The Campaign For DA

6.23.2016

I Predicted Wrong On This One (Edit: I Was Only Half Wrong)


I even listened to the oral arguments.

But be clear: This has nothing to do with DWI prosecution (regardless of how MADD has lied over the last few weeks in an effort to get money). The Supreme Court reviewed a couple of state laws that made it a crime to simply refuse a breath or blood test after you were arrested for DWI even if you weren't guilty of DWI. As for DWI prosecutions, nothing has changed.  (But it is a blow to the "implied consent" terminology -- the myth that you have somehow agreed to voluntarily provide a sample of breath or blood if arrested for DWI. You have agreed to no such thing.)

Huge Edit: Hold the phone. I just read the opinion. I think the AP was a little off on the headline. It looks like a State can make it a crime to refuse a breath test but cannot make it a crime to refuse a blood test.

(For criminal lawyers, DWI cops, and eggheads only: A huge underlying holding in the case is that police do not need a warrant to get a breath test. That's amazing. But there are two problems. First, you can't logistically force someone to provide a breath sample. That is, if someone doesn't want to blow, you can't make them blow. (The Intoxilyzer needs several seconds of continuous breath.) Secondly, Texas still has a statutory scheme requiring that a warning be read (DIC-24) and a person be asked to provide a sample. Those laws are still in effect and can't be bypassed. The only crazy scenario I can come up with is that the police don't read the DIC-24, take someone to the jail, tell them to blow into the new Intoxilyzer, and the person complies. The State will argue that the results should be admissible because there is no requirement for a warrant plus the smaple was provided with consent -- although they have to concede there will be no driver's license consequences because the DIC-24 wasn't read. The defense will argue that no evidence is admissible under art. 38.23 if there is any violation of the law and, since the DIC-24 wasn't read, there is a state law violation.)

8 comments:

Anonymous said...

Unrelated to this post, but did I miss the news of Decatur PD getting a motorcycle?

Anonymous said...

So what do I do counselor if I get pulled over....call you??

Anonymous said...

Duly Noted

Anonymous said...

Huh. Huh. You said DIC.

Anonymous said...

Meanwhile, some little kid's head is crushed under a vehicle because of a drunk, parents will have to plan a funeral...IF they survived...and we'll continue to make a big fuss over the rights of the person who stumbles out drunk and usually unhurt at the scene, unaware of the horrible pain and death they caused, and barely able to stumble around saying "huh...sup...wha?" It's as if the innocent victims are just a given, a token thing, and all the focus must be on coming up with all the ways possible that even MORE people can be wiped out in the future by these deliberate killers. I guess it has to hit home before someone understands this. Hey...want to not have to worry about taking a breath or a blood test? Then don't drink and drive.

Anonymous said...

So, if I do not give up my due process rights under the U.S. Constitution,,then I will be charged with a crime in the name of public safety. How can any reasonable person argue against that? What could go wrong with that?

Let's see... restrict my right to purchase/possess a firearm under the U.S. Constitution due to being an individual on the No-Fly List or Terrorist Watch List i tht no one can explain how one gets on or off said list(s) in the name of public safety. How can any reasonable person argue against that?

In the wake of the Orlando shootings, Mrs Clinton and Mr. Obama has declared the NRA the enemy and not radical islam. How far a stretch is it that simply having an NRA membership could land an individual on the No-Fly-List and or the Terrorist Watch List?

The first ten admendments, commnly known as the Bill of Rights, work together s a unit. Once one is compromised, the other nine are soon to follow.

Anonymous said...

Rusty's own opinions came back to bite him and whomever she was to bite them in the ass ! Karma !!

Anonymous said...

Do you still beat your wife?