In trying to explain to the public and the Legislature why we need expanded authority to collect breath/blood samples in DWI cases (See SB 261), I recently used a specific case. Generally, the Legislature responds more readily to an actual criminal case, a poster-boy if you will.
So, here is a link to the story on that case: click here.
Your community has similar stories. So, tell them. And post the example here for us to share.
I'm not sure I see the point. I always, ALWAYS get blood, end of story. It's no sweat off my back to get a JP to sign a warrant, and I do it for ANY offender, be it first or fifth timers. It's just not a question. I don't ask for breath and won't take it if offered. It's just routine practice for me. When I pull someone over and they're DWI, I do the SFST (or not if they refuse) and immediately either get consent for the blood or get a warrant for it.
Posts: 34 | Location: Matagorda County, TX, USA | Registered: January 17, 2009
You truly are the Man. But not every other jurisdiction or agency has that same commitment from an officer or cooperation from the judge, prosecutor and local hospital. SB 261 would make the process more consistent statewide and authorize a warrantless process, saving you additional time and the county resources. More importantly, critical time would be saved in seeking the sample, making it a more accurate reflection of the intoxication level at the time of the crime.
Well that's true. Anything that will make it easier on those who are having problems with cooperation is worth it, and the sample collection IS time sensitive.
I read in another post that some facilities are refusing to cooperate with warrants. I haven't had this problem. If I do, then get ready to see a test case or political crapstorm, because I guarantee my next remark will be, "Nurse, I have a valid warrant signed by a proper magistrate mandating your assistance and shielding you from liability. I also happen to carry two pairs of handcuffs on my belt, and one size fits all." I can think of a couple of valid charges. Whether or not it would stick who knows, but I bet Nurse #2 would be getting a needle ready.
Posts: 34 | Location: Matagorda County, TX, USA | Registered: January 17, 2009
quote:Originally posted by Mac McIntosh: It's no sweat off my back to get a JP to sign a warrant, and I do it for ANY offender, be it first or fifth timers.
Too bad most jurisdictions cannot use their JPs to sign evidentiary search warrants, thanks to the CCP.
Posts: 2429 | Location: TDCAA | Registered: March 08, 2002
My recent example justifying mandatory draws: The defendant was on probation for his 3rd DWI when he drives up on a T-intersection with a light, does not turn, and hits the guardrail head-on. He tells the officers that he fell asleep, claims one beer after work and refuses all tests. The agency that works the case is the only one in this jurisdiction that does not seek a warrant for blood. The MTR was easy with several "techincals" -drinking, no ignition interlock and his breath test refusal, were all violations of his current probation. Proving his new DWI (4th) was a bit more challenging. On the eve of trial we agreed to two years TDC on the MTR and a new probation with SAFP as a condition. If he had not been on probation, his refusals may have left him on the road.
Posts: 261 | Location: Lampasas, Texas, USA | Registered: November 29, 2007
It appears your defendant certainly learned to work the system in minimizing the evidence available for measuring his intoxication. That really is backwards.
A serial rapist would not be allowed to hide his DNA. Why should a chronic drunk do the same for his intoxication?
Two examples of the need for this. Tried a habitual felon (both DWI and drugs) right before Christmas (2nd trial of this case, 1st hung bc 2 drunks on the jury couldn't convict). This is at least his 5th DWI (I had to dismiss 1 at trial bc ofc failed to show). It's 10:30 in the morning after sleeping off a hard night of partying, our hero gets stopped. Officer does a great job on the stand but no blood draw. Jury walks him.
Case I indicted yesterday. Previously tried this guy for felony dwi in which he caused a collision. In that case, they take him to hospital and when doors on ambulance open, he beats feet and can't be found for 2 days when he shows back up at the hospital. After his acquittal, he tells the victim he'll never drink again. Several months later ofc respond to disturbance. His mom says he's drinking and arguing with her. While ofc on scene, our hero drives up. Officer observes signs of intox and asks for SFST to which our hero says no. Officer says ok, arrests and gets search warrant. Blood comes back at .31. On the way to jail and also on the way to judges house for warrant, our hero offers my officer $500 to let him go. However, since he's so drunk, he starts to negotiate down instead of up. He reduces his offer to $200 and eventually to $100. Got to love that cheap beer. It does wonders for the brain.
If you have to bully a nurse into forcibly drawing blood because he/she thinks it is unconstitutional and/or against their mission, or unethical, which it is, you are truly pathetic. If I were the nurse, you would get to use those "cuffs", cowboy.
The most common scenario that I see in my felony DWI's is this:
First DWI--cooperated and did SFST's, maybe even gave a breath test. Convicted. But has a pass at getting learned by a defense attorney. Probation.
Second DWI--does the SFST, when asked for a breath test, will say "I want my attorney." No test. Maybe convicted, probably reduced or a minimal probation.
Sometimes there are a few DWI reductions in the middle.
Third through Seventh DWI--- total refusal, no SFST, not HGN, no BT, is sure to mention all their "injuries" (that didn't exist in priors), etc. Say all the "right" things.
My argument to the jury is always... in total refusal cases (and in the progression leading up to them)...we are teaching defendant's how to get away with DWI. Blood warrants prevent this loophole and reward.
Posts: 61 | Location: Austin, Texas, USA | Registered: January 18, 2006
Should be interesting to see at what point defense attorneys start advising their clients to volunteer for a breath test, on the theory that it is easier to challenge a BT than a blood sample.
JB, voluntary breath tests are only an option if the police decide to offer them. The real solution would seem to be to mandate blood tests on all DWI cases. This would require a mechanism where police could obtain a warrant and blood draw in all cases. I think it's workable on some scale or perhaps during those no refusal periods.
Posts: 57 | Location: McKinney, Texas, USA | Registered: February 19, 2001
SB 261 passed in the Senate today. In addition, Senator West amended the bill to authorize any magistrate with a law license to sign a blood search warrant. That's a nice addition.
The bill was also amended to require two prior "convictions" rather than "arrests" to trigger the mandatory breath/blood for criminal history. That is a bit of a problem, given the inconsistencies statewide in reporting dispositions to the database. Travis County, for example, had only a 12% reporting level in a recent DPS study.
Why is it considered news if a defense attorney decides to challenge the admissiblity of evidence. Doesn't that happen every single day in every single courtroom? Read this story.
SB 261 was voted out of the House Criminal Jurisprudence Committee. The amendment by Sen. West to expand the authority of magistrates to sign blood search warrants was removed.
