It has been done by other agencies in central Texas and around the country over the past couple of years: obtaining search warrants for a sample of someone’s blood that an officer has probable cause to believe is intoxicated, but this Halloween, Austin PD will employ a vampire to take blood from those officers believe are intoxicated and driving….
This is not a "new concept" in itself, but it is new for the Austin Police Department. And, it is one that I hope does not become routine, especially on a first offense Driving While Intoxicated charge. While driving while intoxicated is a high risk offense that endangers others and therefore is definitely an offense that should be prosecuted, taking a suspect’s blood is extreme.
As the law on DWI is currently written, a first offense is a Class B misdemeanor, the 2nd is a Class A misdemeanor, and a 3rd or more is a 3rd degree felony. I am not going into all the pitfalls of a DWI conviction in this entry: surcharges, driver’s license suspensions, etc.
Typically, to conduct a constitutional search, an officer will obtain enough evidence to demonstrate probable cause that an offense is being committed, has been committed, or is about to be committed, present that information to a judge, and swear that the contents of the affidavit being presented to the judge is true and correct and obtain a search warrant. Only in the past 1-2 years has it become the vogue thing to apply for search warrants for blood.
The Texas legislature already allows the taking of blood, against the will of the person, if their is a fatal collision or one involving serious bodily injury. In this case, I have much less objection to the practice and actually approve this method because it went through the proper channels by having the elected officials of Texas pass the law for that change.
What is happening on Halloween weekend 2008 is the police will be taking the law into their own hands and seeking search warrants for anyone who does not consent to the giving of a breath or blood specimen. The only person(s) standing between the person arrested and a needle will be a judge, who will determine if probable cause exists to take the blood.
This is quite a low standard of proof and is much less than that amount required to obtain a conviction, so most of the time, judges will approve the warrant application. But, I hope that the judge(s) working this weekend look closely at the affidavits and really hold APD and any other officers doing this accountable to doing a thorough investigation.
Afterall, if this is what the Legislature had intended, wouldn’t they have put this practice into law in one of the past sessions. There’s always a chance that it will happen in the future and Mothers Against Drunk Driving (MADD) would probably lobby to get it passed, but as a public, we need to let lawmakers know that this is not what we want to have happen.
Slowly and methodically in the name of "justice", people are allowing their rights to erode and be taken from them. We all must be wary of our rights and protect them, else we lose them. As an Austin Criminal Defense Attorney, who defends those accused of DWI’s and other offense, this practice is simply appalling.