Houston criminal defense lawyer Mark Bennett posts that our neighbors in the Sovereign Nation of Texas have come up with a brilliant idea to stop drunk driving this holiday weekend.
A no-refusal weekend is a weekend in which local law enforcement, prosecutors, and (paragons of impartiality) judges team up to ensure that anyone who is arrested for DUI (actually “DWI” in Texas, but I’m surrendering to the usage more common nationwide) who refuses to blow in the breathalyzer (as drivers are entitled to and generally should refuse, despite the legal fiction of “implied consent”) is subjected to a coerced blood draw under a search warrant.
Many, if not most, will applaud this effort because they want to eliminate the “scourge” of drunk driving. Except for sex offenses, drunk driving is one of the pre-eminent bogeymen of our time. One has to give enormous credit to the marketing efforts of Mothers Against Drunk Driving for convincing the majority of Americans to over-criminalize an activity that they indulge in.
From the announcement of this no-refusal weekend, it is clear that there is no shame attached to the teamwork of police, prosecutors and judges in effectuating this scheme. There should be, but there isn’t. Each arm of this team has a separate function from the others, and they should never be laboring oars in the same boat.
While one can more easily forgive prosecutors for ignoring their duty to parse the efforts of police, since our expectations of prosecutorial independence and ethics are so low, the same cannot be said for judges. Judges exist to exercise judgment (hence the name) over the unilateral fiat of law enforcement, to prevent them from riding roughshod over the rights of people. When judges join police and prosecutors for a purpose, then they have abdicated their responsibility and abandoned citizens to the whims of the police.
Many, who believe that they are immune from the abuse of police powers and maintain blind faith in the propriety of law enforcement, have no problem when the various arms of government coalesce into a single-minded machine designed to achieve an end with which they agree. These are the people who see a very simple solution to such problems: Just don’t do it and, if you are stopped, just do what the cop says.
Criminal defense lawyers know that a liberal is a conservative who has been arrested. While we don’t wish this on anyone, there is a certain tacit humor in the irony, as they learn that their entire vision of justice and law enforcement might be slightly misguided. It’s not that we haven’t told them, but that they just won’t believe it until it’s their time.
It’s possible that the captive judges of Harris County, Texas, a place where the best defense to murder is “he needed killing,” will make themselves available to the police and prosecutors, but refuse to become their rubber stamp and still demand probable cause before scribbling something on blood warrants. It is possible, but it doesn’t seem likely, since the push to punish precludes a thorough review and consideration of the validity of the warrants. Indeed, one can imagine a form warrant already in the computer where only the name needs to be changed. No individualized allegations of fact required.
At least this is happening in Harris County, Texas, and not in the good ol’ U. S. of A., where we would never tolerate an unholy alliance like this.