In what can only be described as perhaps the most breathtaking dissent from the Court of Criminal Appeals in some time, Judge Johnson has opined that prosecutors should not be permitted to use a blood sample obtained from a defendant by execution of a valid search warrant! See http://www.cca.courts.state.tx.us/opinions/107901c.htm

Only a few years ago, that dissent might have been a majority with the addition of votes from judges such as Maloney, Baird, Overstreet, and perhaps Clinton. Sometimes it takes a ridiculous dissent to remind prosecutors of the importance of a strong, conservative judiciary.

It just so happens that I donated some of my essential bodily fluid to the Carter Blood Bank today. I did not find the phlebotomist's conduct to involve an extremely invasive search, though my arm is still a little sore and they extracted a lot more than would have been needed for alcohol testing. I have to doubt very many legislators saw 724.013 as necessary to protect the "right" of a DWI suspect to refuse a request for a specimen. Judge Johnson certainly did not cite any legislative history to support her position. Clearly that statute is no more than an exception to the (affirmative refusal) exception to "implied" consent. I do not view it as anything new nor something to bewail that "there can now be a blood test result in literally each and every DWI case if a search warrant is obtained". In fact, the Legislature should recognize that such "searches" are reasonable without the requirement of a warrant. Judge Johnson is very smart and often writes opinions that I find make as much sense as her opposition on the court. This is not one of those.

I guess I just found it amazing that a judge could look at the DWI laws and think that any legislator really intended to prevent an officer from obtaining evidence in a manner approved by the US Constitution. It really shows how the law can get mangled.

There is no "right" to refuse to provide evidence of intoxication. There is simply a recognition that police can't force breath out of a lung without the cooperation of the defendant. That ability to "refuse" ends with the execution of a search warrant for blood. Frankly, I would like to see the Legislature set up special 24 hour magistrates who can order such warrants on the spot of a traffic stop.

It would be far easier and less expensive if only we had a statute like Nevada Rev.Stat. sec. 484.383 (7) which reads: "If a person to be tested fails to submit to a required test as directed by a police officer pursuant to this section and the officer has reasonable grounds to believe that the person to be tested was:

(a) Driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance; or

(b) Engaging in any other conduct prohibited by NRS 484.379 or 484.3795,

the officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested. Not more than three such samples may be taken during the 5-hour period immediately following the time of the initial arrest. In such a circumstance, the officer is not required to provide the person with a choice of tests for determining the concentration of alcohol or presence of a controlled substance or another prohibited substance in his blood." The statute has provisions for hemophiliacs and similar concerns. I used "mangled" in a recent brief. It seems to be an appropriate word for describing some legal thoughts.

The Nevada statute also has the other provision we now need in our law, making it unlawful to drive if the driver "is found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have a concentration of alcohol of 0.10 or more in his blood or breath".