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Friday, May 29, 2009

DWIs, The Fourth Amendment, and Differing Views

Recently, my friend Tamara responded to a story in a Dallas paper, which warned that Memorial Day Weekend would be a "No-Refusal Weekend." The paper claimed that drivers arrested for DWI would be made to submit a blood test. Period. That's all the story said.

This made Tamara understandably a bit pissed. Y'all know Tam, right? Kind of libertarian?

Seeing Tam's post early, I began composing what I thought would be the very first response. Heh. During my long-winded typing session, three others managed to post before I did, and then I discovered that I had exceeded Blogger's 4000 character limit in responses, and had to divy up my reply. Sadly, there's no way
to edit responses, or I would have changed a lot. (Such as a "One:" without a "Two:". Ouch.) It read thusly:

Oops. You're mistaking the Dallas Observer for quality journalism; it ain't so. (Note: former Dallas Mayor Laura Miller (2002-2007) came to Dallas as an exposé journalist for the Observer, having [I believe] just left the National Enquirer. Kinda brings the whole damned city down a notch or two, doesn't it? Puts it in the same pool as Cincinnati, once you find out that Jerry Springer was their frickin' mayor, once.) There's some stuff you're not hearing there.

One: In Texas, when a driver is arrested for DWI, he is read a DIC-24 Statutory Warning. It tells, in medium legalese, what will happen if you don't submit a specimen of your blood and/or breath. You are provided with a copy of the DIC-24, and it is read aloud to you in either English or Spanish. (I suppose if there were other languages, we'd call the Language Line. So far it's always one of these two for me.) We then ask the arrestee, whom we MUST have had probable cause to arrest, for a specimen, and he or she can either refuse (and be subject to a lengthy D.L. suspension, since they agreed administratively to give a specimen when they obtained their license from the state), or submit to the specimen. If the driver refuses, then the officer usually shrugs and says, "cool-- one less piece of paperwork to keep up with," and books in the driver. The book-in will include writing an affidavit of probable cause, which in the morning a judge or arraigning magistrate will review with a critical eye toward whether the officer had sufficient reasonable suspicion to stop the driver and investigate as to his level of intoxication, and whether the officer had found, and could articulate under oath, sufficient probable cause that he could legally arrest the driver.

Think these don't get kicked back without P.C. found? It happens. I've seen it happen. (NEVER to one of my P.C. affidavits, I hasten to add.) If the officer puts down "saw drunk, arrested same," that's not gonna fly. If the officer simply states that the stop was based on "weaving," that's not sufficient. D.W.I.s are tough to get to P.C. for.

Now, there are times where the driver really, really, REALLY needs to give his blood, but refuses. What's the officer to do? Well, he can try to compel the driver to give that blood up. How? Well, that takes a warrant. In fact, it's a search warrant (and some now type 'em up as search and arrest warrants, since they have to meet the same criteria.). The judge has to be a member of the bar (can't be a Podunk Municipal traffic judge or mayor, and can't be a Justice of the Peace). Deep at night, judges are typically asleep in their beds, and most cops don't want to wake them up, so this hasn't typically been done. But if, say, you have an egregious Hit & Run, or a felony DWI (3rd or more, or with a kid in the car), you go ahead and wake the judge, and present your PC while another cop watches your prisoner. (Note: it's *BAD* for a cop's career to bring a prisoner to the judge's home. This makes judges understandably cranky.) The judge puts a VERY careful eye to the officer's probable cause before granting a warrant to seize the driver's blood.

The problem, of course, is that, tick-tock, tick-tock-- that ethanol is being metabolized out of the driver's bloodstream at an average rate of .02% BAC per hour. Arrest a driver who was at 0.119 at midnight, and by 02:15 he may very well be below 0.08, which is the prima facie level to presume intoxication.

It's happened more than once that an officer seeking a warrant for a blood draw has been refused one by a judge, even though another judge or magistrate found sufficient P.C. to arraign, and set a bond for the crime. The standard is usually a little higher for the warrant than for arrest.

The officer must, upon the order of the judge to do so, forthwith obtain a specimen of the driver's blood. He has no choice in the matter, under penalty of Contempt of Court.

What Dallas has been trying out on its No Refusal Weekends is that they're having judges at the jail or at the mobile command posts, ready and on duty to review the officer's probable cause for arrest right then and there. If he finds none, I would assume that the driver is cut loose, absent another cause for arrest. This could actually save a driver a night in jail.

The paper kinda forgot to mention the fact that the Dallas Police are only going to be taking that blood without consent after obtaining a warrant from a judge to do so.

And that's constitutional.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."



A LOT of comments were made in response, (go read if you want; I'll not post them all here), and I ended up responding yet again:


Wow. Busy thread. But that's good. This is a discussion worthy of having. Might be nice to tone it down just a tad so people don't get their feelings hurt*, but otherwise, I'm all for it.

theirritablearchitect, you seem to be making some assumptions about me. First, I'm a citizen, too, and I'm a staunch supporter of all of our rights, and most especially those recognized by the Bill Of Rights. Second, I'm a cop, and I'm one who is proud of the fact that I pull drunk drivers off the road ethically and legally. I know very well that I will save more lives with my DWI arrests than I ever will with my gun. I won't detail the very sad and very grisly scenes that I've observed, which were directly caused by a drunk driver; that's the kind of emotional plea that we see too often from the gun-grabbers and those who similarly wish to incite us to give up our rights out of response to emotion rather than logic.

I WILL say, that today's system is much, much better than it was. And it will get better. Back in the day, a person might or might not have been drunk, and you basically had to just take the cop's opinion for it, without even reference to validated evidence. Now, there are very highly validated tests that let the officer see and testify to actual clues of intoxication. Frankly, I've had to cut folks loose at roadside after being CERTAIN, before the tests, that they were going to go to jail. One swig of beer and answering their cell phone had caused me to strongly suspect that they were drunk... until the tests proved otherwise.

So it's an assault, when I sit an intoxicated person down in a chair or gurney at a hospital, and have an experienced phlebotomist draw his blood with an 18 gauge needle, and then put a band aid over the spot, even with the judge's order to do so? The last guy that I gave a blood draw to (by his videotaped consent, you'll be glad to know) said, " I didn't even feel it, and I HATE needles. I guess that I'm too drunk to feel it." I'm not buying that.
 
You want to bring up Kathryn Johnson, about this? Really? So the issue isn't so much that you're unhappy with the cops obtaining evidence of DWI by a non-consensual blood draw, after obtaining a warrant from a judge. The real issue, for you, is the sweeping pervasiveness of unethical policing that you see, am I right? (I don't want to make generalizations about you. I don't know you. I can only go from what little of your writing that I've read. Perhaps you might read a little of my writing, on that very issue.)

Question: if I and all of my fellow cops are dirty, then why do we keep finding that our arrestees are acquitted, periodically? I had a stop thrown out because I had to answer that I couldn't recall if THAT day I had already checked the calibration of a radar unit that had never failed to show calibration on the hundreds of times that I had checked it over the preceding years. I stated truthfully that I didn't know the time that my intoxylizer operator began observing my arrestee after she went to the bathroom, and her breath specimen was thrown out. My co-worker stated truthfully that he had not observed any traffic infractions on a traffic stop made for a broken tail light, which the judge felt was not sufficient for a stop (under brand new case law), and that stop was thrown out.

DWIs/DUIs are the hardest cases that we pursue. It is a fact that it is harder to convict someone of murder than for a first DWI, which is a class B misdemeanor in Texas (one step higher than a mere traffic ticket). They are a pain in the ass to file all of the administrative paperwork on, and to fill out the lengthy case report on. They have disproportionately high likelihood of having to go to court, which few cops like doing. Our supervisors generally don't like them, because they take so much of our time. On average, a DWI takes 4 hours to deal with. Frankly, mine take longer. Maybe I'm thorough, or maybe I need to manage my time better. And we will never know if this drunk was the one that was going to kill someone before making it home. What in the world would possibly compel me to want to mess with them, other than the fact that I believe that I'm protecting the community that I work in, and also happen to live in? The answer is: there is a direct correlation between the increased enforcement of DWIs and the reduction of alcohol-related collisions.

For what it's worth, I am against checkpoints, and have made this clear to my co-workers. Regardless of the fact that some courts have found them to be constitutional in some circumstances, I believe that DWI/License/Insurance checkpoints are patent violations of the Fourth Amendment to the U.S. Constitution.

Yeah, I've dealt with ketoacidosis. I've called ambulances to the scene more than once, to administer treatment to a fragile diabetic. The first time I did it, I was amazed. A little sugar paste in her mouth, and 60 seconds later the driver was alert and asking where in the world she was. She had wrecked out several times before I found her. She had been very close to going comatose. The next time I found it, it was an interesting case, because in fact the driver had been drinking, but not much. He hadn't been watching his sugar. On a hunch, I called out an ambulance, and took a blood sugar reading from this very surly driver. He insisted that he was FINE, and wanted to fight. This guy wasn't right. Something was wrong. We took a NON-CONSENSUAL blood sample from his finger, and found that he had a glucose level of 24. After some sugar (we could only get him up to 75-- he was big), he calmed down, got coherent, complained of a headache, and blew a .03 on my portable breath test device. Not high enough to meet the standards for intoxication, but high enough to confuse the issue. Given the totality of the circumstances, I decided he needed a ride, and called one for him. Another time, I called an ambulance and just had the guy sent to the hospital, and towed his vehicle. I talked the wrecker driver who picked up the driver's car into giving the driver a huge break in his tow fee when he got out of the hospital.


They say that the ketones smell "fruity," but to me they smell like acetone, which no one in their right mind would be swigging. A routine question that we ask early in the investigation for DWI is "Do you have diabetes?" Ketoacidosis is not found in adult-onset Type II diabetes, but rather is found in full-blown Type I diabetes. People who get it know that they have diabetes, because this is an ongoing disease. That first girl that I mentioned above, I asked what prescription medications she was taking, and she muttered that she took insulin. Bingo. And what about those that are already passed out and can't tell me? Well, they go to the hospital, anyway. Anytime I've got one that can't answer my questions coherently, I check them out with a medic, and most specifically ask for a glucose check.


But you don't want to hear about protocol. You've already said so.

_____________________

* "That scenario should be met with one of several different actions that I can think of, and some of it involves your duly earned harm, in one way or another. Statist lout, hope you sleep well with this shit."

__________________________________
I am sincerely sorry for tying up Tamara's comments. I do not apologize for what I said, nor for what I do as part of my duty.

I have to admit always feeling uncomfortable, anytime that I find myself defending Dallas P.D. on something, though. :)

And, yes, I'm aware that this post resembles one of those television episodes that is comprised of mostly clips from previous episodes that you've seen before. :)

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20 Comments:

At Friday, May 29, 2009 4:57:00 AM, Blogger Ambulance Driver said...

"They say that the ketones smell "fruity," but to me they smell like acetone, which no one in their right mind would be swigging. A routine question that we ask early in the investigation for DWI is "Do you have diabetes?" Ketoacidosis is not found in adult-onset Type II diabetes, but rather is found in full-blown Type I diabetes."

Not necessarily true. Any condition that results in the body's metabolism of fats rather than glucose will result in production of ketoaldehydes. While it is true that Type I diabetics are more prone to ketoacidosis than Type II diabetics, this is more due to the fact that Type II diabetics are more likely to be controlled well through diet and oral medication. Get bad enough out of whack, though, or if your Type II diabetes deteriorates to the point that you become insulin-dependent, and ketoacidosis is a possibility.

FWIW, what you smell in a person with alcohol intoxication is not alcohol. You're smelling the byproducts of alcohol metabolism, specifically ketoaldehydes.

Breakdown of ingested alcohol uses the same metabolic pathway as metabolism of glucose, and the same byproducts are formed. This is why so many chronic alcoholics also frequently present with hypoglycemia, and why it is virtually impossible to tell with your nose whether it's booze or high blood sugar.

If you ran a ketone level in the lab, your sloppy drunk would have elevated serum ketones, just like your diabetic ketoacidosis patient.

 
At Friday, May 29, 2009 7:24:00 AM, Blogger Matt G said...

"FWIW, what you smell in a person with alcohol intoxication is not alcohol. You're smelling the byproducts of alcohol metabolism, specifically ketoaldehydes."Sure, unless you smell the actual booze itself. I've been told my whole career that you can't smell alcohol, yet I've yet to find a bottle of pure alcohol that I couldn't smell. The only way to get over about 97% alcohol is to use benzine, and that would of course be detrimental to one's health, and benzine gives off quite an odor, itself. But Everclear will give off of an odor. Lord knows I smelled it enough in my days as a dazed freshman at UT in Austin. (shudder).

I of course took a generalization about Type I diabetes and improperly made it apply to all cases. My bad.

 
At Friday, May 29, 2009 7:24:00 AM, Blogger Matt G said...

"FWIW, what you smell in a person with alcohol intoxication is not alcohol. You're smelling the byproducts of alcohol metabolism, specifically ketoaldehydes."Sure, unless you smell the actual booze itself. I've been told my whole career that you can't smell alcohol, yet I've yet to find a bottle of pure alcohol that I couldn't smell. The only way to get over about 97% alcohol is to use benzine, and that would of course be detrimental to one's health, and benzine gives off quite an odor, itself. But Everclear will give off of an odor. Lord knows I smelled it enough in my days as a dazed freshman at UT in Austin. (shudder).

I of course took a generalization about Type I diabetes and improperly made it apply to all cases. My bad.

 
At Friday, May 29, 2009 8:51:00 AM, Blogger HollyB said...

As the child of an alcoholic, who drove impaired more times I can remember, Thanks.
Perhaps if there had been more DWI enforcement in the late 60's and 70's she wouldn't have flown a Thunderbird over a ditch or lost several windshields to "drunk mailboxes."
IMHO, a large majority of those who take issue with a legally obtained blood sample is probably an Anti-Cop who delights in claiming all LEO's are tramplers of the Constitution. [Yes, I know that's a generalization.]

 
At Friday, May 29, 2009 9:22:00 AM, Blogger shooter said...

As the son of a Type II, I can recall several occasions where my mother wrecked out in her car, thankfully minor. This was before she was diagnosed. I also remember hauling ass home to get to her when she called to say she just passed out doing the ironing. Scary stuff. I'm glad she has diet and meds (byetta-sp?) to keep her normal now.

Matt, I have a question as a future Houston LEO. How does Dallas account for a person's right to legal representation during the whole process? It seems pretty rushed from the stop to the judge to the blood draw. Are the police taking into account this right of the citizen to fight the warrant and blood draw? A lot of different variables come into play here, and it seems hasty to do this without an attorney present. I know that time is of the essence in this regard, too, which stands to reason for having a judge close at hand. I feel that the accused should be able to put up a defense against prosecution just as fast. Ground could be uneven during the 'stupid human tricks'. An FTO might be otherwise engaged while his trainee is administering the FST. The alleged DWI could have an inner ear problem and chronic halitosis.

Comments? Snide remarks?

 
At Friday, May 29, 2009 10:03:00 AM, Anonymous Kristopher said...

The prob is that it doesn't take a lot of a-holes to tar all cops.

Add a .gov that has gone legislation-happy, and made it impossible to do anything without violating some regulation, and people get jumpy about the police.

Sobriety checkpoints are not helping, as you stated ... they antagonize people enough to endanger any good works done there.

 
At Friday, May 29, 2009 10:03:00 AM, Blogger Tam said...

Thank you for your comments, Matt, and thank you for keeping your cool.

Some folks can get awful passionate about what is, at heart, a very passionate issue.

 
At Friday, May 29, 2009 10:13:00 AM, Anonymous Shrimp said...

I'm sorta-kinda of torn on this one. The libertarian in me desperately wants to agree with Tam that this kind of infringement upon our freedoms is an abomination. Free people should not be forced to submit to such things in a free society.

However, the realist in me sees your argument and agrees. It's not as though they are drawing the blood without first obtaining a warrant.


If the conditions of obtaining a DL in the state of TX is that one must submit to this, or lose his license, then "them's the breaks."

Don't like it? Get the law changed or leave.

I grew up in PA (don't hold that against me!) and we had a similar law that one could not refuse to sign their ticket (as can be done in some states), and one could not refuse either a blood test or a breathalyzer. Refusal to do either one was an automatic suspension of six months up to a year, regardless of the outcome of the citation.

From a pure liberty standpoint, it sucks, sure. But so did the "annual inspection" racket and the emissions tests and the high taxes and....

Them's the breaks.

 
At Friday, May 29, 2009 10:55:00 AM, Blogger Crucis said...

Good info, Matt. I don't drink---well not since I got out of the Air Force several decades ago. But, I am hypoglycemic (sp?). Good to know that high b/s can cause that smell.

As an aside, my wife and I, returning home late one night last summer, got caught in a DWI road block. There were local cops, Sheriff's deputies, and State Troopers there as well as a Judge. They had set up a small "court" along side the road. Never noticed that before.

In any case, a deputy came up and asked for my d/l. In our state, your CCW is printed on the license. He saw that, looked at me and then my wife and asked if we'd been drinking. We said, "No," and he replied, "I didn't think so. Most CCW folks don't, I've found." Can't verify his opinion but thought it was interesting.

 
At Friday, May 29, 2009 12:38:00 PM, Blogger Mr. Fixit said...

Keep up the good work Matt. There will always be some who lump every cop together in a group and treat them as only the worst of the group deserves.

Mr Fixit

 
At Friday, May 29, 2009 12:39:00 PM, Blogger Matt G said...

Shooter, your questions are good ones, and are answerable. But I'm not going to put on an SFST seminar via blog (it's a 24 TCLEOSE credit hour course, and as a licensed instructor, there are professional issues about me giving flip responses in the clear here. That is not to be snarky.).

Unless you're questioned, you're not permitted an attorney until after the arraignment. At or after Information Hearing, I believe.

With regard to the possibility that your arresting officer is a dufus, that will be made evident very soon if that's the case. Arraigning magistrates hear things, and judges hear things, and the DA's office hears things, and your defense attorney will make mincemeat of him if he's a dumbass.

 
At Friday, May 29, 2009 2:42:00 PM, Blogger Dan O. said...

All else aside, I'm glad to hear the opinion of a LEO on the checkpoints.

I've often wondered, though never pursued, how those were legal, when P.C. was needed to pull someone over any other time.

Seems like a lot of work and I wonder if the number of arrests vs. the number of inconvenienced sober drivers warrants (for lack of a better term) continuing with these checkpoints.

 
At Saturday, May 30, 2009 7:57:00 AM, Blogger Buffboy said...

Simple reality is: you do not have a "right" to have a drivers license. The State gets to set the rules on use of public roads because they own them, like it or not. The State will grant you a Drivers License if you "agree" to follow the rules. Simply having that DL implies that agreement to follow those rules. While it has your name on it, that DL still belongs to the State and they can exact penalty for misuse of their property.

 
At Saturday, May 30, 2009 10:09:00 AM, Anonymous aczarnowski said...

Thanks for being out there Matt and sharing your thinking with the rest of us. Tough job with enough bad apples to make it even tougher.

 
At Saturday, May 30, 2009 3:38:00 PM, Blogger Old NFO said...

As a former VFD fire/rescue for 10 years, I am all for what ever it takes to get the drunks off the road. period... As far as I'm concerned, if the asshat doesn't want to give blood, shoot his/her ass and catch it as it drips out... THEN throw his/her ass in jail.

 
At Tuesday, June 02, 2009 9:28:00 AM, Anonymous Matt M said...

You have a right, in the State of Texas, to drink alcoholic beverages to the point of intoxication. You do not have a right to drag your sorry drunk ass out to the car and drive down the road.

I support the civil liberties of Texans. One of these liberties is the right to expect to not be killed on Texas roads by a Texas drunk, if it could otherwise be prevented.

 
At Friday, June 05, 2009 5:53:00 AM, Blogger TOTWTYTR said...

You extremely detailed post is marred by only one minor detail. One that I'm surprised that the much-smarter-than-I-am Ambulance Driver did not pick up.

Diabetic Ketoacidosis is associated with HYPERglycemia, while DWI is sometimes mistaken for HYPOglycemia. Which is what we fix with that foul tasting glucose paste or sometimes an IV and a bolus of Dextrose.

Although it's possible that someone in DKA would be mistaken for a DWI, it's unlikely. In fact in 30 years in EMS I've never seen it or heard of it. DKA has a gradual onset, so it's more likely that it would be caught before someone was impaired enough to have their driving effected.

Hypoglycemia, on the other hand, usually has a fast onset, often because a patient took their insulin, but didn't eat. That, we see far more commonly.

You won't smell ketones on the breath of a hypoglycemic person.

Hypoglycemia is easy to fix, just give some form of sugar and follow that up with a meal. Hyperglycemia and DKA are far more complex to correct and almost always require a hospital admission.

Other than that, small but important detail, your post was informative and instructive.

 
At Monday, February 01, 2010 10:31:00 PM, Blogger Patrick Henry said...

"We then ask the arrestee, whom we MUST have had probable cause to arrest, for a specimen, and he or she can either refuse (and be subject to a lengthy D.L. suspension, since they agreed administratively to give a specimen when they obtained their license from the state), or submit to the specimen."

Ah, yes. They agreed 'administratively'. Which means they traded the American rule of libertarian republican law for the Russian administrative system of "law" without knowing what they were doing.

Driving is a right. It is not a privilege. It is the right of locomotion. To require citizens to beg permission to exercise their rights is a crime. To require them to forfeit other rights as a condition of the permission they must beg for is another.

To stop a large number of citizens, with no warrant and no probable cause, on a witch hunt, is yet another crime.

To steal the blood of a citizen after committing the above crimes is only providing further evidence of the decline of the State into ever more depraved criminal and even vampirical acts. The fact that the Iron Fist of the State was conspiring with a Priest of the State only adds yet again to the litany of offenses commonly referred to by the grand euphamism "law enforcement".

PostScript: If a judge can order a forced blood test for DUI cases, what about public intoxication? Can cops and judges go out to the bars, arrest people who are intoxicated, and strap them down as their blood is taken to prove their guilt?

 
At Monday, February 01, 2010 11:46:00 PM, Blogger Matt G said...

Patrick said: "To stop a large number of citizens, with no warrant and no probable cause, on a witch hunt, is yet another crime.

Who said we're making stops without Probble Cause? I have PC for every stop I make. It is not some hackneyed made up PC, either. My stops are good stops. Now, am I particularly looking for DWI's on a Friday night at 2:00AM? Sure. And I watch for material thefts of construction sites on Sunday mornings, too. That's good police work.

Sir, I've deprived people of their privelidge to drive after they were caught on their third conviction of driving, having struck someone and driven off, not knowing even where they were. I can name one off the top of my head who had previously been convicted of killing someone in another state, who was out on bond for another instance of hit and run DWI, when I stopped him. And you can bet your sweet bippy that I had solid PC to stop him, too. He just got 20 years. Too much, you think? Tell that to the guy that had just been sent to the hospital by a guy who had killed someone while DUI.

We're going to have to disagree with that "Driving is a right" comment. If you're impaired, you do no have that "right." If you're under-trained or under-skilled, or under-age, you don't have that "right." If you violate the laws of driving enough, you don't have that "right." We sure are finding a lot of exceptions to what you deem a right.

The right to travel is a fully recognized first amendment right. While I'm by no means saying that the rights of humanity are listed in the BoR, I will note that you are dilluting the real rights when you make silly assertions that these bogus ones are rights. Hell, you think the right to drive is a human right? Well I think that the right to drive a late model car, with a 1500 watt Blaupunkt stereo, at 100 mph, is my right. Wait-- you're denying my credit application?!? YOU'RE DENYING MY MY HUMAN RIGHT!!!! [Rolleyes.]

 
At Tuesday, February 02, 2010 9:30:00 AM, Blogger Crucis said...

I believe Patrick H is confusing the "right to travel unimpeded" with the "right to locomotion." The two are not the same.

You have the right to travel unimpeded as long as you do not impede, impair or inhibit the travel of others. Want to travel? You've two feet. Start walking. That's where the term, "Voting with your feet," arose. I'm not in favor of DWI roadblocks because they do impede my travel. That does NOT mean I'm against DWI enforcement. That is nothing more than removing a threat to me on the road. If that means you will now have to revert to your basic means of locomotion? Well, so be it. You still have that right---just not the one to drive drunk or drugged at will.

 

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