An Unholy Alliance

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.

4 thoughts on “An Unholy Alliance

  1. jigmeister

    In this one you are Mark are wrong, Scott. Texas law requires Magistrates to be available for process: “Art. 2.10. DUTY OF MAGISTRATES. It is the duty of every magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing and suppressing crime…”
    You can argue that DWI or DUI should not be illegal or that resources should be expended elsewhere, but since it is a crime and the community believes it important to discourage, the judges have a duty to review probable cause for the issuance of search warrants. It is hypocritical to argue that law enforcement had no right to seize evidence without a warrant and then to argue when they do get a warrant that it is wrong. All judges that are asked to be available to review warrant affidavits are lawyers (many ex-defense attorneys) and trusted to exercise appropriate impartiality in reviewing those affidavits to insure adequate probable cause. Further those warrants will be drafted by experienced prosecutors on a case by case basis based on the probable cause provided by the officers under oath before the judge.

    In the early 80’s Harris County learned lessons concerning form warrants when a number of drug warrants seemed to be exactly alike causing the reversal of many convictions. Since then the police have not been allowed to do that and normally do not draft their own search warrants.

    Should it be determined after this effort that the affidavits were insufficent, then your criticisms would be warranted.

  2. SHG

    Perhaps, Jig, but when the characterize it as a “no-refusal weekend,” it presumptively means that anyone they decide to stop either blows or bleeds.  There’s no scent of a neutral magistrate in there that I can smell.

  3. Windypundit

    “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.”

    Yeah, I had a funny reaction to that announcement which I couldn’t quite put my finger on, but you clarified it.

    On the other hand, if there’s some way to keep them independent, I’m all for making judges work extra hours, nights, and weekends. Too often the policy argument for warrantless police activity is expedience. Maybe if judges were more available, our courts would begin to eliminate some of these exceptions to the Fourth Amendment.

    If police have time to get a warrant for a blood draw, surely they have time to get a warrant for a breath test, or to search a car.

    Our rights should not depend on government staffing levels.

  4. Hmmm aka C Anderson

    The “No Refusal” weekends continue here in Texas in 2012. I’m not a lawyer, but to my untrained eyes, this scheme seems to ignore the clear wording in the Fourth Amendment of the Bill of Rights. I thought that before I ever saw this thread. That police, prosecutors and judges would enact such a scheme that looks to bypass the US Constitution, even for the public good, is troubling.

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