Ok, Ok, I know. I've advocated for blood draws under a higher standard under certain conditions and stopping there. But who would have thought that shortly thereafter, I would be rear-ended by an apparent intoxicated driver on Route 79 in Round Rock coming home from my office today.
I was driving westbound on 79. As I slowed for the light on Sunrise, I glanced in my rear-view mirror to see a van going a bit too fast to stop. As I eased up on the brake to absorb the impact, the van struck me. I departed from my vehicle to see a somewhat disoriented person behind the wheel. Motioning to a nearby parking lot, he followed me into the lot and proceeded to ramble some incoherent blather. Interestingly, a women in a white van followed us in, motioned me over and proceeded to inform me she was on the phone with the police about his erratic driving prior to the accident.
After I exchanged insurance info with him (with the help of the police), I left. As I was leaving, the police were beginning the SFST's. I didn't stick around. The policeman called me later and informed me that the driver was arrested for DWI 2nd. I was told he admitted to 3 beers and an undisclosed amount of Xanax.
So, is this an appropriate scenario for a blood draw? Under the current APD policy, it is if there is a total refusal. Is that appropriate--collision, prior DWI, and total refusal (I don't know if he refused on this, but let's say he did)? I feel the public's pain (literally). I can see no powerful legal argument to counter the public opinion to get tougher on drivers like these, even if we suggest a higher standard for warrants.
If we as lawyers are going to try to limit the use of blood draws, we had better find an argument that is going to jolt the public to action at least as hard as I was jolted out of my seat today. To this end it will be no small task.
Am I still advocating the policy in my previous post? Hey, I'll get back to you on that.
THE LAW OFFICES OF KEITH T. LAUERMAN: BOARD CERTIFIED BY THE TEXAS BOARD OF LEGAL SPECIALIZATION-Representing those accused of Murder, Manslaughter, Aggravated Assault, Robbery, Sex Crimes, Driving While Intoxicated, Theft, Drugs, Computer Crimes, and Environmental Defense.
Tuesday, March 27, 2007
BLOOD DRAWS: The Sequel
Thursday, March 15, 2007
BLOOD TESTS: Sticking it to us all.
[Note: This has been modified since the original post]
Everytime I go to the doctor, I dread one thing: getting stuck with that pesky needle to find out if I have to cut down on those steaks and fries once again because of high cholesterol. Aside from the rubber-gloved finger checking me out, it's the most intrusive aspect of staying healthy. I pay for it, I consent to it, yet there are strict disclosure laws and people get sued for telling some unauthorized person about it.
Why then, are the police seeking to stick needles in more and more citizens based on refusing a breath test and then making the disclosure to various agencies of law enforcement and the state?
I might understand the public's concern if a collision occurred, people were hurt, and the implied possibility of losing evidence under strict circumstances. But why would anybody ever think that refusing to blow into an intoxilyser (in and of itself a mystery of technology) even with other reasons would ever justify the ultimate intrusion based only on probable cause? Consider how many of our cases are dismissed or reduced because of the lack of valid claims with probable cause based on the intoxilyser results and SFST's. Why on earth would a judge sanction this practice with nothing more than the same standard as a regular search warrant. Is searching your fluids the same as searching your garage? Hardly.
Consider this modest solution: A higher standard for blood test warrants. For example, one of the standards of proof in our civil system is the clear and convincing evidence standard. Utilized in family law cases involving child termination and parental rights, this standard resides somewhere between preponderance (more likely than not) and the much higher reasonable doubt standard (if preponderance is 51%, then clear & convincing might be anywhere from 60-75% proof).
What types of observations and circumstances would justify a clear & convincing finding? How about "refusal plus". If a person refuses a breath test, there should at least be some significant factors coupled with this higher standard indicating a need to wake a judge to sign a warrant. There must be observable, compelling, and incriminating observations present to reach this higher standard. While past history may be a less important factor, the present state of the accused should be given the greater weight and any intrusion should be based on firm reasoning unique to the detention. There may be numerous factors, but you get the idea.
There is nothing in our culture that justifies a stab in the arm because you make a decision to refuse a test. With nothing more than that, judges need to stand between the public and the needle. Even with additional factors, a higher standard is in order. Of course, a presumption in favor of protecting the public's civil liberties would be nice as well.
Everytime I go to the doctor, I dread one thing: getting stuck with that pesky needle to find out if I have to cut down on those steaks and fries once again because of high cholesterol. Aside from the rubber-gloved finger checking me out, it's the most intrusive aspect of staying healthy. I pay for it, I consent to it, yet there are strict disclosure laws and people get sued for telling some unauthorized person about it.
Why then, are the police seeking to stick needles in more and more citizens based on refusing a breath test and then making the disclosure to various agencies of law enforcement and the state?
I might understand the public's concern if a collision occurred, people were hurt, and the implied possibility of losing evidence under strict circumstances. But why would anybody ever think that refusing to blow into an intoxilyser (in and of itself a mystery of technology) even with other reasons would ever justify the ultimate intrusion based only on probable cause? Consider how many of our cases are dismissed or reduced because of the lack of valid claims with probable cause based on the intoxilyser results and SFST's. Why on earth would a judge sanction this practice with nothing more than the same standard as a regular search warrant. Is searching your fluids the same as searching your garage? Hardly.
Consider this modest solution: A higher standard for blood test warrants. For example, one of the standards of proof in our civil system is the clear and convincing evidence standard. Utilized in family law cases involving child termination and parental rights, this standard resides somewhere between preponderance (more likely than not) and the much higher reasonable doubt standard (if preponderance is 51%, then clear & convincing might be anywhere from 60-75% proof).
What types of observations and circumstances would justify a clear & convincing finding? How about "refusal plus". If a person refuses a breath test, there should at least be some significant factors coupled with this higher standard indicating a need to wake a judge to sign a warrant. There must be observable, compelling, and incriminating observations present to reach this higher standard. While past history may be a less important factor, the present state of the accused should be given the greater weight and any intrusion should be based on firm reasoning unique to the detention. There may be numerous factors, but you get the idea.
There is nothing in our culture that justifies a stab in the arm because you make a decision to refuse a test. With nothing more than that, judges need to stand between the public and the needle. Even with additional factors, a higher standard is in order. Of course, a presumption in favor of protecting the public's civil liberties would be nice as well.
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