"

"This is about the pursuit of justice. You've got one opportunity to prove someone is innocent just like you have one opportunity to collect evidence." -- Vicki King

Maybe Ms. King grew up idolizing the late Senator Joe McCarthy as he, too, believed that the accused bore the burden of proving their innocence. With that kind of attitude she would fit right at home on the bench at the Harris County Criminal (In)justice Center.

Click here to see the video.

Interview with a vampire

Early warning radar indicates that vampires may be descending on New Orleans this Memorial Day Weekend. These vampires are thought to be driving patrol cars and wearing uniforms with shiny badges. Motorists are warned to be on the lookout for vampires while driving the streets of Jefferson Parish.

Jefferson Parish prosecutors aren't even making an attempt to pretend their plan is anything less than another assault on civil liberties.

When suspected DWI offenders are brought into the lockup over Memorial Day weekend, if they refuse to take the breath test, a judge will be ready to review evidence and sign off on a search warrant, giving officials the authority to draw blood from the suspect regardless of whether they agree.

Although no one is credited with making that statement, it is pretty clear from the article that Norma Broussard of the DA's Office is the source. Note that the judge isn't there to review the evidence to determine if there was reasonable suspicion to stop or probable cause to arrest, the judge is there to sign off on a warrant so that police can draw blood forcibly from motorists accused of committing a misdemeanor one step up from a traffic ticket.

And why do Jefferson Parish prosecutors want blood? Because they want to make it easier to infringe upon the freedom and liberty of their fellow citizens. If judges and juries want blood or breath tests, then by golly, we're going to give it to them -- civil liberties be damned.

Training the vampire's apprentice

"...the importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great..." -- Schmerber v. California, 384 US 757, 770 (1996).

While doing some research for a recent post I came across some information on the website for the Texas Municipal Courts Education Center dealing with blood warrants in DWI cases. It seems that the judges had a pow-wow last July and blood warrants were on the agenda.

Included among the written materials was a question-and-answer paper with some delectable little morsels regarding the signing of blood warrants by municipal court judges.

How do you obtain a blood search warrant? 

An affiant/officer must present a qualified magistrate a written affidavit alleging facts amounting to probable cause that a specific person committed a specific crime and alleging why the blood sought will provide evidence regarding that crime 

A magistrate has no legal reason to deny this request if the above criteria are met.

It's scary that municipal court judges - whose job it is to raise revenue for the city from motorists - are authorized to sign blood warrants in DWI cases. But, starting with the last point in the answer to the question, while there may be no legal reason to deny the request - there is also no legal reason requiring the magistrate to sign the warrant. The affidavit may very well contain allegations that a specific crime occurred and that a specific person is believed to have committed the crime -- but it does not follow that the warrant must be issued based upon the allegations. The magistrate has the right to question the affiant to determine his or her truthfulness and to help decide whether or not to grant the warrant.

Furthermore, none of the search warrant applications I've seen in DWI cases have actually alleged why the blood is evidence of the crime. As far as the law is concerned, it's not a crime to have a BAC of .08 or higher at the time of the test. It's only a crime if it can be proven that the driver was over the limit at the time of driving.

Does a magistrate have to sign a blood search warrant if it is legally sufficient? 

No. A magistrate never has to sign anything but there are potential consequences for declining to perform magisterial duties. The C.C.P. says "It is the duty of every magistrate to preserve the peace within his jurisdiction by all lawful means; to issue all process intended to aid in preventing and suppressing crime." Whether issuance of a blood search warrant helps to preserve the peace seems debatable. However, general public knowledge that a blood draw may be required if a person is arrested for DWI seems very likely to aid in preventing and suppressing crime by its deterrent effect. 

So, while a magistrate does not have to sign a legally sufficient blood search warrant, it is arguably a dereliction of duty and a possible violation of the Code of Judicial Conduct. Clearly, a magistrate does NOT have to sign a blood search warrant (or any search warrant) he/she believes is legally insufficient.

As I was saying, a magistrate is not compelled to sign a blood warrant. One thing is certain, however, it is not the job of a judge to be the waterboy for the police. A judge is not a crime fighter. A judge is supposed to be a neutral arbiter in a dispute between two or more parties. I find it interesting that TMCEC is making a veiled threat to municipal judges that they might be violating the Code of Judicial Conduct if they don't go along with the vampires.

It is even more ironic that the TMCEC makes this threat when Judge Killer of the Texas Court of Criminal Appeals walks away with a smirk on her face after violating court policy and procedure in the Michael Richard execution. The implication seems to be - if you act in good conscience you may be in violation of judicial canons but if you prevent a condemned man from filing a request for a stay you're okay.

Can a blood search warrant be faxed to a magistrate so the magistrate can sign a blood search warrant? 

Various counties are already using faxed blood search warrants. 

So, the answer is "Yes" you can use faxed blood search warrants. It is being done. C.C.P. Section 18.01 requires the "facts" of a "sworn affidavit" be presented to a magistrate who signs the warrant. Nothing in the code specifically requires the officer/affiant to appear personally before the magistrate. C.C.P. Section 2.26 declares electronic documents a written document for all purposes. 

If law enforcement is depending on the magistrate to sign the affidavit, arguably, the officer may need to be "before" the magistrate. Tex.Govt.Code Section 312.011 defines an affidavit as a written statement of fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths and officially certified by an officer under his seal of office. Historically, that would mean "in front of" the magistrate, though that may not be true in this newer, high tech environment in which we operate.

Well, of course, if someone else is doing it, it must be perfectly legal. Right? Interesting that the same government that fights against the expansion of constitutional protections for the citizenry due to "changing times" is more than willing to expand the power of the police state based upon the same reasoning.

One very interesting tidbit I came across I found in the slide presentation that accompanied the lecture. According to TMCEC a

Suspect should not be threatened with a warrant to gain "consent."

I have yet to figure out how this statement gibes with the gibberish about how general knowledge of forced blood draws is a deterrent to DWI.

The police make a grand event out of every No Refusal Weekend. They put it on the highway signs in Montgomery County. Officers tell motorists that it's a No Refusal Weekend and that they will obtain a warrant to draw blood if the motorist doesn't consent to a breath test. The prosecutors line up the judges who volunteer to sign blood warrants and put out press releases that they will obtain a warrant to draw the blood of anyone who refuses to blow.

How is that anything but coercive behavior on behalf of the state?

Click here for the audio presentation.