Dallas Criminal Defense Lawyer BlogWhat kind of magistrate can you buy for $50?
Not a very good one. A Johnson County magistrate earned $50 for each forced blood draw warrant she reviewed.
When you compensate someone for the volume of work done, you will get quantity, but not always quality. What do you know? She signed at least one warrant without the required probable cause.
CLEBURNE — Results of a blood-alcohol test on state District Judge Elizabeth Berry after she was stopped for speeding through Alvarado last year cannot be used to try her on a charge of driving while intoxicated, a visiting judge ruled Thursday.
After a three-hour hearing Thursday, retired Senior Judge Robert Dohoney ruled that the facts cited by the officer who arrested Berry on Nov. 8 were not sufficient to support a search warrant granted by a judge to obtain her blood.
Berry’s attorney, Mark Daniel, said Dohoney’s ruling is legally correct.
“He ruled on the sufficiency of probable cause within the [officer’s] affidavit,” Daniel said. “A small quantity of evidence is required to sustain probable cause. He found it did not exist.”
Daniel initially challenged the admissibility of the blood tests on several grounds, including the legality of the traffic stop; evidence used to obtain the search warrant for Berry’s blood; and the fact that it was drawn in a jail interview room….
Focus on the warrant
Instead, the hearing focused on the search warrant signed by Municipal Judge Toni Driver based on the affidavit of arresting officer Taylor Archibald, who sought permission to take Berry’s blood after she refused to complete a field sobriety test or take a breath test.Madison had also planned to call medical personnel involved in drawing Berry’s blood. Those witnesses were not called after Dohoney, at Daniel’s request, ruled on the validity of the search warrant.
Daniel led Archibald and Driver line by line through the two-page affidavit in an effort to show that the officer did not present enough facts to justify the search warrant.
He pointed out that the affidavit did not list many commonly accepted signs of intoxication, including bloodshot eyes, lack of balance or unsteady movements. Details such as the odor of alcohol on Berry noted by another officer were not included in the affidavit until Driver told Archibald that she needed more information to grant the warrant.
Even then, Daniel said, the affidavit did not say when the officer noticed the odor or where in Berry’s car the officers saw eight 12-ounce beer bottles.
Most cops and prosecutors think a refusal is enough to steal your blood. Not so, probable cause is still required for these forced blood draw warrants. Years of pro State appellate decisions have made made this a laughably easy burden to meet.
Setting the bar so low for law enforcement perpetuates incompetence. That seems to be the case here. DWI hysteria and pro conviction appellate courts have created an environment where poor DWI investigations are not punished (or suppressed). It’s no surprise this officer didn’t do his job on this warrant. Most of the time the defendant will plead, or the appellate court will forgive his mistakes.
The $50 Magistrate
Most disturbing is the relationship between the magistrate and the state. Magistrates are supposed to neutral and detached. To further the DWI conviction machine we have made magistrates agents for law enforcement.
From the ST-
And he questioned the propriety of the county paying Driver to review search warrant requests.
She is paid $250 a month, plus $50 per warrant reviewed, under a contract that says she is on call to “assist law enforcement and prosecutors.”
Not even the pretense of neutrality. We’ve gamed the system to the point of absurdity. No right to counsel, no right against self incrimination, no right to confront the state’s machine. The more we crack down on “drunk driving” the more we erode the fundamentals of our adversarial system.