Con: Policy could lead to doubts on probable cause
Dec. 15, 2013 at 6:15 a.m.
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You do not have to take the field sobriety test. The test, even if perfectly administered, is not an absolute of intoxication, said defense attorney George Filley. Refusing the test also does not mean you will lose your license. Your license may be suspended, but that will be decided by an administrative judge, not an officer. "Everyone has the right to ask for a hearing as to whether or not their license will be suspended," Filley said.
Streamlining the process to obtain a warrant for a blood sample may lead to the defense questioning whether a probable cause was fully developed, said defense attorney George Filley.
Without probable cause, the blood alcohol level won't matter in court, he said.
To obtain a warrant, the officer must present a written application to a judge that describes circumstances under which an officer believes an offense may have occurred. Details such as smelling alcohol on the breath, slurred speech and reckless driving are all considered clues or signs of intoxication.
"The problem is the judge does not have the opportunity to view that person, talk to the individual, smell the individual's breath," Filley said. "They are left with what they are told by an officer."
An officer only needs to determine probable cause to obtain a search warrant, said Victoria District Attorney Stephen Tyler, "but probable cause is a long way from beyond a reasonable doubt, which is what the prosecution must show."
Ethically, if the prosecution were unable to support the case, Tyler said his office would not file charges.
"For example, the officer may say they have good video footage, but maybe it's not so good," Tyler said. "Jurors are never going to see it exactly the way (the officer) did."
Filley worries police officers would be too quick to ask for a search warrant if the procedure were made easier, especially if it becomes an electronic process, he said.
"There is a temptation to fill in the blank," he said. "When the officer has to go before a judge and raise a hand, there is some sort of repercussion - criminalizing the refusal of a breath test - it's an invasion on the right to remain silent."
Robert Whitaker, justice of the peace for Precinct 3, would be uncomfortable signing a warrant without talking to an officer face to face, he said.
"Sometimes, you can gather more information talking to a person face to face rather than reading a report," he said. "I would like to have that benefit if I was signing a warrant for blood draw."