Friday, May 02, 2008

Breathalyzers for thee but not for me

For years Williamson County District Attorney John Bradley has been on the warpath regarding drivers stopped for DWI who refuse breath tests, even though most criminal defense lawyers will tell you the technology is unreliable and not worth risking your liberty over. (Even police officers routinely refuse breathalyzer tests when stopped for DWI.)

So I wonder what will happen now that Williamson County State Rep. Mike Krusee was arrested for DWI and refused a breathalyzer test?

Krusee is a Republican, but this isn't really a partisan matter. I recall Rep. Harold Dutton also refused a breathalyzer test when he was arrested for DWI in Austin last year. If the folks writing the laws, and enforcing them, won't take these tests, how with a straight face can they penalize others for making the same decision?


Barry Green said...

Yes, John, what say ye? Your state rep has sinned against you.

Anonymous said...

Your first DWI is only a misdemeanor, so the County Attorney will handle Krusee's case, not Mr. Bradley.

Anonymous said...

Yeah, but I bet it still makes JB's head explode!

Anonymous said...

The word you're looking for it 'hypocrisy',

Anonymous said...

I happened to be in Judge Karnes court two weeks ago when I saw a citizen receive 3 months in jail for a first DWI with no prior arrests of any kind. Mr. Krusee shouldn't receive any less. The next sentence given out was 15 months for a first offense of possessing less than a gram of cocaine.

I don't have a problem with this DWI sentence where this individual, and Mr. Krusee, thoughtlessly put innocent people's lives at significant risk, but I'm not sure that I like having my tax dollars spent incarcerating someone for 15 months who we are supposedly protecting from themselves.

Anonymous said...

Judge Carnes is a district court judge. Why was his court handling what one of the previous comments described as a misdemeanor?

If the 3 months in jail was for a misdemeanor first offense, then Rep. Krusee should be "given" a similar sentence, if convicted. However, there is a lot of disparity in sentencing by judges, because they have discretion to be that way. There may have been a plea bargain at work, also.

Hope you keep an eye on this, as people who are politically connected in Williamson County are sometimes given special consideration.

Years ago an LCRA biologist was hiking cross country on an LCRA line easement in Williamson County, doing a biological inventory as part of his job. A gun-happy landowner, or maybe just a lessee of the place, came upon him, pulled out his six-shooter, and fired a shot which missed the biologist directly, but did knock off some pieces of rock which hit the guy. Or mayby it was a ricochet bullet that hit him. He lived, and at last report, was still doing biology.

I'm not sure that Mr. Bradley was the DA at the time; he may have been an assistant DA. But the guy who prima facie had committed, at the least, an aggravated assault with a deadly weapon, was not indicted.

It will be interesting to see how the lawn order types in Williamson County deal with Mr. Krusee.

Gritsforbreakfast said...

Good point about the County Attorney. Also about Bradley's head exploding!

If I'm not mistaken, DWI becomes a felony on the third conviction, so if in Judge Karnes court that couldn't have been the driver's first offense.

Anonymous said...

Even more interesting is that this rep supposedly helped pass some of the drivers responsibility points system... AKA, the surcharge.

Wonder if his thinking process including knowing if he blew over a .16, that the surcharge would double??

Anonymous said...

The only thing to couunt on is favoritism and weird laws. That Dutton fellow made a bill regarding the TYC kids also if I remember correctly. Guess his accountability and refusal is the template for all of the Austin folks. What a mess our politicians and politics are. And the ones that suffer???? Well, me....middle class and raised poor.

W W Woodward said...

We make the laws. You just obey them, shut up, and pay your taxes - ALL of them.

Anonymous said...

First, I'm not sure why any of you think this might make John's "head explode." He doesn't seem like the type to give a rat's ass who got in trouble for driving drunk.

Second, refusing a breath test seems eminently rational, but I doubt that most who do so are worried about the accuracy of the equipment. I'm sure it's just part of the natural human nature not to help in the collection of evidence against oneself.

Third, I don't understand your comment about politicians penalizing others for not blowing. They are still subject to the same penalties (refusal as evidence of guilt, license suspension, etc). That is, unless you have some evidence that his breath test refusal will get some special treatment because of his position as a politician.

Fourth, laugh it up if you will, but every time some important person gets pulled over for DWI and refuses a breath test, it gives ammunition to those who want to make it an actual crime to refuse a breath test.

Gritsforbreakfast said...

"I'm not sure why any of you think this might make John's "head explode." He doesn't seem like the type to give a rat's ass"

Clearly you haven't read his writing on the subject.

Re: "I don't understand your comment about politicians penalizing others for not blowing." Who makes the laws? Krusee votes to penalize those who don't blow then refuses to blow. If you don't see the hypocrisy I can't help you.

Also, many drivers who refuse breath tests in Williamson County have blood forcibly drawn. Though I don't know, I've wondered why not in this case and if there may have been special dispensation. I didn't put in the post b/c that's speculation, but it's certainly an unanswered question.

On your "fourth" item, my point was precisely that if politicians don't think it's in their own interest to subject their liberty to the outcome of a breathalyzer test, they shouldn't manufacture coercive legal incentives for other drivers do so. Despite your fears, I don't think this episode will convince Krusee, e.g., to vote to REQUIRE breathalyzers, and I'm not sure why you do.

Anonymous said...

Williamson does blood warrants whe they suspect felony DWI.

DWI is a felony if you've already been previously convicted twice or if there is an accident involving serious bodily harm.

Anonymous said...

The Link to DA Bradley's writing is not working.

Anonymous said...

Your link to the JB thing is broken, but all I meant is that he seems to get high and mighty about DWI generally and that he would be unlikely to be bothered to see a local politician (even one he liked) bear the brunt of a DWI charge. If he shows favoritism (or is likely to), I wasn't aware, and would be happy to be corrected.

What I meant about legislators is that we currently have a choice in this State whether to blow or not. Of course not blowing brings with it certain penalties. Krussee chose not to blow (which was a tactical decision that probably made sense). I suppose its hypocritical in the sense that, yes, he votes to penalize those who don't (although I'm sure the current system predates his arrival at the Legislature). But Texas could be like the several other states that criminalize breath test refusal.

As far as criminalizing refusal is concerned, that has been at the top of the MADD wish list for a while (and also, to a lesser extent, with TDCAA). I don't think it's out of the realm of possibility that there will be serious discussion about it in the Legis in the next few sessions. I don't have a crystal ball, it just seems like well placed media coverage of drunk officials refusing breath tests could help focus attention.

Finally, you seem to be using Krusee's hypocrisy as an argument against the current regime of implied consent (to the breathalyzer). I think that's backwards. If Rep Krusee is bad (because he's a hypocrite, or because he refused to blow), well that's fine. I just don't think that's a reason why the implied consent law is bad policy (and, btw, I don't have much problem with it).

And can I just say it's refreshing to see a blogger not only answer comments but do so very quickly and on such an old post. Well played, Scott.

Anonymous said...

I'm guessing Mr. Bradley would love to make an example out of this guy.

But what do I know... if you ask me the "implied consent" rule for giving an intoxilyzer specimen is a load of bullsh**. The 5th amendment to the US Constitution says:
"No person [...] shall be compelled in any criminal case to be a witness against himself"

Forcing someone to give a sample fit the spirt of this amendment, if not the letter.

paprgl said...

Being no lawyer, I wonder how the cities in North Texas can let you refuse a breathalyzer but then allow a mandatory blood draw. How does the law work?

W W Woodward said...

Anon 10:58:00 and Paprgl,

The state’s action of removing blood from your body is not a 5th Amendment question. It’s a 4th Amendment “reasonable” search and seizure thing. And, it’s reasonable because a branch of the state government says it is.

I totally agree with your opinion, Anon. But, until some is willing to go out, get arrested for DWI, have blood forcibly removed from his body, be convicted, and then spend untold dollars to take the matter to the SCOTUS to MAYBE get his conviction overturned and the practice declared unconstitutional, we’re stuck (no pun intended) with conviction-at-any-cost prosecutors who are not really concerned with your rights.

Anonymous said...

If you look at it like seizure then they are only taking a tiny little bit of blood and maybe that is not unreasonable.

You could say that drop of blood was like your diary or something and they got a search warrant and found it... but I say compelling a sample is equivilant to compelling testimony agaist yourself.

With a diary you already chose to take the "proof" out of yourself, out of your thoughts... out of your brain, and put the evidence down on paper. Even if the diary is private during your lifetime you expect someone could find it after your death, especially an unexpected death. This is risk you are taking when you keep a diary.

Your blood, like your thoughts, shouldn't be forcibly taken out of your body. Its more than physical evidence, it is testimony.

W W Woodward said...

Anon 01:02:00,

They obtain search warrants from cooperative magistrates to take your blood/diary. The State compels you to submit to the search warrant for the blood/diary. If you don’t submit peaceably, the State forcibly takes your blood/diary. And, by law, the agents of the State may use whatever force the agents of the State believe is reasonable (up to and including deadly force). If you tend to disbelieve me, Please read chapter Nine of the Texas Penal Code.

Your statements: “but I say compelling a sample is equivalent to compelling testimony against yourself.” “Your blood, like your thoughts, shouldn't be forcibly taken out of your body.”

Again, Anon, I agree with your statements. However, your body means nothing to the State. The State’s agents with or without search warrants obtained from cooperative magistrates may pump your stomach, conduct x-rays of and/or cavity searches of your body, obtain DNA swabs, demand urine, breath, or hair samples…..the list goes on ad nauseum.

The State does use “due process” as required by legislation and the constitution and it uses “due process” to do what ever it feels is “reasonable” in oppressing your rights.

Your statement: “If you look at it like seizure then they are only taking a tiny little bit of blood and maybe that is not unreasonable.”

“A tiny little bit .. and maybe that’s not unreasonable.” The State has been taking our rights “a tiny little bit” at a time for two-hundred years. Since it’s just a “tiny bit” at a time we don’t seem to mind or even notice until we wake up and find the little tiny mouse has eaten the entire “pound of cheese”.

Anonymous said...

Y'all are so cute with your breath test / Fifth Amendment silliness. I know you want it to be true, but it just ain't -- and never will be. It reminds me of people who still talk about how, if someone just tried it, a court would declare the IRS invalid because Ohio didn't ratify the 16th amendment, or whatever.

Gritsforbreakfast said...

Gee ... Isn't it "cute" to think the Fifth Amendment shouldn't have become a degraded piece of meaningless flotsam in the face of convict-at-any-cost public sentiment. How "silly" to think the right not to self-incriminate should mean what the Constitution says. Pitiful

Just because one by one the entire Bill of Rights is becoming a superfluous joke that's virtually unrecognized by the courts, 11:41, is not reason to gloat over its increasing irrelevance.

I'm not saying the law is unconstitutional, btw. I'm saying if the guys writing the laws won't abide by them, it's hypocritical to try to coerce others to do so (particularly when breathalyzer science is pretty questionable), and the requirement should be eliminated.

Anonymous said...

All right, when I said "cute", I thought I was being nice. What I should have said was "nuts."

The self-incrimination clause has never been applied to physical, nontestimonial evidence. Not in 1789, not in 1901, and not today. By your reasoning, a magistrate (on a finding of probable cause) could never issue a search warrant for a DNA sample from a suspect. Or a blood sample. Or force someone to hand over a gun.

I know you have the layman's view of the Fifth Amendment, and that's all right, but you've gotta see where such an idea would lead. It would be impossible to get any physical evidence intimately tied to a suspect (fingerprints, hair sample, blood, etc).

Gritsforbreakfast said...

Breathalyzers are a different can of worms than fingerprints. I don't think the arguments are comparable, frankly, especially because the breathalyzer technology is suspect.

Anonymous said...

Well, then I guess we can just civilly disagree and leave it at that. My point was that the 5th Amd doesn't protect non-testimonial evidence. Whether an item taken from the body is analyzed based on dubious technology (like, you say, breath) or not (like blood or fingerprints) is irrelevant to a 5th Amendment analysis.

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