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

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.

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.

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.

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?

Just for giggles, how many of these convictions do you think would be overturned on appeal, if it got that far?

“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?