We have no more rights, even those given to us by the constitution.

[Theory5]

Originally Posted by InfiniteNow

Good luck trying to prove they weren't on their way to provide back-up for a colleague, or weren't responding to a call that was lower priority. Use of the lights has nothing to do with emergencies. It's about clearing traffing or notifying a driver to pull over so they can effectively do their jobs.

Even if it were for emergencies only, though, you'd have no way of knowing if they were responding to a call for help or not, so it's really moot.

I would really hope that they would put on their lights when providing help, otherwise that would mean that they place the call below emergency level, right?
And they sped up to go around the car, and they went on only doing around 10 MPH above the speed limit.
Anyways, I was trying to use that as an example of an abuse of power, not an actual infringment of the law, because I have no actual proof.

[lawcat]

Originally Posted by InfiniteNow

Now recently, here in Texas, they've implemented a no refusal program. They have checkpoints where they pull people over and they are required to do a sobriety test/breathalizer. If the person refuses, the officer has the right to require a blood draw to test for alcohol in their system. If alcohol is found, obviously they spend the night in jail.

How is that possible? How can they get around protections, and even if a person refuses their test, they have the right to draw blood? What's the deal with that? Any ideas on how this is even constitutional or legal?

InfiniteNow,

I honestly can not answer that question without doing some research. I can blabber about my arguments for or against such practice, which would have some merit, but I do not think that it would be as insightful. So I will do some research, and let you know the status of that.

[TheBigDog]

Originally Posted by Theory5

I would really hope that they would put on their lights when providing help, otherwise that would mean that they place the call below emergency level, right?
And they sped up to go around the car, and they went on only doing around 10 MPH above the speed limit.
Anyways, I was trying to use that as an example of an abuse of power, not an actual infringment of the law, because I have no actual proof.

This one reminds me of my mom. She has only gotten one traffic ticket in her life; failure to stay to the right. In most places you must stay to the right except to pass, although this is rarely ever enforced. Flashing the lights to get a person to pull to the right lane is more polite than giving them a ticket. There is no telling what that officer may have been up to.

I have had brushes with police where I thought they were taking liberties with their authority. None of them has ended terribly badly, but I know exactly what you are getting at. It is frustrating to be at the receiving end of attention from the law that you feel is undo and without cause. My experience is that these are the far exception to the rule, and paint law enforcement in a bad light based on the actions of a small fraction of their brethren.

Bill

[lawcat]

Originally Posted by InfiniteNow

Now recently, here in Texas, they've implemented a no refusal program. They have checkpoints where they pull people over and they are required to do a sobriety test/breathalizer. If the person refuses, the officer has the right to require a blood draw to test for alcohol in their system. If alcohol is found, obviously they spend the night in jail.

How is that possible? How can they get around protections, and even if a person refuses their test, they have the right to draw blood? What's the deal with that? Any ideas on how this is even constitutional or legal?

InfiniteNow,

I did some research, and here is what I found:

First:

Under the implied consent law, consent to the taking of a breath or blood specimen must be voluntary. Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993). If a driver's consent is induced by an officer's misstatement of the consequences flowing from a refusal to give a specimen, the consent is not voluntary. Id. at 894 (holding that officer's erroneous statement that Erdman would immediately be jailed and charged with driving while intoxicated if he refused to give specimen rendered consent involuntary); State v. Sells, 798 S.W.2d 865, 867 (Tex. App.-Austin 1990, no pet.) (holding that officer's erroneous statement that Sells would automatically be charged and incarcerated if he refused to give specimen rendered consent involuntary).

Assuming, without deciding, that implied consent law applies to the refusal to submit a breath specimen, and that the ALJ implicitly denied [*11] Patel's motion to suppress, there is no indication that the ALJ erred in its decision. Whether one voluntarily submits a breath specimen is a question of fact. Hall v. State, 649 S.W.2d 627 (Tex. Crim. App. 1983). The ALJ is the ultimate trier of fact. See TEX. GOV'T CODE ANN. § 2001.174 (Vernon 2000). In the instant case, the ALJ determined that Patel voluntarily refused based on her findings. As the sole trier of fact, she was free to believe or disbelieve Patel's contention that the arresting trooper's extra-statutory warnings affected his decision to refuse to provide a breath specimen. See id; see also Dept't of Pub. Safety v. Hirschman, 169 S.W.3d 331, 337 (Tex. App.-Waco 2005, pet. denied) (reversing county court at law because it "improperly substituted its own judgment by re-weighing the evidence using the equally plausible but opposite inferences construct").

Texas Judiciary Online - HTML Opinion

So, the consent must be voluntary.

Second, if there is no consent, an officer may draw blod sample if a person is arrested:

The implied consent law applies only to persons who are arrested for driving while intoxicated or related offenses. Aliff v. State, 627 S.W.2d 166, 168 (Tex. Crim. App. 1982); Combest v. State, 981 S.W.2d 958, 960 (Tex. App.--Austin 1998, pet. ref'd); see Tex. Transp. Code Ann. § 724.011(a) (West 1999) HN3("If a person is arrested . . . the person is deemed to have consented"), § 724.012(a) (West Supp. 2005) HN4("specimens . . . may be taken if the person is arrested").

Texas Judiciary Online - HTML Opinion

Third, to arrest a driver, an officer must have a probable cause:

Based upon his observations, [*2] Officer Barr initiated a traffic stop.

. The driver was slow to respond but eventually stopped approximately five blocks later.

. After identifying the driver as appellee, Officer Barr detected a moderate odor of alcohol emanating from him and noticed that he slurred his speech and was unsteady on his feet after exiting his vehicle.

. When Officer Barr asked appellee if he had consumed any alcoholic beverages, appellee replied that he had consumed four beers.

. Officer Barr administered three field sobriety tests: the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test.

. During the HGN test, Officer Barr observed six of the six observable clues. Based on his training and experience, Officer Barr knew that four or more clues are a reliable indicator of intoxication.

. During the walk-and-turn test, he observed five of the eight observable clues. Based on his training and experience, Officer Barr knew that four or more clues are a reliable indicator of intoxication.

. During [*3] the one-leg stand test, he observed three of the four observable clues. Based on his training and experience, Officer Barr knew that four or more clues are a reliable indicator of intoxication.

. Officer Barr arrested appellee for driving while intoxicated and transported him to the police station.

Fourth, once a person is arrested, an officer may seek a search warrant to draw a blod sample based upon the evidence of the arrest. Thus, the blood tests are obtained under warrant or voluntary consent.

When he was asked to submit a specimen for testing, appellee became dazed and confused, took an unusually long time to decide, and then refused both the breath and blood tests. Based on his training and experience, Officer Barr knew that appellee's refusal was a violation of the implied consent law.

On March 15, 2008, at 6:03 a.m., the magistrate signed the search warrant. Appellee's blood was subsequently drawn and tested.

Appellee filed a motion to suppress the result of the blood test contending that the affidavit failed to state probable cause on several grounds. At the hearing on the motion, he specifically argued that because the affidavit failed to include the time the alleged offense occurred, there was no basis upon which the magistrate could have determined whether appellee's blood contained evidence of a crime. Thus, he reasoned, the facts in the affidavit were stale and did not [*4] establish probable cause to support issuance of the warrant. At the conclusion of the hearing, the trial court stated as follows:
The Court finds that the time in the drawing of blood is a critical issue. Because when you're dealing with blood, you're dealing with absorption, elimination, and it becomes less accurate. And the Court finds that the Motion to Suppress will be granted because there is no time. Without even moving on to other issues in the warrant, that there is no time stated in the affidavit; and, therefore, the Motion to Suppress the Blood is granted.


On September 8, 2008, the trial court signed the written order granting appellee's motion to suppress the blood test. The State timely filed this appeal.

II. ANALYSIS

A. Standard of Review

HN1We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court's determination of historical facts that depend on credibility and review de novo the trial court's application of the law to those facts. Maxwell, 73 S.W.3d at 281; Carmouche, 10 S.W.3d at 327. [*5] We also review do novo the trial court's application of the law of search and seizure. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). But appellate review of an affidavit in support of a search warrant is not de novo; rather, great deference is given to the magistrate's determination of probable cause. Illinois v. Gates, 462 U.S. 213, 236-37, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

B. Applicable Law

HN2Generally, taking a blood sample is a search and seizure within the meaning of the Fourth Amendment to the United States Constitution. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Therefore, Article 1, Section 9 of the Texas Constitution requires that a search warrant be used. Escamilla v. State, 556 S.W.2d 796, 799 (Tex. Crim. App. 1977). Pursuant to Texas Code of Criminal Procedure article 18.02(10), a search warrant may be issued to search for and seize, inter alia, "property or items . . . constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense." TEX. CODE CRIM. PROC. ANN. art. 18.02(10) (Vernon 2005). Blood is an "item" of evidence within the meaning of article 18.02(10). Muniz v. State, 264 S.W.3d 392, 396 (Tex. App.--Houston [1st Dist.] 2008, no pet.).

HN3The [*6] issuance of a search warrant for "items" in article 18.02(10) requires that the peace officer first present to a magistrate a sworn affidavit setting forth sufficient facts to establish probable cause that (1) a specific offense has been committed; (2) the specifically described property or items to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense; and (3) the property or items constituting such evidence are located at or on the particular person, place, or thing to be searched. TEX. CODE CRIM. PROC. ANN. art. 18.01(c) (Vernon Supp. 2007). The test for determining probable cause is whether the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Id. at 236. Probable cause to support the issuance of a search warrant exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986); see also Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) ("Probable cause exists [*7] when, under the totality of the circumstances, there is a 'fair probability' that contraband or evidence of a crime will be found at the specified location."). Neither federal nor Texas law defines precisely what degree of probability suffices to establish probable cause. Rodriguez, 232 S.W.3d at 61. We must consider whether there are sufficient facts, coupled with inferences from those facts, to establish a "fair probability" that evidence of a particular crime will likely be found at a given location. Id. The issue is not whether there are other facts that could have, or even should have, been included in the affidavit; instead we focus on the combined logical force of facts that are in the affidavit. Id.

HN4When reviewing an issuing magistrate's determination, we should interpret the affidavit in a commonsensical and realistic manner, recognizing that the magistrate may draw reasonable inferences. Id. Whether the facts mentioned in the affidavit are adequate to establish probable cause depends on the totality of the circumstances. Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996). To justify a magistrate's finding that an affidavit is sufficient to establish probable cause [*8] to issue a search warrant, the facts set out in the affidavit must not have become "stale" when the magistrate issues the search warrant. McKissick v. State, 209 S.W.3d 205, 214 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd); Serrano v. State, 123 S.W.3d 53, 60 (Tex. App.-Austin 2003, pet. ref'd); Guerra v. State, 860 S.W.2d 609, 611 (Tex. App.-Corpus Christi 1993, pet. ref'd). Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place. McKissick, 209 S.W.3d at 214. The proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued. Id. With these general principles in mind, we turn now to the affidavit in this case.

C. The Affidavit

In its sole issue, the State contends that the trial court erred in granting appellee's motion to suppress because the search warrant affidavit showed that appellee's blood probably contained evidence of intoxicants at the time the warrant was [*9] issued. Appellee argues that the trial court properly granted his motion because the affidavit did not indicate the time of the alleged offense and, thus, the facts in the affidavit had become stale.

We are not aware of any cases, and neither party has directed us to any, addressing the staleness issue related to blood-alcohol content in the context of probable cause to support a search warrant. 1 Appellee instead directs us to several cases addressing the impact of the passage of time on the admissibility of the results of a blood alcohol test. 2 See State v. Mechler, 153 S.W.3d 435, 437 (Tex. Crim. App. 2005); Mata v. State, 46 S.W.3d 902, 907 (Tex. Crim. App. 2001). But these cases concern the admissibility of expert testimony and intoxilyzer test results-not probable cause to issue a search warrant to collect blood evidence. As these cases are unavailing, we conclude that we must consider whether it was unreasonable for the magistrate to presume that evidence of intoxication would be found in appellee's blood at the time this warrant was issued. See McKissick, 209 S.W.3d at 214.

http://www.14thcoa.courts.state.tx.u...pinionID=85972

[InfiniteNow]

Originally Posted by lawcat

InfiniteNow,

I did some research, and here is what I found:

Thanks... They're a bunch of bastards, aren't they?

So, to summarize:
Samples can only be taken when consent is given.
When the individual is arrested, consent is implied.
To arrest someone, the officer only needs probable cause.
Once the officer has made the arrest based on the aforementioned probable cause, consent is implied and the blood can be drawn to add to their evidence in the case regarding intoxication.


Bunch of Nazis here in Texas, ain't they? Thanks again, lawcat. I'd been wondering about that, but had not taken the time to find an answer. The simplicity of the approach is rather striking.

[TheBigDog]

Funny that we were having this conversation tonight. I was just out driving to the store when I got a phone call. I pulled into a parking lot of a closed store because my truck is too noisy to talk on the phone anymore. I talked for about five minutes. Just as I hung up lights came on behind me. A cop saw me in the parking lot and came to investigate. He asked me what I was doing there, and took my driver's license back to his car. About three minutes later he gave it back, apologized for the inconvenience, and let me on my way.

Would this qualify as an abuse of authority, or of just good policing?

I was not happy to have to hand over my ID for doing nothing at all illegal. The lights on my car were on, I was not trying to hide or to be suspicious. Hell, I pulled off the road to use my cell phone rather than talk while driving. I could have copped an attitude with him about all that, but it was just easier to comply. Sometimes mis-communication is communication eventually.

Bill

[CraigD]

Originally Posted by Theory5

I am not a big fan of America...

By tradition and acclaim, the US is a nation, in the 1863 words of then President Lincoln, “by the People, for the People”, so not being a fan of it is in a sense not being a fan of yourself. In other words, you, I, and other hypographers living here are not merely residents of America – we are America.

Originally Posted by Theory5

... but I do try to learn all I can to prevent so called authority figures from abusing their powers.

I applaud you. Understanding our government and laws are essential not only to curbing abuses of authority, but to participating in, and personally exercising authority, in out society. One of the surest ways to assure you’re not a victim of misused authority is to be authority.

Originally Posted by Theory5

Anyways, what I want to know: is there any part of acts passed such as the Patriot Act that allows law enforcement to search somebody for no reason or an unrelated reason, (such as "tresspassing" when somebody is hanging around in a public parking lot?).

Since you ask, yes, the USA PATRIOT Act (bonus points to anyone who can expand this acronym without looking it up) clearly, and unconstitutionally, expands the search and seizure powers of certain officials. Specifically, Title II of the Act permits searches to be conducted before the warrant is issued. This provision was ruled a violation of the Fourth Amendment 26 September 2007 by Mayfield vs. USA

Originally Posted by Theory5

What happened to needing a warrent, and/or seeing something illegal happening, leading to arresting and a search of the person? The US constitution and the UN's book on crimes and punishment both clearly state people cannot have themselves or their property searched without reason and a warrent.

The Fourth Amendment reads (italics mine)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The “wiggle room” in this law that permits situations such as you describe, is due to the inclusion of the word “unreasonable”, as what is and is not reasonable is determined by the opinion of courts.

In the worst cases, this determination of reasonableness can hinge on a jury’s determination of who of two people are lying – for example, a cop claiming he saw you carrying a bag of pot in plain sight, then pocketing it, vs. you claiming you did not

Originally Posted by Theory5

Is there anyway to combat this horrible infringment of human rights?

Yes.

If you are charged based of accusations and evidence arising from an illegal search, do not plead guilty to the charge in court. Challenge it on the grounds of the illegal search. In every case of this kind in which such a challenge was raised of which I’m personally aware, the charge was either dismissed, or resulted in an acquittal.

It’s not my intention in the above to paint a too-rosy picture of real-life judicial proceedings. Though I’ve never personally witnessed an challenged illegal search resulting in a conviction, such challenges can be expensive. I have heard a credible first hand account of a free public defender absolutely refusing to offer such a challenge on behalf of a defendant. I’ve personally spent about $6,000 hiring lawyers to represent my adult child in a criminal cases that was dismissed due to illegal searches.

IMHO, the practical cost of legal defense is one of the, if not the, greatest inequality in American society. Had I not hired a lawyer for my son, he would likely have have been sentenced to 5 years of prison on the basis of testimony of cops who were quite simply and obviously lying. In this case, justice was served well, but not inexpensively.

[freeztar]

When I was in college, I took a spring break to cruise down the coast from Olympia to Big Sur. I had long hair at the time and I was playing guitar every chance I could get.

So, my girlfriend and a band member are trying to find a place to pitch a tent for the night. I always lived by the philosophy that if you find a big green area on the map, there's a place to camp.

But, we were having trouble finding the road to get to the other road to which we needed to go. We passed the road, and made a legitimate turnaround to go back. On our way back, we passed a couple local law enforcement cars and they started following us. It turns out that the road we needed to take was straight through town...15 mph speed limit. Do you know how hard it is to go 15 mph when you know you're being watched and evaluated?

So, we made it through town and the police were still following us. The speed limit picked up to 30 mph, and I'm quite sure I never did a hair over 29, deftly navigating the winding turns.

"Which way do we go?", I asked my girlfriend (as a stop sign was within 50 yards and we didn't need to linger).

Well, we came to that stop sign and we did linger for about 5 seconds (might as well have been minutes). I looked at the driver's side mirror and I saw the officer roll down the window and a dog stuck its head out (we didn't have anything, but it's a bit intimidating). And my gf declared, "Left".

As soon as I turned, the lights came on. I pulled over right away, as I was expecting it. I asked why we were pulled over and they said that it was California Law to signal within 75 feet of the stop sign. (Load of BS!)

We were searched and the reason given was my long hair and the guitar case. They were looking for people smuggling massive amounts of marijuana. They told us that as long as we didn't have 20 pounds on us, we'd be fine. And of course, I had to ask..."Why 20 pounds?". Well, he answered that the "judge would not see cases with possesion less than that".

After they found nothing, they changed character and helped us with our map. They even told us the best place to camp!

I love having police officers around, but it's a corrupt business sometimes.

[lawcat]

Originally Posted by InfiniteNow

Samples can only be taken when consent is given.
When the individual is arrested, consent is implied.
To arrest someone, the officer only needs probable cause.
Once the officer has made the arrest based on the aforementioned probable cause, consent is implied and the blood can be drawn to add to their evidence in the case regarding intoxication.
.

To summarize: NEVER CONSENT TO ANYTHING. Do not talk, do not consent to search. Do not consent to line walking. Do not consent to breath test. Do not consent to one leg test. Make them seek a warrant. Make them gather facts.
Criminal law is a fact based business. The more facts you give them, the better your chances of going to jail. They already have some fact for stopping you. Make it the only fact. Do not drink and drive, or such. But if you are dumb enough to do it, and they stop you, say you are sick and you need a family member to take you home. Do not consent to help. Do not consent to ambulance. If they take you to jail, keep repeating that you are sick and you want to see a family member, and you do not wish to talk. Tell your family to call a lawyer.

If you voluntarily consent, it's pretty much over.

[lawcat]

Originally Posted by freeztar

After they found nothing, they changed character and helped us with our map. They even told us the best place to camp!

I love having police officers around, but it's a corrupt business sometimes.

Such stories make me sad. But, I know, law enforcement is an investigative fact finding business, and cops are not always genuine in communication. They test you. We are glad you did not have a 20 lbs bag. Otherwise, who knows? You may not be here at hypography.