Rothgery, Right To Counsel, Blood Warrants

I just read the post on Grits about the Rothgery case. The opinion is 49 pages and I won’t have time to go through the whole thing today. However, the holding could have positive implications for shutting down the practice of DWI forced blood draw warrants.

“A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. Pp. 5–20.”

It’s not a far leap from that holding to ruling that when the police, prosecutors, and “friendly” judges team up to sign blood warrants that the defendant should have the right to an attorney. After all the prosecutor is involved, the defendant knows the charge against him, and that his liberty is subject is restriction. Yet another reason these blood draws should be unconstitutional.

And finally, Jon Bradley is already promoting a seminar to work around this ruling (and your 6th Amendment rights). Is anyone surprised? From JB

This case makes it even more important that law enforcement understand the advantage of noncustodial interviews. There will now clearly be no opportunity to interview at the jail following arrest, as a 6th Amendment attachment is much more difficult to overcome.

So, make plans to attend a regional seminar on Confessions this summer. Learn how to avoid the litigation of Miranda. See how easy it is to get a noncustodial confession that will be accepted by the court and jury.

Are there any TDCAA seminars where we don’t teach prosecutors how to work around the law? Really.

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3 responses to “Rothgery, Right To Counsel, Blood Warrants”

  1. shg says:

    I think you may be getting way ahead of yourself on this one. This is how most of the country does it and has for a long time. You get bustedm, go before a judge and get a lawyer. Not a biggie, except for some truly backward locales like Gillespie County.

    There’s nothing particularly revolutionary about Rothgery and, as decisions go, it doesn’t provide much guidance at all.

    But I think you can rest assured that it will have no impact on blood warrants.

  2. Robert Guest says:

    I concur. However, I read the paragraph holding and it screams blood draw warrant.

    Of course, what Rothgery means to me isn’t important. It what appellate judges think.

    I think the impact will be greater than expected. Many smaller counties do not have defense counsel present at the initial bond hearing (Kaufman County doesn’t.)

    I think we could see an increase in public defenders officers.

  3. funny says:

    From the sixth amendment:
    In all criminal prosecutions, the accused shall enjoy the right to […] have the Assistance of Counsel for his defence.

    The court said the magistrate hearing is part of the criminal prosecution so the 6th amendment applies.

    One might assume that if the accused attempts to actually defend himself before the magistrate then he would have the right to assistance of counsel.
    Switching topics, suppose an officer is going for a blood warrant and suppose you were somehow notified before the warrant issues or before the bloood has actually been taken… can you challenge the warrant?

    If a judge is staying up late Saturday night signing blood warrants via a fax machine … might you also fax him a motion to quash? Surely it wouldn’t be fair to be “open for business” with regard to the state’s motions but “closed until Monday at 9am” for any defendants. Maybe you can have a hearing on his front doorstep or via conference call? Maybe they suspend the warrant until the hearing on Monday…

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