1) I agree with Ha Ha.
2) if the judge is going to issue the warrant no matter what, whats the difference in saying "lets just stop and search all the negros because they might have some weed on them and be looking for white women to have sex with.

Has anyone brought up whether or not it's the cop drawing the blood?

Because if it is, I'd want to see some certification before I let him shove a needle in my arm. I hate needles and can't stand getting my blood drawn (i go into hemorrhagic shock fairly easily).

Don't get me wrong, I don't think you should drive if you are physically incapable, which is why I'd agree with TexReb on it being an ability. If you don't have the ability (however temporary) then don't drive.

The officer is not legally allowed to draw blood. I have heard of it happening but the other half to this is they have to keep a Phlebotomist available all night too.

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That is semi-correct. They can go to an ER and have anyone that is authorized to draw blood take a sample. It will be drawn and labeled in the room, taken to the lab with an officer present, and give to the lab tech in order to maintain the chain of transfer of evidence. In response to the poster that said that the only way they would get it is to strap him down...they will and it is legal since they have a warrant.

A judge may not "pre-sign" any search warrant. If they do, the SW is no good. The SW used for DWI cases are usually fill in the blank or check box style forms that are pretty hard to screw up (although I've seen it done)

Stucco is correct in that the way to fight a SW is in court. What I have tried to say here is the constitutionality of this program has been addressed by the Courts and upheld. You're not gonna win on this issue unless the police mess it up which is always a possibility.

HaHa, good luck with the resistance. I would love to watch it sometime.

Fuzzbutt, you are right about the logistics of a "No Refusal" weekend. LEOs put on extra officers, have a judge readily available to sign and review SW and someone there to do the blood draw immediately.

useagraves, hopefully the judge won't sign a warrant that doesn't set forth PC. Having said that, it ain't hard to show PC in one of these cases. I would not expect many, if any, to be refused. Your scenario, although amusing, would hardly constitute PC.

Nick, the cops do not draw the blood. They most likely have a phlebotomist or certified EMT do it. Different jurisdictions do it different ways. Some use medical personnel at the jail. Some will take you to the hospital ER. The law requires the blood be drawn by someone certified to do so and in a clean location. They cops are usually careful about this because the most common attack to blood test results centers around how the blood was drawn and tested.

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Why would the officer suspect you of DWI if you'd had nothing to drink?

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I have been stopped several times at 2:00 to 4:00 in the morning and have had nothing to drink. Fact of the matter is, if a cop wants to find "probable" cause they will. It is your word against theirs and you will always lose that one..... I oppose "no refusal" type initiatives becuase one by one the government is taking away the rights we were granted by the Constitution and those rights granted by God as hman beings. Don't say anything and they will continue to chip away at it based on what the socialist believe.

The issue I would challenge in court is that there is consistently a lack of probable cause to support a warrant.

Fill in the blank search warrants reduce the judiciary to a rubber stamping service for law enforcement. They are supposed to be an impartial third party assessing the probable cause presented and sworn to by the officer to determine it's sufficiency to deprive an individual of their right to privacy in order to obtain necessary evidence.

I doubt it is sworn to by oath or affirmation. I doubt the fill-in-the-blank warrant 'particularly describes the place to be searched, and the persons or things to be seized.' I doubt the probable cause is even reviewed. You only really need one of these things to be off.

The problem is that this just slows them down a little because the process they are following is Constitutionally sound. Pretty much all we could do to permanently end this is pass an ordinance/state law limiting the power of the 4th amendment / search warrant.

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I have been stopped several times at 2:00 to 4:00 in the morning and have had nothing to drink.

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In those cases, were you asked to submit to a chemical test, or did the officer realize after talking to you that you were not under the influence?

Stucco, you are correct about what is required for a SW but wrong in how often the cops fail to do it correctly. Describing the person to be searched merely requires something like name, date of birth, and DL#. The officer will have that from you DL. Officer must state that he observed the person operating the car in a public place or how he knows the who the driver is (IE: they told him). Then go through the typical laundry list of signs of intoxication and check off the ones he observed: red glassy eyes, slurred speech, swayed while standing, stumbled when walking, odor of alcoholic beverage, failure of Standardized Field Sobriety Tests, open containers in vehicle, ETC. Now you have Probable Cause. Obviously, not every drunk demonstrates the same signs of intoxication but you don't need them all. You need just enough to believe that they are "probably" DWI. It is actually a very low standard.

You are also right about a statute that could curtail this practice. As a matter of fact, the only reason I am aware of that the cops can not rely on "exigent circumstances" exception to a SW has do do with a statute in the Transportation Code. Absent that statute, I believe it would be constitutionally acceptable to draw blood WITHOUT a SW. Now wouldn't that rattle some of ya'lls cages.

As for a statute curtailing the use of SW to draw blood, there is a snow ball's chance in hell any law would pass the Texas legislature that limited police' ability to collect evidence in DWI cases. In fact, in recent sessions, the statutes have made it easier and easier. In fact, last session, the Leg increased the number of circumstances requiring mandatory blood draws without warrants. Someday, this could all change but not anytime soon.

As a result of the DWI-No Refusal weekend our task force officers made in excess of 200 traffic stops. The traffic stops resulted in 15 arrests. There were 8 arrests for Driving While Intoxicated, 5 arrests for Driving Under the Influence, 1 arrest for Possession of a Controlled Substance and 1 arrest for Possession of Drug Paraphernalia. In only two situations, was it necessary for officers to obtain blood search warrants. Also, as a result of the traffic stops a total of 147 warnings and 42 citations were issued. The College Station Police Department appreciates the efforts of all those involved in this project.

litig8r187 thanks so much for providing information. I was tied up this weekend and you did a much better job of explaining the case law, etc. than I could have anyway. I guess the law school and years of experience have paid off.

Also, as someone stated, we did have a licensed phlebotomist at the PD for blood draws. In addition, this was not just a CSPD thing. Bryan PD, UPD and other law enforcement agencies in the area were involved also.

litig8r187 - I have two more questions.

Does the officer support their probable cause with oath or affirmation?

Does the warrant itself, not the police request but the actual warrant, describe the person to be searched and the blood to be seized?

Please don't get me wrong, if so then I'm actually pretty happy that the law is being followed.

Chalk another one up for tyranny.

Stucco, The officer files a sworn affidavit in the application for the SW. As a practical matter, these are all one set of documents that contain the Officer's Application for SW , the Officer's Sworn Affidavit , the SW itself and the SW Return. The affidavit does name and describes the person as does the SW itself.

If you were to look at the SW used in a DWI blood draw and one used to get DNA from a sex offender, the FORMAT would look almost identical.

Thanks litig8r187.

I'm impressed it's being followed. I guess that's partly because it's high profile and controversial...

In reality, most SW cases are good cases. The officers are more careful, you have a judge of some kind involved and frequently there is an ADA involved. Also, most SW are done by more seasoned officers.

I find where cops get in trouble is when they use an exception to the requirement of a SW (Exigent Circumstances, "Terry" frisk, plain view, open fields and the like)

The truth of the matter is that search law is complicated. We ask our officers to make split second decisions on the side of a roadway day in and day out. All in all, they do a good job. An attorney, on the other hand, can sit on their fat a$$ for as long as they want second guessing the officer's decision, researching exceptions and challenging what was done. In the vast majority of cases, the officer makes the right call and the case is successful.

TLIAC, hope you had a great weekend. It was good to see you the other night. I got bored so I ended up on here arguing.

i enjoyed the perspective, however.

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Also, as a result of the traffic stops a total of 147 warnings and 42 citations were issued.

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for shooting fish in a barrel, y'all have HORRIBLE aim...


are there any statistics on citation to warning ratio during the rest of the year? I'm guessing that it is higher than .222

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HaHa, good luck with the resistance. I would love to watch it sometime.

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there will more than likely be no spectators.

[This message has been edited by TexasRebel (edited 4/12/2010 8:04p).]

Who could be proud of this abuse of power? What have we come to?

Rebel - you can find all of that information on our website under department annual statistics. I think that you will be surprised at how many warnings we issue as opposed to citations. Make sure you look at the Total figures, not the figures by division.

http://www.cstx.gov/index.aspx?page=3100



[This message has been edited by TLIAC (edited 4/12/2010 10:35p).]

I have some anecdotes that I will share tomorrow (or the next day).
pretty much I have no respect for the no-refusal weekend and the people who participate.
the "law" backing it as legal is very shady and as a Texan I am ashamed it passed the congress.

"No one makes me bleed my own blood"

useagraves, the "no refusal" weekend isn't really based on any law passed by the US Congress or the Texas Legislature. It is the use of long standing constitutional precedence and search warrant statutes that have been in place, essentially unchanged, for several decades. Quite honestly, it came about by a prosecutor thinking "outside the box." He realized how he could use existing law in a new way. The original Texas case that I am aware of was from a Midland County case in 1999. The Court of Criminal Appeals upheld the practice in the 2002 opinion called Beeman V State. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=tx&vol=app/107901a&invol=1

Classic Arnold: Bwahahahaha! lol

[This message has been edited by litig8r187 (edited 4/12/2010 11:26p).]

[This message has been edited by litig8r187 (edited 4/12/2010 11:29p).]

It sounds like you have turned search warrants into an efficiency type numbers system. I would prefer an inefficient system myself. Inefficient, and that mainly catches the outliers.

lit,

you have said several times that you doubt anything will change in your lifetime...

might I remind you that prohibition lasted 13 years in the US? I wonder how many lawyers doubted the removal of the 18th amendment to the Constitution...it happened.

I don't have a problem with the 4th amendment as it stands. I don't like the idea of taking my blood, but the 4th does provide us a significant amount of protection while allowing controlled access on a case by case basis. I couldn't have written it any better. The problem is actually all these subsequent laws making everything under the sun illegal, allowing the 4th amendment to then be used against us more commonly than it should be.

The only real constitutional argument against a forced blood draw is the 5th amendment. Personally I think it covers this, but it's for the courts to decide.

"...nor shall be compelled in any criminal case to be a witness against himself..."

[This message has been edited by Stucco (edited 4/13/2010 9:57a).]

Stucco, take a look at this on your 5th Amendment argument.

From the USSCt.:

"It is clear that the protection of the [5th Amendment] privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it."

"Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on [5th Amendment] privilege grounds. "
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=757

Texas Rebel, the reason I do not anticipate any change in my lifetime is based on the fact that this practice in founded in case law and statute that have been in place for 30-40 years. In addition, the practice of the Texas Legislature since at least 1984 has been to close loopholes in DWI law and make easier and easier for law enforcement to gather evidence and make cases. This trend was very prevalent in the last session.

[This message has been edited by litig8r187 (edited 4/13/2010 11:54a).]

[This message has been edited by litig8r187 (edited 4/13/2010 11:59a).]

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In those cases, were you asked to submit to a chemical test, or did the officer realize after talking to you that you were not under the influence?

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You missed the point completely - the point is that the only "probaqble cause" for stopping me was that I was on the road at 3:00am and they thought I was "probable" drunk. That is an abuse of power.

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An attorney, on the other hand, can sit on their fat a$$ for as long as they want second guessing the officer's decision, researching exceptions and challenging what was done. In the vast majority of cases, the officer makes the right call and the case is successful.

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and in those cases where the officer doesn't make the "right call" I want that fat a$$ attorney there to be my advocate and protect the rights given me by God and the Constitution. Assuming police are always correct is a VERY dangerous assumption.

here is a question for you...

Why is this necessary anyway? Is this to find those people that are .09, but show little to no signs of being intoxicated, and don't pose a threat to anyone? The ones that got stopped for only using a blinker 90 feet before they changed lanes instead of 100, and there was a small hint of alcohol in the air, which makes enough probable cause to find their BAC?

Sum, the police actually do not need probable cause to stop you. They need what is called "reasonable suspicion". This is a lower standard than PC. They need probable cause to arrest you. That being said, if they truly stop you ONLY for driving at 3:00 AM, and could not articulate any other reason, that would not rise to "reasonable suspicion" and the stop would be illegal.

And I never said we should automatically take the police at their word. They make honest mistakes and some actually don't care what the law is. What I did say was, considering the circumstances that most officer's have to make complicated decisions, they make the right call the vast majority of the time. When they do make mistakes, it is easy to sit around and arm chair quarterback their decisions when you have the time and resources to do so.

I have been a cop in the past and now I'm a fat a$$ attorney. It is my sincerest hope that you will spend large sums of $$$$ enlisting my services or those of one of my brethren and we will diligently seek to find holes in the State's case. Just understand, more often than not, it doesn't happen.

TexasRebel,

Every study I have looked at shows that individuals with a BAC of .05 or higher have a measurable loss of use of their mental and physical faculties. Dr. Maurice Dennis at TAMU is one of the leading researchers in this area. He has published numerous studies. Having also participated in controlled drinking exercises used to teach officers to identify intoxicated driver's, I think the .08 level is more than fair. So, to answer you question, yes, the purpose is to remove anyone who is driving with a BAC over .08 BEFORE they kill themselves or others regardless of what their driving looks like at the time of the stop.

1) how many times do the ends justify the means when talking about traffic stops & blood draws?

2) how tolerant were the subjects in the studies? It would be very easy to set the limit at .04 if you did studies with 90# girls who'd never had a drop of alcohol in their lives. How about a 200# male that has a couple of beers with every meal? There is a reason that you don't see studies that had results that somebody didn't want to publish, or worse yet, had incentive not to publish. The entire fiasco reeks of agenda.

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yes, the purpose is to remove anyone who is driving with a BAC over .08 BEFORE they kill themselves or others regardless of what their driving looks like at the time of the stop.

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How about we arrest everyone with a firearm for the same reason?

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In those cases, were you asked to submit to a chemical test, or did the officer realize after talking to you that you were not under the influence?

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You missed the point completely - the point is that the only "probaqble cause" for stopping me was that I was on the road at 3:00am and they thought I was "probable" drunk. That is an abuse of power.

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Sum, I think you missed the fact that I was continuing the discussion on whether totally sober people were in imminent danger of having their blood drawn during a no refusal period. It had been implied that once you'd been pulled over, a forced blood draw would inevitably result. Which is why I asked if your experiences resulted in a breath or blood sample being requested. The question still stands.

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Bobbo, I don't think they jump straight to demanding breath or blood as soon as you've been pulled over - if they did suspect DWI because of your driving, they're going to start by talking to you and observing you for signs of intoxication. If you'd actually had nothing to drink, those signs would not be present, which would alleviate the suspicion.

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Is this your experience, Sum, or did they end up arresting you even though you were sober?

I was watching Police Women of Maricopa County (AZ) the other day and apparently there, Deputies who are certified Paramedics can draw blood at the scene of the stop/wreck in certain instances.

I could poke a 10 foot hole in any dui case using the Code Of Criminal Procedure Chapter 16 - The Commitment Or Discharge Of The Accused.