DA asks judge to recuse self

Colin McDonald
and Elizabeth Allen
Express-News

A district court judge was asked to stop hearing criminal cases after he was arrested Thursday night on a charge of driving while intoxicated.
Bexar County District Attorney Susan Reed on Friday asked 187th District Judge Raymond Angelini to recuse himself from felony cases on his docket until his own misdemeanor DWI case is resolved.

...

Angelini performed field sobriety tests but refused a breath test.

For the rest of the story, click here.

No surprise here, as a judge he knows the law. It is the people who don't know any better who are often fooled into giving evidence against themselves, be it a breath test or an oral admission. Given the current law, there really isn't much reason to submit to the test.

A few years back I recall reading about a study which showed that law enforcement pulled over for DWI refused breath tests at a much higher rate than the general public. I would imagine it is the same for lawyers.

The judge violated the law. Do you expect that from a judge?

And, I'm not talking about drinking and driving. I'm talking about refusing to follow the law for collecting a specimen for testing.

Sec. 724.011 of the Transportation Code says, "If a person is arrested for [an intoxication offense], the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis..."

Recognizing that a person may physically refuse to cooperate, despite the earlier consent, Sec. 724.013, says, "a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer."

Over time, our understanding of these laws has been eroded by the repeated refrain that people have a "right" to refuse. That is not an accurate statement, and, students of law should be even more careful in their study and description of that conclusion.

So, no, it is not acceptable for a judge, who knows the law far better than the average citizen, to refuse to provide a sample. That judge has very knowingly tampered with the availability of evidence of his intoxication. Of course, the law also punishes his refusal by taking away his driver's license. But, the same circular law gives him an occupational DL.

Weak.

quote:

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Originally posted by sjf:
Given the current law, there really isn't much reason to submit to the test.

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I don't agree with the sentiment of your post, but truer words than these were never spoken. Which is why the law should change.

I will respectfully disagree. The courts in Texas (including the CCA) routinely refer to the "right to refuse" testing. If withdrawing consent is a crime, then I would ask has anyone has ever been convicted of it? Indeed, I would ask if anyone has ever even been charged with withdrawing consent? The current law may be disliked, but the courts have recognized a statutory right to withdraw consent (i.e. refuse to give the sample, regardless of prior 'implied' consent).

As the CJS summarizes:

"Although there is no constitutional right to refuse to submit to a test for intoxication, under implied consent statutes, an individual has the right knowingly and intelligently to decide whether to submit to, or to refuse, such a test by an effective withdrawal of his or her implied consent"


I'm not necessarily arguing that current state of the law is desirable, but that "it is what it is." A jury can take refusal into consideration when it ponders, but I think that a prosecutor who stands up during final arguments and says "The defendant is a criminal because s/he refused the breath test" is going to get overruled (at least).

If you read the above posts carefully, no one has said that a refusal is a crime. It violates the law (See Transportation Code), but the Texas Legislature has not made it a crime. The closest crime would be tampering with evidence. It might be interesting to see how such a charge would fare. Some states have made a refusal an express penal violation.

Your own quote points out that refusal is not a "right"; it is merely recognized in law as something a citizen can accomplish by failing to cooperate in supplying a sample of breath or blood.

All of this is semantics. The real change will only happen when the Leg stops playing games with the collection of samples and makes it mandatory, enforceable with a nurse and a needle, as it has already done if the citizen causes death or SBI through drunk driving.

Would the Williamson County DA's office be willing to try such a charge on a refusal case that is not a felony level DWI?

The Wilco DA's office doesn't have jurisdiction unless it's a felony offense.

At PC 37.09(a) - Tampering with Physical Evidence is a felony of the third degree which would mean that the WILCO DA would have jurisdiction, hence the question.

Judge accused of DWI still will rule on cases

Web Posted: 03/04/2008 01:55 AM CST

Guillermo Contreras
Elizabeth Allen
Express-News
An administrative judge on Monday allowed 187th District Judge Raymond Angelini to remain on the bench but barred him from hearing any drunken-driving cases until his own driving-while-intoxicated charge is resolved.
Angelini also cannot hear any case in which the officers who arrested him are involved, Administrative Judge David Peeples ruled.

Peeples rejected a request from Bexar County District Attorney Susan Reed asking that Angelini be recused from hearing all criminal cases.

Ed Schweninger, chief of the district attorney's civil section, told Peeples that Reed's office believed that Angelini could be fair despite his arrest last week. However, Schweninger, citing newspaper reports, argued that permitting Angelini to hear criminal matters might leave the public with an impression that he could not be impartial.

For the rest of the story, click here.

In response to Sheffler's question, the better answer is to seek a blood search warrant in felony DWI refusal circumstances. I'd rather have conclusive blood evidence of guilt on felony DWI than a politically charged/legally questionable trial over tampering with evidence following a refusal to provide a breath sample.

quote:

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Originally posted by JB:
That judge has very knowingly tampered with the availability of evidence of his intoxication.

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I'm absolutely sure that the courts are not willing to recognize a refusal as tampering with evidence. Do you agree?

Probably. But I think a reasonable argument can be made that the conduct of refusing a breath sample fits the tampering with evidence penal law. The problem arises with the apparent conflict with the Transportation Code, as it seems to provide the only consequence for such a refusal: DL suspension and informing the jury. States that prosecute a refusal have a specific statute saying a breath test refusal is a crime.

As we have seen with prosecution of moms for using drugs during pregnancy, the courts are reluctant to support such prosecutions absent more clearly stated legislative support.

For a similar discussion, see this thread.

I don't think I see how a suspect can "conceal" evidence (his blood) that (1) everyone knows is there; and (2) is easily obtainable with a search warrant. If the tampering statute could be applied to that situation, it could be applied to any situation where a suspect refuses consent to search his home, but the police (even with probable cause) don't wanna get a warrant.

This judge was not himself willingly tampering with evidence. His mental state was clear that the alcohol should remain in his blood indefinitely.

Unfortunately, the honorable liver and kidneys betrayed him and acted on their own to destroy the intoxicant against his consent.

The difference between the home and the body is that the body is constantly destroying the evidence as time passes. The evidence in the home is presumably sitting somewhere and not degrading, unless it is swirling in the toilet. So, for evidence in the blood, the passage of time is an enemy to the State. Yes, we can get a warrant, but we won't get the same evidence by that time.

That's why, constitutionally speaking, we don't need a warrant. Texas law, on the other hand, only bypasses a warrant when the person with alcohol or drugs in their system has managed to kill or seriously injure someone. That doesn't seem right.

Well, I'm not expressing an opinion about whether the current system is "right" or "wrong." I just think that textually (even without resort to the Transportation Code), a person can't be guilty of "concealing" something simply by not blowing into a tube. Yeah, it makes it harder for the police, but if you're going to burden people with an affirmative duty to do something, it should be clearly stated. Like, for example, criminalizing breath-test refusal.

But it's all academic, anyway.

You are legally correct Jimbeaux.

DWI charges filed against commissioner

Excerpt:

"At the Harrison County Jail, Thompson refused a breath test. However, a search warrant was obtained for his blood, according to the [DA's press] release.

"'The blood tests results revealed Mr. Thompson's blood alcohol was almost twice the legal limit for intoxication in the state of Texas,' according to the release."

However, "intoxication is not a ground for removal if it appears at the trial that the intoxication was caused by drinking an alcoholic beverage on the direction and prescription of a licensed physician practicing in this state," according to government code.

I didn't know doctors wrote prescriptions for booze!