The Twelfth Court of Appeals just reversed a DWI conviction on the grounds that the trial court erred when it denied the defendant's motion to suppress the blood test results. The COA held that the warrant affidavit had not been properly sworn. The officer had faxed the affidavit and warrant form to the magistrate who took the officer's oath by phone and then faxed the signed warrant back to him. The COA stated that "the affiant must be physically present in front of the magistrate or officer authorized to administer oaths when swearing to the facts in his affidavit to support a search warrant." The case link is here: Aylor v. State

Janette A

Darnit. I had a case on the same issue in the Fifth, except they skirted the point and just affirmed it on the good faith exception. CCA will probably take this up before long.

"Moreover, the State did not argue at the trial court, and does not argue here, that the arrest or any evidence seized during the search was obtained by the officers acting in good faith reliance on the warrant."

Why?

I think they were too quick to discount Hardy. They just said that Hardy only applies to perjury prosecutions. But the CCA has held expressly that a test for whether an oath is an oath is whether it creates a liability for perjury. (Both in Smith and in an earlier case, Vaughn v. State.) So if it's no defense to perjury that the affiant wasn't in the physical presence of the official, then what about it makes it not an oath?

The way I read the opinion is that it is still acceptable for the officer to swear to the affidavit in front of a notary or other officer, correct?

Yes. It only addressed the situation where the affiant only swore to the magistrate, not any other notary. As long as they're face-to-face with someone, it's not an issue.

Silly, legalistic decision that fails to accomodate how the modern world works.

Voice Recognition + Oath is all that is needed after all. Clay. Will this increase the use of blood draw warrants?