Judge abused discretion, violated due-process rights, by revoking probation w/o a hearing: Will he be sanctioned?

A misdemeanor DWI case out of San Antonio deserves broader attention, with interesting and important implications on several levels.

Wayne Christian - a Republican county-court-at-law judge in Bexar County first elected in 1996, who ran unopposed in the 2018 election - has routinely inserted himself on behalf of the state in lieu of county prosecutors in probation revocation cases, often refusing to allow testimony and deciding them with no evidence. But thanks to appellant Allison Jacobs, her attorneys, and perhaps most interestingly, new Bexar DA Joe Gonzalez, that practice will now be revisited.

Here's Judge Christian dressed in a camo robe. (source)

According to columnist Josh Brodesky of the SA Express News, Judge Christian's court "leads all County Court-at-Law judges in what’s known as MTRs - motions to revoke probation. He also leads other judges in jail bed days."

In Jacobs' case, she'd been a model probationer but failed three urinalysis tests toward the end of her 14-month probation period. Her attorney wanted to argue that this was a false positive caused by a diet pill she'd been taking, which long-time readers know is not an implausible scenario, particularly in Bexar County.

But Judge Christian refused to hold a hearing and based his decision to revoke on a brief conversation with the court liaison from the probation department. This violated Jacobs' due process rights, which should have entitled her to challenge evidence against her in a hearing before she's revoked to jail. But Christian went even further. Reported Brodesky:

Not only did Christian sentence her [to jail], but court records show he also denied her appeal for reasonable bail. He then modified a district court judge’s order of bail for $1,600 to make conditions more onerous. Another district judge lessened those conditions, and when Jacobs was finally released from the Bexar County Adult Detention Center in November, Christian responded. 

According to court filings: Upon release on bail, Jacobs was scheduled for a pretrial services orientation on Nov. 19, 2018. But Christian called pretrial services and had the orientation changed to Nov. 13, 2018. Pretrial services was unable to notify her about this change, so she missed the orientation. The next day Christian revoked her bail, issuing a warrant for an arrest. 

What gives? This is a defendant who was two weeks away from completing 14 months of probation for a serious, but misdemeanor charge. 

[Jacobs' attorney Jodi] Soyars said she likes Christian personally, and, obviously, has concerns about crossing him. She has other cases in his court. But she viewed this as representative of a broader issue and unfair to her client.

“He routinely denies defendants the right to due process,” she said.

So the judge routinely disallows prosecutors from participating in revocation decisions, acting himself on behalf of the state. And he doesn't allow a defendant to present evidence of possible actual innocence, simply declaring the allegations "true" by fiat without, as Soyars said in her brief, a "scintilla of evidence."

And it wasn't an isolated incident. Again from Brodesky: “There have been situations where our prosecutors have been placed in positions where they are not in agreement with going forward on a motion to revoke,” District Attorney Joe Gonzales said. “And they have made the decision to not sign off on the motions, and the judge has moved on them on his own.”

Let's delve into the secondary issue of denying the defendant bail while her appeal was litigated. The actions attributed to Judge Christian, who went out of his way to thwart the decision of a district judge in a habeas corpus writ, seem like extraordinary measures for a judge to take. The brief from Jacobs' attorney includes a footnote - which the DA's office corroborated (more on this later) - describing the remarkable sequence of events in more detail (citations to the record omitted):

While the appeal and motion for new trial procedures were taking place, some additional procedural issues arose and were dealt with, which are evident in the clerk’s record. A brief explanation to make sense of the clerk’s record follows: After a Notice of Appeal was filed, a Motion for Reasonable Bail Pending Appeal was also filed. . This is a misdemeanor case and bail was required to be granted. Judge Wayne Christian denied bail. An Application for Writ of Habeas Corpus Seeking Setting of Reasonable Bail was then filed and heard by District Court Judge Melisa Skinner in the 290th District Court. Judge Skinner granted the Writ and ordered bail of $1,600 and SCRAM as a condition. . The same day, Judge Christian called his clerk and added full GPS, daily reporting, and daily UAs as conditions of release, effectively changing the order of a District Court judge. A second Application for Writ of Habeas Corpus was then filed, requesting reasonable release conditions. Judge Joey Contreras in the 187th District Court set this Writ for a hearing on October 17, 2018. At the hearing, Judge Contreras granted reasonable conditions. After several weeks passed with Jacobs unable to meet the bail requirements, Judge Contreras amended his bond order to allow Jacobs a way to be released pending the appeal.  Jacobs was released from jail and given an orientation date of November 19, 2018 to report to pre-trial services. On November 13, 2018, Judge Christian called pre-trial services and ordered pre-trial services to require Jacobs to report on that date. Pre-trial services was unable to contact Jacobs and Jacobs had not yet had her orientation that would put her under the requirements of pre-trial supervision. Judge Christian then required pre-trial services to send over a violation report on November 14, 2018, whereupon Judge Christian revoked her bail and issued a warrant. Judge Contreras again intervened and reinstated Jacobs’ bail on November 16, 2018.

This conduct to my mind, deserves public censure if not ouster by the State Commission on Judicial Conduct. And indeed, in its opinion, the 4th Court of Appeals called Christian's actions an example of "an unsuitable practice by a county court at law judge."

All of this is remarkable, and more than a bit concerning. Judge Christian seems intent on ignoring the mandates of his job and substituting his own judgments for the process. In doing so, he's also increasing incarceration - keep in mind he has the highest numbers of all Bexar-county-court-at-law judges on both revocations and resulting jail-bed days.

But perhaps the most remarkable aspect of the case was the fact that District Attorney Joe Gonzales joined with defense counsel to dispute Christian's "unsuitable" practices, which apparently had been tolerated by his predecessors without contest for many years. 

One aspect of electing reform-minded prosecutors Grits had not fully considered (or perhaps more accurately, had not dared dream possible) is that they could challenge unconstitutional court practices from the inside, or join those challenges, as happened here. So kudos to Gonzalez for his stance here, that's a big deal!

Prosecutors' role should be to "seek justice." But too often, they see themselves as on a side, and it's the opposite side from the defendant. So when the judge plays prosecutor as well, as is the practice in Judge Christian's court, defendants without means to pay a phalanx of private lawyers have little chance.

Finally, Grits was interested in the Express-News' analysis that Christian leads all other Bexar judges in motions to revoke. How do we know? That's something tracked in state-level court data, but totals are only available in Office of Court Administration queries at the county-wide level.

Grits doesn't immediately know the data source from which Brodesky identified the number of probation revocations by court. (If any readers know how to access this data from public sources, please let us know in the comments.) But that's a useful figure because, as regular readers are aware, probation revocations are a significant cause of Texas prison admissions, and revoked misdemeanor probationers go to county jail, contributing to local costs. 

So, to summarize, here are the implications and questions Grits would take away from this episode (feel free to suggest more in the comments):

1. A judge for years felt free to ignore his duties to hold probation-revocation hearings and neither local defense attorneys nor the DA's office called him on it. Is this happening elsewhere?
2. Will the State Commission on Judicial Conduct sanction Judge Christian?
3. Does this flagrant disregard for judicial duties rise to the level of the state bar challenging Christian's licensure?
4. Will media in other jurisdictions begin analyzing which judges have the most probation revocations and hold them accountable for successes/abuses?
5. An under-examined aspect of evaluating "progressive" prosecutors will be how they respond to appeals challenging unconstitutional practices and other reform litigation. People have discussed this in the context of bail reform, but Jacobs case shows there are potentially many more areas where this could become important.  

This is quite a significant case, I think, certainly for San Antonio, and potentially exposing an area where judges may be abusing their discretion in other jurisdictions as well, if reporters and advocates were to look. The pressures on ADAs and defense counsel to acquiesce in judges' abuses for the sake of other cases certainly aren't unique to Bexar County.

Time to move NOW on Driver Responsibility surcharge abolition

The Texas Legislature has its best-ever chance to abolish the Driver Responsibility surcharge before it in HB 2048 (Zerwas). All the major interests have signed off. Early in the session, leadership appeared prepared to (finally) move on the issue, and the bill was voted out of committee in early April.

But the legislation remains stuck in the House Calendars Committee and has yet to be considered, much less set for a vote, on the House floor. Although, officially, the last House calendar is May 7, bills must be placed on a calendar several days before - probably by the 1st or the 2nd - to be heard before the deadline for the House to consider House bills.

Every legislator knows about problems with the Driver Responsibility surcharge because they all get constituent calls from people whose lives have been ruined by this ill-conceived government boondoggle. Nobody likes the program who's not receiving money from it. But those special interests were so powerful, the money had to be found for the program to go away.

HB 2048 solves that problem through several sources. It increases fees on traffic offenses by $20 and adds a $2 fee to auto insurance policies.

That latter is apparently the hold up: Insurance industry lobbyists are fighting the $2 fee. But legislators should ignore them. The problem with the Driver Responsibility program is precisely that it relied upon a small number of mostly impoverished people - folks caught driving with suspended licenses or without insurance - to pay for trauma-hospital care. But that's the sort of classic public good whose cost should be spread among everyone. After all, anyone may eventually wind up in a trauma hospital.

A few other, disparate critics object to the new, stiff criminal fines for DWI, which replicate high DWI surcharges under the Driver Responsibility program, re-labeling them a criminal fines instead of civil penalties. And to be clear, Grits isn't a fan of that part of the bill. We know 44% of drivers can't pay fines at that level (because that's how many DWI offenders didn't pay the identical surcharges), so there's a real sense in which they're setting people up to fail.

The flip side is, under the status quo, DWI offenders still owe the same amount, just as civil surcharges instead of criminal fines. The difference is, judges can waive criminal fines but cannot waive surcharges. So there's more prospect for relief under HB 2048 than those drivers would have otherwise.

To recap: There are 1.5 million people with licenses suspended because of the Driver Responsibility surcharge. Those surcharges will be voided and those folks can get their licenses back.

Moreover, while the DWI folks still get large fines, they only made up 12 percent of people with surcharges. So 88 percent of people who would have previously gotten a surcharge will avoid them going forward.

Helping 1.5 million people at a whack, plus eliminating 88 percent of the problem going forward, makes this a Very Good Bill. The DWI fines are an unfortunate compromise, but even for those folks, they're better off if judges can waive those fines.

Since this terrible statute first passed back in 2003, there has never been a better opportunity to eliminate this program than right now. Grits hopes the House Calendars Committee will set this legislation on the Major State calendar at the earliest possibility and leadership strongly supports it. Every day they dawdle risks Texas wasting two more years before this longstanding problem is addressed.

UPDATE: Hurray!! This bill was added to a House floor calendar for Monday, April 29, meaning it still has plenty of time to pass. Thank you, Calendars Committee!

Bill limiting suspensions a start at untangling worst-in-nation driver-license mess

Texas revokes more drivers licenses, by far, than any other state, The Washington Post reported last year. But House Corrections Committee Chairman James White wants to change that. He has a bill up in the Homeland Security and Public Safety Committee on Wednesday that would rectify a small but unremittingly ill-conceived provision in the current law.

Presently, Texas law doubles down on license suspension as a punishment, even when it fails to keep drivers off the road. When the Transportation Code lists grounds for suspending licenses, the very first one is driving while one's "license was suspended, canceled, disqualified, or revoked, or without a license after an application for a license was denied."

So one of the punishments for driving with your license suspended is to suspend your license for a minimum of one extra year. Combined with the Driver Responsibility surcharge, which has left more than a million Texans with suspended licenses, this provision adds insult to injury, leaving drivers without a license even after delinquent surcharges are finally paid.

By contrast, people who engage in "habitually reckless" driving, "fraudulent use" of their license, or are responsible for an accident that results in serious personal injury or property damage, only get a 90-day suspension.

Driving with an invalid license is already its own crime, so it doesn't particularly need the extra administrative penaltyy. Chairman White's HB 162 would apply the extra suspension only for drivers whose licenses were suspended for DWI. And then, he would limit the suspension to 90 days, which is the amount of time for all other suspensions under the same provision.

It's a small change but it would help untangle a particularly difficult bureaucratic gnarl which can ensnare drivers for years after they've otherwise paid their debt to society. Grits is glad to see the bill getting an early hearing and hope it garners support in committee.

Legislation filed to abolish driver surcharges

Yesterday, Texas Senate State Affairs Committee Chairwoman Joan Huffman and House Appropriations Committee Chairman John Zerwas filed companion bills which appear to be the leadership-driven abolition proposal for the Driver Responsibility Program (DRP) that will be the main focus this session.

SB 918 and HB 2048 aren't perfect, but they're certainly headed in the right direction. The bills suggest an array of new funding sources for trauma hospitals, most of which are less objectionable than the reviled Driver Responsibility surcharge.

The bill increases a fee on auto insurance policies by two bucks, 60% of which would go to the trauma fund. It diverts money from a vehicle-registration fee that was already authorized to fund the DRP. And it raises the state portion of traffic fines on certain moving violations from $30 to $50, while lowering the municipal portion from 5% to 4%; however, only 30% of that money will go to trauma centers, with the rest headed to the general revenue fund.

Perhaps the most controversial funding source would simply rename surcharges for people convicted of DWI, calling them "fines" but applying them in exactly the same way.

So, "in addition to the fine prescribed for the offense," which is set by the judge, the bill proposes that first-time Class B DWI offenders pay a "fine" of $3,000 spread out over three years; $4,500 for second offenders; $6,000 for third. Thirty percent of this money will go to trauma hospitals; the rest goes to the state's general-revenue fund.

Here's the rub: When those same fines were "surcharges," a majority of drivers could not pay them. And in an era when the Federal Reserve tells us 40% of the American public cannot pay a surprise $400 bill without going into debt or selling something, there's little reason to expect that will change.

Unless judges are given the ability to waive or reduce those amounts at sentencing, this is going to create the same problems we saw under the Driver Responsibility Program with respect to high nonpayment rates for DWI offenders. Indeed, low payment rates inevitably will make these fines another unreliable funding source for trauma hospitals, just as surcharges never remotely paid hospitals as much as the Lege originally predicted.

In Texas, DWI is presently a Class B misdemeanor punishable by up to six months in jail and a $2,000 fine on the first offense. This bill would add a mandatory $3,000 fine on top of that, which we already know from experience most people can't pay.

To Grits, the more rational approach would be to increase the max fine for misdemeanor DWI to $3,000 ($4,500 on the second offense, etc.), letting judges set the number, taking into account ability to pay. Then fund trauma hospitals from a general-revenue line item to ensure stability. (They're generating quite a bit of new, general-revenue money in this bill.) That way, legislators could signal their disapprobation for DWI by increasing fines, but avoid replicating predictable failures we've already seen from unpaid surcharges.

Even Mothers Against Drunk Driving supported allowing judges to waive or reduce surcharges in the interests of justice. The Legislature should do the same with DWI fines.

Regardless, all these problems with high fines are happening now in the status quo for DWI offenders, and the bill would eliminate surcharges for hundreds of thousands of people going forward. By any measure, it's an improvement.

CORRECTION: The original version of this blog post indicated that people with existing surcharges would not receive amnesty under the bill. That was inaccurate. Grits regrets the error.

On the Houston Chronicle's 'misplaced pride' and flawed reporting on DWI deaths

In an unsigned staff editorial, the Houston Chronicle complained that, "misplaced pride needlessly costs the lives of hundreds of people every year" because of DWI. But their own pride caused the Opinion section of the paper to double down on flawed reporting from the news side on DWI deaths.

The editorial board joined the news section's call for a regressive tuff-on-crime response to DWI, flying in the face of recent evidence about factors impacting DWI fatalities.

And they continued to manipulate data on the topic, focusing on aggregated numbers over a sixteen year period without parsing annual trends. This obfuscation leads them to disingenuously pretend that DWI-related fatalities might go down "if local law enforcement agencies assigned more officers to the task" of arresting people.

But we know that's not true. As demonstrated in this Grits post, the paper's assertion of a link between police deployments, DWI arrests, and alcohol-related fatalities simply isn't backed up by the evidence.

Texas has just witnessed a natural experiment regarding the relationship between DWI enforcement and alcohol-related-traffic fatalities, and something unexpected happened: DWI enforcement declined significantly in the past few years, Texas' overall population increased, and per capita traffic fatalities declined.

That's the opposite of what would have occurred if the relationship between police staffing and fatalities posited by the Chronicle were true.

Chronicle writers are able to keep up this pretension by relying on 16 years of data, aggregated altogether, but ignoring points where recent trends belie law-enforcement assertions in the story. The approach masks clear flaws in their recommendations, which for the most part are recycled wish-list items from the local police chief (hire more officers, authorize traffic checkpoints, etc.).

If more staffing assigned to DWI enforcement would reduce deaths, then traffic deaths in 2010 would have been lower than they are today. After all, Texas cops were making tens of thousands more annual DWI arrests at the time.

But clearly, from the annualized data trends, police enforcement levels weren't a decisive factor. What might be? ¿Quien sabe? My guess is that public-service advertising, changing cultural norms, and the rise of Lyft and Uber had something to do with edging per-capita death rates down. But one certainly couldn't tell from the Chronicle's reporting.

Other commentary was just weird. For example, the staff editorial opined that, "Texas has some of the most lenient license suspension laws in the country." But in reality, as The Washington Post reported earlier this year, Texas has suspended more drivers' licenses than any other state: 1.7 million, all told. It's like the editorial board didn't even Google the topic before writing this stuff.

It was disappointing that, instead of parsing facts to discover what works and what doesn't, the Chronicle recycled a bunch of tired, tuff-on-crime memes that fly in the face of the data. It all feels depressingly familiar, like throwback coverage from the 1990s.

RELATED: Check out this Reasonably Suspicious podcast segment from May hypothesizing causes for the decline in DWI and drunkenness arrests across Texas.

More on TX DWI arrest decline

Grits' post the other day about declining DWI enforcement drew quite a bit of interest, so I thought I'd re-up a Reasonably Suspicious podcast segment Mandy Marzullo and I did in May on the decline of DWI and drunkenness arrests in Texas over the last several years. This recurring segment is called "Suspicious Mysteries," in which we discuss questions to which there are no definitive answers. Give it a listen:

See a related discussion and more data on the topic here. Find a transcript of the segment below the jump.

Are DWI fatalities "out of control" or "curiously constrained"?

At the Houston Chronicle, St. John Barned-Smith and Dug Begley have an extensive feature on DWI in the Houston metro area, noting that the Houston and Dallas metro areas have the most DWI fatalities of any in the country since the turn of the century.

This is less reporting than an advocacy piece, making the argument that, in the authors' words, "Texas is not doing enough to stop impaired drivers."

Grits doesn't mind a good advocacy article; after all, that's precisely what I do here. But I mention it to emphasize that their premise that Texas isn't doing "enough" is a normative declaration, a value judgment rather than a data-based observation. These authors have declared themselves the arbiters of what is sufficient.

Moreover, since this is an advocacy piece, it doesn't necessarily provide facts that might dispute its thesis, and frames data (e.g., as a 16 year aggregate rather than annualized trends) in ways that support their argument, while omitting frames that might not. In Grits view, the situation is more complicated than portrayed.

For example, while the graphic above is intended to lead to alarm that Dallas and Houston have more deaths over this 16-year period than the New York City MSA, drivers in Texas spend much more time on the road than New Yorkers. E.g., this source announces that in 2011, licensed drivers in Texas averaged 16,347 miles driven each, compared to 11,871 for each New Yorker. Might that have something to do with the difference in alcohol-related traffic-death totals?

Also, the authors, having established themselves as the Arbiters of Enough, suggest that law enforcement is failing to deploy sufficient officers to combat DWI. "Law-enforcement leaders deploy inadequate numbers of officers to drunken-driving enforcement," they opine. And depending on what you think is "enough," the data on DWI arrests may even, on the surface, seem to corroborate that suggestion.

The chart at left is from the Office of Court Administration's Annual Statistical Report for 2017. It shows that DWI enforcement has declined significantly in recent years, with felony DWI cases dropping 24 percent over the last five years and regular DWI cases dropping 13 percent. Overall, police are making half as many DWI arrests than they were thirty years ago, when the state's population was much smaller.

So cops are arresting fewer people for DWI, and indeed traffic enforcement overall has plummeted, as evidenced by this OCA graphic at right:

FWIW, since traffic enforcement has declined even more than DWI enforcement, that tells us that police departments have continued to prioritize DWI, even as traffic enforcement declined, perhaps to a greater degree than the authors gave credit. These data indicate to me that DWI enforcement is not just something that's incidental to regular traffic enforcement, in other words, but has continued to be prioritized, even as traffic enforcement overall was de-prioritized.

But the data that most make me question the assumptions behind the writers' "more enforcement" recommendation is that, during this period of declining enforcement, which coincided with a massive population boom and more cars on the road than ever, Texas DWI deaths remained roughly steady, appearing to be unaffected by either the influx of drivers or the radical decline in enforcement. In fact, they even declined slightly.

Using data from the Texas Department of Transportation, Grits created this chart showing the annual breakout of DWI-related deaths since 2010:

When you consider that Texas' overall population grew by 12 percent over the same period, the trend, to this writer, doesn't seem quite so alarming.

To be sure, one DWI fatality is too many and the state has a big interest in preventing them. The point here is that the evidence in these charts doesn't indicate that DWI enforcement on the roadways plays a big role in reducing fatalities. After all, with more people on the roads and much less enforcement, per capita DWI deaths remained relatively steady, even declining a bit over this period. So if we're looking at the most effective means of reducing DWIs, it's not obvious that devoting more personnel to patrolling the streets would help. When departments took those officers off of traffic patrol, there was no resulting climb in the number of traffic fatalities.

Grits would also ardently dispute the authors' contention that the state should suspend more drivers licenses. They inform us that:

A Chronicle survey of state laws pertaining to license suspensions and interlock use found Texas' were among the most lenient. Lawmakers in 36 states have established longer license revocations, suspensions or more lengthy interlock use than Texas. 

For repeat offenders, Florida can impose permanent suspensions. Florida does not allow suspension time to run while the offender is in prison.

But as regular Grits readers know, Texas has more drivers with suspended licenses than any other state in the country, so many, in fact, that the situation has contributed to massive lines at DPS license centers that can take as long as eight hours to navigate. The last thing we need to do is suspend more drivers' licenses for longer periods.

Anyway, as Clay Abbott, a prosecutors' DWI expert, told the authors, "Texas' sprawl means drunken drivers will get behind the wheel even if their license is suspended — they'll just do it illegally." That's what we've seen with the 1.4 million drivers - about 12 percent of them DWI offenders - whose licenses have been suspended for Driver Responsibility surcharges.

So, while there was some useful data and commentary in this feature story, I think the authors got a lot wrong. By aggregating data over 16 years instead of looking at annual trends, they failed to convey the cognitive dissonance over the fact that a decline in enforcement left DWI fatality numbers essentially unaffected. That blows big holes in their advocacy for deploying more police officers to make DWI arrests. We've just witnessed a natural experiment over the past few years showing the two things don't necessarily correlate.

And the authors' inchoate advocacy that Texas should suspend more driver licenses for longer strikes me as remarkably tone deaf to the political realities created by lines of drivers - many of them with suspended licenses - stretching around DPS license centers around the state. Texas needs to find ways to reduce license suspensions if they want to shorten license-center lines, not lard on more suspensions and worsen the problem.

The authors are also hot to trot over the creation of DWI traffic checkpoints, which are unconstitutional in Texas unless the Legislature explicitly authorizes them. While they do quote outgoing state Rep. Jason Villaba explaining why those measures haven't passed - "The kinds of things that can be done are the kinds of things that usually interfere with the rights of the people who are not engaging in the behavior" - the authors proceed to blow past those objections, giving the police chief the last word on the topic to insist, "Eventually we're going to get them."

None of this is to say DWI fatalities are not a major societal problem. But this Chron article was titled, "Out of Control." To me, that headline overstates things in a period when more drivers than ever were on the road, police enforced DWI laws less often, but per-capita DWI fatalities stayed the same or went down.

Not only does that not seem "out of control," given the counter-intuitive result where less enforcement had no discernible, upward effect on fatality numbers, Grits would instead characterize the dynamic as "curiously constrained."

Taking cops off point on mental-health cases, commissary questions, a $7 million-plus AC bill, and more

Let's clear some browser tabs with a roundup of items which merit Grits readers' attention even if I don't have time to construct a full blog post around each of them:

Blood will tell you more
Following Pam Colloff's masterful two-part story on faulty blood-spatter evidence, ProPublica has launched a special newsletter in which she's following up on the articles and providing more context. You can sign up here. Teaser: In the upcoming, August episode of the Reasonably Suspicious podcast, we'll air an interview with Colloff about her story and the state of forensic science in Texas and beyond. Look for that in about three weeks. (You can subscribe to the podcast on iTunes, GooglePlay or SoundCloud so you don't miss it, and until then check out the July episode.)

Cornyn praises promising pilot on mental-health diversion
Grits is excited about the pilot program at Dallas PD praised by US Sen. John Cornyn in this Dallas News article. They're sending out interdisciplinary teams led by mental health workers to respond to 911 calls related to mental health crises, with cops participating as backup and support as opposed to shot callers. Not only are there better outcomes for mentally ill folks, it saved money and resources: Under the program, "of the 709 mental health emergency calls fielded since January, just 3 percent ended in arrest." In fact, "In the first three months of the program, the clinician's diversion of calls saved the police force about two weeks of salaried work."

Police are asked to handle too many social problems and mental health is one of the biggest. For the most part, the issue needs to be taken out of the hands of law enforcement and jailers and re-center the response around healthcare needs and social services, instead.

Commissary Questions
Earlier this year, the Prison Policy Institute (shoutout to their new employee, Texan Jorge Renaud) published a report titled, "The Company Store" about prison commissary economics. Now, they have some specific, commissary-related questions for the Texas prison system, including why Citibank would receive more than $6 million in commissary funds in a year and pertaining to the wisdom of collaborating with certain vendors using dubious financing methods that arguably short-change inmates. Legislators on committees overseeing the prison system may want to dig into this.

A $7 million AC bill and climbing
After spending $7 million on legal fees fighting against providing air conditioning to at-risk prison inmates during the summer, TDCJ is now beginning to do so, reported the Texas Tribune. This raises the questions: How much will TDCJ ask the Lege for air conditioning? How much will the Legislature give them? And will that be enough, or will more litigation ensue? Tune into the 86th Texas Legislature in 2019 to find out!

Marijuana not only issue where TX political parties agree
We've seen media coverage of the fact that both Texas political parties included some form of marijuana reform in their state party platforms last month, with pundits opining that the development makes passage of reform legislation more likely. But nobody in the MSM has discussed other points of agreement in the platforms on either criminal justice or other issues facing the state. On all those issues, the same analysis applies: Bills where both party platforms agree arguably begin the process with a leg up. It doesn't guarantee they'll pass, but it's a potent expression of an issue's potential.

Framing of inmates spurs renewed calls for TDCJ overight
Recent indictments of TDCJ staff who set up inmates in a fake discipline scam have renewed calls for independent oversight at Texas' prison agency, reported the Texas Tribune. Whatever form oversight takes, it's inarguable that having all your watchdogs report to the same board - as TDCJ does - gives an appearance of conflict and almost certainly creates actual ones. The system isn't adequately policing itself.

Four years waiting on trial from no-knock raid shooting
A Killeen man, who thought he was responding to a burglary, shot and killed a police officer when they executed a no-knock raid on his home four years ago and is still awaiting trial, with no denouement in sight. His attorneys have been ready for trial for some time, but the state has yet to press forward, leaving him sitting in jail while he waits. RawStory has a report.

DWI drylabbing allegations
A DPS lab analyst in El Paso, who in the past was caught allegedly falsifying drug weights, cutting and pasting data from other samples, has again been accused of dry labbing, this time failing to conduct tests on 22 DWI samples and cutting and pasting results from other cases. DPS said the error was unintentional, but its quality control reviewer saw the problem and didn't catch it. When samples were retested, the analyst combined good data with bad. She and the technical reviewer who approved her work are no longer with the agency.

Documenting the 'trial penalty'
The National Association of Criminal Defense Lawyers has a new report out on the extent of the "trial penalty" in federal court when defendants refuse to accept a plea deal. In related news, the Washington Post has an item on a juror speaking out against harsh, mandatory federal sentences, and conservative columnist George Will authored a piece on the topic.

'Misdemeanorland'
A new book addresses "Criminal Courts and Social Control in the Age of Broken Windows Policing." Check out a review.

Crime still plummeting; juvie arrests down 57% in TX since 2010

In May's Reasonably Suspicious podcast, we discussed the remarkable decline in DWI and public drunkenness arrests statewide in Texas over the last few years, but it turns out that's part of a broader trend. Arrests of all types have declined a lot.

DPS arrest data is only available through 2016, but from 2010 to 2016, the number of adults arrested  in Texas dropped by 26 percent, from more than a million to 759,000, falling more or less in tandem over the period with the reported crime rate.

Juvenile arrests in Texas declined even more, dropping an eye-popping 57 percent over the same period.

The percent reductions in DWI and drunkenness were even greater for adults, so those charges are a leading cause of the statewide decline. But the reduction in overall arrests tells us this is a bigger trend, not just an issue related to alcohol consumption.

As I'd mentioned on Twitter, polls show most Americans believe crime is increasing, despite these remarkable trends in the opposite direction. Indeed, not only have crime rates fallen since 2010, they were falling for nearly two decades prior to that. Arrests didn't begin to decline until much more recently.

This reduces pressure on cities to hire more police officers, on counties to expand jail capacity, and ultimately reduces the need for the state prison system to keep so many units open.

That's bad news for local probation departments, the bail-bond industry, and the criminal-defense bar, all of whom see their revenue decline as a result. But for everyone else, there's nothing but a tremendous upside.

Reasonably Suspicious: The conservative case for reducing drug penalties, DWI arrests plummet, and other stories

Does God have a Texas accent? Mandy Marzullo and I address this and other pressing questions on the latest edition (May 2018) of Just Liberty's Reasonably Suspicious podcast. Give it a listen!

Here's what we discussed this month:

Top Stories

• Prosecutors flailing with Twin Peaks biker massacre cases.

Interview

• Scott talks to David Safavian of the American Conservative Union Foundation on why Texas should reduce penalties for low-level drug possession from a felony to a misdemeanor.

Suspicious Mysteries

• Why have the number of arrests for DWI and drunkenness plunged in Texas since 2010?

Death and Texas

• On the use of forensic hypnosis in death penalty cases.

Stop the Train

• Promoting Just Liberty's new decarceration campaign and jingle.

The Last Hurrah

• Russian troll farms most successful projects were Blue Lives Matter posts.
• With San Antonio launching a pilot program, what will it take to approve needle exchange programs in Texas?
• Texas' "subjugation rate" (the number of people in prison, jail, on probation and on parole) declined from 1 in 22 a decade ago to 1 in 41 today. What is the cause?

Find a transcript of the show below the jump.

Did Texas DPS 'border surge' cause DWI enforcement reduction?

A Grits commenter suggested a fascinating and viable theory regarding the source of radical reductions in DWI arrests across Texas in recent years:

a local judge that I know who oversees a DWI Court he has opined that DWI placements are way down in his jurisdiction and that he felt there was a correlation between the redeployment of local DPS troopers to the border. He said DPS made up the majority of their local DWI arrest. It would be interesting to see if there was any actual link between the border surge and decreases in local DWI arrest.

What do we think about this?

Grits was immediately reminded of a bout of reporting in 2015 detailing how DPS coverage in the rest of the state went down when the border surge began. As R.G. Ratcliffe wrote for Texas Monthly:

The [El Paso] Times' Marty Schladen reports that DPS warning tickets have increased since 2012 by 14.5 percent in border counties, which also saw a 13.5 percent decline in fatal accidents. During the same period, warning tickets elsewhere in Texas declined by 29.3 percent, while the number of fatal accidents increased by 6 percent. 

If the number of warning tickets in non-border-surge areas of the state declined 29% from 2012 to 2015, the idea that the same trend caused a statewide decline in DWI arrests (34% reduction from 2010-2016) doesn't seem far-fetched.

Grits doesn't immediately have enough information to confirm this hypothesis, but it fits more of the data points, not to mention the timeline, than most other possible explanations.

Perverse incentives created by police overtime for court appearances

The Texas Court of Criminal Appeals last month issued an opinion in Ex Parte Mark Bowman, with a dissent from Judge Elsa Alcala, that caught Grits' eye - not because of the issues being decided in the case but thanks to the underlying fact pattern evinced in the discussion.

At issue was a 2004 DWI in Houston and whether the defense counsel was alleged to be ineffective. The evidence of counsel's ineffectiveness? Because of Houston PD overtime rules, the officer had an incentive to arrest people for DWI even if the cases were later dismissed because he received time-and-a-half for the hours he spent in court.

The officer, William Lindsey, testified that members of the DWI task force were "paid overtime, time-and-a-half" for all hours spent in court, giving him a personal financial motive to go to court whether or not an arrest is legitimate. In the prior year, he said, he'd made 476 DWI arrests.

In his habeas writ, the defendant was able to show that Officer Lindsey, from 1992 to 2004, made more money from combined overtime pay than he did from his regular salary. According to the majority opinion, "In the first eleven months of 2004 - the year of Appellant's first DWI arrest - Lindsey earned a total of $145,957, of which only $63,924 was regular salary while $82,032 was paid overtime."

For a while, Lindsey was the highest paid officer in the city. He retired after reporters began to question the situation in 2006. (See contemporary Grits coverage.)

Three criminal defense lawyers, including Doug Murphy, a DWI specialist, testified that failure to secure details about Lindsey's economic incentives amounted to ineffective assistance.  From Murphy's affidavit:

It is common knowledge among lawyers in Harris County who regularly handle DWI cases during Lindsey's tenure on the DWI Task Force that he arrested many people in affluent parts of southwest Houston - regardless of how well they performed the field sobriety tests or how sober they appeared to be on videotape - so he could obtain overtime pay for appearing in court pursuant to a subpoena to testify at their trials. Competent defense lawyers made Public Information Act requests to HPD to obtain Lindsey's payroll records before they tried DWI cases in which he would testify.

Further, wrote Mr. Murphy:

Defense lawyers would present this evidence on cross-examination to demonstrate Lindsey's motive for making the arrest. They typically would argue that Lindsey arrested sober drivers for DWI because he knew that they would go to trial and he would receive overtime pay for appearing in court to testify; that, for this reason, he gave no driver the benefit of the doubt at the scene; that, in effect, he received three days of pay for appearing at a two-day trial; that he received the money even if the defendant were acquitted; and that his overtime pay exceeded his regular pay during his tenure on the task force. Arguments of this nature frequently persuaded juries to reject Lindsey's opinion regarding intoxication.

The other two attorneys' affidavits included essentially similar comments.

A Houston Chronicle story from July 1, 2006* mentioned a "memo ... from a traffic enforcement captain warning that officers were scheming to have themselves unnecessarily placed on court dockets to inflate their overtime totals." So these allegations were coming from HPD brass, not just defense lawyers or the media.

Let's leave aside for a moment the question of whether defense counsel was ineffective, which is the focus of the two opinions. Grits instead wants to raise other questions: Is it good public policy for police officers to have an incentive to make dubious arrests so they can get overtime to show up in court? If testifying is part of a police officer's job, why can't they do it during regular work hours? Is there a way to pay for court time that doesn't contribute counterproductive incentives?

In Austin, the meet and confer agreement (Art. 8, Sec. 3) specifies particularly generous extra pay for time spent in court. For example, an officer who attends court for more than one hour prior to the start of the work day gets credit for a minimum four hours of overtime. Similarly, officers who go to court after work receive a minimum of four hours overtime no matter how long they stay there. So if an officer gets off at 5, goes to court at 5:15, and is out by 5:50, they'd be compensated for four hours at time-and-a-half.

Such pay structures give incentives for police to arrest on trumped up charges so they can justify spending time in court and making time-and-a-half. Such incentives can result in false convictions, particularly when counsel is ineffective or nonexistent. That seems like a more important takeaway for me, anyway, than the ineffective assistance questions at the heart of the debate between the judges over Mr. Bowman's habeas writ.

*No public link: Accessed via subscriber-only Houston Chronicle archives.

Judge warned DWI expert to stop talking, get a lawyer, after conflicting testimony

Here's more detail from the Dallas News on a North Texas forensic mess that Grits earlier referenced in a roundup:

A state forensic scientist whose work has been called into question will no longer serve as an expert witness or perform lab work in drunken driving cases in Dallas, Collin, Denton and Rockwall counties. 

At the request of court officials in those counties, cases pending trial that were worked by Chris Youngkin will be reanalyzed by another DPS forensic scientist, according to a statement from the Texas Department of Public Safety.

Benching Youngkin doesn't eliminate the problem, though, because he is still part of the chain of custody for blood samples collected in thousands of DWI cases.

The analyst's "credibility came into question over a 2013 lab error that showed a driver who had not been drinking had a blood alcohol level of 0.152," and he "has given conflicting testimony about that error in different trials in different counties." The News had earlier reported on a dramatic court hearing where the analyst's conflicting testimony surfaced:

According to a partial transcript of Wednesday's hearing, defense attorney Troy Burleson questioned Youngkin about a Dallas County case in which he testified he switched vials in 2013. Burleson then asked about Youngkin's testimony in the Collin County case in which he stated that he had never switched vials.

"We have two inconsistent statements that cannot both be true," Burleson's law partner, Hunter Biederman, said after the hearing.

County Court at Law Judge Lance S. Baxter advised Youngkin during the hearing that he had the right to remain silent and the right to consult an attorney. When Youngkin invoked his right not to testify, the hearing came to an end.

Forensic snafus, depressed DAs and judges, and the risks of risk assessments

In a few weeks, this accursed presidential election will be over and, the following week in Texas, state legislators will begin prefiling bills. Until then, there's little for the policy-minded to do but hunker down until the circus leaves town and plan ahead for what's next. To that end, here are a variety of recent stories which merit Grits readers attention more, IMHO, than the latest bloviations on the presidential campaign trail.*

Ask CCA candidate why she won't use public defenders
Texas Court of Criminal Appeals candidate Mary Lou Keel stopped using the Harris County Public Defender Office because of a dispute with some of their attorneys, and the HCPD won't say what it involved, the Houston Chronicle reported. Journalists should inquire and she should say. After this most wretched primary season which saw ignorance rewarded and qualified candidates punished, Grits harbors few illusions that people cast informed votes in these races. But in theory, at least, it'd be useful for voters to know the likely next CCA judge's views on public-defender systems and indigent defense, to the extent the conflict sheds any light on them. News of the conflict emerged in light of a new state audit of Harris County indigent defense systems, a document which Grit may delve into in more detail in a future post.

Another forensics SNAFU could affect thousands of DWI cases
In Dallas, "Thousands of DWI convictions in North Texas could be jeopardized after the testimony of a state forensic scientist recently came under scrutiny." Get used to these sort of headlines. In the coming years, many forensics historically admitted into evidence by courts will either be invalidated or, even where the science is valid, found to be performed by incompetent analysts using unjustifiable methods. The temptation to treat them each as isolated incidents should be ignored. In many cases, folks are looking skeptically at long-used forensics for the first time to assess their validity, and more often than not, what they discover isn't up to snuff.

What to do with a depressed judge or DA?
Resignations from Dallas County District Attorney Susan Hawk and 5th Court of Appeals Justice David Lewis raise questions about what should happen when public officials suffer from severe depression or other serious mental illness while in office. The office-holder leaving voluntarily solves the instant problem from the perspective of formally staffing the slot, often after months or longer of putting off the inevitable. But it's a near certainty the situation will recur. There was apparently a move underway to remove Justice Lewis (whom Grits first met when he was one of the attorneys in the Dallas sheetrock/fake-drug scandal, an outrageous frame-up job around the turn of the century in which informants and DPD narcotics detectives intentionally framed illegal immigrants). I feel bad for him and Judge Hawk, but I'm glad they're stepping down. It's extraordinarily difficult to oust someone from public office in Texas for a medical condition, as it should be; even writing the words seems wrong. Some will argue that behavioral health problems are different from cancer or a heart condition because they specifically impact cognition. OTOH, plenty of Texas prosecutors and judges without diagnosed mental illnesses have suffered from poor judgment and impaired cognition - sometimes to much more deleterious effects than in either of these two instances - and nobody but voters can take them out.

Documenting a dystopian, modern-day witch hunt
The documentary "Southwest of Salem" about the San Antonio Four aired on the Discovery ID network over the weekend. See Rolling Stone's writeup, which observed that transcripts from the trial "read like a dystopian nightmare."

Debating the risks of risk assessments
This assessment at the Washington Post of the debate surrounding whether "risk assessments" generate racially discriminatory outcomes more or less sums up my view: 1) There are no perfect risk assessments because some of the risk factors reflect societal disparities and interpreting their meaning involves value judgments and tradeoffs, not static, objective analyses. However, 2) risk assessment instruments overall pretty clearly generate more consistent justice for more people and discriminate less than judges and prosecutors.  So for now - depending on the instrument - Grits generally favors them, though I'd like to see not-for-profit models used which don't involve black-box analyses which defense lawyers can't refute nor cross-examine.

Conflict of interest and prosecutorial discretion
A new article for Grits' reading list: "Rethinking prosecutors' conflicts of interest." The authors urge in particular reconsideringprosecutorial discretion, opining that "Conflicts of interest are endemic to almost all prosecutors’ discretionary decisions, and are the source of many instances of misconduct and abuse."

* It's hard to imagine that, at this late date, anyone politics-and-policy-focused enough to read this blog is still an "undecided" presidential voter. And if you've already decided, reading the latest back-and-forth provides no new or useful information. If one can muster the mental discipline to ignore it, doing so frees up a lot of brain space.

On forensic oversight, backlogs, and prospects for revenge-porn statute's constitutionality

As I head out of town again for a couple of days, here are a few items which merit Grits readers attention:

• Anthony Graves' appointment to the Houston crime lab board has been making headlines. Perhaps just as significant, his attorney Nicole Casaraz who secured his exoneration will replace Scott Hochberg as the board chair. That's an unusual profile for a crime lab, particularly one whose management was recently made independent of the police department. Congrats to both of them!
• The 5th Circuit Court of Appeals reinstated a lawsuit by two former Houston crime lab employees (from when it was run by the police department) who alleged that "Harris County prosecutors retaliated against them after they exposed problems with the city's breath-alcohol testing vans, or 'BAT vans.'"
• In San Antonio, somehow I'd missed news this spring that hundreds of DWI blood tests were mishandled in a contracted lab and the new DA couldn't use the evidence in cases. Oops.
• Dallas is beefing up staff in its sex crimes unit in anticipation of performing DNA testing on more than 4,000 backlogged DNA tests.
• Texas' much-lauded revenge porn statute appears on a collision course with recent First Amendment jurisprudence, as Mark Bennett tried to explain to legislators during session. For my part, I wish the debate weren't as facile as it has become, where valid legal criticisms are dismissed as detritus and the Lege just passes laws which poll well but cannot withstand constitutional scrutiny. We've done this a bunch in Texas now, with online solicitation, improper photography ... now we appear poised to go through the same rigmarole on revenge porn. Grits has nothing good to say about anyone who would engage in this activity, but acknowledging the legal complexity of the situation does not condone the behavior. In fact, it's how serious people go about actually solving a problem. We'll see how the courts receive the new statute; I'm not sanguine it has much chance of withstanding scrutiny, good intentions and high-toned rhetoric notwithstanding.

Public safety arguments for arresting pot smokers eroding

One of the main arguments trotted out in Texas by opponents of legislation to reduce penalties for personal-use marijuana possession (mainly police union reps) is that there's no reliable way for police to detect stoned drivers on the side of the road the way there is for drunk ones. That's true to an overstated extent, for the moment (even as I write this, technology advances, and observed impairment during roadside sobriety tests still would merit arrest). But it doesn't justify arresting every driver with marijuana in their bloodstream as potentially impaired because pot remains detectable in the system long after impairment subsides. Such are the implications of a federal report described by Christopher Ingraham under the Washington Post headline, "Stoned drivers are a lot safer than drunk ones, new federal data show."

His article opened, "A new study from the National Highway Traffic Safety Administration finds that drivers who use marijuana are at a significantly lower risk for a crash than drivers who use alcohol. And after adjusting for age, gender, race and alcohol use, drivers who tested positive for marijuana  were no more likely to crash than who had not used any drugs or alcohol prior to driving." That could be a game changing pronouncement. (The story included the remarkable chart at right.)

It's been extraordinary how rapidly public opinion has shifted on marijuana regulation. Legalized pot in Colorado, Washington and elsewhere transformed the terms of debate both nationally and in Texas. And myth busting research like this contributes to a more honest, evidence-based debate over these sorts of once-taboo topics.

That said, this news shouldn't be taken as license to immediately go smoke and drive. Ingraham's column concluded:

So, should we all assume that we're safe to blaze one and go for a joyride whenever the whimsy strikes us? Absolutely not. There's plenty of evidence showing that marijuana use impairs key driving skills. If you get really stoned and then get behind the wheel, you're asking for trouble.

What we do need, however, are better roadside mechanisms for detecting marijuana-related impairment. Several companies are developing pot breathalyzers for this purpose.

We also need a lot more research into the effects of marijuana use on driving ability, particularly to get a better sense of how pot's effect on driving diminishes in the hours after using. But this kind of research remains incredibly difficult to do, primarily because the federal government still classifies weed as a Schedule 1 substance, as dangerous as heroin.

Bottom line, impaired drivers should be arrested and taken off the road whether they're drunk, stoned, or high on prescription drugs. But the argument that cops must arrest every pot smoker because they might drive impaired doesn't jibe with reality or the data reviewed by the feds. As a general rule, there's no greater public safety benefit from arresting and jailing a pot smoker than from giving them a Class C ticket or a civil citation.

Reed on ridesharing and DWI

Commenting on local anti-DWI efforts, outgoing Bexar County DA Susan Reed cited ridesharing services Lyft and Uber as a means to reduce drunk driving in a city without a robust public transportation system (which pretty much describes every Texas city).

Grits found this interesting because local debates over these services have largely revolved around whether they're fair to taxicab companies, whom one would suppose from the rhetoric enjoy a God-given natural cartel that trumps the forces of capitalism and technology.

The city of San Antonio is considering regulations to limit ridesharing services, but the Texas Public Policy Foundation's Jess Fields rightly suggested yesterday that "San Antonio’s council members would do well to remember that the threat of new competition threatens taxicab companies, not consumers while the threat of drunk drivers is very real indeed."

I'm not a fan of Reed's other suggested DWI solution - "sobriety checkpoints" where every car is stopped at a roadblock regardless of whether there's reasonable suspicion.  But IMO she's right to frame the debate around ridesharing services in terms of providing an alternative to drunk driving.

Tight CCA decision declares mandatory DWI blood draws unconstitutional

Big week at the Texas Court of Criminal Appeals, which issued several important opinions related to topics covered on Grits. We'll run though them all in due course, but first up: a 5-4 decision in State v. Villareal which declared Texas' mandatory-blood draw statutes in DWI cases unconstitutional, following the US Supreme Court's McNeely decision.

Judge Elsa Alcala wrote the substantial majority opinion disallowing mandatory blood draws while Judges Keller and Meyers authored brief, rather perfunctory dissents holding that Texas' statutory exceptions should be upheld as reasonable under the Fourth Amendment. The overwhelming majority of judges in Texas' intermediate courts had agreed with Alcala's opinion, while more CCA judges adopted a contrarian view than among all the mid-level courts combined.

Villareal will have significant ripple effects, forcing police to get warrants for DWI blood draws in many more circumstances than before. Prosecutors around the state will consider this a big loss, though some remain in denial. OTOH, as Houston criminal defense attorney Grant Scheiner told the Associated Press, "Smart prosecutors and police agencies have been planning for this." Further:

Scheiner said it's unlikely the Legislature can modify state law to leave in any exceptions allowing warrantless blood draws.

"We can applaud the court of criminal appeals for doing the right thing. But it's not like they had much choice," he said.

That seems right to this non-attorney, with a couple of caveats: Three of the five judges in the majority will leave the bench in January and be replaced by newbies, two of whom have never before served as judges in any capacity but instead were appellate prosecutors. One supposes it's possible the CCA might accept another case in the future that results in a different outcome, or for that matter a motion for rehearing on this case after the new court is seated - one vote would have flipped the decision. Or, in theory, prosecutors could appeal to the US Supreme Court to overrule the CCA. Barring those outcomes, Villareal ought to settle the matter.

Many counties have implemented short-term "no refusal" periods around holidays or particular weekends where a judge is on call to issue warrants even in routine, first-offense DWI stops. Now, judges must issue warrants in categories of cases that previously did not require one. Will that mean there will be less focus on no-refusal tactics because judges will be spending more time issuing warrants for recidivists, arrests involving accidents, etc.? Or will their workload simply increase? Perhaps DWI blood-draws will decline overall, providing relief to overtaxed crime labs processing the evidence. What are the implications for older convictions based on now-unconstitutional mandatory blood draws? And how will Villareal interact with prior Texas court rulings related to exigent circumstances in blood-draw cases? Who knows?

Much remains uncertain. All we know for sure is police now need a warrant for DWI blood draws in most cases, even if now-mooted statutes say otherwise. Court decisions on exigency, not legislative pronouncements, will henceforth determine when blood can be taken in Texas without judicial approval.

Grits must admit I'm surprised at SCOTUS and the CCA reinvigorating the Fourth Amendment in DWI cases. There will be much weeping and gnashing of teeth over these decisions in the coming weeks and months. And they will probably cause the number of DWI convictions to decline, though I doubt the effect will be as large as the ignominious Driver Responsibility surcharge.

To me, though, McNeely and Villareal speak to the limits of an enforcement-only approach to DWI in a society ostensibly dedicated to protection of personal freedom. Cops, courts, and jails cannot be the only solution to every social problem, particularly drug and alcohol addiction. The question now becomes whether the political process is capable of conceiving and implementing a more holistic approach. My gut says "probably not" in the current political environment, but then a few years ago I wouldn't have predicted McNeely and Villareal could have been possible, either.

TX appellate courts (barely) split on mandatory DWI blood draws

We haven't talked much in a while about the fallout from the US Supreme Court's McNeely ruling, which held that police must obtain search warrants to draw blood after a DWI and that the fact that alcohol dissipates in the blood is not an extenuating circumstance that justifies drawing blood without a judge's order.

At first there was speculation whether the court's ruling would apply to Texas' law; a footnote in McNeely referenced Texas' statute without including it in the category of cases the ruling would impact. But, by my count, we're now up to five intermediate Texas courts of appeal (12th, 13th, 7th, 4th, and 9th) which have said police must obtain a warrant to draw blood from alleged drunk drivers, even if they're among the category of "mandatory" blood draw subjects articulated in state statutes. The most recent was the Ninth Court of Appeals (see the opinion). Only the 14th Court of Appeals ruled the other way by a 2-1 margin on a three judge panel. (Update/Correction: The full 14th Court later ruled the other way; see below) Even so, the split means the Texas Court of Criminal Appeals must eventually step in.

Increasingly, however, it looks like we may not see that decision from the court as it's currently constituted. If they wait until next spring, three current court members will be gone and (presumptively) Bert Richardson, Kevin Yeary, and David Newell will have replaced them. Who knows what if anything that might mean for an eventual decision? I'm not a lawyer, but after reading McNeely my own, initial educated guess was that Texas' mandatory blood draw statute would stand. Having now seen 16 of 18 appellate judges who've ruled on it strongly make the opposite argument, I think my initial gut reaction was likely wrong and tend to lean the other direction.

Really, though, it's a complete tossup. Who knows what Sharon Keller and Co. might do once three new members are enshrined, alliances shift, etc.? Come 2015 in many ways we'll have a brand new court and this won't be the only case where three new members might make a difference.

CORRECTION/MORE: An attentive commenter informed me that the full 14th Court of Appeals heard the Douds case en banc and overruled the three-judge panel. It's true; mea culpa. Here's the later, controlling opinion. So if six out of six appellate courts all have agreed that McNeely applies, maybe the CCA won't feel obligated to take up the issue after all! I know the prosecutors are dearly hoping they'll come in at the last minute and save the day after this rough string of appellate losses. But at the moment, there's really no reason to do so. It's not as though they don't have other important stuff on their plate.

Texas' mandatory blood draw statute on DWI under fire

Texas' warrantless blood draw statute has been challenged and in some cases declared unconstitutional by intermediate state appellate judges in the wake of the Supreme Court's 2013 McNeely decision.  Tyler's 12th Court of Appeals became the latest to contend "the implied consent and mandatory blood draw statutory schemes found in the transportation code are not exceptions to the warrant requirement under the Fourth Amendment."

Another pro-Fourth Amendment opinion from a Texas appellate court on the topic came in July from the Fourth Court of Appeals in San Antonio, ruling that "warrantless searches are presumed unreasonable and must be justified on a case by case basis."

The SA Express News editorialized recently that the Court of Criminal Appeals should pick up a case to clarify the issue, and at some point they surely will. But if they go against the lower courts and uphold the current statute, we might see the issue challenged again at SCOTUS.