Just came across a fairly recent court opinion.
Facts: A guy is stopped for a traffic violation and then arrested for DWI. He is offered a chance to provide a sample of his breath and he refuses. Texas law allows for the cop to take a sample of his blood without a warrant* if "at the time of the arrest, the officer possesses or receives reliable information from a credible source" that the person has twice been convicted for DWI. The deputy contacts dispatch who advises him that the Texas criminal database ("TCIC") indicates the person arrested has twice been convicted for DWI. The officer then takes the guy to the hospital and has a nurse draw the defendant's blood. A later analysis reveals it has an alcohol concentration of greater than .08.
One problem: The TCIC database was wrong. He didn't have two prior convictions. So the defendant asks the judge to throw out (suppress) the blood results because they were taken in violation of the law. That is, a warrant should have been obtained.
"Oh, no" says the State! TCIC is reliable. Just because there was a screw-up this time doesn't mean that the TCIC database is not a "credible source" and that's all that's required. The trial judge disagreed and threw out the blood results.
The State, with not enough to do, appealed the decision. The appellate court agreed with the government and said the blood results could be used against the defendant (after ruling it was the defendant's burden to prove TCIC is unreliable and not the State's burden to prove it is reliable.) Welcome to the Continuing Police State.
Query: What's going to happen when a normally reliable dispatcher misreads an accurate TCIC that shows none or only one conviction but tells the officer that the driver has two? Will a court approve a blood draw based upon the use of that misinformation? After all, could a defendant ever prove a dispatcher is not a "credible source" despite that mistake?
* Yeah, the Supreme Court ruling last week may kill that and other laws unless there are other facts justifying the bypassing of getting a warrant.
at 1:45 PM
- A Springtown woman is arrested for the murder of a child in 1982 after "cold case" investigators took a look at the case. With no new evidence, something doesn't sound right.
- Jerry Jones is taking what I think to be his biggest post-draft media beating ever after last night. Maybe it is because Saudi Prince Bandar bin Sultan’s son, Faisal, who was in the team’s draft room, made the first pick.
- How football is changing: For the first time in 50 years, a running back was not selected in the first round of the NFL Draft.
- Photos of protesters yesterday during the Bush Center ceremony. (They were restricted to the east side of Central.)
- Whataburger is going into the retail sales of its ketchup (which, by the way, I never knew was such a crowd pleaser.) But I've never seen a restaurant/fast food place successfully translate its taste to the grocery aisle. Taco Bell sauce and On The Border tv dinners come to mind.
- Mrs. LL is coaching a girl's softball team this season and is doing really well. She's a big fan of aggressive base running. Or she's crazy.
- I still think about watching a game last year when a big, athletic girl would come to the plate. A different coach would go out to the pitcher every time, say some words of encouragement, and then hand her a face guard to be worn only for that batter. I always wonder about what was said: "You can get her. Just throw inside and low. Now put this mask on because she might kill you."
- From the Update: "5K RUN — The Skinnydipper 5K at Wildwood is 1 p.m. Saturday. Registration opens at 9 a.m., and the gate will lock at 12:30 p.m. The clothing optional cross country race attracts runners from all over the USA, Australia, Europe and Canada. A barbecue dinner is held after the race." Make your own jokes.
- I watched a little of the memorial service from Waco but couldn't stick with it. It was really hard to watch, but I'm not sure what made it different than other services. Maybe the fact it wasn't in a church?
- There was an animated GIF going around of the pitches of Yu Darvish which got me thinking about the difference between a curve ball and a slider. I don't think I've ever felt so sports dumb as to learn that a curve ball actually drops in a straight line (think 12:00 o'clock to 6:00 o'clock) while a slider moves down and out (think Josh Hamilton swinging.)
- The New York Times has an article pointing out the Texas prosecutors are losing their reputations as the "good guys" and face the loss of elections because of it.
He's a nut. With an annoying attorney.
at 9:08 AM
- I think I heard that President Obama stayed at The Omni hotel last night in downtown Dallas.
- I also heard this morning that the White House rents out an entire floor for the President as well as the floor above and the floor below. Truth or myth?
- After the ceremony at the Bush Library, President Obama will go to Waco around noon via helicopter.
- A picture this morning of what seems to be thousands of white chairs set up for the opening of the Bush library.
- Troy Aikman is already there with a "Hey, Now."
- I heard yesterday that this is the first time five U.S. Presidents will be in the same place. I didn't believe that to be true, but I haven't heard anything to the contrary.
- My mind short circuits whenever I hear an advertisement or report of a wreck at "380 and 75/Central".
- Phil Donahue was on the Mark Davis Show yesterday and he was great. He was absolutely speechless when Davis said he didn't have any problem with the government listening in on private cell phone calls.
- There was a time capsule buried in Bridgeport in, I think, 1974. I wonder if anyone does (or will) remember where exactly it was buried.
- What a boring group of names in tonight's NFL Draft. I'll probably have it on anyway.
- It sounds like there has been a ton of money raised for the victims of West, Texas. Serious question: Just who is in charge of the distribution of that money?
- From the Update: "The North Texas Singles Club meets at Spicy Mexico in Bowie at 6 p.m. Saturday. All single adults are invited. Mini will be your greeter." Mini?
- Did I just see this posted on Facebook by a Decatur school board candidate: "Just listened to Anthrax's cover of 'Smokin' by Boston. Wow!!!!!"
at 8:38 AM
With some of his closest friends.
Here's a list of homeowners on that street. (Yep, those pictures above are of a residence.)
at 4:43 PM
at 1:16 PM
This morning in Random Thoughts, I mentioned both Lake Bridgeport and the Tarrant County Water District. A second ago, I got an "alert" (based upon some web site setting I subscribed to years ago) telling me that the lake level is now below 820 feet (the trigger I had set to launch the notification.) That means the lake it is more than 16 feet low.
It could be a long summer.
at 9:21 AM
- One headline: "Perry Says State Oversight Would Not Have Prevented Blast." And then this one: "West Explosion Investigation: More Than 70 Agents Searching for Cause." So Perry doesn't know the cause of the explosion but knows what wouldn't have prevented it?
- The Elvis impersonator who was accused of sending poison to the President was released yesterday and all charges dropped. That whole sentence makes me insane.
- Re: Boston's David Ortiz dropping an F-Bomb when addressing the crowd last weekend at Fenway Park: In the argument over "speaking from the heart" vs. "moron", I'll go with moron.
- After 9/11, I had the opinion that bombs going off every other month in a random Taco Bell, CVS, or Red Lobster would do a heck of a lot more to terrorize the American public than one cataclysmic attack. Still believe it.
- Today, JerryWorld will be announced as the first home of the National Championship game for college football's four team playoff beginning after the 2014 season. But why in the world in year's #2 and #3 of the playoffs are the semi-final games being held on New Year's Eve instead of New Year's Day? (Also, smart guys, scan to the bottom of this official page for the calender -- those years and days don't make sense, do they?)
- Some guy decided to rob a Whataburger off of Brentwood Stair this morning in Fort Worth and ended up getting shot three times by police. One officer got shot in the leg. Think that was well planned?
- I think I spend a fortune on cell phones and Internet.
- Relationship gap: Mrs. LL loves playing cards. I have no desire to play cards.
- Under the radar: The Supreme Court heard arguments yesterday about the Tarrant Regional Water District's right to buy water from Oklahoma. It sounds complicated, but I bet the decision could have a dramatic impact on Lake Bridgeport (either from the need to suck water out of it or to build feeder lakes upstream.)
- Oddest statement made to me by an investigator yesterday as he walked behind me up the stairs at the courthouse: "Your ears made you look like a leprechaun right then." There is absolutely no way to twist that into a positive statement. And lord knows I've tried.
- I had a fellow student in college take issue with my statement of, "If I was raised in a Catholic family, I'd be Catholic today." I've never forgotten how dumbfounded I was when she insisted she would be Southern Baptist at that moment regardless of her upbringing.
- I watched half of the 30 for 30 documentary From Elway to Marino about the 1983 NFL draft and, so far, it's great. But here's a hot sports opinion: That "diary" the agent is reading about what went down in those days is completely made up for dramatic effect.
The House just voted 64-82 against reauthorizing the Texas Lottery Commission.
— Dave Montgomery (@daveymontgomery) April 23, 2013
Anyone see that coming?
Edit: One of the first stories about it is here. ("Texans spent $3.8 billion on lottery tickets in the 2011 fiscal year, according to the Legislative Budget Board. The majority of that was paid out to players and retailers, with $963 million transferred to the Foundation School Account. Another $8.1 million was transferred to the Texas Veterans Commission.")
Edit at 4:15. Well, this was a weird day . . .
House passes HB 2197 continuing Texas Lottery 91-53. It failed earlier today 65-81. #txlege
— Aman Batheja (@amanbatheja) April 23, 2013
at 1:49 PM
- Phone service was a mess in Wise County yesterday.
- Netflix streaming service at $7.99 a month is too cheap, isn't it? But maybe they know what they are doing as the company's stock is set to explode this morning. (The concept of Blockbuster now seems archaic.)
- Sean Hannity was advocating water-boarding the Boston Bomber last night. How does he just ignore that Dzhokhar Tsarnaev is a U.S. Citizen? Hannity may not like it, but how can he just pretend that a fact does not exist?
- A phrase being thrown around last night on the news shows was that a "first year law student could prosecute this bomber case." They might want to tap the brakes on that that.
- From the Update: "Yolanda Wallace was named principal of Prairie View Elementary School in Rhome." That name reminds me of Marcellus Wallace telling Yolanda to "be cool" at the end of Pulp Fiction. Edit: That was a huge error. Jules said it.
- I can't do this justice, but some spare New York State Senator was on Piers Morgan last night and it turned into the Theater of the Bizarre. Morgan tweeted afterwards, "Quite extraordinary interview with @ball4ny - called me 'dude', mocked my accent, and challenged me to an arm wrestle. Weird man."
- "I don't remember absolutely not much of anything." - Very confusing statement from a lady from West, Texas who was the focus of a news segment last night by Fox 4.
- President Obama will visit Baylor University for the Memorial Service for the West victims on Thursday. From the main sports blogger for the school: "I shouldn't have to say this, but I will: if anyone boos President Obama at the memorial service Thursday, I will shame you into the dust."
- Mrs. LL got sucked into some show called Awkward on MTV. I watched about fifteen minutes and did a lot of head shaking.
- The Travis County DA agreed to a quick plea bargain of 45 days in jail after her DWI arrest. Something sounds fishy. Anyone see how much time she'll actually do and whether it will be satisfied through the very loosely governed "work release"?
- I heard yesterday that a Lifetime movie will be made about the Jodi Arias case. Any chance it will be completed before the trial is?
- It's NFL draft time on Thursday which means we are all going to be beaten down the phrase of "draft the best athlete available" which is obvious yet impossible to implement without error. If they could identify the best athlete there would never be any first round busts.
- Ron Washington was caught smoking in the dug out the other day. Funny.
- Not many people raised an eyebrow about the Boston police searching house after house without consent last Friday.
- Edit: A rare response from me. Some guy, suggesting I was wrong, keeps asking me to remember my post of "Let's See What A Constitution Loving Senator Says" where I took a shot at Lindsay Graham suggesting the defendant not be read Miranda. I don't understand. The bomber was read his Miranda warnings yesterday by a federal judge. And anything the cops learned from prior questioning can't be used against him unless there is a Miranda exception to be used (which is highly unlikely.)
Last Thanksgiving I read the two part Texas Monthly series on the wrongful conviction of Michael Morton. It was shocking then. It's shocking now. Afterwards, a "Court of Inquiry" was created to investigate the DA who prosecuted Morton to make a determination of whether he intentionally withheld evidence. Talking to folks, I constantly heard, "That DA needs to be in jail" -- a phrase which most Texans had never uttered before.
But most of my friends in the criminal justice had never heard of a Court Of Inquiry and really didn't know what power, if any, it had.
Well that Court at least believes it can issue a warrant for the arrest of the Former DA and that's what happened on Friday.
Edit: Here's the judge's detailed order.
at 9:29 AM
- And when it was all said and done, the remaining Boston Bomber was caught by a guy who went outside for a cigarette.
- A lot of people were freaking out that the bomber may not have been his Miranda rights. The only consequence for not doing so is that any statement made post-arrest without the benefit of Miranda can't be used against him. That doesn't impact any other proof against him. No reason to freak.
- But then the experts started talking about a "public safety" exception to Miranda. I've been practicing criminal law for over twenty years and not one time have I ever heard of that exception being invoked.
- London Marathon wheel chair wreck. Man, those things move too fast to be in there with runners.
- While doing yard work, I got hit up by a little Cub Scout to buy a $20 discount card. I shelled the money out on Cuteness Principles.
- Reese Witherspoon got arrested for Disorderly Conduct over the weekend while her husband was being subjected to field sobriety tests. Apparently, she kept getting out of the car despite instructions to remain inside. After being told to return to the car, she “stated that she was a ‘U.S. Citizen’ and that she was allowed to ‘stand on American ground,’” police say. Nice touch.
- Al Michaels got a DWI arrest but I'm not sure he'll suffer much of a consequence since his breath sample was right at the legal limit of .08.
- On Sunday, the UIL's Medical Advisory Committee unanimously recommended limiting football programs to 90 minutes of full-contact, game-speed practices per player per week during the regular season and playoffs. I didn't think much of it until I read that Committee has never had one of its proposals rejected.
- Texas Attorney General Greg Abbott, Rick Perry, John Cornyn and Ted Cruz all did a photo op at West, Texas.
- The old Uncle Julio's on Greenville Avenue burnt/burned down overnight. I feel like I ate their back in the day, but really have no specific memory of the place.
- 60 Minutes had a feature last night on the 9/11 Museum which is being built under Ground Zero. It looks perfectly done.
- The Family Puppy has opened its eyes and is trying to stand up. Every female in the house tells me the little thing has already been sold, but they sure are acting brave about its impending departure if that is true.