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. :)