Houston Police Announce DWI "No Refusal" for July 4th Weekend

Harris County DWI Enforcement Officers are at it again with another DWI "No Refusal" weekend planned for the 4th of July.

So what exactly does that mean?  It means that if you are arrested for DWI and refuse to voluntarily give a breath test or blood test, the Government will forcibly put you in a chair and stick a needle in your arm to take your blood. 

Although the Texas Courts disagree with me, I firmly believe that our right to be free from unreasonable searches and seizures in all aspects of our lives should cover a misdemeanor DWI charge.  In my opinion, the involuntary taking of a citizen's blood should not be allowed in misdemeanor DWI cases.  Let me know your thoughts on this or any other DWI related matters.

Houston Law Professor Suggests No More Jury Trials in DWI Cases - What a Joke?

Adam M. Gershowitz, law professor at the University of Houston Law Center, has proposed a simple solution for deterring Drunk Driving / DWI cases - eliminate Jury Trials.  The abstract from his paper reads,

Over the last few decades, states have imposed tougher punishments on drunk drivers. This article argues that increasing punishments is counter-productive. If legislatures are seeking to hold guilty offenders accountable and deter drunk driving generally, they should keep punishments low and instead abolish the right to jury trials. Under the petty offense doctrine, the Supreme Court has authorized states to abolish jury trials when defendants face a maximum sentence of six months' incarceration. . And researchers have also found that the certainty of punishment, not the severity of punishment, is the key factor in maximizing deterrence. Thus, by keeping maximum sentences for most drunk driving offenders at six months or less, states can abolish jury trials, thereby raising conviction rates and improving general deterrence. Additionally, bench trials will be far more efficient because the greater certainty of conviction will give defendants an incentive to plead guilty rather than taking their cases to trial. When trials do occur they will be much faster because there will be no need to select juries, and lawyers will have to present far less background information to already knowledgeable judges. At present, only a handful of states have eliminated jury trials for drunk drivers. This article outlines the specific steps that states should take to abolish jury trials and thereby increase convictions, maximize general deterrence, and more efficiently handle one of the most common crimes in the United States.

Although I'm admittedly no Constitutional scholar, I firmly believe in every citizen's right to a jury trial.  In fact, the right to a jury trial before incarceration has long been a tenet of not only our national criminal jurisprudence, but also here in Texas.

Quoting Gershowitz' abstract,

Social science evidence has long demonstrated that judges are more likely to convict than juries, particularly in drunk driving cases.

I doubt Gershowitz would like a rubber stamp guilty verdict by our judiciary if he (or someone he knows - possibly the colleague at the University of Houston Law Center that was recently charged with DWI whose case was ultimately dismissed) was wrongly charged with a DWI.  I'm quite certain that his law professor colleague is glad the judiciary doesn't have the right to just rubber stamp a guilty verdict for DWI.  Gershowitz - why don't you walk down the hall and ask your fellow law professor that had his case dismissed if he agrees with you. 

Let me tell you, there are many of our Harris County citizens that have been wrongly charged with DWI that are thankful we do still have a right to a trial by jury.  Gershowitz couldn't be more wrong on this point.  He seems to be buying into the ever increasing attitude by some (including Justice Roberts of the United States Supreme Court) that the Constitution does not apply in DWI cases.

Breath Test Refusal Lands Man in Prison for 3 Years?

At least we don't live in Akron, Ohio.  According to this report, an Ohio man was convicted and sentenced to 3 years in prison for Tampering with a Government Document for failing to give a breath test after his DWI arrest. 

Am I missing something here? How is refusing a breath test tampering with a government document? Doesn't it seem that you would have to actually alter, change, destroy, or manipulate a document in order to tamper it?  Even more basic, wouldn't there have to be a document already in existence or one that you fraudulently made to alter or tamper with?
 

After the verdict, the prosecutor apparently said, "the law is now clear that drunk drivers cannot refuse to take a breath test,  It is mandatory, and the jury agreed that Mr. Simin broke that law and deserved prison time. Bottom line: It doesn't pay to refuse to cooperate. It will increase your sentence."

Since when did our Constitution require us to aid in a police investigation?  Is the Fifth Amendment to the United States Constitution still around?  Funny, I thought we were all protected in our right to remain silent and not aid the Government in convicting us.

Supreme Court Again Gives Teeth to the Confrontation Clause in Briscoe v. Virginia

The Supreme Court of the United States tells the government that the Confrontation Clause does still exist.  In a one sentence opinion, the Supreme Court said in Briscoe v. Virginia,

We vacate the Judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U.S. _____.

Previously, I wrote about the Melendez-Diaz opinion.  Essentially, the Court reaffirms that we have a right to confront witnesses and not be tried by affidavit or documents.  Instead, we get to cross-examine the people that make reports, not just live with what the report says.

Some have speculated that the Supreme Court granted certiorari in this case to see what Justice Sotomayor's position is on this issue.  Fortunately for the accused, it seems Justice Sotomayor is in agreement with the Melendez-Diaz opinion.

Tiger Woods and the Constitution - Even Tiger has the Right to Remain Silent

According to reports, Tiger Woods was involved in a single car accident near his residence.  The big story seems to be that he is "refusing" to talk to investigators about the accident. 

Just a guess, but he probably hired a competent lawyer to advise him on the matter.  That competent attorney probably told Tiger he did not have any obligation to answer any questions about the accident and did not have to speak to investigators about the accident.

Remember that document that I write about - The United States Constitution?  We as citizens have no duty to talk to the police about anything.  Yes, this includes the famed Tiger Woods.

As a Houston DWI lawyer, we have had several clients that have been contacted by the police to get "client's" side of the story.  The problem is, the police are often trying to gather evidence to use against that person.  In our experience, it is rare that law enforcement contacts our clients to exonerate them.  More often than not, the police are seeking information to build a case against the person to whom they are speaking.  

If the cops come knocking on your door to speak to you about a crime, I suggest you find a lawyer to help you through that process (even if you have nothing to hide.)

Doesn't take long for police to take blood without a warrant

The new Texas DWI law that allows police officers to take blood without a search warrant or any other judicial involvement went into effect September 1, 2009.  According to the Harris County District Attorney's office, over the Labor Day weekend the police forced 6 citizens to give blood - even though they refused to allow the blood sample and the police did not have a warrant.  They also forced 32 other individual to give blood pursuant to a search warrant.

As a group, we should renounce the new law and tell our legislature we do not condone our government intruding into our bodies.  Our founding fathers are turning over in their graves thinking that our state legislature has given the Government so much power.

When are we going to say enough is enough?  Let's keep the government out of our homes and out of our bodies.  The government has no business intruding into our bodies and homes.  Each and every time the legislature meets, more and more of our freedoms are taken away.  Let's also remember that a DWI in Texas is a misdemeanor, barring prior convictions, serious bodily harm / death, or a if there is a child passenger.

 

New Texas DWI Laws - More freedoms taken away

The most recent Texas Legislature has again given the State more power over its citizens to invade a persons body without a search warrant.  Senate Bill 328 allows the police to take your blood in a Texas DWI case WITHOUT a search warrant in the following situations:

  1. When an individual involved in a wreck causes any bodily injury to another person;
  2. When an individual is arrested for DWI with a child passenger under 15 years of age;
  3. When an individual has 2 or more convictions for DWI; or
  4. When an individual has been previously convicted of DWI with a child passenger under 15 years of age, intoxication assault or intoxication manslaughter.

At first glance, this new law seems to make sense.  However, let's look a little closer.  What the statute allows our government to do is force you to give your blood - yes, strap you down and forcibly take your blood without a search warrant.  There will be no independent review of the officers actions before they force this blood draw. 

My concern for our citizens is that a police officers will use this DWI statute to make marginal arrests and force individuals to give blood without a search warrant when they otherwise would not have made an arrest at all. We are giving the police more and more power every day.  Now the interested party - the arresting officer - makes the decision to draw our blood, not a Judge as was previously required.

Anytime we let an officer invade, probe or take fluids from our bodies, there should be a warrant required.  We all have a protected interest in our bodies and the legislature has deprived us of our right to require at a bare minimum a search warrant that is signed by a detached and neutral judge.  Instead, we are allowing an interested party, the police officer making a DWI arrest, to make a decision with no oversight.  Shame on our legislature giving the police the ability to search and seize our blood without a warrant.

The hope is that through DWI lawyers fighting this type of legislation, the legislature will realize the threat to our constitution and change the law or that the judiciary will strike the law down as an unconstitutional invasion on our right to be free from unreasonable searches and seizure.

Image:  Sharon Gott