It's only coercive if I say it's coercive

co·erce

 [koh-urs]

–verb (used with object), -erced, -erc·ing.

1.

to compel by force, intimidation, or authority, especially without regard for individual desire or volition: They coercedhim into signing the document.

2.

to bring about through the use of force or other forms of compulsion; exact: to coerce obedience.

3.

to dominate or control, especially by exploiting fear, anxiety, etc.: The state is based on successfully coercing the individual.

Supposedly the idea behind implied consent is that when someone applies for a driver's license, he is giving his consent to provide a breath or blood sample upon demand should a law enforcement officer request one following an arrest for driving while intoxicated. But that same motorist has a choice when, and if, that moment actually arrives. A motorist is "rewarded" for blowing over a .08 by having his license suspended for a shorter time period than someone who decides he'd rather not blow into the little black box.

Consent must be given voluntarily by the motorist. The police are not allowed to coerce him into blowing. To prevent the appearance of coercion, officers are required to read a piece of paper with a warning from Section 724.015 of the Texas Transportation Code -- the so-called statutory warning. Should the officer fail to keep to the script he runs the risk of a judge throwing out a breath test result.

Of course what one person perceives as coercive may very well differ from what someone in law enforcement, for instance, might find coercive. The statutory warning informs the motorist that should he choose not to blow into the breath machine, that refusal might be used in a subsequent criminal prosecution. So much for innocent unless proven guilty, huh? And anyone who's ever tried a DWI has heard the prosecutor tell the jury that their client had the opportunity to prove his innocence but chose not to - because he knew he was guilty.

So much for lack of coercion.

Then we had the evolution of Screw the Constitution No Refusal Weekends in which prosecutors lined up judges who were more than willing to rubber stamp search warrants authorizing forced blood draws on misdemeanor cases. They even found judges who were willing to make a complete and total mockery of the Fourth Amendment by accepting "affidavits" by fax - so they wouldn't be inconvenienced by actually having to listen to an officer recite why a blood draw was so necessary in a case that began with a routine traffic stop.

But I digress...

The publicized threat of being strapped down and having a needle jabbed in one's arm just because Officer Bob smelled alcohol on your breath might be seen as having a coercive effect on motorists' decisions whether or not to blow in the black box. In fact, the Texas Municipal Courts Education Center told judges who attended a seminar that

"If a suspect consents to a blood test in the face of a threatened warrant, the voluntariness of the consent may be an issue."

And that's from an organization whose mission is to assist municipal court judges, court staff and prosecutors in screwing defendants "maintaining professional competence."

The Texas Legislature, however, doesn't view it the same way. In its neverending quest to put everyone in the state under court supervision, our brilliant lawmakers in Austin decided to amend the statutory warning provided to anyone arrested on suspicion of driving while intoxicated to include the threat of a forced blood draw as a means of coercing motorists to blow.

SB 1787, which goes into effect on September 1, 2011, adds the following language to the statutory warning:

If the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person.

State Sen. Dan Patrick (R-Houston) authored a bill because he was worried that some judge might find the threat of a forced blood draw to be coercive. Apparently in Mr. Patrick's world, a coercive statement's not coercive if the government says it isn't. This comes from a man who claims to be a champion of limited government. Mr. Patrick's idea of limited government seems to be limited to how much the state can tax or spend but not how much the government can intrude when it comes to law enforcement.

Asleep on the watch

So Texas state senator Dan Patrick (R-Houston) is a poseur after all.

Governor Goodhair has decided to take up the reins for everyone opposed to groping at the airport. So what if los federales are threatening to cancel flights in and out of Texas as a result. The fair-haired one has found an issue that's dear to the hearts of libertarians everywhere.

I applaud Gov. Perry for his stand against the groping fingers of the TSA but I also wonder why his sudden love of personal freedom and privacy doesn't extend to anyone outside an airport. At least we have a choice whether we wish to subject ourselves to the groping hands or X-ray eyes of airport security. We don't have a choice when confronted by a police officer on the side of the road.

Rep. David Simpson, R-Longview, sent a letter to Perry on Sunday urging him to defend the "privacy, dignity and constitutional rights of our citizens."

Where's the hue and cry for an end to the legal fiction of informed consent? Where's the outrage over the violations of the Fourth Amendment in the procurement of search warrants for blood? How about the coercive effects of "No Refusal" Weekends?


It's quite ironic that the law and order set has their panties in a wad over airport security considering TSA's license to grope was the result of the right wing's assault on the Fourth Amendment following 9/11. No one on the right seemed to mind the erosion of privacy at the airport while Bush the Younger sat in Washington torturing the English language. Would this even be an issue had it begun under W's watch?


Few folks on the right have raised any concerns about the steady erosion of the Fourth Amendment over the last 50 years. Maybe it was because that Fourth Amendment was for those who ran afoul of the law. As long as it was affecting them it didn't matter how intrusive the long arm of the law became. But guess what? Shredding the Fourth Amendment for those accused of criminal conduct allowed the state to take away everyone's right to be left alone.

A little of this and a bit of that

Here are a few odds and ends you might find interesting:

Bradley out as chairman of forensic commission

Williamson County District Attorney John Bradley's stint as chairman of the Texas Forensic Science Commission has come to an end as the senate concluded its session without voting on whether to accept Gov. Perry's nomination of Mr. Bradley.

Gov. Perry appointed Mr. Bradley to chair the commission in 2009 prior to a scheduled hearing in which the commission was to take testimony from Craig Beyler about the flawed science used by arson investigators that led to the execution of Cameron Willingham.

During his time as chairman, however, Mr. Bradley accomplished the fair haired governor's wishes to delay the release of the committee's findings until after the 2010 gubernatorial election.

Patrick cowers in fear

Texas State Senator Dan Patrick has once again proved himself to be a big bag of hot air as he withdrew his bill that would have criminalized groping by TSA personnel in airports. Mr. Patrick ran and hid in a closet after receiving a letter from the United States Attorney for the Western District of Texas threatening that TSA might cancel flights in Texas should the legislation pass.

Every year on the Fourth of July, Mr. Patrick rides in a car at the Memorial Villages 4th of July parade; and every year my wife gives me an ugly face when I mock Mr. Patrick in front of my daughters. Certainly my lack of civility and uncouthness is far worse than Mr. Patrick's demagoguery.

One wonders, was Mr. Patrick worried that the bill might actually pass?

If Mr. Patrick is so concerned about privacy issues for airline passengers, why isn't he concerned with the steady erosion of the 4th Amendment?

Wanted man

John Joe Gray is on the lam for allegedly assaulting a peace officer in December 1999. He was bonded out of jail a few days later and never appeared in court. He has lived on his armed compound in Henderson County, Texas with his family ever since.

Years ago he warned local law enforcement officials to bring extra body bags if they wanted to capture him. The local sheriff has said he's not risking the lives of any officers to bring in Mr. Gray.