Starting this weekend: Involuntary blood tests at Harris Co. DUI checkpoints

[editor]

DA to Deploy First-ever Mobile DWI Testing Unit

(Houston, TX) - For the first time ever, the Harris County District Attorney's Office will deploy a mobile blood-analysis unit to enhance its "No Refusal" DWI enforcement program against drunk drivers during the Halloween weekend.

The RV-type unit will be positioned Saturday night (Nov. 1) in north county target areas to expedite on-the-scene testing of DWI suspects for intoxicants.

District Attorney Kenneth Magidson has allocated Asset Forfeiture funds to cover the cost of equipment and related personnel to staff the mobile unit. Prosecutors will be electronically linked to judges to obtain quick warrants for drawing blood samples from motorists who appear to be intoxicated, but refuse requests for testing.

"This sends a clear message of our commitment to vigorously prosecute these crimes," Magidson said. "DWI-related crashes affect us all - innocent families have suffered enormous grief and devastation."

The Harris County Sheriff's Office has outfitted its Mobile Command Station to serve as the blood-testing unit. Warren Diepraam, chief of the DA's Vehicular Crimes Section, said, "This will enable us to take the legal process to the drunken drivers, instead of having the drunks brought to us."

Benefits extend beyond removing dangerous drivers from the streets. Speeding up the process and reducing suspect transit times results in better, more readily available evidence. It can quickly exonerate the innocent, or secure convictions against intoxicated motorists, he said.

Reducing the waits for testing will also increase efficiency by freeing officers sooner for return to patrols, Diepraam added.

On Halloween night (Friday, Oct. 31), blood testing will be conducted at the Houston Police Department's central intoxication section at 61 Reisner St. near downtown.

Mobile testing, which begins Saturday, will be conducted at sites which are now confidential.

If the concentrations of DWIs shift, the mobile unit has the advantage of quickly relocating, Diepraam said. The service is available to all law enforcement agencies with DWI suspects.

[memebag]

They aren't worried about the cost of all the lawsuits this will bring?

[editor]

They aren't worried about the cost of all the lawsuits this will bring?

I don't think so. If governments are anything like the big companies I've worked for, there is no extra expense - they already have lawyers on the payroll, this just gives them something to do.

[LTAWACS]

Hrm...

[dbigtex56]

On Halloween night (Friday, Oct. 31), blood testing will be conducted at the Houston Police Department's central intoxication section at 61 Reisner St. near downtown.

Phlebotomists are encouraged to wear Dracula costumes.

[gwilson]

There goes that pesky 5th amendment.

I am all for catching drunk drivers. I've seen their affect on people. That, however, does not give the government the right to circumvent the Constitution.

I have the right to refuse anything that will incriminate me.

[Vertigo58]

They may as well start prohibition once again , so it's back to the 1920's right? Either that or make every bar/club restuarant in Texas stop selling booze.

When people go out they want to party. This will really puts a black eye on downtown revitalization at least as far as attracting the younger set to the clubs. Everybody on the wagon now. Rats...

Imagine being behind bars in your Halloween get up? Double rats...

[RedScare]

There goes that pesky 5th amendment.

I am all for catching drunk drivers. I've seen their affect on people. That, however, does not give the government the right to circumvent the Constitution.

I have the right to refuse anything that will incriminate me.

How does this violate the 5th Amendment? It is common for police to request a judge to issue a search warrant to collect evidence. This practice has long been upheld by the Supreme Court and the Texas Court of Criminal Appeals. If the police officer's sworn affidavit meets the requirements for issuing a search warrant, and an impartial judge finds the requirements of the law have been met and issues the warrant, where is the violation?

I might add that the request and issuance of the warrant is also subject to review in the court where the DWI is pending, as well as all usual avenues of appeal. If there is anything illegal about the warrant, there are numerous courts available to overturn it. I might also add that these warrants have already been found to be legal. The only difference here is that the usual road to a warrant involves lots of time and travel. This process simply puts the prosecutor and phlebotomist out on the street closer to the arrest, so it can be done quicker. The DA emails or faxes the warrant to the judge for a signature.

Other than being quicker, no legal shortcuts have been taken. Can you point any out that I've missed?

[ricco67]

Of course you could always bypass any potential problems by simply having a designated driver or take a cab.

That should take any worries you may have about being stopped for a dui.

[Jeebus]

They aren't worried about the cost of all the lawsuits this will bring?

Why? We're the ones who foot the bill.

[memebag]

Other than being quicker, no legal shortcuts have been taken. Can you point any out that I've missed?

I'm gung-ho for getting drunks off the streets (especially when the love child will be trick-or-treating), but don't you think there will be a big spike in legal expenses as a result of this?

[jm1fd]

How does this violate the 5th Amendment? It is common for police to request a judge to issue a search warrant to collect evidence.

So...if we had a machine that could sift through your memories to determine if you actually committed a crime; would you support the use of that machine as well, 5th amendment be damned? Where do we draw the line with self incrimination? They're using a part of my self (blood) to forcibly incriminate me.

[RedScare]

I'm gung-ho for getting drunks off the streets (especially when the love child will be trick-or-treating), but don't you think there will be a big spike in legal expenses as a result of this?

Not really. From the government's perspective, blood testing is a pretty simple process, and not very expensive to perform. Getting a warrant simply involves a police officer or ADA typing up the affidavit, signing it and faxing it to a judge. Harris County already has ADAs on duty at night to approve case filings, so it cost nothing extra for them. The judges are on salary, so waking a judge to sign a warrant cost nothing.

For the defendants, the costs are the same. They may even go down a bit. In the DWI world, blood tests are considered much more reliable indicators of alcohol consumption than the breath test. A person with a failing blood test may well enter a plea bargain rather than go to trial, saving him money in legal fees. For the state, blood tests have long been considered good evidence. The appeals courts have already approved of their use. Not much use fighting their validity. As for getting warrants for blood on a DWI case, it is already done on rape and murder cases to get a suspect's blood for bloodtyping or DNA testing. The only difference I see is that rape and murder are very serious 1st and 2nd degree felonies, while DWIs are Class 'B' misdemeanors. I cannot see why a blood warrant would be illegal, just because the charge is not as serious as a murder. However, I agree that it does make you think about it.

There are a couple of reasons why these blood warrants are catching on across the state. For one, more and more people are refusing the breath test. Up to 75% now refuse it. Everyone that drinks seems to know that rule. Not having the test makes it harder to prove DWI. The blood warrant shows the driving public that there are ways to get around a simple refusal to cooperate (note that I am not saying you have no right to refuse to cooperate, only that the police have ways around it). Seconly, the use of prescription pain killers is skyrocketing. You wouldn't believe the number of DWIs that do not even involve alcohol, but instead involve soma, vicodin, xanax, hydrocodone, etc. It is approaching epidemic proportions. And worse, many of these medicated drivers think it is LEGAL! They believe that since it is a vlid prescription, it is legal to drive. It is not legal to drive impaired, regardless whether from legal alcohol, legal drugs, illegal moonshine or illegal drugs. But, the breath test does not detect drugs, only alcohol. The only way to prove drugs in the system is through a blood test. You cannot smell drugs on one's breath like you can with alcohol.

I think that the blood test and warrant system could have a big impact on DWIs. It takes away the subconscious belief that if I just refuse everything, then I can beat this DWI. With a blood test, you pretty much KNOW that if you're drunk, the test will show it. It could have as big an impact as the law change in 1984, which made everyone take DWI seriously for the first time. We shall see if that happens.

[RedScare]

So...if we had a machine that could sift through your memories to determine if you actually committed a crime; would you support the use of that machine as well, 5th amendment be damned? Where do we draw the line with self incrimination? They're using a part of my self (blood) to forcibly incriminate me.

Wholly different form of evidence. Blood is physical evidence. Thoughts are akin to speech. While the law allows for the seizure of physical evidence...even physical evidence in your body...if certain safeguards are met, the 5th Amendment protects one from being forced to be a witness against himself. Unless a court decides that thoughts are not speech, I would never see a thought machine being forcefully used against us.

But, the mere thought that science could produce one should be reason enough to take your rights seriously, and vote for those who will fight to protect them.

[memebag]

Re the cost: I thought the blood test warrants would produce a lot of appeals and legal BS.

Wholly different form of evidence. Blood is physical evidence. Thoughts are akin to speech. While the law allows for the seizure of physical evidence...even physical evidence in your body...if certain safeguards are met, the 5th Amendment protects one from being forced to be a witness against himself. Unless a court decides that thoughts are not speech, I would never see a thought machine being forcefully used against us.

This distinction is based on a common fallacy. Thoughts and speech are no less "physical" than blood. It's all atoms and energy when you get right down to it. I know this is how our laws are interpreted now, but this will have to change when brains are better understood. Thinking about something is a physical act.

[Heights2Bastrop]

Here

[gwilson]

How does this violate the 5th Amendment? It is common for police to request a judge to issue a search warrant to collect evidence. This practice has long been upheld by the Supreme Court and the Texas Court of Criminal Appeals. If the police officer's sworn affidavit meets the requirements for issuing a search warrant, and an impartial judge finds the requirements of the law have been met and issues the warrant, where is the violation?

I might add that the request and issuance of the warrant is also subject to review in the court where the DWI is pending, as well as all usual avenues of appeal. If there is anything illegal about the warrant, there are numerous courts available to overturn it. I might also add that these warrants have already been found to be legal. The only difference here is that the usual road to a warrant involves lots of time and travel. This process simply puts the prosecutor and phlebotomist out on the street closer to the arrest, so it can be done quicker. The DA emails or faxes the warrant to the judge for a signature.

Other than being quicker, no legal shortcuts have been taken. Can you point any out that I've missed?

You're the lawyer, but I'd venture to guess that forcibly taking my blood would be violating my right to not incriminate myself. Doing it under such haste would also bring due process in to question. Making it mandatory simply because one happens through a checkpoint and has not been observed to be in violation seems a bit fishy to me.

[20thStDad]

You're the lawyer, but I'd venture to guess that forcibly taking my blood would be violating my right to not incriminate myself. Doing it under such haste would also bring due process in to question. Making it mandatory simply because one happens through a checkpoint and has not been observed to be in violation seems a bit fishy to me.

My uneducated opinion is to agree with you - if they ask to take your blood and you ask for a lawyer, can they still get it, right there? The obvious solution is to not drive drunk, but I'd hate to be driving along after 1 or 2 beers, turn my head to try to see a sign about a future development, do a weird swerve, and have a cop want to take my blood. Then I'd be calling you, Red!

[editor]

My uneducated opinion is to agree with you - if they ask to take your blood and you ask for a lawyer, can they still get it, right there? The obvious solution is to not drive drunk, but I'd hate to be driving along after 1 or 2 beers, turn my head to try to see a sign about a future development, do a weird swerve, and have a cop want to take my blood. Then I'd be calling you, Red!

Good point. What happens if you lawyer up right then and there?

[RedScare]

You're the lawyer, but I'd venture to guess that forcibly taking my blood would be violating my right to not incriminate myself. Doing it under such haste would also bring due process in to question. Making it mandatory simply because one happens through a checkpoint and has not been observed to be in violation seems a bit fishy to me.

That is why a search warrant signed by a judge is required. The 5th Amendment right to remain silent applies to speech. Your blood, your urine, your saliva and your fingerprints are not speech. You are confusing speech with physical evidence, and further confusing voluntariness with a judge ordered search warrant. These are all different legal scenarios, guided by different legal principles.

Checkpoints are illegal in Texas, by the way. The blood search warrant program is in no way associated with a DWI checkpoint. It merely locates the breath testing machine and a phlebotomist in the field to improve efficiency. Nothing else has changed.

EDIT: I should add that you DO have the right to protest the taking of your blood in court. And, it IS possible for a judge to improperly issue a warrant. If the appeal is sustained, the evidence (the blood test results) are excluded from evidence at your trial. I am simply pointing out that the idea itself of getting a search warrant for someone's blood is not in violation of the Constitution.

Good point. What happens if you lawyer up right then and there?

The search warrant is obtained AFTER one "lawyers up". The arresting officer first requests a sample of your breath or blood voluntarily. If the arrested driver refuses, THEN they would send a request for a search warrant to a judge. If the judge finds probable cause to issue the warrant, then the blood is taken involuntarily. And, yes, if the arrestee wants to fight, he is strapped into a gurney, and the blood is forcibly taken.

[BryanS]

I have been advised by some attorney friends to say:

"Officer, I would gladly like to take/perform any tests you may have for me; however, I wish to invoke my right to counsel." That means any and all tests. No walking the line, no breath test, nothing.

Make sure you are standing up straight, not slurring, not stumbling. Speak clearly in the event there is any audio recording.

I have not had a chance to talk to him about the "rapid blood test" and if the method above would work in that situation. If you flat out refuse to take the tests, then a jury may be inclined to think you're hiding something. However, if you agree in principal to the test... but wish to invoke your right to legal counsel, before taking any of those tests, then that goes over better with juries and will allow your attorney to build a better case for you in court.

EDIT: So basically, you would not be refusing the tests... just asking for legal counsel. So when the call is made for a warrant, the officer cannot say the offender is refusing... because he isn't. He's just asking for counsel before refusing/accepting any of the testing... That is the theory. Don't know really if that would work.

EDIT EDIT: I guess not.

http://www.dallascriminaldefenselawyerblog...to_counsel.html

"Logic" is...

In McCambridge the defendant was found guilty of DWI. On appeal McCambridge argued that he should have had the right to speak with an attorney before deciding whether or not to give a breath sample.

How would [Court of Criminal Appeals] COCA save this DWI conviction that clearly violates the Texas Bill of Rights?

Rights under Article 1 Section 10 only apply during a "criminal prosecutions." COCA held that DWI suspects are not being prosecuted. Ergo, they have no rights. <- WHAT?!?

Only in a DWI case would such tortured logic be allowed. COCA won't even stoop this low to save a drug case. For example, if the police had a warrant to search your house for drugs they could not force you to show them where the drugs are. If you asked for an attorney while they were searched they would not continue to question you.

Conservative judical activisim for you.

[editor]

This Just In:

-----------------

Stats Indicate Success:

DA's "No Refusal" DWI Program Continues for Holidays

(Houston, TX) - The District Attorney's "No Refusal" DWI program will be working with area police agencies to enhance enforcement against drunk drivers during weekends and holidays through New Year's Day, District Attorney Kenneth Magidson announced Friday.

Warren Diepraam, chief of the DA's Vehicular Crimes Section, reported that initial figures indicate that the 16-month-old "No Refusal" is a valuable law enforcement and prosecutorial tool in the fight against impaired drivers.

The program brings together prosecutors, a nurse, a judge and police experts at one facility. They expedite the process of obtaining scientific evidence on DWI suspects as soon as possible. Warrants for breath or blood samples are sought on drivers who refuse requests to voluntarily provide them.

Prosecutors have prepared about 300 warrants during most major "drinking" holidays since the program was introduced over the 2007 Memorial Day weekend. Initial findings show the program:

** Provides solid evidence against those who are more impaired than suspects who provide breath samples. The average breath test result is about .13 Blood Alcohol Content (BAC), compared to .17 for the average blood test (.08 is the legal limit).

** Takes the guesswork out of decisions to prosecute. Only 2 percent of the suspects were under the legal limit of .08 and had no other intoxication substance in the blood. So the officers' decisions to arrest are overwhelmingly supported by scientific evidence, and potentially innocent subjects go free.

** Increases the rates of motorists consenting to provide breath or blood samples. The statewide refusal rate is about 50 percent. During "No Refusal" program nights, that refusal rate has dropped to as low as 35 percent. When combined with mobile testing units, the refusal rate has dropped to as low as 20 percent.