Nevada high court tosses blood test

It is common, particularly with the rise of "No Refusal Weekends," for blood draws to be conducted long after a motorist has been arrested for suspicion of driving while intoxicated. The results of those blood tests are waved in front of jurors by prosecutors telling those jurors they can convict based solely on a number.

Judges are more than willing to allow the results of these tests into evidence based on the pseudo-scientific exercise of retrograde extrapolation - more commonly knows as throwing a dart at a board.

But this past December, the Nevada Supreme Court threw a monkey wrench into the works when it held that the results of a blood draw taken over two hours after an arrest weren't relevant.

In The State of Nevada v. The Eighth Judicial District Court and the Honorable Stefany Ann Miley, 127 Nev.Adv.Op. 84 (Nev. 2011), Mr. Bobby Armstrong collided with another car, causing serious bodily injury to the other driver. Almost two-and-a-half hours later a blood draw was conducted. According to the test, Mr. Armstrong had an alcohol concentration of .18. Mr. Armstrong moved to suppress the results of the test on the grounds that the blood was drawn outside the state's two-hour window, only one sample was conducted and that retrograde extrapolation was unreliable, irrelevant and unfairly prejudicial.

The trial court ruled that the test results were inadmissible but allowed prosecutors to introduce other evidence of Mr. Armstrong's intoxication. The state's writ of mandamus (thus accounting for the bizarre style of the case) followed.

The Nevada Supreme Court held that retrograde extrapolation was reliable. But the Court also found that the the relevance of the evidence was far outweighed by its prejudicial effect. In coming to its conclusion, the Court looked to the Mata decision in Texas in which the Court of Criminal Appeals laid out a list of factors to be considered when determining the reliability of retrograde extrapolation. These factors included the length of time between the arrest and the test, the number of samples taken and whether the expert had knowledge of the defendant's individual characteristics when guessing calculating the defendant's alcohol concentration at the time of the stop.

In this case the Court was concerned that the blood sample was taken more than two hours after the stop and that the state's expert had very little knowledge of any of Mr. Armstrong's individual characteristics. In fact, the state's expert based much of his testimony on the characteristics of an "average" person, not Mr. Armstrong. But the Court's biggest concern was that only one blood sample was taken - giving just one point of reference.

The Court reasoned that if two blood samples had been taken some time apart, then the results of those tests would tell whether Mr. Armstrong was absorbing or eliminating at the time of the accident. With but one sample, Mr. Armstrong's alcohol concentration could have been higher, lower or the same at the time of the accident as it was at the time of the test.

Crime lab loses federal funding

The honeymoon for Sam Houston State's Regional Crime Lab in The Woodlands is now over.

The lab was opened with the help of a federal grant and the understanding that the lab would become self-sufficient after three years. Owing to the iron law of budgeting (he who holds the iron makes the budget), that three year window ended about two years early.

The lab had charged Montgomery County, its largest customer, $200 for every drug or alcohol test in DWI cases. Without the funding from the feds, MoCo will pay $386 for alcohol tests and $290 for drug tests. Due to the increasing costs of operating the lab, all controlled substance evidence tests will be handled by the DPS. The switch will increase the wait time for test results.

But how to pay for the increased cost of testing is the question. The original idea was that MoCo would pay for the tests through sentencing fees for those who plead guilty or are convicted at trial. But that only covered about 3% of the cost. MoCo District Attorney Bret Ligon now wants to use the asset forfeiture fund to pay for the tests.

The problem, of course, is the increased incentive to seize property and file forfeiture actions against defendants. Forfeiture actions serve to tie up defendant's assets and make it that much harder to muster a defense against the state. You will also find out that the vast majority of defendants either default or negotiate settlements in which they receive just a portion of the value of the items seized. The asset forfeiture funds then become a private slush fund for whoever's running the DA's Office (just ask former MoCo DA Michael McDougal). Of course there's no telling where the property seized in Tenaha went.

In the meantime, however, defendants in MoCo will have to wait longer for lab results to come back in drug cases as it can take up to nine months for the DPS lab to release test results. In the meantime that's nine months of missing work to take yourself to court (if you're on bond) or (if you can't make bond) the prospect of sitting in a cell for nine months waiting to fight a case.

Some of the lessons from MoCo's crime lab are obvious. First, for entities involved in the criminal (in)justice system who rely upon government funds to operate - those funds will diminish or vanish at some point, even if the entity  is there to help the state. Second, the lab should have charged a more realistic rate for their services; the excess would allow for a "cushion" when the funding was cut or dropped. Third, no one gives a rat's ass about the people accused of committing a crime.

'Tis the season to give

If you're planning on drinking and driving over the holidays, you might seriously think twice. More and more counties will be conducing No Refusal weekends over the holidays.

The popularity of the initiative is no surprise given that most no-test drunk driving trials are a coin flip proposition. Add in a number on a piece of paper and, suddenly, the success rate for the prosecution soars. That number can be scary.

The attraction for law enforcement and prosecutors is that blood evidence is a powerful tool in front of juries. Armed with blood evidence of intoxication, prosecutors can win convictions in more than 90 percent of drunk-driving cases, said Houston police Capt. Carl Driskell, who works in the traffic enforcement division. 

And often, lawyers say, defendants faced with blood evidence admit their guilt and don't bother with a trial. "If it bleeds, it pleads," said Fort Worth prosecutor Richard Alpert.

But, it's only a number.

Blood tests are conducted by unbiased scientists wearing white lab coats. They're performed by employees of law enforcement agencies. The very people who are trying to convict your client are the ones performing the tests.

Just think about that for a second. Think about that before you walk your client up to the bench to plead out the case. You don't accept the officer's opinion that your client was intoxicated. You don't accept the premise that the coordination exercises he performed at the scene are conclusive proof of anything. But you will accept a number on a piece of paper signed by a lab technician in the employ of the crime lab or the DPS as proof positive that your client is up a creek without a paddle.

You realize they didn't even test the blood itself?

What? You didn't know that? Remember all that talk about Henry's Law with the alcohol jar attached to the back of the breath test machine? Remember that machine supposedly measured the amount of alcohol vapor in your client's breath? It was an approximation of an indirect measurement.

Guess what. That's all a blood test is. After they mix a bunch of chemicals and salt into the blood sample, the lab tech takes out a sample of... air. That's what's being sent through that fancy gas chromatograph. Not blood - air. It's as much an indirect measurement as a breath test.

Prosecutors around the state push for No Refusal weekends because they know that most defense attorneys will crumble when they see the number. Put the state to its burden. Force the prosecutor to explain to a jury how the machine works. It's only a number.

Blood or breath?

Is a blood test more accurate than a breath test? Is either one reliable when it comes to proving whether a motorist had an alcohol concentration of .08 or higher?

The answer in Austin may very well be no and no.

Are Blood Alcohol Tests Credible?: MyFoxAUSTIN.com

An Austin defense attorney reported that his client had a blood sample taken on a No Refusal weekend. That sample was tested by the Austin Police Department's crime lab. The result came back showing his client had an alcohol concentration of .10. The defense attorney had the blood retested by the Southwestern Institute of Forensic Science in Dallas. Their test showed an alcohol concentration of .08.

What happened?

While it is true that as alcohol metabolizes in the body the alcohol concentration decreases, when blood is stored in a sealed tube there is no way for the alcohol in the blood to metabolize. In fact, it is more likely that the alcohol concentration would increase due to contamination of the blood.

First a little primer on blood testing. When a blood sample is drawn in a DWI case, the person drawing the blood typically makes two draws in two separate tubes. One tube is the "state's" tube and the other tube is there in case the defense wants to retest it. The technician in the lab will prepare two samples from the tubes for testing in a gas chromatograph. This gives us four test results. Typically the lowest result is the alcohol concentration used at trial.

In Austin, however, they average the four results to come up with an alcohol concentration. That raises questions of which blood sample is the actual sample to be used at trial. It also raises questions about the validity of the method by which APD determines alcohol concentration.

APD officials weren't concerned about the 20% discrepancy in the test results. What's a couple hundredths of a gram anyone, right?

APD claims that the differing results could have been caused by evaporation of the alcohol in the test tube -- except that the tubes are supposedly sealed and refrigerated to prevent degradation of the samples. And what about that pesky Henry's Law that states whenever you mixed water and alcohol in a closed system, the concentration of alcohol in the water and the concentration of alcohol in the headspace is the same? A sealed test tube is a closed system.

Just a little something to think about.

Isn't it ironic? (Don't you think?)

Sgt. Roy Marquez of the Houston Police Department's Traffic Enforcement Division (the guys in charge of the DWI task force) found himself on the opposite side of the line earlier this week in Pasadena. It seems that Sgt. Marquez ran a red light and ended up rolling his SUV after being struck by another car. It also seems that Sgt. Marquez had had a little bit to drink that night. After he declined the offer to blow into the breath test machine, a search warrant was signed authorizing the state to jab a needle into his arm and draw his blood. A blood test then showed an alcohol concentration of .127.

The most amazing thing about this story is not that a police officer was driving while intoxicated (we've already seen that), but that the blood test results were back within four days. I've got cases in which I can't get the results of fingerprint analysis for weeks or I can't get anyone to run a gun to see if it's been used in a crime -- but the lab can get the sample, catalog it, prep it, run it through the gas chromatograph and deliver the results to the DA in less than four days. Unbelievable.

Enjoy the irony...

Search warrants for dummies

Maybe it's because they're lazy. Maybe it's because they can't be trusted to do it right by themselves. Whatever the reason for it, this is blood search warrants for dummies:

MoCo Search Warrant

There's no such thing as a fill-in-the-blank and check-the-boxes search warrant affidavit for any other criminal offense. Judges reviewing warrants to search a house in a felony case take more time to review the affidavit for probable cause than do judges deciding whether or not to allow the state to jab a needle in a motorist's arm.

This is your government at work - against you and your rights.

The volunteer army

From: Bill Reed
Sent: Thursday, June 23, 2011 11:31 AM
To: Criss, Susan
Subject: FW: Needing volunteers for Galveston County "No-Refusal" weekend for July 1,2,3 @ Dickinson Police Department: 8pm-4am 

Judge: are you available? So far Lonnie and Ellisor are in. Grady is out of town. thanks, BR

*****

From: Bill Reed
Sent: Wednesday, August 24, 2011 9:59 AM
To: Ellisor, John; Cox, Lonnie; Mallia, Wayne; Criss, Susan; Dupuy, Christopher; Grady, John
Subject: looking for volunteers for No Refusal Weekend for Labor Day: 9/2/11-9/4/11 

Any takers? Thanks, BR

Looking for volunteers?

Or, are you looking for judges who will blindly sign a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit? Are you looking for judges who buy into your notion that a person accused of driving while intoxicated has fewer rights (or at least less-important rights) than a person charged with any other offense? Are you looking for judges who agree that we should do whatever it takes to coerce people into pleading guilty to DWI?

You see the DA's Office is hand-picking its judges. They're going back to the judges who have signed, without question, warrants in the past and who are more than willing to continue to do so. The last thing the state wants is a judge who might just question this practice.

No. The deck must be stacked against the citizen accused. Even if we have to make an absolute mockery out of a document we all took an oath to uphold.

What, you think these judges are actually reading these affidavits and asking themselves if the officer has but forward enough facts to support his arrest decision?

From: Chris Paschenko
Date: Friday, Dec 31, 2010 12:01 pm
Subject: DWI arrests
To: Judge Susan Criss 

We[re] you working and in what capacity when [L.B.] and [T.R.] were arrested? I'm told it was DWI. Also seeking on the record comment.
Thanks.
Chris

*****

From: judgecriss
To: Chris Paschenko
Sent: Fri, Dec 31, 2010 12:39 pm
Subject: Re: DWI arrests
I was the judge at the station last night there to sign warrants worked 8pm to 4 am. Rules do not allow me to comment on the cases. Signed LB blood search warrant. Other waived need for warrant.

What else needs to be said about the mechanics of a No Refusal Weekend. There you have a judge telling a reporter that she was at the station "to sign warrants."

Not to review them. But to sign them.

Sadly, most folks don't care. They see nothing wrong with jabbing needles in someone's arm because you think they might have been intoxicated. Hey, we're out there keeping you safe. And these are the same folks who are more than willing to suffer any indignity at the hand of TSA employees just so they can board a plane. Hey, gotta keep us safe from terrorists.

Maybe we're just so self-absorbed that we simply don't care if the government is intruding on someone's rights - so long as we're not the one being trampled upon. As long as it's then that the government is after it's okay. The only problem is that at some point there will be no more them to protect you from the coercive power of the state. And, by then, it will be too late.

Filling in the blanks

June 25, 2008 

"The Galveston County Criminal District Attorney's Office is coordinating another no-refusal weekend for Friday July 3 and Saturday July 4, 2009. Dickinson Police Department has graciously agreed to host the event again this year. Judge Lonnie Cox will be our judge for Friday night and Judge John Ellisor will perform those duties on Saturday night. The hours of operation will be from 8:30 PM on July 3, 2009 until 4:30 AM on July 4, 2009 and against at 8:30 PM on July 4, 2009 until 4:30 AM on July 5, 2009... 

I have attached the search warrants and affidavits for search warrants. The search warrant returns can be done immediately after the blood draw is performed." 

-- Galveston County Assistant District Attorney Joel H. Bennett

That's right. We've got your search warrant and affidavits right here. They're ready for you to fill in the blanks and type 'em up. No need to make an officer actually recite the facts in a case that gave rise to his belief that the driver was intoxicated at the time of driving. Nope. Just plug in your name and the motorist's name and we're in business.

I understand prosecutors and police wanting fill-in-the-blank affidavits, it allows officers to spend more time on the streets harassing citizens policing. But what's the judge's excuse for signing a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit. Somehow I'm not thinking that would cut it if a district judge were trying to decide whether or not to allow the police to enter someone's house to search for evidence of a crime. In fact, I know it wouldn't. But, then again, we're only talking about a misdemeanor. What's the big freaking deal, anyway?

I mean, all we're asking to do is to perform an invasive procedure on a motorist based on our hunch that she might be intoxicated and the fact that she exercised her right to refuse a breath test. Well, that and we can strap her down if she resists. But, c'mon, why all the hoops?

January 2, 2011 

"The morning of December 30, 2010, Fox 26 News began to air footage preparing the public for our initiative, as I addressed the public and presented a "warning and awareness" that our intentions were to increase public safety by removing DWI offenders from our roadways on Galveston Island and a Zero Tolerance No Refusal approach method would be in effect to combat this problem... 

"With the assistance of the following agencies the effort was a success:

• UTMB

• Galveston County District Attorney's Office

• District Judge Lonnie Cox

• District Judge Susan Criss

• County Judge John Grady

• The Galveston Police Department Command Staff

• The Galveston Daily News

• Fox 26 News

• Texas Highway Patrol

"Over the last month I have been in correspondence with the listed agencies and the initiative was proven a success. 

-- Chad Powers, Galveston Police Department

What could possibly be more clear as to the role of the judges in these assaults on the Fourth Amendment? It's not the job of a judge to assist in the arrest and/or prosecution of anyone. It is the role of the judge to sit as a neutral arbiter in a legal proceeding. When the police begin thanking judges for assisting in their initiatives, it's time to start questioning the role of those judges in our criminal (in)justice system.

Since most of these DWI cases will be filed in county court as misdemeanors, two of the judges (Grady and Dupuy) reviewing warrants on suppression hearings are two of the judges who volunteered to approve these fill-in-the-blank form affidavits. And just how do you think those rulings are going to go?

Slowly but surely the judiciary is being subsumed into the trial division of the district attorney's office. Maybe it makes for great copy during campaign season. Maybe the voters like it. You know, the voters who either blindly mark R or D on their ballot or think that judicial candidates should sound like they're running for sheriff or DA.

Should I bring a pen along?

Last August I wrote about documents I received through an open records request for documents related to No Refusal Weekends in Harris County. See here, here, here and here.

Today it's time to take a trip down the Gulf Freeway to the island to what Galveston County officials have been up to when it comes to making a mockery out of the Fourth Amendment.

June 27, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated preparations for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 8 pm through 4 am at the Dickinson Police Department. (Special thanks go to Chief Morales for his hospitality.) Bill has enlisted the cooperation of Judges Lonnie Cox, John Ellisor and Christopher Dupuy to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

The DA's Office has "enlisted the cooperation" of judges to "approve and sign" search warrants authorizing blood draws. As I have stated many times before, if the state is "enlisting" judges to participate in this spectacle, the deck is already stacked against anyone accused of driving while intoxicated. And, yes, that Christopher Dupuy.

Hmmm... how might that conversation go?

Prosecutor: "Judge, I was wondering if you'd like to volunteer to approve and sign search warrants for blood draws during our No Refusal Weekend?"

Judge: "Ordering a blood draw on a misdemeanor case? That's insane."


Prosecutor: "I'll take that as a no. Next!"

August 31, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 11 pm through 4 am at the Dickinson Police Department. Bill has enlisted the cooperation of Judges John Ellisor, Christopher Dupuy and John Grady to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

Please note, no one is talking about reviewing warrant applications. The judges are there to approve the warrants and subject motorists to an intrusive procedure. This is limited government? Oh, now I understand, they were talking about limiting the authority the judiciary has over the police, not the authority of the state over the individual. That makes so much more sense now.

An application for a search warrant should be reviewed by a neutral and detached magistrate. Once a judge accepts the pitch from the DA to be a part of the team for a No Refusal Weekend, that judge loses any claim to being detached. Either he was asked to participate or he volunteered - either way, the judge is far from neutral.

And despite "fill in the blank" warrant applications that are long on conclusions and woefully short on facts, these "neutral and detached" judges are more than happy to take pen to paper to authorize the shredding of the last remnants of the constitution.

Into the belly of the beast

The other day I had the opportunity to go on a tour of the DPS Houston Crime Lab up on the northwest side of town. I would like to thank Mr. Robert Prince, Jr. for taking me around, not just the facilities in the new building, but also through the old lab next door.

We started off in the old work area. The lab moved earlier this year but there is still some equipment and furniture left across the parking lot (in the blue building you can see from 290). With the dim light and the old equipment lying around, the room looked like the perfect setting for a horror movie or a chase scene in some thriller -- you know, the scene where the girl finds herself running from the bad guy in the abandoned building.

We took a look at the old gas chromatograph which Mr. Prince opened up so I could see the columns inside. He pointed out the injector port, the Y-splitter and the flame ionization detector. I've read about the machines and I've seen pictures in both lectures and in books, but this was the first time I'd ever seen one up close.

As an aside, I'm always amazed when I see a machine that performs a complex task and think about how someone dreamed it up. There is an elegance to the machine. If you understand how it works, when you look at the components you can see a genius at work.

We looked at the old refrigerator where blood samples were stored. We went to the intake room. We saw the room where samples were stored after they were tested. Then it was on to the new building.

As it turns out, through coaching soccer I know a couple of guys who work at the architecture firm that designed the new building. It is a stunning building both inside and out.

Since my ticket to the tour was a court order allowing me to see the machine that my client's blood sample was tested in and the room in which the machine was housed, I didn't get to see the storage areas in the new building.

Mr. Prince showed me how the biological hood worked -- it's almost like something out of Get Smart. I saw the autosampler and he showed me how he seals the vials that are placed in the autosampler for testing. Again, you can read about the process all you want and look at pictures until your heart's content, but it's no substitute for actually looking at the equipment.

Twisting and contorting by the pool

Just when you thought the courts had injected some sanity into the DWI "crisis," an appellate court finds a way make it go away. Take State v. Geiss for instance.

This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.

Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:

"for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples . . .." It further alleged that "[s]aid property was used to commit the offense [of DUI] . . . a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense."

In response to Mr. Geiss' motion to suppress, the trial court threw out the blood test results on the grounds the warrant violated Mr. Geiss' right to privacy under the Florida Constitution, violated the state's implied consent law and violated the state's warrant statute.

This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."

The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:

However, Florida's implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so.

The appellate court did, however, find that the language of the state's warrant statute prohibited the state from obtaining a search warrant to draw blood in a misdemeanor case since a warrant can only be used to obtain "property...used as a means to commit a crime." Had Mr. Geiss been charged with a felony at the time the warrant was issued, though, the statute would have permitted a warrant to draw the blood.

It would appear that Mr. Geiss had won after all.

But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.

Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).

It's all about that filthy lucre

If you ever had any questions about how much of a moneymaker DWI is, this article should put them to bed. A lawsuit has been filed in federal court in North Carolina over the bidding process for supplying ignition interlock devices to the state. 

In its suit, Monitech Inc. says DMV Commissioner Mike Robertson broke state bidding rules by withholding the renewal of its state contract.

Since 1989 the company has been the state's sole provider of ignition interlocks, which test the breath of convicted drunken drivers for alcohol before they can start their vehicles. The devices are often mandated for people convicted of a DWI to keep their driving privileges.

First there was Monitech, Inc. who, since 1989, had an exclusive contract with the state to provide the devices. Then came a company called Law Enforcement Associates (with some seriously connected investors) who sought to purchase Monitech and its exclusive contract in 2004.  

Mobley has previously alleged he faced retaliation from DMV officials after he refused in 2004 to sell his business to Law Enforcement Associates, a firm whose investors included then-Senate Majority Leader Tony Rand. The Fayetteville Democrat was co-chairman of the Governor's Highway Safety Program, which oversaw DWI prevention programs.

A close political ally of Rand's, then-DMV commissioner George Tatum, also owned LEA stock with his wife. Tatum was the state official with the ultimate authority to renew Monitech's contract with the state.

More than a dozen elected officials and their family members have owned LEA stock, including former Gov. Mike Easley, current Gov. Bev Perdue and her husband. Records also show that state agencies purchased at least $192,683 in surveillance equipment from the small company, much of it bought without seeking competitive bids.

Monitech declined the offer and alleges the state has retaliated against it ever since. In the meantime, Smart Start got into the game and filed suit to open up the bidding process to other companies.

DWI is a moneymaker for the states and for the companies seeking to profit on the misfortune of others. The almighty dollar has caused lawmakers and judges to disregard the Fourth and Fourteenth Amendments in their pursuit of the most draconian laws ever for an offense that is but one step removed from a traffic ticket.

Prosecutors recruit judges who volunteer to sit around and wait for search warrants for blood to come across their desk (usually at the jail or police station). The prosecutors prepare fill-in-the-blank form warrants replete with conclusory statements passing off as fact. The officer then hands it to a judge who looks for the signature line and signs it. Then it's off to the nurse to get a needle jammed up your arm.

The judge has ceased to be neutral and detached. The judge has become part of "the team."

Damn the Bill of Rights, keep those greenbacks coming.

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.

Perry signs HB 1199 into law

On Friday, Governor Rick Perry signed HB 1199 into law. As of September 1, 2011, it will be a Class A misdemeanor if a motorist is arrested for driving while intoxicated and a breath or blood test shows an alcohol concentration of 0.15 or higher.

The new law does not provide how long after the stop the breath or blood specimen must be tested or obtained. The new law does not take into account whether the motorist is in the absorption or elimination phase at the time of the test. The new law does not explain why an arbitrary alcohol level was selected as the line of demarcation between Class A and Class B misdemeanor DWI.

Prior to the passage of HB 1199, the seriousness of a drunk driving charge depended upon whether the defendant had a prior conviction for DWI or whether anyone had been seriously injured or killed as a result of an accident with the defendant. Now we're going to determine the seriousness of the charge based on a chemical test alone. This is a very bad precedent.

This new law will put more pressure on judges to sign off on faulty blood warrants when motorists exercise their right to refuse to submit a breath sample. This new law will put more pressure on local authorities to make "No Refusal" Weekends the rule rather than the exception.

Maybe the real purpose is to scare motorists away from challenging their cases before a jury. Cases with high test scores and good videos are prime candidates for trial -- asking the jury whether they are more inclined to believe what they see (the video) or what they hear (the breath test result). Come September, these motorists will be confronted with the choice of going to trial on a Class A misdemeanor or taking the state's offer of a Class B on cases with high test scores.

That's the ticket for the State of Texas - got questions with the pseudo-science behind the breath test machine? Just legislate the questions away by waving a larger stick.

More thoughts on HB 1199

Yesterday I wrote about HB 1199 which would make it a Class A misdemeanor in Texas to have an alcohol concentration of 0.15 or higher at the time of a breath or blood test. There were a couple of additional points I wanted to make in regards to this ill-conceived piece of legislation.

First, did the authors of the bill, Rep. Pete Gallego (D-Alpine) and Rep. Trey Martinez Fischer (D-San Antonio), give any consideration as to how the new law would be enforced? Does this bill mean that any DWI case in which there was a breath or blood test over 0.15 is to be filed as a Class A misdemeanor? Or does it mean that the high test is an enhancement for punishment? Does it mean that the jury must make an affirmative finding that the defendant's alcohol concentration was over 0.15?

On the other hand, maybe the bill will provide ammunition for those who would require a jury not only to be unanimous as to whether a motorist was intoxicated, but also unanimous as to the theory of intoxication. Would defense attorneys look to argue the accuracy of the breath test machine not only on low test cases but also on cases in which the breath test was 0.15 or higher?

Second, the bill provides yet another disincentive for a motorist to submit to a breath or blood test. Unless, of course, the next step is to make breath or blood tests mandatory in drunk driving cases. And what of the disparity in sentencing? You may have a case with particularly bad facts in which a motorist refused to submit to a test and is charged with a Class B misdemeanor while another case may have decent facts but the motorists blew over a 0.15 and is charged with a Class A. Where's the justice in that scenario? The second driver did just what the state wanted him to do and he gets the worst of it.

HB 1199 is a bad piece of legislation that leaves us with more questions than answers.

Yet another assault on motorists

On May 30, 2011, the Texas Legislature sent HB 1199 to the governor, it having passed both houses. Under Texas law, the governor may sign a bill into law, veto a bill or allow it become law by letting it sit on his desk for ten days. Since the regular legislative session ended before the expiration of the ten days, the bill must sit for twenty days before it can become law without the governor's signature.

That means that June 19, 2011 is the day on which the Abdallah Khader Act will become law in the Lone Star State. Now, first of all, if a bill is named after a person, you know it can't be good for anyone charged with a crime since Rule No. 1 of lawmaking is that bad facts make bad laws.

Abdallah Khader just turned five. When he was two, his parents' car was rear-ended by a man alleged to have had an alcohol concentration three times the legal limit. Abdallah has been in a vegetative state ever since.

It's a tragedy. There are no two ways about it. But there are people who are injured and killed by motorists who aren't intoxicated. There are people who are injured and killed by motorists with alcohol concentrations just over the legal limit.

HB 1199 won't do anything to bring Abdallah out of his coma. HB 1199 won't do anything to prevent another accident. What HB 1199 will do is subject motorists to more severe punishment even if there is no accident and no injuries.

If HB 1199 becomes law it will become a Class A misdemeanor, with a maximum punishment of up to one year in jail, to have an alcohol concentration of 0.15 or higher at the time of a breath or blood test. That's right - not at the time of driving, but at the time of the test. The problem with that is that it's not against the law to have an alcohol concentration of greater than .08 unless you are driving at the time. And why 0.15? That's less than twice the legal limit. What relationship does that have with the sad case of Abdallah Khader?

Current law requires the state to prove that a motorist's alcohol concentration was over the legal limit at the time of driving. This means we must sit through an exercise in pseudo-science known as retrograde extrapolation where the state's "expert" testifies that a person's BAC was a certain level at the time of driving based solely on the BAC at the time of the test and the length of time that passed between the time of the stop and the time of the test.

The state needn't concern itself with such details as the weight or sex of the motorist. Never mind the make up of the motorist's blood. No need to concern yourself with what the motorist last had to eat or whether he's in the elimination or absorption phase. Who cares what that particular person's ratio of breath to blood is? Just give the state's "expert" a calculator, a BAC and two times and voila, proof of intoxication.

Now the legislature wants to make it even easier for the state.

HB 1199 is yet another reason a motorist should never submit voluntarily to a breath or blood test. The next step in the state's assault on our rights is to "criminalize" a breath or blood test refusal.

I'm just curious why the fair-haired one hasn't signed this one into law as part of his campaign to show America just how tough on crime he is.

Contaminated with bias

After you consume alcohol, your body begins the process of absorption and then elimination. The alcohol is absorbed by the blood through the intestinal tract and is eliminated through excretion (sweating, exhaling) and metabolism.

Breath test machines work on the principle that the amount of alcohol you excrete through exhalation can be used to estimate the amount of alcohol in your blood. It is an indirect method of determining whether someone is over the legal limit of .08 grams per 100 milliliters of blood.

The more direct method, of course, is blood testing. Even blood testing is not a direct method, however, because what's actually tested in the chromatograph is the headspace gas in the blood tube.

As blood is fragile, care must be taken to preserve samples. Anticoagulants are added to the tubes to prevent clotting and an antiseptic cleaner is used around the blood draw site to prevent bacteria from infecting the person or the blood sample. The blood must also be refrigerated to prevent the growth of little yeasts called candida albicans which can cause the blood sample to ferment in the tube.

What can't happen in that blood tube, though, is the elimination of alcohol for there is nothing to metabolize it. If the blood is collected and stored properly, the sample should yield approximately the same result any time you choose to test it. It is in a state of vacuum.

Unless, of course, you're the Texas Department of Public Safety and you have to explain why some blood samples that tested over the legal limit later yielded results (when tested by a private facility) that were below the legal limit.

Deviation-2010-02-23

Keith Gibson, the Quality Manager for the DPS lab on Jones Road in Houston had a problem. It seems that when a private lab retested a sample of blood from a DWI case, the result came in quite a bit below what the DPS test said. Mr. Gibson wrote that he didn't want to issue a Quality Assurance Report because one of the samples came out below the legal limit on retest. He just wanted to draft a "deviation" so it could be brushed under the rug.

Forrest Davis, the Quality Assurance Coordinator for the DPS, agreed. He didn't like the idea of a Quality Assurance Report because the data from the retests would be included in it. Better just to pretend it never happened, right? Interestingly enough, Mr. Davis did note that the retest did not include any volatiles that would have suggested a degradation of the sample.

Junk science is still junk science, no matter what you call it.

Crime labs should not be under the control of the police or any agency involved in the investigation or prosecution of crime. These labs should be under independent control to remove the inherent bias found in crime labs run by the police.

Training the vampire's apprentice

"...the importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great..." -- Schmerber v. California, 384 US 757, 770 (1996).

While doing some research for a recent post I came across some information on the website for the Texas Municipal Courts Education Center dealing with blood warrants in DWI cases. It seems that the judges had a pow-wow last July and blood warrants were on the agenda.

Included among the written materials was a question-and-answer paper with some delectable little morsels regarding the signing of blood warrants by municipal court judges.

How do you obtain a blood search warrant? 

An affiant/officer must present a qualified magistrate a written affidavit alleging facts amounting to probable cause that a specific person committed a specific crime and alleging why the blood sought will provide evidence regarding that crime 

A magistrate has no legal reason to deny this request if the above criteria are met.

It's scary that municipal court judges - whose job it is to raise revenue for the city from motorists - are authorized to sign blood warrants in DWI cases. But, starting with the last point in the answer to the question, while there may be no legal reason to deny the request - there is also no legal reason requiring the magistrate to sign the warrant. The affidavit may very well contain allegations that a specific crime occurred and that a specific person is believed to have committed the crime -- but it does not follow that the warrant must be issued based upon the allegations. The magistrate has the right to question the affiant to determine his or her truthfulness and to help decide whether or not to grant the warrant.

Furthermore, none of the search warrant applications I've seen in DWI cases have actually alleged why the blood is evidence of the crime. As far as the law is concerned, it's not a crime to have a BAC of .08 or higher at the time of the test. It's only a crime if it can be proven that the driver was over the limit at the time of driving.

Does a magistrate have to sign a blood search warrant if it is legally sufficient? 

No. A magistrate never has to sign anything but there are potential consequences for declining to perform magisterial duties. The C.C.P. says "It is the duty of every magistrate to preserve the peace within his jurisdiction by all lawful means; to issue all process intended to aid in preventing and suppressing crime." Whether issuance of a blood search warrant helps to preserve the peace seems debatable. However, general public knowledge that a blood draw may be required if a person is arrested for DWI seems very likely to aid in preventing and suppressing crime by its deterrent effect. 

So, while a magistrate does not have to sign a legally sufficient blood search warrant, it is arguably a dereliction of duty and a possible violation of the Code of Judicial Conduct. Clearly, a magistrate does NOT have to sign a blood search warrant (or any search warrant) he/she believes is legally insufficient.

As I was saying, a magistrate is not compelled to sign a blood warrant. One thing is certain, however, it is not the job of a judge to be the waterboy for the police. A judge is not a crime fighter. A judge is supposed to be a neutral arbiter in a dispute between two or more parties. I find it interesting that TMCEC is making a veiled threat to municipal judges that they might be violating the Code of Judicial Conduct if they don't go along with the vampires.

It is even more ironic that the TMCEC makes this threat when Judge Killer of the Texas Court of Criminal Appeals walks away with a smirk on her face after violating court policy and procedure in the Michael Richard execution. The implication seems to be - if you act in good conscience you may be in violation of judicial canons but if you prevent a condemned man from filing a request for a stay you're okay.

Can a blood search warrant be faxed to a magistrate so the magistrate can sign a blood search warrant? 

Various counties are already using faxed blood search warrants. 

So, the answer is "Yes" you can use faxed blood search warrants. It is being done. C.C.P. Section 18.01 requires the "facts" of a "sworn affidavit" be presented to a magistrate who signs the warrant. Nothing in the code specifically requires the officer/affiant to appear personally before the magistrate. C.C.P. Section 2.26 declares electronic documents a written document for all purposes. 

If law enforcement is depending on the magistrate to sign the affidavit, arguably, the officer may need to be "before" the magistrate. Tex.Govt.Code Section 312.011 defines an affidavit as a written statement of fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths and officially certified by an officer under his seal of office. Historically, that would mean "in front of" the magistrate, though that may not be true in this newer, high tech environment in which we operate.

Well, of course, if someone else is doing it, it must be perfectly legal. Right? Interesting that the same government that fights against the expansion of constitutional protections for the citizenry due to "changing times" is more than willing to expand the power of the police state based upon the same reasoning.

One very interesting tidbit I came across I found in the slide presentation that accompanied the lecture. According to TMCEC a

Suspect should not be threatened with a warrant to gain "consent."

I have yet to figure out how this statement gibes with the gibberish about how general knowledge of forced blood draws is a deterrent to DWI.

The police make a grand event out of every No Refusal Weekend. They put it on the highway signs in Montgomery County. Officers tell motorists that it's a No Refusal Weekend and that they will obtain a warrant to draw blood if the motorist doesn't consent to a breath test. The prosecutors line up the judges who volunteer to sign blood warrants and put out press releases that they will obtain a warrant to draw the blood of anyone who refuses to blow.

How is that anything but coercive behavior on behalf of the state?

Click here for the audio presentation.