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Board Certified - Criminal Law - Texas Board of Legal Specialization

Criminal Law Blog

March 23, 2009

How Does the Story About the Fired US Attorneys Relate to the First Refused Blood Draw Warrant in Austin, Texas?

Here is how the stories are related.  The reported story isn’t the most interesting story. 

When President George W. Bush was first elected, it was his right and privilege to nominate lawyers to become United States Attorneys for the various districts in the United States.  The firing of seven U.S. Attorneys for political reasons came later.  It led to an
investigation into how such matters were handled.  Skip Davis, a colleague of mine, pointed out once that the real story isn’t that Alberto Gonzales’ Justice Department canned 7 republicans who weren’t republican enough, it was that the rest were passing muster in the eyes of their political monitors. 

Kudos to City of Austin Municipal Court Judge Kirk Kuykendall for declining to sign a blood draw warrant when he failed to find probable cause.  But does the story end there?  I don’t think so.  I read with a snort of laughter Austin Police Lt. David Mahoney’s comment: “I think there was a perception that our warrants were simply being rubber stamped.  This shows they aren’t approving everything across the board.” Okay, not “everything.” The Municipal Court Judges are approving everything “other than just that one warrant that the Judge [Kuykendall] declined to sign.” Does that mean the City of Austin Municipal Court Judges are crooked.  Not at all.  I know many of them and they think for themselves and make up their own minds. 

What the declined warrant may mean is that an officer didn’t put in the standard descriptions. 

What are the “standard descriptions”?  Well, it’s not secret amongst the defense bar that certain officers always have found the driver to have “bloodshot, watery, and glassy eyes.” If the American Statesman wants to really look into a story, it should look into consecutive probable cause affidavits filed by individual officers of the “55s” i.e. the DWI task force, to see how much the clues vary, particularly those clues noted before the Standardized Field Sobriety Tests are described. 

The big question is how many citizens of Austin have had their blood taken against their will because officers did put in the standard descriptions?  How many have been intimidated by blood results into pleading guilty when the blood sample from which the results were calculated ought never to have been taken at all? 

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