An Austin DPS Trooper is furious that a magistrate refused to sign his blood draw warrant. His post provides a great insight into how cops view DWI arrests, magistrates, and your 5th Amendment rights.
Here is Michael.Scheffler@txdps.state.tx.us, in his own words.
Here’s the scenario….
I made a DWI arrest last night in Austin. The driver refused any and all SFST’s but showed plenty of indicators and admitted to drinking. He license in currently under ALR Suspension for a DWI arrest, also in Liberal County U.S.A, in March of this year. I explain to the driver that PC for the stop, my observations (and I tell him what they are) and his refusal to cooperate with SFST’s leave me with no choice but to place him under arrest for DWI. He refused to respond so I gave him a pair of pretty silver bracelets.
Take him to Travis County Central booking and do affidavit for DWI and DWLI and an affidavit for a blood search warrant. Magistrate on duty signs both arrest affidavits and sets a pretty decent bond along with an order for an ignition interlock device. She then refuses the blood warrant because she feels that taking a person’s blood, even with a court order, is extremely intrusive and should not be allowed. Told me that she is even hesitant on subsequents and felonies (I know this to be true because I had the same fight with her the previous night on a felony DWI). She told me that had the PC for the stop, Drove w/o Headlights, been something more aggravated like excessive speeding, ran a red light or driving the wrong way down 6th street, she would be more likely to sign the blood warrant. I tried to explain to her that the vast majority of DWI arrests are not made with “aggravated PC” as she described and that our job was to catch these drivers BEFORE they reach the point of hurting or killing someone. I also questioned how she could justify allowing someone to hide the evidence of a crime and she stuck with the idea that it is too personally intrusive.
My main concern, beyond the fact that we have no breath or blood evidence, is that a magistrate is being allowed to pontificate from the bench and, in my opinion, is acting more like a defense attorney than a judge. How is it that we can play by the rules and try to legally obtain evidence legally and a magistrate is allowed to inject her personal bias into the case? Seems like a conflict of interest to me.
DPS Troopers Need Your Help; To Convict You
First, this trooper suffers from the misguided belief that citizens are somehow obligated to assist in their own prosecution. We pay police officers to gather evidence and investigate criminal activity. They should not require the assistance of the accused to make their case.
You Leave Me No Choice
This suspect refuses to perform stupid human tricks for the officer (maybe the suspect knows the high failure rate for sober drivers). This cop responds like most officers who face suspects asserting their rights- with an arrest.The “you leave me no choice” statement is also sadly typical.
Every officer has a choice whether to arrest a suspect. “You leave me no choice” statements have always struck me as a cheap rationalization to deflect personal responsibility (for the injustice of arresting without evidence)
However, officers are taught that arresting without evidence is not only acceptable, but a life saving duty. DWI hysteria has replaced objectivity in police training.
Acting Like a Defense Attorney
Second, the trooper is shocked when a judge actually wants some objective DWI evidence in order to sign a blood warrant. Cops are so used to arresting without evidence they can’t imagine why a judge would balk at signing a blood warrant. Never mind the warrants should be unconstitutional, and clearly violate Texas law.
The tropper is upset that the magistrate is acting more like a defense attorney than a judge. Pot meet kettle. I’m sure this same trooper has no problem when “friendly” magistrates set up fax machines to sign fill in the blank warrants for police, even though such behavior could be seen as “acting like a prosecutor.”
Judge Must Be Removed
I don’t know who this judge is. However, she has the courage to recognize the value of freedom, liberty, and privacy even in the face of DWI hysteria and an angry police officer. These values are more important than any DWI bust. This judge should be commended. However, at least one TDCAA commenter (prosecutor?) is asking that this judge be reported to the Judicial Ethics Commission. This judge hasn’t done anything unethical. If the duty of prosecutor is not to convict, but to see that justice is done, why should this judge be removed?
Is this DWI bust so important that we must file frivolous judicial complaints against this judge?