New Texas Law - DUI Process

WGG · #1 07-28-09, 12:52

This law bothers me more than the law allowing someone to be arrested for failing to evacuate.

By Andrea LuciaHOUSTON (KTRK) -- A new law targeting suspected drunk drivers is about to go into effect, giving police the power to bypass a judge when deciding whether a blood test is necessary. It's a law that's firing up debate among civil rights advocates, prosecutors and defense attorneys.
Prosecutors believe the new law will help them put dangerous drunk drivers behind bars. But criminal defense attorneys warn that the price will be a major violation of personal privacy and your constitutional rights.
Sticking someone with a needle and forcing them to give blood can bring out some strong emotions. But a new law set to take effect on September 1 will allow police officers to do so even without a search warrant, if they encounter a suspected drunk driver who is a repeat offender, has a passenger under the age of 15 or has a passenger die.
"It requires a warrant to search your home, but it no longer requires a warrant to search your human body," said criminal defense attorney Doug Murphy. "That's pretty severe.

ljlinson1206 · #2 07-28-09, 19:17

Quote:

Originally Posted by WGG

, if they encounter a suspected drunk driver who is a repeat offender, has a passenger under the age of 15 or has a passenger die.

"That's pretty severe.

Uhhmmm, let's think about this.

1) Repeat Offender
2) Has a minor(child) passanger
3) Or KILLS someone

Yea you're right, that's just too severe. Let's wait until they kill at least 3 or more people before we take action!!!!!!!!!

kmrtnsn · #3 07-28-09, 20:00

Driving is a privilege granted by the State, not a right guaranteed by the Constitution. Acceptance of that little plastic card can do a lot of things in different jurisdictions, waive rights, imply consent, etc. I don't have a problem with this.

Irish · #4 07-28-09, 20:06

Please post a link to the article. I see lots of problems arising from this.

Skintop911 · #5 07-28-09, 21:18

Compulsory blood sampling is SOP is many states. Texas is years behind the norm. It's been to higher courts in different circuits. Drivers in those states must consent for the sample, in the event of arrest. If the defendant does not cooperate with the blood draw, it's taken forcibly. Typically, the defendant is then charged with some version of obstructing police/justice/etc.

adh · #6 07-28-09, 21:30

Quote:

Originally Posted by kmrtnsn

Driving is a privilege granted by the State, not a right guaranteed by the Constitution. Acceptance of that little plastic card can do a lot of things in different jurisdictions, waive rights, imply consent, etc. I don't have a problem with this.

Let me preface with In My Opinion:

A privilege granted by the state yes, but the DUI will not result in just an administrative punishment. It will result in criminal punishment where the defendant has the right to trial by jury. And, the state will present evidence obtained while completely ignoring the 5th amendment IMO. Don't get me wrong, I understand the logic and applaud the sentiment, but this is only a easier step below torturing a confession out of your suspect. I look at it like I do the 2nd amendment; Unlike our modern media, I believe in the Constitution and the Bill of Rights (1st, 2nd, 5th amendments and all).

The repeat offenders out there doing this are a bad lot for sure and I'd like to see them all stopped, but I do not agree with this (even when the judge says so).

kaiservontexas · #7 07-28-09, 22:03

I disagree I think this serves no good period. I can even forgo the constitution as an argument any medical procedure performed without consent is a violation of the Nuremberg Code. Are we becoming Nazis?

believeraz · #8 07-28-09, 22:24

Quote:

Originally Posted by ljlinson1206

Uhhmmm, let's think about this.

1) Repeat Offender
2) Has a minor(child) passanger
3) Or KILLS someone

Yea you're right, that's just too severe. Let's wait until they kill at least 3 or more people before we take action!!!!!!!!!

And a judge will give an order for blood testing on each of those occasions. There's nothing wrong with the system. There is something wrong with end runs around Constitutional due process, specifically in forcible seizure of bodily fluids (personal property) without judicial oversight and a court order. Sure, it sounds good, but it's flawed in principal and leads to the good ol' fashioned slippery slope.

TAZ · #9 07-28-09, 23:44

Quote:

Originally Posted by ljlinson1206

Uhhmmm, let's think about this.

1) Repeat Offender
2) Has a minor(child) passanger
3) Or KILLS someone

Yea you're right, that's just too severe. Let's wait until they kill at least 3 or more people before we take action!!!!!!!!!

The law, if it manages to stand up past one case in court, is about the most asinine thing that I have heard come out of our legislature... well maybe not the most asinine.

1) Repeat offenders shouldnt be there to begin with. If they would HAMMER offenders right off the bat instead pussy footing around the problem wouldnt be as bad as they have let it get. Get busted, loose the car, the license, go to jail.

2) See above

3) Already have laws on the books doe deal with manslaughter, vehicular homicide... The dead person isnt deader cause they were killed by a drunk, or a gun or drugs...

Instead of creating more excuses/loopholes around the Constitution, write enforcable laws and dont make excuses for not enforcing them.

andre3k · #10 07-28-09, 23:45

Been doing dwi's for years and never seen a judge turn own a blood draw. Like the previous posters said with a DL you give implied consent, driving is not a constitutionally protected right. Have a loved one get killed by a repeat offender drunk and most people will think different.

I would actually prefer to see the DWI laws rewritten to lower BAC from .08 to any detectable amount of alcohol in your system, like it is for minors. Any amount of ETOH in your body impairs driving ability and divided attention tasks. At least this would eliminate all the SFST's that have to be done roadside and its either blood, urine, or breath test to deal with.

Skintop911 · #11 07-29-09, 00:40

Quote:

Originally Posted by believeraz

And a judge will give an order for blood testing on each of those occasions. There's nothing wrong with the system. There is something wrong with end runs around Constitutional due process, specifically in forcible seizure of bodily fluids (personal property) without judicial oversight and a court order. Sure, it sounds good, but it's flawed in principal and leads to the good ol' fashioned slippery slope.

The practice, and decisions upholding it, use longstanding exceptions for exigency and search incident to arrest. They further uphold the practice through the waiver of due process and consent when the DL is obtained.

The scientific validation of standardized field sobriety testing is an additional protection. All together, the courts have felt that the defendant's rights are adequately protected.

The strongest argument is based on science... Blood should be sampled as soon as possible after arrest. Adding time for a SW between the arrest and sample causes a destruction of evidence through the metabolization of the alcohol. One can only extrapolate the BAC so much.

Heck, one might even argue that with all of the PC above, there's inevitable discovery anyway.

One venue that was saddled with the search warrant requirement was able to circumvent it by having a judge issue a court order for the seizure of blood from defendants meeting certain criteria. (Not wholly dissimilar to the model that Texas appears to be following.)

Quote:

Originally Posted by TAZ

The law, if it manages to stand up past one case in court, is about the most asinine thing that I have heard come out of our legislature... well maybe not the most asinine.

It's been past case after case after case. Again, Texas is years behind other states.

thedog · #12 07-29-09, 00:59

I sense an underlying tone of "something" in you repeating Texas being "behind" other states. Perhaps I am reading too much into this.
God blessed Texas. And we are happy to be "behind" in most laws. Especially when it comes to ugh, gun control laws.
Internet inflections being what they are, I apologize if I read too much into your repetitiveness of Texas' BE-hind status!

dog

kmrtnsn · #13 07-29-09, 01:10

I grew up in Alaska. We always found this "Texas sized" stuff kinda cute.

browningboy84 · #14 07-29-09, 01:35

WGG,

First let me state my background. I have been a firefighter for 4 years now, and been in EMS for 3 now. I am a paramedic and work full time in EMS. That being stated, I live in Georgia. If you are suspected of DUI, you can either submit to a BAC test via breath, urine, or blood, or you will be charged with DUI due to your refusal to submit to a test.THis is Georgia's policy on consenting to a BAC test. This is an automatic conviction, unless the DA can get it thrown out on a technicality.

In September of last year, a 44 year old man hit a carload of teenagers. He was DUI 4 times over the legal limit. He killed one teenager, and one girl lost her leg, and another girl will never walk again! I worked that wreck, and that dead teenager haunts me. The driver refused a BAC test. I am a big proponent of the Constitution and EVERY ammendment in it, but "with great power comes great responsibility". I come from a family that can trace our medical roots back to the Alabama militia in the Civil War. Medicine is in my blood, and I love my job except dealing with the carnage that alcohol causes. I would also love to see DUI for anyone with any alchohol in their system.

WGG, do not take this personal, but you will never fully understand the carnage that impaired drivers can cause until you work in public safety, or have a loved one who has either been injured or killed by a drunk driver. Only then can you understand the full carnage of what will happen. What if it was your child? There is a reason that the drinking age is 21, in hope that by the time you are 21, you will take responsibility for your actions. Remember, laws are not made for law-abiding people. They are made for those who do not follow the rules.

On a sidenote, I have been working a wreck and a drunk driver hit the fire truck that was blocking the road while I was running the pump on the fire truck. I had some minor scratches from the road rash, and some soiled underwear, but otherwise fine. Drunk drivers are attracted to red lights, so I am affected by them. That is why I would love to see the DUI limit lowered!!!! Mods, if I have offended anyone with this post, I am sorry. I just have seen the carnage firsthand, and I am very opinionated about it.

scottryan · #15 07-29-09, 04:33

Slippery slope.

DUI = Overblown Sensationalism

Buck · #16 07-29-09, 05:17

Quote:

Originally Posted by scottryan

Slippery slope.

DUI = Overblown Sensationalism

Lets have one more for the road...

dui.jpg

ThirdWatcher · #17 07-29-09, 05:21

Quote:

Originally Posted by andre3k

Like the previous posters said with a DL you give implied consent, driving is not a constitutionally protected right. Have a loved one get killed by a repeat offender drunk and most people will think different.

I would actually prefer to see the DWI laws rewritten to lower BAC from .08 to any detectable amount of alcohol in your system, like it is for minors. Any amount of ETOH in your body impairs driving ability and divided attention tasks. At least this would eliminate all the SFST's that have to be done roadside and its either blood, urine, or breath test to deal with.

I agree.

In my state, we need probable cause (but not a warrant) to take blood (forcibly, if necessary) for people arrested for Vehicular Homicide or Vehicular Assault (DUIs have the right to refuse).

I've done my share on next-of-kin notifications over the past three decades and no family member ever accused me of being a Nazi. Frankly, I look at it in just the opposite way: it is the drunk drivers of this country that slaughter innocent people as surely as the Nazis did, not the LEOs (and firefighters and EMS) that have to clean up after them.

I know I come off kinda strong, but I still have bad memories of a lot of the fatals I've investigated. I still remember the name of the 18 year old young man that was killed in the very first fatal crash I investigated. He would have been 48 years old this year. RIP

I guess I'm more concerned with the rights of the innocent.

Joe R. · #18 07-29-09, 05:54

Here in PA you can refuse to give blood or even participate in the standard field sobriety test. Of course your license will be suspended for one year. You make the decision.

wichaka · #19 07-29-09, 06:00

In Washington, when you apply and receive your license you sign an "Implied Consent waiver", meaning you waive your right to refuse a breath and/or blood test, depending on the circumstances.

It's really nothing new...........

But I agree, hammer the first time offenders into oblivion so they'll really think twice about ever doing it again.

Had a Deputy friend killed by a DD years ago while he was on duty and headed home...he burned in his car.

WGG · #20 07-29-09, 07:52

Folks

I am in no way condoning drunk driving and am fully aware of the terrible carnage that results from it. I believe that the state legislatures need to modify their laws so that first offenders loose their licences for a much longer period of time (say 5 years) and they be required to attend long term counseling. A second offense should result in permanent license revocation.

I do not believe anyone should be able to compel me to give breath, blood or a DNA samples unless a judge has reviewed the particulars of my case and issues a warrant. If I refused a request to take any of these tests I would expect to have my license taken for the same amount of time as a convicted first offender.