Collin County Bloodsuckers Will Be Out This Weekend
If you’re driving in Collin County this weekend, there’s a chance you could have a police officer jabbing a needle in your arm against your will. Yes sir, it’s another “no refusal” weekend where cops plan to use fill-in-the-blank affidavits (consider the implications of that) and rubber-stamp judges to circumvent Texas laws that say you can refuse a breath or blood test when you’re suspected of driving after a few libations. Good discussion here.
39 Comments to “Collin County Bloodsuckers Will Be Out This Weekend”
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those guys on the Texas attorneys forum are F’ing NUTS! There is no way in hell you are taking blood from me. I will fight. (and probably lose)
Thanks for the link.
Texas laws allow for breath/blood refusals unless there is an injury accident. Unfortunately, prosecutors have done an end run around the law with these warrants.
It seems even conservative Texas judges are judicial activists, only for different causes than the “bad” liberal activist judges.
Am I the only guy here who thinks that getting dangerous, impaired drivers off the road is a good idea, whatever the means? If there’s a possibility that one innocent family will be saved a fiery death in their burning car that was hit head on by a drunk driver, I’m all for it…
Whatever the means? You mean, the law be damned?
Josh,
Trading freedom for security is a choice you can make, however it makes lousy public policy. We could reduce DWI greatly by banning alcohol, or by putting a cop in every car.
Does freedom have any value if it is opposed to your idea of public safety?
We have reached a point of diminished returns with DWI enforcement. Look at FW, arrests are up 30% in the last two years and… fatalities are up also. It’s time to get smart on DWI, not just tough.
Given the choice, I want my civil liberties protected at all costs. This is a dangerous game being played with our laws and freedoms. It has huge implications for more than DWI, Josh.
I know people - several, in fact - right now that are driving around on suspended licenses or no license at all, on their second, or even third DWI. And yes, they’re still drinking and driving.
We’re not having problems CATCHING people that drink and drive. We’re having problems correctly assigning a punishment to the ones who we do catch and convict.
What does this mean? We don’t need a no refusal weekend. We need to get the habitual DWI offenders away from the wheel.
I understand what you are saying, but I think the group is taking a bit of an extremist view point. There appears to be a fine line balancing civil liberties and security/safety. All I am saying is that I would rather be taken off the road and face DWI charges than have to live with the fact that I killed a car full of teenagers on their way to the movies.
I am not for giving LE a means of throwing innocent people in jail or of bullying their way around. I agree that this could be taken advantage of if the wrong people are given too much power. But, I don’t think we are to that threshold with this initiative.
Josh,
Don’t go whining to me when you get pulled over and hauled off to have a needle jammed in your arm by a non-medical professional after being pulled over late some night.
What… you say you didn’t do anything wrong/you weren’t over the limit? Well, you know, it’s “whatever the means.” Sorry ’bout wasting a couple of hours of your time and sticking you with a needle– those nasty bruises on your arm (it took us a couple of tries to hit the vein) will clear up in a couple of days!
Maybe next we’ll set up a permanent police checkpoint at the entrance to your neighborhood or place of employment.
Carry on, comrade!
Josh,
First of all, most drivers who drink kill no one, much less a car full of teenagers. I think you have seen too much MADD propaganda.
Second, freedom has value regardless of your subjective belief about not reaching a “threshold”.
We arrest and sometime even convict innocent drivers of DWI. Why? Because we have been sold the lie this will save lives.
I have read the Bill of Rights and I can not find your “balance” in the 4th, 5th, or 6th Amendment. However, SCOTUS uses that as an excuse to gut our freedom.
RG
Wylie - I think the fundamental difference that we have in opinion is that you have no faith in the people who are responsible for putting this plan into action. You portray them in the worst possible light. I agree that there are probably people in these positions of authority who take advantage of opportunities such as this one. But you also have to concede that there are people out there doing their best to be courteous and kind while still fulfilling their duty to protect and serve. That is the fundamental difference in our viewpoint.
Well, I apologize for being a patsy who just spouts off whatever propaganda I see on television or hear on the radio. But let me get this straight, you just said a few minutes ago:
“Look at FW, arrests are up 30% in the last two years and… fatalities are up also.”
So, you just said fatalities are up, but in your next argument you admonish me for using that fact in stating my point of view? Makes perfect sense to me, Robert.
I’ll tell you what, you keep on using whatever words you want to use (bend) in protecting people who are BREAKING THE LAW, and I will keep on allowing my civil liberties to be trampled on in order to protect the common folk from becoming victims of other people’s bad decisions.
If I had to chose, I’d take the Wild west over “1984″ any day. But then I’m from Texas.
I think the basic point is being skimmed over in this debate. Someone mentioned that the goal is to keep drunk drivers off of the street. This violation of our rights is only being gathered for a conviction. The second you refuse a test, you are going to jail. This eliminates the dramatics Josh brings up with a carload of dead teenagers. The concern should be the fill-in-the-blanks warrants. WTF is up with that? Are patrol cops now qualified to sit on the bench?
Josh,
The FW stats show that, while you are gladly signing up to trade freedom for security, yet you are getting neither.
As for BREAKING THE LAW (it must be bad if you hit caps lock). Laws are arbitrary and can be changed. We grant defendant’s rights to protect the innocent even if some of those who are BREAKING THE LAW go free.
You can always consent to a blood search Josh. However, you should not be able to be able to consent for the rest of us.
That, and it’s unnecessary. If you refuse a test, they take you in already. The law already provides them with ample opportunity to gather the evidence they need to without having to “expedite” things. This just opens a lot of doors for overzealousness and abuse.
This is not a tool to pull over drunk drivers and get them off the streets. It’s an evidentiary tool, and an unnecessary one at that.
Robert - I didn’t hit caps lock, I just held down the shift key, I’m tech-savvy like that.
And Bethany brought up a good point earlier. I think we are missing the main issue here. If nothing serious is being done to keep repeat offenders off the streets, then it doesn’t matter if you get arrested, blood tested, strip searched or painted purple.
Maybe the real legislation needs to address repeat offenders who exponentially increase the odds of tragedy happening by their repeated attempts to get behind the wheel while grossly impaired…
“then it doesn’t matter if you get arrested, blood tested, strip searched or painted purple.”
This is where we disagree. I see value in freedom, liberty, and privay. It always matters if you get strip searched and blood tested by the police.
I would agree that we need to focus our resources on the most dangerous drivers who are more likely to cause an accident. For example, lowering the bac to .08 has let more dangerous drunks go free while cops waste time on drivers who are not a threat.
We are reaching a laffer curve effect/diminishing returns with DWI. It’s time to end the fear based rhetoric and accept that all car accidents (even DWI) will never be prevented. To do so would require a police state. That’s not an easy sell with all the MADD propaganda out there, but constantly giving up freedom is not working either.
What I was implying was the current system is obviously not a sufficient enough deterrent for these serious, repeat offenders. I was not implying that it’s okay for every random person to be hauled into jail, blood tested and strip searched without due process or probable cause.
I was simply stating that the means by which to arrest these individuals is immaterial if the punishment is such that it does not deter them from the same behavior the next time the opportunity presents itself.
I disagree. The means to arrest is always material. That is why we used to require warrants based on probable cause to arrest. You should feel better knowing that our appellate courts are working hard to repeal the 4th Amendment.
As for new solutions to DWI- Here is my favorite post on the subject. http://www.duiblog.com/2007/12.....-einstein/
Don’t hold Josh’s opinions against him. He’s from Philadelphia; he can’t help it.
SB - ???
I read that article, and while I agree on some level with the bulk of his argument, I strongly disagree with his statement that you don’t punish the problem drinker, you rehabilitate them. My question is, “Why can’t we do both?” I’m certain this is another issue altogether, but one that certainly merits discussion.
It’s also interesting to me that people, such as yourself, get so wrapped up in the process that you lose sight of the main issue at stake. Now I’m begging for a response about how I think we should throw everybody in jail, process be damned, I know, but at some point you have to step back and say, “If you break the law, you must face the consequences, whatever those are.”
Which gets back to my point, whatever the process is, however the means to the end, the punishment must be strong enough to deter the behavior.
Robert, we may have to agree to disagree on this, and many other topics, I’m sure, but I have ceratinly enjoyed the discussion today…
Point being, getting behind the wheel of a car when intoxicated is foolish regardless. So is driving while extremely tired, while on the phone, while arguing with your spouse, while applying makeup, etc.
Having covered more than my fair share of car accidents in 10 years as a reporter, and more fatalities than I want to think about, I can tell you that there isn’t a blood test for common sense.
So yes, Mr. Guest is right. You’re never going to eliminate the possibility of a car accident. However, I do think that, just as we have seen with the advent of seat belts, air bags, safety ratings, car seats, etc., you can make the road a little safer.
Is this one of those things that does that? Not bloody likely.
I’m not involved in Collin County LE, but I think the intent of this initiative is to help in the judiciary process, not necessarily in the prevention of the action. So, it’s supposed to free up the court system with more “cut and dried” cases, not prevent people from getting behind the wheel drunk. There is no process (yet) that appears to help with that.
Josh,
I concur that the discussion has been enjoyable.
However, you are making some false assumptions about “breaking the law”. All laws are not just, moral, or even necessary. Most traffic laws are merely taxes disguised as public safety. Read my post on Terrell Texas Red Light Cameras for a good example.
Another example (and another post) is Tim Timmons, who has MS and smokes pot. Should we “deter” his behavior with more law enforcment?
Why do we arrest “intoxicated” drivers? In most cases they have harmed no one.
These drivers represent a risk of causing an accident. How far do you want to go to punish crimes with no victims (as most DWI arrests are)?
Bethany correctly points out that the same logic could apply to arresting cell phone using drivers, or drivers who eat, or drivers who are not as coordinated as others.
Also, your statement that “, the punishment must be strong enough to deter the behavior” is not well received.
The punishment should be proportional to the offense. We could deter most (but not all) DWI with the death penalty. That doesn’t mean we should. That is hyperbole, but it is your premise.
So, using your premise, we have to wait until someone is harmed before the legal system becomes applicable? I am under the belief that sometimes prevention is the best course of action, and this is one of those cases. It’s like saying you should never go to the doctor until you are terminally ill, when prevention could have played a large role in saving our life. That just doesn’t add up to me.
Traffic cameras and the legalization of marijuana are entirely different subjects altogether, btw…
Josh,
Traffic cameras and marijuana are different subjects. However it was your idea that BREAKING THE LAW excuses invasions of privacy.
By arguing those are “different subjects” you have actually disproven your own theory. BREAKING THE LAW does not make one unworthy of constitutional protections because some laws (pot, traffic cameras) are stupid. Thanks for agreeing with me.
“Sometimes prevention is the best course..”-Is that how you justify these blood searches? If Prevention of accidents is really the best course we should ban cars. Again, the hyperbole is mine, but the premise is yours.
Hmmm. I can’t decide which side of this argument I am on.
On one hand, I think it’s a good idea to close the loophole in the law. I mean, the only people that should really refuse to blow are those who feel they have a chance of being over the limit. If that’s the case, they are caught by being pulled over. They are just trying to get out of it.
On the other hand, if I am the one pulled over, I would hope the loophole would be available to my legal team.
Can we say close the loophole, but not for me?
On another point, I have to respond to a point made about this quote above: “we have to wait until someone is harmed before the legal system becomes applicable?”
My son (two at the time) used to visit his mother and her boyfriend. The boyfriend was a violent person who kept loaded pistols in his dresser drawer, in full reach of my kid. I begged the judge in our custody case to keep my son out of that environment. The quote from the judge: “The legal system in this country cannot punish someone for a crime that may happen, it can only punish them once it does.”
The result? The guy abused my son a few months later by breaking his foot and leg. For kicking a the back of his seat in his car.
So, unless that judge did not know the law, I probably have to say the blood draws are against our legal system, even though early intervention in both cases could prevent terrible things from happening.
At the risk of getting this whole thing going again today, I did not state that by breaking the law you forfeit your constitutional protections. And your subjective viewpoint that those two laws are “stupid” has no bearing on the original subject of this comment string.
I justify the blood searches because that could be the difference in a conviction for a guilty person who otherwise might have used a loophole to avoid any real punishment and therefore has no deterant in committing the same offense again. This is probably the difference in you thinking criminals should be given the benefit of the doubt in the punishment phase and just “rehabilitated” and my viewpoint that they should be punished and face the consequences for their actions.
And by your premise, we should just run all of the laws by you so we know which ones to obey and which ones are stupid. The law is not arbitrary, it is meant to be followed. If laws need to be changed, there is a process for that, but you can’t just abide by the ones you agree with.
“The law is not arbitrary, it is meant to be followed. If laws need to be changed, there is a process for that, but you can’t just abide by the ones you agree with.”
“It is meant to be followed”- Really? Where did you get such great belief in government. That explains a lot of your comments.
“If laws need to changed…”- Exactly, Texas laws allow for any drivers to refuse to give a blood/breath sample. These prosecutors have gone outside the legislative process with these warrants.
Finally- What “loopholes” are you talking about? The 4th, 5th, or 6th Amendments maybe?
what we have here is a revenue source. If all DUI were eliminated, no fines to fill the county/state coffers. . . Think about the red light cameras. how long do you think they would stay active if no one ran the lights and “killed” the revenue stream. I think the estimate on the cost of a DUI charge in fines, insurance rates, atty, etc runs $10K - $12K.
Mr. Guest -
Just for giggles, how many of these convictions do you think would be overturned on appeal, if it got that far?
I just don’t understand your way of thinking, Robert, Houston, etc. If a driver is on the road behind the wheel of a 2 ton vehicle impaired because of an excessive amount of alcohol consumption, they are a danger to those around them. Likewise, if a driver blows through a red light, there is a reasonable expectation that they are a danger to those around them who are crossing at the same intersection, abiding by the law.
How is it wrong to punish destructive, endangering behavior and attempting to prevent the same destructive, endangering behavior from happening in the future?
Why don’t we just abolish all laws and let people decide for themselves what’s right and wrong?
There are people being arrested who are not intoxicated. Police and District Attorneys, in the name of safety, would arrest anyone who has had any alcohol. Judges are supposed to protect the people’s Constitutional Rights by reviewing their actions. Everyone who takes a drink of alcohol is under the influence, but they may not be intoxicated - not having lost normal use of physical or mental faculties.
Imagine if you have one glass of wine with a late dinner celebrating your anniversary with your wife. On the way home, you get pulled over for speeding. The officer smells the alcohol on your breath. You are not “intoxicated” but he requests Breath or blood tests. To do so, you have to leave your wife to drive home alone. So, you try to convince them, you aren’t intoxicated. Then, they do their fill in the blank probable cause affidavit, send it to a judge who is “on Call” for them. The judge (prosecutor in a robe) rubber stamps the warrant. You have lost your freedom for the amount of time required to be taken for a free ride to the police station. You have lost your right to say “Don’t stick me with anything.” You have lost your right to have this be done by medical personnel. And, you have lost hours of time attempting to clear your name. And, even if the test comes back under limits, they still don’t have to release you. They still could charge you with DWI by saying you can’t handle even one glass of wine. You had lost the normal use of your mental and/or physical faculties. Think this can’t happen? I assure, I have seen it happen.
What did Ben Franklin say? Those who would trade Freedom for Security deserve neither. Unfortunately, too many people are willing to do just that - trade freedom for security. The safest nation in modern times with almost no crime was Nazi Germany. Surely that’s not what any of us want.
The laws that already exist are enough to provide safety. Most arrested people are not alcoholics. But, the propaganda would paint all with the same brush as alcoholics. The punishment dealt to those who are alcoholics usually does nothing to address their problems and truly prevent recidivism.
From a Texas lawyer -(in Texas). The law already ramps up the punishment for subsequent offenses. 1st time, 180 days, $2000 fine, eligible for probation, can keep your DL if you jump through hoops, pay the State $1000.00 civil damages to keep your DL; 2nd time 365 days, $4000.00 fine, eligible for probation if you jump through hoops, lose your DL for at least year, AFTER you get your DL back $2000.00 civil damages to the state to keep your DL; THIRD time, felony, 10 yrs, $10,000.00 fine, kiss your ass good-bye unless you can convince a judge or jury to give you probation, No DL, dont even ask about the civil damage payment; fourth time and beyond… buh bye. I saw another guys clients (not mine thank God) get SIXTY years on a DWI multi.
Ok next deal… the law says, “if the driver refuses a sample, NO SAMPLE SHALL BE TAKEN” but you lose your Dl… for at least 90 days. The Police and DA’s are attempting to get the courts to say a search warrant trumps the existing law…we shall see.
and THIRD, if you want to stop drunk driving, make the BAR where the driver gets toasted liable for any damage he does. The theory being if the bars is making big $$ selling booze, they have some small obligation to take a dude’s (or dudette’s) keys. Of course this wont stop the home drinker… but there ya have it. As soon as bars start forking over $ to injured people or losing their license if drunk drivers leave their premises … you can bet they will set up their off duty cop/bouncer to check everyone and call a cab for the boozed up potential missile driver. The laws in place are weak and make it EASY for the bar owner to wiggle out.
Ok, now a personal rant -
a bunch of innocent people get stopped and busted every weekend, for the crime of having the odor of alcohol on their breath and being smart enough to know 1) their rights, and 2) that cop’s get paid extra for arresting people (double time for court appearances in Dallas). But remember, please be polite to the officer, lots of them are cool, but be nice even to the jerks. But don’t let yourself be screwed either.
OK FREE LEGAL (NOT ADVICE) COMMENT
I might say this to a client, but you readers aren’t clients so this isn’t directed at you.
furthermore, if you follow the following non-advice you may get arrested, in fact it is likely … but your chance of being wrongfully convicted go WAY DOWN. The non-advice does NOT work if you are puking on your shoes drunk.
DON’T SAY ANYTHING OR DO ANYTHING… you cant confess your way out of trouble. If an officer asks how much you have had to drink, don’t lie and say “no” and don’t say “I aint sayin nothing flat foot”… say “why are you asking me this question”… followed by “I need to talk to my friend the attorney before i say or do anything.”
Don’t do any of the field sobriety tests… many officers do them wrong (which is one reason why innocent people get arrested every day. Besides, they aren’t for you… they are for HIM, so he can say I did the tests and he/she was drunk.
DO NOT CONSENT TO BREATH TEST… it flat doesnt work right (the breath test was designed for a 5′10, 180 lb male in good health, so for you it might work, for the rest of us, not so much).
on the other hand, blood tests are WAY accurate and if they keep the sample your lawyer can have it independently tested. SO feel free to ask for one… they don’t have to give it to you, and you will still lose your DL if you refuse the breath test, but it is always fun for them to tell the Jury why they WOULDN’T give you a blood test.
Just be polite, DONT EVER consent to a search of your vehicle, don’t try to stop a search, just don’t consent. If you consent they might find something that wasnt there before. A smart lawyer can deal with an illegal search, consent blows allot of arguments out of the water.
THOUGH QUIET FRANKY, ADVICE THAT I WOULD GIVE ANYONE, CLIENT, FRIEND, STRANGER, IF YOU ARE HAVING ANYTHING TO DRINK APPOINT A DESIGNATED DRIVE OR TAKE A CAB.
I forgot to reaffirm.. a citizen has the right to refuse… anything and everything, statements, blood-tests, voodoo chants, magic pen waiving, breath-tests. Feel free to do so. If you are afraid of needles or just plain offended by the request you have THE RIGHT to refuse. Also, sometimes blood tests show more than you want. So use your head.
As another practicing Texas attorney, I’d like to echo everything that attorney Alan Taggart wrote.
The Texas Legislature has twice addressed the existing Texas law (Transportation Code Section 724.013) “A specimin [of blood] may not be taken if a person refuses…”, and twice they have refused to change or amend this provision. Whether or not you agree with the wisdom of the existing law, it IS the existing law, and judges should not be able to issue search warrants in direct violation of it. That seems so basic that even the most ignorant of citizens should understand it: It’s against our existing state law, therefore we shouldn’t do it.
But we have activist judges in Texas that want to take away the rights (in this case, statutory rights) of the individual in order to make prosecutions easier for the government. The law is the law, and it needs to be followed, even by police and judges.
Contrary to the Texas Court of Criminal Appeals, there are certainly good reasons to allow a person the opportunity to refuse blood tests. What if some person alleges that he got hepatitis, or AIDS, from a tainted needle? Does the government really want to dance with that devil?
Or perhaps the legislators just don’t like the Orwellian images of holding a screaming citizen down and sticking him with a needle. Is that really the type of society in which we want to live?
A person is guaranteed the right to remain silent, even if it’s a murder case, and we all accept this as a basic tenant of freedom. So now it’s OK to suck out his blood against his will?
Some people are more sensitive to their civil rights being trampled than others. Maybe I’m a canary in a coal mine, but I don’t like what I see.
I need to amend something I didn’t make clear the first time… the civil damages portion I talked about earlier… (called a “surcharge) thats YEARLY for three years, my bad.
John,
Great point. I just watched your Voir Dire seminar on DVD great stuff. It is important that as DWI Defense lawyers we explain to the public why this judicial activism is dangerous.
Prosecutors, judges, and cops are working together to subvert the legislative process. The public should be outraged. However, MADD propodanda has been effective to the point that most will gladly trade freedom for safety.
I’ll be at the DWI summit Friday. Hope to see you there.
RG