It was bound to happen!

[seamusTX]

Even if the DA just shrugs and drops all the charges, it costs the suspect/defendant several nights in jail, thousands of dollars in legal fees, and usually some embarrassment.

If anyone thinks this is a winning lottery ticket, try to find someone who received a significant settlement on a wrongful arrest that did not involve a beat-down or some kind of criminal conspiracy on the part of the police.

I don't like it, but that's the way the system works.

- Jim

[Keith B]

From your knowledge of the case, what would have been your vote?

Hard to say. I didn't have enough info on other factors prior to the blood draw. Those might have swayed me to say he was guilty even without it. However, the fact that the discrepancy is there would have been a factor for me if all that the case was based on was his forced BAC from the draw.

My question is, would you have disregarded the evidence of the forced BAC?

Don't know. Possibly. Again, would depend on the testimonies.

[WildBill]

From your knowledge of the case, what would have been your vote?

Hard to say. I didn't have enough info on other factors prior to the blood draw. Those might have swayed me to say he was guilty even without it. However, the fact that the discrepancy is there would have been a factor for me if all that the case was based on was his forced BAC from the draw.

My question is, would you have disregarded the evidence of the forced BAC?

Don't know. Possibly. Again, would depend on the testimonies.

Thanks Keith. Sorry, didn't mean to put you on the spot.

[seamusTX]

Every case is unique.

I've seen video of intoxicated drivers who were so obviously messed up that no breathalyzer or blood draw was necessary.

Probably the "no refusal" thing works because most of the cases where they get a warrant for a blood draw are in that category. Probably most defendants take a plea (like 90% of state misdemeanor defendants). If you see one going for a jury trial, it's likely someone with a previous conviction who is desperate to avoid jail time.

- Jim

[srothstein]

Yep, they sure have. It is apparently a standard tactic for the defense on no refusal. The last time I was called for jury duty it was on a mandatory blood draw DWI and in the Voir Dire the defense attorney was pushing the Transportation Code allowance of refusal. I was not chosen for the jury (previous law enforcement got me thrown out I am sure), but the attorney was hitting me hard with questions trying to feel me out about the fact that there was a conflict in the law and what they were forcing. I checked the court records later and saw that he was found guilty by the jury.

I knew they had tried the argument that the draw was illegal. I was wondering how the courts could ignore that law and allow the illegally obtained evidence. Obviously, they did in the case you cited. It might take the right case where someone wants to fight it all the way up to the Court of Criminal Appeals or even federal court. In a straight DWI first offense, they rarely go that high on defense. Some of the exceptions to the don't take blood law are prior convictions and caused serious injury.

The duress defense is slightly different. This is when someone consents to the breath test and then says he only consented because the police threatened to get a warrant and force blood. It is well settled law that a consent to search obtained under the threat of a warrant is invalid due to the duress. I am not aware of any defense attorneys that have tried this tactic to get the breath test thrown out, ruining most cases that are marginal.

As you pointed out, in the serious cases, I can make it stand without blood or breath. I had one where I did not even do the feild sobriety tests and when i was asked about it on the stand, I said he was so drunk I did not need them to make up my mind. It was a kind of ooops moment for the defense.

[Keith B]

Yep, they sure have. It is apparently a standard tactic for the defense on no refusal. The last time I was called for jury duty it was on a mandatory blood draw DWI and in the Voir Dire the defense attorney was pushing the Transportation Code allowance of refusal. I was not chosen for the jury (previous law enforcement got me thrown out I am sure), but the attorney was hitting me hard with questions trying to feel me out about the fact that there was a conflict in the law and what they were forcing. I checked the court records later and saw that he was found guilty by the jury.

I knew they had tried the argument that the draw was illegal. I was wondering how the courts could ignore that law and allow the illegally obtained evidence. Obviously, they did in the case you cited. It might take the right case where someone wants to fight it all the way up to the Court of Criminal Appeals or even federal court. In a straight DWI first offense, they rarely go that high on defense. Some of the exceptions to the don't take blood law are prior convictions and caused serious injury.

The duress defense is slightly different. This is when someone consents to the breath test and then says he only consented because the police threatened to get a warrant and force blood. It is well settled law that a consent to search obtained under the threat of a warrant is invalid due to the duress. I am not aware of any defense attorneys that have tried this tactic to get the breath test thrown out, ruining most cases that are marginal.

As you pointed out, in the serious cases, I can make it stand without blood or breath. I had one where I did not even do the Field sobriety tests and when i was asked about it on the stand, I said he was so drunk I did not need them to make up my mind. It was a kind of ooops moment for the defense.

Here's the rub. In 2009, Senate bill 328 amended 724.012 to the following:

SECTION 18. Subsections (b) and (d), Section 724.012,
Transportation Code, are amended to read as follows:
(b) A peace officer shall require the taking of a specimen
of the person's breath or blood under any of the following
circumstances if[:
[(1)] the officer arrests the person for an offense
under Chapter 49, Penal Code, involving the operation of a motor
vehicle or a watercraft and the person refuses the officer's
request to submit to the taking of a specimen voluntarily:[;]

Prior to 2009, 724.012 read as:

§ 724.012. TAKING OF SPECIMEN. (a) One or more specimens
of a person's breath or blood may be taken if the person is arrested
and at the request of a peace officer having reasonable grounds to
believe the person:
(1) while intoxicated was operating a motor vehicle in
a public place, or a watercraft; or
(2) was in violation of Section 106.041, Alcoholic
Beverage Code.

Prosecutors are using the argument that the new amended section of the bill overrides 724.013, even though it was not removed. The defense is using 724.013 as part of their defense.

I personally would have to take the fact that the exception still exists into consideration and that the failure of the legislature to remove it, whether accidental or intentional does not factor in. That was the piece the defense attorney really hit me hard on in the Voir Dire, and since I didn't have a copy of the actual code in front of me to view I would never commit to saying it invalidated the prior paragraph. That and the statement by me that I would always believe a police officer's testimony over a defendants if I had no other evidence otherwise, so felt I could not be truly impartial I believe got me struck from his selection.

[srothstein]

Keith,

Then they are getting away with writing their own law. The section of 724.012 you reference actually lists three specific exceptions where taking is required. One is for an accident with injuries requiring transportation to a hospital, one is for previous convictions, and one is if there was a child passenger. In those cases, the required part is clear and we have long had mandatory blood draws for fatality accidents. Those I don't question at all.

But the no refusal for a first time straight DWI charge certainly looks illegal to me.

Of course, I will never have to worry about it since I don't drink, and if I decide to get back on patrol, I would certainly not use mandatory blood draws without a fatality involved. And I am not sure if I need it even then. I have a general faith that this group would not need to worry about this also, other than as an academic discussion.

[RSJ]

The intoxilyzer 5000/8000 is easy to attempt to attack in court, in addition to officers' strict adherence to the SFST. Mistakes are made in almost every case. Whether or not they are fatal mistakes is up for a case-by-case examination. It seems the blood draw weekends are nothing more than a rubber stamp. I would like to see a warrant request denied upon a lack of probable cause basis... I bet you it is less than 1/1000

[Keith B]

Keith,

Then they are getting away with writing their own law. The section of 724.012 you reference actually lists three specific exceptions where taking is required. One is for an accident with injuries requiring transportation to a hospital, one is for previous convictions, and one is if there was a child passenger. In those cases, the required part is clear and we have long had mandatory blood draws for fatality accidents. Those I don't question at all.

But the no refusal for a first time straight DWI charge certainly looks illegal to me.

Of course, I will never have to worry about it since I don't drink, and if I decide to get back on patrol, I would certainly not use mandatory blood draws without a fatality involved. And I am not sure if I need it even then. I have a general faith that this group would not need to worry about this also, other than as an academic discussion.

Yeah, I am not sure about the case I was called for. He may have met one of the conditions but they were still trying to get it thrown out on 724.013. I didn't get to hear any of the testimony, so not sure.

[brainman]

The attempt to get the blood draw thrown out under section 724 has already been tried and failed at the Texas Criminal Court of Appeals. So that is settled law. There is a fairly in depth discussion of it here:
http://www.russellfrostlaw.com/no-refusal-weekends/

Apparently the courts have decided that the power to use a search warrant overrides section 724.

[WildBill]

The attempt to get the blood draw thrown out under section 724 has already been tried and failed at the Texas Criminal Court of Appeals. So that is settled law. There is a fairly in depth discussion of it here:
http://www.russellfrostlaw.com/no-refusal-weekends/

Apparently the courts have decided that the power to use a search warrant overrides section 724.

Thanks for the link brainman!

[gigag04]

Y'all do know this is a "zero tolerance/no refusal" weekend, right?

http://www.reporternews.com/news/2012/a ... labor-day/

So much for that pesky forth amendment thing. At least they get licensed phlebotomists or nurses for the blood draws.

Have fun, but be safe, as my mother used to say.

- Jim

4th amendment is upheld since search warrants are obtained for refusals. Every DWI I work is a no refusal.

[seamusTX]

I understand that the courts have upheld the procedure every time it has been challenged.

I'm not thrilled with the idea of warrants being issued all but automatically; but then I'm not thrilled with many aspects of settled law (as many of us are not).

Of course most drivers who are subject to compulsory tests are in fact intoxicated, which means they get zero sympathy.

- Jim

[Mach1]

PSTL*, I saw an illegal immigrant once. He had one eye, one horn, was purple and could fly. Fortunately, I did not go through any mandatory blood testing blocks.....

[JP171]

PSTL*, I saw an illegal immigrant once. He had one eye, one horn, was purple and could fly. Fortunately, I did not go through any mandatory blood testing blocks.....

yea gotta hate those purple people eaters, always putting sax players outta work