Tuesday, August 28, 2012
A TOTAL REFUSAL IS NOT PROBABLE CAUSE !
The Boiling Coffey Pot: last night I find out a sweet, bright young new lawyer (I mentored her by letting her sit second chair for experience) got arrested for DWI by Keller PD cop Hicks (badge # 154) after she got pulled over for not using a turn signal and telling him she only had one drink. Naturally, she refused all the tests (as he wasn't believing her) and he got a warrant for her blood. Result ? No ethanol. The DA refused to file her case. The ALR judge suspended her license even with evidence of the ZERO ethanol toxicology report ! Bullshit. Here is what is wrong with this picture: the fact that the cop arrested her for probable cause in the first place. Saying NO to everything because the cop has NOTHING is NOT probable cause to arrest and it is high time cops, da(s), and judges start holding them to this and throwing out total refusal bullshit arrests. JYou either have evidence or you don't ! This is not the middle east, we as free American citizens DON"T HAVE TO prove anything. Typical descriptors like "odor of alcohol and bloodshot eyes" is NOT probable cause. Jimminy Christmas. I swear to God, this type of behavior is worse than Communism.
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I had a similar one. A paper alr case. The officer responding to report of an accident does not even confirm that there was an accident smells alcohol gets admission of two drinks from a 200 lb man asks for sft's which were refused. He is "placed in custody" and then affidavits are taken from "victims" of the accident and still no evidence in the report that my client made contact with their vehicle. ALR judge assumed an accident and found PC because of admission of two drinks, smell of alcohol and thick tongued speech. No one even put him behind the wheel in the report before the judge. This two bite civil/criminal approach is untenable crap. I win about 40% of my ALR cases, but some of these judges simply refuse to acknowledge the case law you put in front of them and rubber stamp these suspensions.
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