I just read the article in the Prosecutor magazine about Harris County's Memorial Weekend--for those who haven't seen it yet, they made sure that any one arrested over that weekend submitted to some sort of chemical analysis by having a system in place to process the blood draw warrants if people refused breath.

First, I have to say: What a great idea. And sounded very well thought out.

Now my question for everyone out there is this: how do you sign the judges up for this? Any small counties do these blood draws on a regular basis? We have one CCL judge and one District Judge (who oversees four counties) and while both are conscientous and helpful, I can't imagine either volunteering to be on call for an entire holiday weekend? And is there a problem with the judge who signs the warrant to be the judge who will ultimately hear the case?

Did Harris County have one judge that donated the weekend, or were there multiple judges prepared to receive and send the warrants?

For felony DWI's, we do this all the time. The judges agreed to be available on a rotating basis.

The judge issuing the warrant can hear the case.

Sure puts an end to the no-test jury trial.

We have been doing this for several years in all DWI cases when the defendant refuses to take the breath test. I purchased fax machines for all the JPs, who are eligible to sign evidentiary search warrants in my county. They have worked out a weekly rotation schedule.

Really good fixes next legislative session would be (1) allowing any magistrate to sign evidentiary search warrants and (2) mandatory blood draws for felony DWI's.

Yes, allowing any magistrate to sign would help us here tremendously. Then we would five or six judges to spread the duties, rather than one in county and one out of county.

This is probably and old question, but...why is blood draw not a warrant that would fall under section 9, CCP Art. 18.02, as implements or instruments used in the crime? I understand that the blood itself is not an instrument or implement, but the alcohol or drugs mixed in with the blood is?...and if it were under this section, it would not require a ccl or district judge, a magistrate could do it. It seems like at least an argument could be made that it requires the use of one of the substances to commit the crime?

That is very creative thinking. Anyone else think that is a plausible theory? Even if the state is wrong, would the warrant survive under the good faith exception, at least as to the first time someone appeals the issue and gets an answer?

I wouldn't think alcohol or drugs mixed with blood would be considered an "implement or instrument" used in a crime but I could sure buy "property or items . . . constituting evidence of an offense." under (10).

Yes, Charley, I think that (10) is the one used currently, but it requires only certain judges to sign the warrants. Section (9) would allow magistrates to help out, and I think I would have an easier time setting up a program if I had more judges that could take a weekend of warrant duty.

Sorry Suzanne. I'm up to speed now. I think using a magistrate and proceeding under (9) probably would not survive appellate review. (But who am I to say?)