Texas Court Holds Blood Draw Violates 4th Amendment

Finally, a Texas court has said enough is enough when it comes to drawing a person's blood in a Texas DWI case.  The 2nd Court of Appeals affirmed the decision of the trial court to suppress the blood draw pursuant to a warrant.  The case summary from the 2nd Court of appeals states:

Although some of the trial court’s conclusions of law supporting its suppression of Appellee’s blood test results in this DWI case were erroneous or unnecessary, the trial court did not err in its ultimate conclusion that the manner in which police took Appellee’s blood was unreasonable under the Fourth Amendment, considering the totality of the circumstances. Here, after obtaining a warrant for Appellee’s blood, which Appellee conceded was valid, a trained officer drew Appellee’s blood in private at the police station (assisted only by the arresting officer) after restraining her to the blood draw chair with gauze, failed to ask for any prior medical history or issues, and failed to check on her condition afterward. Moreover, the police department did not have any guidelines for officers to follow in the event a suspect resisted such a blood draw, which Appellee did here. Although the United States Supreme Court’s decision in Schmerber v. California does not require blood draws to occur at a hospital, it does hold that such a bodily intrusion should be performed in a reasonable manner so as to minimize the risk of infection and pain from the procedure.

The Court said that just because you have a warrant to take a Texas DWI suspect's blood, that is not the end of the inquiry.  Because we have this little document called the United States Constitution, the government must not only have a warrant.  The State of Texas must also execute that blood warrant in a reasonable manner.

Judge Rules Harris County District Attorney Violated Defendant's Rights

A visiting Harris County District Court Judge ruled that the State prosecutors should have turned over exculpatory evidence to the defense lawyers before the start of a sexual assault trial. 

According to the article,

Visiting state District Judge Van Culp said the chief of the Crimes Against Children Division of the Harris County District Attorney's Office should have revealed that the girl accusing 54-year-old Glen Kahlden originally said a black man assaulted her. Kahlden is white.

So what is Brady materialBrady material is the suppression of evidence favorable to an accused.  In other words, if the government has any evidence that tends to show that a defendant is not guilty or did not commit the crime, the government is required to produce this evidence to the defense. 

Why is this such a big deal in the Houston criminal defense community?  Well, those of us who are criminal defense lawyers have repeatedly complained that the District Attorney's office routinely fails to fulfill its duty to disclose Brady material.  Even more troubling is the fact that the person committing the violation is the one of the most senior prosecutors in the office and the chief of a division in the Harris County District Attorney's Office. 

The problem starts at the top and trickles down to the underlings.  It is no surprise that the younger Harris County prosecutors don't turn over Brady material upon learning of it.  There is a saying, that floats around,

Prosecutors wouldn't know Brady material if it were staring right at them.

Police using threat of forced blood draws to fight DWI / Drunk Driving

As I wrote last week, Houston Police officers are being trained to draw blood on those suspected of drunk driving / DWI.  According to an AP report on September, 13 2009, cops are on patrol with tasers, guns and  now syringes.

Police officers are increasingly looking at needles as a new weapon to fight driving while intoxicated cases.  Instead of looking objectively at the results of rediculous balancing tests, the police are now relying on citizens blood to gather evidence.

Again, for the record, this type of search is in my opinion unreasonable and violates the 4th Amendment to the United States Constitution.  We should not allow Houston Police Officers to draw blood fo Houston citizens in a Houston DWI arrest.

Another DWI arrest for former Texas A&M basketball coach Billy Gillispie

As has been widely reported,  former Texas A&M head basketball coach Billy Gillispie arrested for DWI / DUI in Kentucky.  Gillispie was arrested approximately 30 miles from Lexington, where he most recently coached the Kentucky basketball team.

GillispieAccording to reports, Gillispie was pulled over for after police received a call of a possibly intoxicated driver that was driving erratically.  The report states that claims he had trouble with his insurance card and that he was confused about the car locks and glove box.  The report goes on to say that Gillispie refused to volunteer for a breath test or blood test.

Gillispie, just like everyone here in Houston charged with DWI, is presumed to be innocent.  Do you think that most that begin to read this article or any other reports of his arrest really presume him to be innocent or do they just assume that because he was charged, he must be guilty?  As a Houston DWI lawyer, I unfortunately think the former is true.  Even though there is a Constitutional Presumption of Innocence, I don't think many in Houston or the rest of the United States really gives much credence to that presumption.  I firmly believe  that he has probably already been convicted in the mind of the public.

Michael Jackson and the Constitution?

I was at dinner with my family last night and saw on the MSNBC ticker that New York Representative Peter King openly criticized Michael Jackson after his death, labeling him a "pervert", "child molester" and a "pedophile."  

Today I have had the Michael Jackson Farewell on in the background and heard Houston Representative Sheila Jackson Lee speaking.  Fortunately, there are at least some in the House of Representatives that still fully understand what our Constitution means.  During her remarks, Jackson Lee paraphrased our Constitution saying, "We are innocent until proven otherwise." 

Hey Mr. King, what crime is it that Michael Jackson was found guilty of?  Oh yeah, he never was convicted of any crime.  In fact, he was acquitted in 2005 of the charges of molesting a child.  I guess that is just not good enough for you.  It sure is a good thing that our founding father's gave us the Constitution to protect our rights and that we do not rely upon lawmakers like Mr. King.  Mr. King - great forum and timing on the criticism of Michael Jackson.

Unfortunately, as a Houston DWI Attorney, I see jurors on a regular basis in my DWI cases that have similar views.  Many of these jurors believe that where there is smoke there must be fire and that because an officer arrests a suspect for DWI they must be guilty.  This is simply not true.  Based on my 12 years of lawyering experience, it is my opinion that more people are falsley accused of drunk driving, DWI and DUI than any other crime.

Harris County "No Refusal" Weekend - Erosion of our Constitution

On the eve of our July 4th Independence Day, the Harris County District Attorney's Office has announced another "no refusal" weekend will be in effect.  Understandably, many citizens hear this news and think that it is a great idea to get drunks off the road. However, let's take a closer look at exactly what a "no refusal" weekend really is.

Mandatory blood draws are exactly that - the police now have the ability to literally strap you down and forcibly take blood from a citizen.  I think this is absolutely the type of intrusion into our lives as citizens that should be prohibited by our Constitution.  In fact, the Fourth Amendment to our Constitution says,

the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

First, a citizen has to be arrested for DWI in order to have a search warrant drawn up to draw the blood from that person.  Let me reiterate, the person is already arrested and in custody for Driving While Intoxicated before the search warrant is obtained.  Obviously, if the person is already in custody and under arrest for DWI, the police have removed that citizen from our streets.  Therefore, no more "drunks" are taken off of the streets as a result of this program.

Additionally, our Constitution is designed to protect all of those accused - both those that are guilty, but also those that are innocent.  We have represented clients that have been accused of drunk driving and had their blood forcibly taken from them that are below the legal limit or have had no alcohol in their system at all.  You can't tell me that strapping an innocent person to a gurney and drawing his blood against his will is not protected by our Constitution. 

Finally, Texas has a specific statute (at least for now) that forbids the Government from this type of intrusion on our lives.  Section 724.013 of the Texas Transportation Code says, "a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer."