Posted on 12/29/2007 7:41:14 PM PST by Eric Blair 2084
Drunken drivers, consider yourself warned: The cops will be out for blood.
Motorists on Fort Worth roads who refuse to take a breath test after being stopped for suspected drunken driving on New Year's Eve and New Year's Day will have their blood drawn to determine whether they are impaired.
"If you refuse to take that blood test, we are going to ask for a warrant from a magistrate and come back and take your blood," said Fort Worth Police Chief Ralph Mendoza. "Basically, we are going to get our evidence one way or the other."
For the first time, Fort Worth police are launching a DWI No Refusal campaign in an effort to keep drunken drivers off the roads during the holiday.
In a news conference Friday morning, Mendoza, along with officials from the Tarrant County district attorney's office, Dalworthington Gardens, and Mothers Against Drunk Driving warned motorists not to get behind the wheel if they have imbibed.
"If you are stopped by a Fort Worth police officer and you are arrested for DWI, we are going to get a sample," said prosecutor Richard Alpert, who specializes in the prosecution of DWI and intoxication manslaughter cases. "We are going to get the evidence we need in court to prove your guilt. There is no way around it."
Defense attorney Abe Factor who routinely defends those arrested for DWI, said he believes that the campaign is little more than a publicity ploy and that the results will be lackluster, partly because the process will take time and many will score below the legal limit of 0.08.
"To me, it's more sizzle than steak," he said. "It's a good for thing for them to have a press conference over, but the numbers are going to be fairly small. If they stop someone who is really intoxicated, they are going to have them videotaped all over the place anyway."
The idea for the no refusal holiday came from senior prosecutor Lloyd Whelchel of the Tarrant County district attorney's office.
Whelchel recently attended a training seminar and reminded officials that authorities in El Paso and Harris County had similar programs in place.
The campaign will run from 8 p.m. Monday to 5 a.m. Tuesday and from 8 p.m. Tuesday to 5 a.m. Wednesday. If a Fort Worth police officer pulls over a suspected drunken driver who refuses a breath test, the officer will seek a search warrant from a magistrate.
The suspect will then be taken to a room at the Fort Worth Police Department, where at least three officers with Dalworthington Gardens Public Safety Department will be on hand to take their blood.
I think the cops would stop all of this if you can convince the judges to just take their word for it, you were drunk.
You just slandered me. I’m going to sue you.
You can disagree all you want and you still will be wrong.
The "entitlement" depends on the circumstances - the state can seize evidence from the arrestee that normally would be taken and cataloged as part of the booking procedure such as a driver's license, money or other property since they are in plain view and there is no need for a search and seizure warrant. The State is still required to obtain a warrant for hair, saliva and blood samples that might have some value as evidence. So even in the subject of this thread, the State is required to obtain a seizure warrant to get a blood sample, regardless of the arrest status of the driver.
In the this thread people are correctly calling into question a practice of using a refusal to take a breathalyzer (which is both an exercise of one's fifth amendment right and a refusal to a consent search/waiver of fourth amendment right) as probable cause to obtain a warrant and do an end run around the person's exercise of rights.
Don't focus on the ends of the program - getting drunk drivers off the streets is a good goal; focus on the means - violating one person's rights violates everyone's rights, including yours.
You might want to waive them for the greater good, but I don't.
see #223 - he’s wrong
see #223 - his understanding is incorrect
then what in the hell do you disagree with??? (aside from the DA who thinks the refusal gives pc??)
MADD reps draw the blood
I was the poster child for MADD in Ventura Ca ...til the facts came out..........I got two cops fired and one had to go to jail..............coulda sued MADD but didn’t
All that I have disagreed with, and what I have asserted, is that obtaining a search warrant to get a blood sample is not a violation of the 5th amendment. There were several posts early on in this thread that suggested that any taking of bodily fluids would violate the 5th amendment protection against forcing someone to testify against oneself.
r u sure you aren’t confusing “testifying” with “evidence”?
the request to take a breathalyzer is a request of a waiver of both 4th and 5th amendment rights.
same with drawing blood, one can challenge the seizure as a violation of both - especially if the warrant is based, even in part, on the refusal to waive 4th and 5th rights and take a breathalyzer
“testimony” doesn’t have to be oral, it can be non-verbal, such as FSTs
anyway, if you disagree with the DA, that is a good thing
You posted: r u sure you aren’t confusing “testifying” with “evidence”?
***
Great question. I don’t think I am confusing the two. The giving of the blood is not testifying, I don’t think, at least not any more than allowing one’s house to be searched for evidence of a crime. Now, if one is forced to go into one’s house and show where the evidence is located, THAT would seem to me to be testifying, and cannot be forced under the 5th amendment, if my memory of my criminal procedure class from 23 or so years ago serves (I have never done criminal defense work). Of course, no warrant may be issued requiring one to give testimony against himself, but I don’t think allowing blood to be taken is testimony, and I think that is what the Supreme Court case on that issue says.
The DA still has to have probable cause to get the blood sample though. And I have always thought those field sobriety tests, at least many of them, are too subjective to be of good value, except in the most serious/comedic circumstances (e.g., where the guy can’t remain standing while trying to touch his nose with his finger).
Happy New Year!!
It gets really good when you get to the tagline.....
At least in California, and I would imagine other states also.
When you get a DL in California, you sign on the dotted line. Above the line is a statement to the effect that you agree to take a breath or blood test if stopped by and officer when driving and asked to take a breath test or a blood test.
Then it says that if you refuse to take the test you automatically lose your Drivers License for one year.
They pretty much have you there.
I knew a friend that was charged with refusing to take a breath test, and therefore was charged with DUI.
The Judge listened to the case and determined that the subject did NOT refuse to take the test.
I took the official court decision and showed it to the manager of a local DMV office and he refused to give the license back.
I asked him if an official order from a Judge from the Judicial System could be refused to be obeyed by the DMV.
He smiled and said yes.
I said, So, the DMV is more powerful than the Judicial System?
He smiled and said yes.
My friend not having the resources to fight this blatant corruption of the legal system plead to a wet reckless to get his license back.
Which in California you have already done to get your DL.
you are correct in that you sign a “waiver” when you get your license...but since a waiver of a constitutional right must be voluntary, and you can’t get the license to drive without a waiver and you can’t legally driver without a license...well, courts split on whether the initial waiver if legit wrt your 4th and 5th amendment rights.
sure, the DMV can screw you administratively...and, as an aside, your example of the DMV ‘crat ingoring a court ruling is exactly why I fight against the MD Bar Association’s yearly push to eliminate elections for judges - it is never a good thing to put so much power into unelected positions.
california sucks, just like MD and NJ...and now Texas
however, I really don’t see SCOTUS allowing an invocation of a constitutional right to be used as probable cause for a search warrant...
“Do they get a piece of the ticket, percentage of the surcharge or something?”
I can only tell you that, yes, MADD gets a piece of the judgement. It is called Victims’ Impact Fee. I am sure that it raises hundreds of thousands of dollars in each state. You see, in most DUI arrests there is no actual “victim,” therefore the victim fee goes to MADD for ALL of them, even when there is an actual victim.
“They taught me how to drink and I now follow those rules. Example: You can drink one 12 oz. beer an hour all day and not get drunk. Now I time my drinking, expecially during sporting events.”
Don’t become to confident in that system. I know of more than one person that followed that advice and have ended up with DUI’s. It is best to not have any alcohol in your system if you want to avoid the CJ machine. You can also wait an hour per drink to pass after you quit drinking and be somewhat safe. The reality is that the only perfectly safe (from DUI) system is no drinking at all if you are going to drive.
Interesting. Thank you!
I hadn’t heard that...but I have an idea who to ask whether it’s true...I’ll get back to you guys if I can get an answer.
You can be arrested and detained for anything. Whether or not the charges stick is a matter for the courts.
What this ‘policy’ does is essentially lower the bar for resisting arrest. They are saying that there is no longer any room to assert your 4A rights at the time of arrest.
More than that, if you are cleared of charges, it appears that they are trying to establish precedent for such intrusions on 4A as being reasonable.
You don’t need evidence to arrest. You need evidence to convict. If you resist arrest, they now have charges that WILL stick.
Unfortunately, you will need to state your objection clearly for the camera, or for any other witnesses, and then submit to the intrusion, and then try to file for false arrest later. They are banking on the likelihood you won’t do that.
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