Are Justices of the Peace allowed to sign search warrants for the drawing of blood in a DWI refusal?
Our agency just received some blood search warrant forms that have "a court of record" written under the blank where the judge is to sign. An officer told me that a JP cannot sign the search warrant because their court is not a court of record.
See article 18.01(c), CCP, specifying types of judges who may sign an evidentiary search warrant (which includes a blood search warrant). JP's don't seem to be included.
It would be best to take such warrants to a district court judge or a county court at law judge. You could also take it to a municipal court judge, but only if he/she is a lawyer and runs a court of record (meaning there is a court reporter who takes down testimony, etc.).
I also recommend TDCAA's warrant book (by Ted Wilson and Tom Bridges) and the DWI book (by Richard Alpert). Both have good discussions of this issue and supporting authority.
In addition, TDCAA employee Clay Abbott is a good source (512-474-2436), as he has been teaching a seminar on the issue. He is currently taking applications from jurisdictions who want him to come to town and do some teaching on DWI issues.
[This message was edited by John Bradley on 09-02-05 at .]
and saw where he had referred to a JP as the person who had signed a search warrant. I wanted to get a definitive answer as to who can legally sign.
"Wes, I have a search warrant program that is going great. Had one judge who was reluctant to participate. Just happened to be a justice of the peace. So I just told him great, we will just let the county judge be the person who participates in this important program to keep drunk drivers off the road and you can explain to the constituents at the next election why you don't have time to help. He came around. In any event, if an officer presents a warrant to a judge whether he wants it or not, what's he gonna do? It's his job. Make him do it even if he doesn't want to. "
Or take a look at 18.01(g)&(h)C.C.P. Tim's exception to the general rule that JPs can not sign the blood warrents is in 18.01 (i). Be very careful here, and read that section. You must have no County Courts at Law, a non-attorney constitutional county court judge, and your district court judge (or judges) must have more than one county in their districts.
Please call me at TDCAA if you have any other questions.
I am starting a search warrant program. I am of the opinion that JP's cannot sign a search warrant for blood. I would be happy if someone can show me where I am wrong because I will effectively have only one judge(CCL) available. It will be a real practical problem. He cannot be available 24 hours a day. The District judge lives in the neighboring county.
Maybe we could get these restrictions lifted if we started taking the warrants to judges on the Texas Supreme Court and Court of Criminal Appeals at 2am.
JP's can sign evidentiary search warrants in very limited circumstances in a multi-county district. Our JP's can sign the warrants because the only judge serving our counties who is a licensed attorney is the district judge who has more than one county in his district. See Art. 18.01(i). This was a special exception to the evidentiary warrant requirement carved out several years ago for small, rural jurisdictions. We still have the district judge sign the warrants in most other types of cases but I am using the JPs for my blood warrant program.
[This message was edited by Tim Cole on 09-02-05 at .]
I like the way you think.
Here is my problem:
Two district judges (One with more than one county)
One CCL judge
Uncertain number (if any) of municipal courts of record.
In my county (and I hope my math is not right, or there are other ways around this) I appear to have only 3 judges (maybe 4) who could sign a DWI blood search warrant. And one of those judges lives in the next county.
Any suggestions, or ideas will be gratefully accepted.
Your hosed. Your only hope is the Texas Legislature, no real hope at all.
How many DWI's do you average per week that don't blow? Even though we have 1 Dist. Judge that covers the county so we can use the JP and non-atty county judge, we still just had 3 options (4 since we filled the other JP post recently). They each agreed to rotate being "on call" a week at a time so they are only inconvienced with late night calls and faxes one week a month. We bought a fax machine for each to have at home, and by most accounts, they only spend 5-10 minutes when a fax comes thru to get the process completed. Officers have been trained to have all paperwork ready with fill-in-the-blank forms to expidite the process. would something like that work for you?
That is exactly what I'm looking for!
We have a simlar problem with a limited number of Judges in the county. Our solution was to use Chapter 59 funds to install a fax machine in each of the Judges' homes and to get them to agree to go on 1 month rotations. My undersatnding is that the Affdavit in Support of the Warrant can be notarzied, faxed to the Judge. He can review the application, and, if he agrees probable cause is present, fax to the warrant back to the jail.
Does anyone know of any problems in conducting business in thie way?
Can a retired district judge be used to sign search warrants?
Why, in a typical DWI, can't an officer rely on exigent circumstances to do a blood test without a SW. I understand the possible logistical problems ( hospital will not do blood draw against defendant's will) but, from a purely legal standpoint, shouldn't a warrantless blood draw be justified under the exigent circumstance exception to the requirements of a search warrant. I think this would be particularly true given the climate of the courts in disallowing reverse extrapolation. Every minute wasted getting a warrant, evidence is being lost.
Am I missing something ( I usually do).
Texas law (statute) restricts our ability to accomplish such an obvious and constitutional choice. Although a driver consents to providing a blood/breath sample upon applying for a license, the law also tells the officer he has to get the cooperation of the drunk driver to take the sample (except for drunk drivers who kill or seriously injure people, go figure). In the absence of that cooperation ("Why, yes, officer, I will do what I promised to do."), Texas appellate courts have held that the collection of the sample is "involuntary" and inadmissible.
Quite a Catch, that Catch 22.
Which is why we need to add to the list of circumstances that justify a mandatory breath/blood sample, the person who has two prior DWI convictions.
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