Tuesday, April 05, 2005


We see in the paper this morning a story about a school district employee who was arrested for DWI. He reportedly was pulled over for weaving on the Interstate, and had an odor of alcoholic beverages, blurred speech, and watery eyes.

The first question is whether the officer had probable cause if he observed a swerving of the defendant's automobile into another lane of the Interstate, saw that defendant was driving, smelled a strong odor of alcoholic beverages on defendant, saw that defendant's eyes were watery and heard blurred speech from defendant. The answer is definitely, "Yes." That is probable cause.

Notice that we stated that it is probable cause if the officer sees this and hears that and smells that. A federal Judge one time, in denying a motion to suppress evidence, stated, "If the police officer testifies that he smelled a strong odor of marijuana emanating from within the vehicle, that is probable cause." Defense counsel did not correct the Judge, and point out that the rule should be, "If the police officer smells a strong odor of marijuana emanating from within the vehicle, that is probable cause." We are not impugning the integrity of the officer; but with modern technology we can cut down on the cases in which there is a dispute between the officer's testimony and the testimony of the accused.

Back to this case: the officer thereupon offered roadside tests, which the defendant tried and failed. The probable cause (reasonable grounds to believe that the defendant is driving a motor vehicle under the influence of alcohol) justifies the request for a breath-alcohol test, which was offered. The defendant declined the test.

Serious consequences follow because defendant refused to take the breath test, but the investigation would have been more complete if blood had been drawn and tested. A blood test could be authorized, whether defendant wanted one or not, by the order of a magistrate. Every District Judge is a magistrate; and every Metropolitan Court Judge is a magistrate. That makes approximately 30 magistrates in Bernalillo County. The New Mexico Constitution requires that the officer have probable cause, and that the officer present that probable cause to a magistrate [except in exigent circumstances]; and the Constitution allows a warrant to issue based upon a sworn written statement of the probable cause.

It would seem that a recorded telephone or radio call or email from the officer to the magistrate would serve the purpose of a writing. After all, New Mexico did not even have an exclusionary rule (illegally obtained evidence to be suppressed) until one was imposed on this State by Mapp v. Ohio (U.S. Supreme Court, 1961).

Why not have the officer call a magistrate on telephone duty for this purpose, to get a blood test, in DWI cases in which the accused refuses a breath test? The warrant need not be in hand, on a paper, to authorize the officer to take the blood with the assistance of a medical care provider. If the suspect refuses to submit voluntarily after the warrant is issued, the officer can call back to the magistrate for a warrant authorizing more physical means. The alternative is to go without a scientific test, and that does not seem right when such a test (blood alcohol) is available.

To conduct the investigation in this manner would aid in arriving at the truth of the matter charged; but it may be too inconvenient or costly. On the other hand, an unnecessary trial is inconvenient and costly, and does not always result in justice. No officer would be unreasonably hampered in her investigation, the accused would have the full benefit of the New Mexico and federal constitutional warrant requirement, and the full truth would be more likely to come out.

Another use that could be made of telephone warrants is the authorization of searches of automobiles out on the highway. Although the officer can conduct a lawful search upon probable cause or with consent of the proper person (your brother can give consent to the police to read your diary, was the ruling in the Sirhan-Sirhan case), it is not consent if the person merely acquiesces to the pretended authority of the police officer.

Why bite off that swearing match, probable cause or no, consent or acquiesence? Let the State Police or other officer call a magistrate to get authority to search a vehicle. The magistrate may swear the officer and then inquire, "Officer, you are asking for a warrant, that is, permission, to search this suspect and his car. Please tell me all of the facts that cause you to believe this search would be reasonable, etc." There could be give and take, back and forth, with the officer under oath, until the neutral, detached magistrate ruled on the record whether probable cause for the search had been established. The magistrate could place restrictions in the warrant, for example, same gender search, or search only the inside of the car, not the trunk and not the suitcase in the trunk. Fewer searches, less marijuana found, less coke and meth seized; and occasionally, a murderer allowed to slip through the roadblock with the body or murder weapon in the trunk; but the Constitutional rights of all the citizens would be better protected.

Another bit of technology, which will be the subject of a later post, is the driving simulator. Imagine a DWI suspect sitting at the wheel of a driving simulator, in a BatMobile, being fully videotaped. Volunteering, of course, but the invitation can be recorded by videotape as well. Tests by the side of the highway are somewhat subjective, difficult to videotape record, and expose the officer and accused to extra danger.