Okay, I already know the answer...They are no more object or non-biased than any police officer, Deputy or Trooper that goes before them; ESPECIALLY IN THE AUSTIN MUNICIPAL SUPREME COURT!!!!!

Here's the scenario....
I made a DWI arrest last night in Austin. The driver refused any and all SFST's but showed plenty of indicators and admitted to drinking. He license in currently under ALR Suspension for a DWI arrest, also in Liberal County U.S.A, in March of this year. I explain to the driver that PC for the stop, my observations (and I tell him what they are) and his refusal to cooperate with SFST's leave me with no choice but to place him under arrest for DWI. He refused to respond so I gave him a pair of pretty silver bracelets.

Take him to Travis County Central booking and do affidavit for DWI and DWLI and an affidavit for a blood search warrant. Magistrate on duty signs both arrest affidavits and sets a pretty decent bond along with an order for an ignition interlock device. She then refuses the blood warrant because she feels that taking a person's blood, even with a court order, is extremely intrusive and should not be allowed. Told me that she is even hesitant on subsequents and felonies (I know this to be true because I had the same fight with her the previous night on a felony DWI). She told me that had the PC for the stop, Drove w/o Headlights, been something more aggravated like excessive speeding, ran a red light or driving the wrong way down 6th street, she would be more likely to sign the blood warrant. I tried to explain to her that the vast majority of DWI arrests are not made with "aggravated PC" as she described and that our job was to catch these drivers BEFORE they reach the point of hurting or killing someone. I also questioned how she could justify allowing someone to hide the evidence of a crime and she stuck with the idea that it is too personally intrusive.

My main concern, beyond the fact that we have no breath or blood evidence, is that a magistrate is being allowed to pontificate from the bench and, in my opinion, is acting more like a defense attorney than a judge. How is it that we can play by the rules and try to legally obtain evidence legally and a magistrate is allowed to inject her personal bias into the case? Seems like a conflict of interest to me.

From what you say, it seems quite clear that the magistrate believed there was PC for the blood warrant, but refused to sign for one because she feels such warrants are too intrusive.

If I were you, I would write down a complete blow by blow description of the conversation you had with her. Be as detailed and accurate as you can be. Get someone else unfamiliar with your problem to read your statement, to point out any gaps, or areas that need further explanation, etc. Then I would get certified copies of the warrants she issued for your crook's detention. And then I would file a complaint with the Judicial Conduct Commission, and with the chief judge of the city courts, and attach the warrants she did sign, along with your statement.

I do not know if what she did is considered judicial misconduct or not by the Judicial Conduct Commission, but it sure sounds like gross misconduct to me. One of her jobs is to issue search warrants if there is PC for the search. It's not her job to decide if the search warrant is otherwise not a good idea. It is also not her job to insist on more than the law requires to issue a search warrant.

If the judge's boss, and the JCC side with her, make a list of the home addresses of her boss, and the judges on the Judicial Conduct Commission. The next time you have a DWI and she refuses to issue the warrant, go ring their door. If she's not going to do her job, some one has to.

When they come to the door at 2:30 a.m., tell them your problem. But do not apologize for waking them. You do not want to be insincere.

Good luck. Let me know how it goes.

Maybe you could take your complaint to the Austin Police Chief. For his recent views on criminal justice, click here.

I have a Class B pot case where the defendant is from Austin. She is very frustrated that she has to go on probation because she says that pot is not illegal in Austin and she never should have been arrested. I have a feeling between 6th Street and the amount of laid-back pot smokers in Austin, the PD there have a very tough job.

Here is the link to the commission. The PDF complaint form is on that page. Download it, fill it out, provide lots of detail. The Cannons do require objectivity. They also require the magistrate follow the law. The poster obviously feels strongly. Follow it up!

http://www.scjc.state.tx.us/

If California falls off into the ocean, I wonder if Austin will be pulled to the west?

I had a District Judge like that once (till he retired). The 'Rule of Law' applied just fine until it conflicted with his personal opinions, then it became the "Rule of Man'. Apparently they both had their fingers crossed when they took their oath.

She signed the arrest warrant, but not the search warrant -- even though they both apply the same standard! Please file a complaint!

But you might also want to show her this law (and mention it in your complaint, too). The Supremes -- in the 1960's -- called this a MINOR intrusion.

In 1966, the United States Supreme Court reviewed a misdemeanor DWI (actually "DUI" in California) that had percolated up through the court system. After Armando Schmerber refused to provide a sample for testing, the California officers arresting him compelled the taking of a blood sample from him � without a warrant. At trial, Schmerber questioned whether his privilege against self-incrimination under the Fifth Amendment had been violated by the warrantless compelled blood draw, as well as his right not to be subjected to unreasonable searches and seizures in violation of the Fourth Amendment. Upholding the conviction, the U.S. Supreme Court determined that neither the Fifth nor the Fourth Amendments were violated by this procedure. This straightforward legal precedent, handed-down over forty years ago, ends with describing this process as a "minor intrusion into an individual's body under stringently limited conditions." Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966). And we are doing it with a warrant -- so there's even more of a safeguard!

A vehicle crashing into another vehicle, on the other hand, is considered a MAJOR intrusion into the life of an innocent person. If we wait for that to happen, then, amazingly, the prick of a needle is somehow "justified" to prove intoxication murder. For my money, I'd rather deal with forcing the MINOR intrusion before a drunk driver kills someone. So, tell that judge you are actually doing the defendant a favor. Then file the grievance.

So this guy will get a pair of DWI 1sts since the first conviction isn't final?

Art. 18.03. SEARCH WARRANT MAY ORDER ARREST.  
If the facts presented to the magistrate under 
Article 18.02 of this chapter also establish 
the existence of probable cause that a person 
has committed some offense under the laws of 
this state, the search warrant may, in addition, 
order the arrest of such person.

If probable cause for a search my be sufficient for an arrest warrant. Does that imply the converse is also true?

quote:

---

For my money, I'd rather deal with forcing the MINOR intrusion before a drunk driver kills someone.

---

Are those the only two options?

Is refusing to sign the warrant a "ruling" of the type contemplated by (b) below?

GOVERNMENT CODE
CHAPTER 54. MASTERS; MAGISTRATES; REFEREES; ASSOCIATE JUDGES
SUBCHAPTER Q. CRIMINAL LAW MAGISTRATES IN TRAVIS COUNTY
54.978.  POWERS.  
 (a) Except as limited by an order of referral, a magistrate 
    to whom a case is referred may:
    (1)  conduct hearings;
    (2)  hear evidence;
    (3)  compel production of relevant evidence;
    (4)  rule on admissibility of evidence;

    [... snip ...]

 (b) A magistrate may not enter a ruling on any issue of law 
     or fact if that ruling could result in dismissal or 
     require dismissal of a pending criminal prosecution, but 
     the magistrate may make findings, conclusions, and 
     recommendations on those issues.

I don't think so because it would basically mean the job of the magistrate is to be a rubber stamp. I'm curious as to why they wrote a separate subchapter for each county.

I'm also curious if, since ROTHGERY says the criminal proseuction begins in the 15.17 hearing, does this change anything about how you read (b)