I just received a call from my District Judges at the Judicial Conference. They went to a talk in regards to Blood Search Warrants. Now they are calling me asking for a meeting because of some comments made by a Fort Bend County Court at Law Judge in a presentation made by a Col. County Asst. DA. They are not sure they want to sign them anymore. Can anyone shed light on this?
As I understand it, the judge was concerned with a portion of the warrant that ordered the hopital personnel to cooperatie and take the blood. He pointed out that CCP Art. 18.08 allows a peace officer to seek assistance from others but does not spell out that a judge can do so.
Thanks, Ken. One of my Judges may be overreacting and for now says he won't sign even a warrant until we talk on Thursday. Any tips out there.
What about the "who shall be bound" language in 18.08? Sounds like the peace officer can request and can expect people to be bound, and the logical way would be the judge compelling assistance.
I have heard that more judges and defense attys are getting skeptical of (and successfully fighting) blood search warrants. Has a different approach been tried? Read PC 37.09. The definition for tampering with evidence is very broad. Refusal of breath or blood test certainly would meet the requirements of this statute, especially since PC 49 defines intoxicated as .08g/100ml of blood or .08g/210L of breath. By definition, blood or breath is evidence. Instead of obtaining a warrant, simply charge the offender with a felony for the refusal. This will require a DA with some guts to test these waters, but under the law, it seems perfectly legal to me. Where am I wrong?
I have always liked the thought of tampering, but if tampering was threatened at the time the officer requested the sample, and the defendant gave a sample, how would the courts treat the sample in the DWI case? Coerced under Erdman, and therefore excludable? What if the legislature added tampering language to the DIC-24? Would the courts review that differently? Then the officer is just reading what is required by statute and not twisting anyone's arm, just like when the officer tells the defendant that the refusal may be used at their trial and may also cost them their license. It is statutory information, not just extraneous factual information. See also:
The Court of Criminal Appeals has made a tampering approach difficult by converting Transportation Code language regarding the ability to refuse into a virtual right. The CCA should have said long ago that a defendant may physically refuse, but he has no legal right to refuse, so any sample obtained, short of one that violates due process through excessive force, is acceptable given the consent given at the time a driver's license is obtained.
If a warrant is properly drafted and submitted it is, in my experience, difficult to defeat. Of course defense lawyers are going to challenge the use of warrants and every now and then a judge will find one to be defective. Until laws are passed to expand the category of cases under which mandatory blood can be drawn they are the best and most successful option out there.
For a good story on the mandatory blood draw bill, click here.
The only defense attorney that was quoted said this will mean the State can get blood in other situations....um....we already can...with a warrant.
I'm guessing maybe he said more and he just got editted down to that one sentence. He probably means that this will expand an ability to get blood without a warrant in other situations.
Maybe he should have used some hand gestures to get his point across?
Seriously, though, we've had a lot of talk about medical personnel not wanting to do blood draws because of personal liability. Will a statute that says law enforcement can do this without a warrant make them feel better about doing the blood draws or will they be less inclined because there is no warrant signed by a judge telling them to?
What evidence will the officer have at the hospital to request these draws in situations where there are priors? I foresee that to be a hurdle because we often have DWIs on CCHs that turn out to be dismissals, or bump downs and the CCHs show arrest or conviction. And the time it takes to find out if there truly is a conviction is MUCH more than it takes to wake up a judge and get a warrant.
[This message was edited by suzannejost on 01-29-09 at .]
Hitler sums up the defense objections: click here.
Somebody sold you a bill of goods. The translation of the Hitler movie in your link is all wrong, according a bud of mine who speaks German.
The link you provided was probably cooked up by some Neo-Nazis trying to make it look like Hitler was really concerned about stopping DWI's and saving lives.
My bud assures me the the above is the correct translation into English.
Try not to be so gullible next time.
[This message was edited by Terry Breen on 01-31-09 at .]
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