The more I think about the presence of Judges at Florida DUI Checkpoints, the more I am bothered by it. Aside from the obvious problems created when a judge becomes a witness in a case, I think the presence of judges at DUI checkpoints serves to undermine the public’s confidence in the integrity and independence of the judiciary. I also think it suggests an unfair bias that favors police and may also violate individual rights to Equal Protection and access to the courts.
As a Fort Lauderdale criminal lawyer, my professional knowledge is focused on criminal law and the criminal justice system. As such, I am by no means an expert in Florida’s Code of Judicial Conduct. However, I think the idea of having judges present at DUI checkpoints possibly violates three canons. They are:
Canon 1: A Judge Shall Uphold the Integrity and Independence of the Judiciary
Canon 2: A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities
Canon 3: A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
Before I delve into this subject, lets first take a moment to understand the role of a judge in the search warrant process and how that impacts DUI investigations for police.
The U.S. Constitution protects every person’s right to privacy. Unless one consents to a police search or exigent circumstances exist, such as a life threatening situation, police must first obtain a warrant from a judge before invading a person’s privacy to search for evidence. In a sense, a search warrant is almost like a hall pass… it is illegal to walk the halls, unless you have a special piece of paper that says otherwise.
Whenever police want to get a search warrant, they have to write out a lengthy search warrant application that explains, under oath, why there is probable cause to invade the subject’s privacy and search for evidence. Once completed, police must bring the warrant application to a judge who then reviews it for legal sufficiency.
If the application is lacking, the judge will deny the request for a warrant. If there is enough legal ground, the judge will grant the request and issue a warrant. Thus, the judge’s job is to double check the work of police and make sure they are following the law. When cops fail to obtain a warrant, the prosecution is sanctioned by having the illegally obtained evidence thrown out from court.
If the search warrant application is made during work hours, police will bring the warrant application to the judge’s chambers or his/her courtroom in the courthouse. If it is after hours, police will actually visit the judge at his/her home… no matter what hour of the day or night it is. Every week a different judge is assigned to this duty. These judges are called “Duty Judges” as a result.
While this system is effective at preventing unlawful police intrusions, it poses a problem for DUI cops who want to draw blood while the subject is still intoxicated. By having a judge on the scene of a DUI checkpoint, the search warrant application process is streamlined, thus saving police a lot of needed time. As a result, blood can be drawn from a person who refuses a breath test before his/her body eliminates all the alcohol in their system.
However, prosecutors and police may be biting off more than they can chew. What will they do when blood draws reveal that the subject person was below the legal limit? Remember, with a judge on scene, every DUI suspect will likely be subjected to blood testing. That means we will have a seemingly reliable means of alcohol testing in almost every DUI checkpoint case. The prosecution doesn’t realize this now, but such evidence may hurt them more often than they think.
The issue of below-limit test results comes up all the time in breath test cases and I have yet to see a prosecutor win one at trial.
Prosecutors don’t realize it, but refusal cases are the easiest to prove because the defense is limited in their attack. When a breath test result is at issue, the defense has a plethora of weaponry to make a jury doubt the police officer’s assessment.
If there is no scientific evidence to attack, the only thing that remains is the officer’s credibility. Unless the officer comes off as a jerk or a liar in trial or his DUI investigation was seriously lacking, it is impossible to challenge an officer who says he/she arrested the defendant because that person looked, smelled, and acted drunk.
Only when you bring in the equation of a faulty test machine or a below the limit reading does the officer’s opinion about impairment come into question. By adding the element of “scientific” testing, the prosecution changes a case from a he said/she said to a debate about the merits of testing. Put simply, they open themselves up to attack.
For instance, one problem encountered in DUI defense occurs when a blood draw or breath test is taken so long after a person was driving that unabsorbed/undigested alcohol that was present in the subject’s stomach at the time of driving, but not in their system, is now absorbed and digested, thus causing an artificially high test result hours later.
Remember, the purpose of breath/blood test evidence is to prove intoxication at the time of driving… not two hours later when the contents of a person’s stomach have been fully digested.
Hence the role of rapidly obtained search warrants to draw blood.
I should also mention that there is nothing illegal about the use of blood draws in DUI investigations. According to the U.S. Supreme Court, drawing blood with a needle is minimally invasive and is non-testimonial and non-communicative in nature. Therefore, the 5th Amendment is not implicated. In this sense, a blood draw is really no different than a cheek swab for DNA.
However, the question about a person’s right to refuse testing does remain, but that is a another subject for different blog entry.
Now that we understand the role of a search warrant in a DUI case and why police want judges on the scenes of DUI checkpoints, lets get back on track and discuss why this is a bad idea.
Aside from the obvious witness problems created, having judges on scene creates an intimate relationship with police that is just a little too close for comfort. In my opinion, this scheme blurs the lines a little too much and implies that the judiciary favors the police.
After all, they’re not putting attorneys on scene to provide defendants with legal counsel any time soon! If having a judge present is so innocent, then why not have defense counsel too?
I would be the first to volunteer my services!
When I first read about this scheme, I imagined a judge sitting at a desk set up at a DUI checkpoint, reading affidavit after affidavit, stamping form search warrant after form search warrant “GRANTED” case after case. Or, in a worse scenario, cops would bring the subject before the judge so that the judge could make his/her own determination about impairment. Again, major witness problem.
The bottom line is this: The public calls these DUI checkpoints “No Refusal Checkpoints” for a reason and it isn’t because they think the judges are brought there to enforce individual rights to privacy or double check the police. Instead, the impression given is that the judges are there to rubber stamp police requests for blood draws.
By having a judge present, the message is clear: If you don’t do what the police want, they’ll simply get the judge to force you.
This scheme gives the impression that judges are biased in favor of police. It makes it look like they are working hand in hand to arrest people for DUI.
Such impressions undermine the public’s confidence in the judicial system.
Let me be clear about the following: I am all for aggressive DUI enforcement. I drive on these roads too and the last thing I want is to be injured or killed by some drunk driver.
However, as a criminal lawyer, I have strong beliefs in our system of justice. You cannot break the law to enforce it. We have rules that govern how far and under what circumstances the police may invade a subject’s privacy. We also have rules that govern the conduct of OUR judiciary.
Nothing I am saying herein should be interpreted as criticizing a police officer who tries to obtain a search warrant. In fact, I support the notion wholeheartedly. I also think blood draws are a far more accurate alternative to unreliable breath test machines. In fact, I wish they would get rid of those inaccurate machines and ONLY do blood draws (which is something I suggested as a DUI prosecutor years ago but was ignored).
My only criticism here is limited to the idea of placing judges on the scene of DUI checkpoints. It creates practical problems, it suggests a serious lack of impartiality that favors the police, and it undermines the public’s faith in our legal system.
With the advent of the fax machine in the early 80’s and email in the early 90’s, there is absolutely no reason to put judges on the scene of DUI checkpoints.
We have courthouses for a reason. While a judge should be available to any police officer who has a warrant application at any hour of the day or night, there needs to be some separation between judges and litigants to illustrate the independence and integrity of the judiciary.
After all, how fast would prosecutors object to judges that take up shop in the Public Defender’s Office?
Why, should police be given greater access to the courts than me or my clients?
When I have a client with an emergency motion, I need to jump through hoops to get a hearing before a judge. Sometimes this can take days. Not to mention the length of time it takes to get an urgent matter, that is not an emergency, heard (such as a motion to set bond).
Unlike these DUI checkpoints, there is no judge in my law office that I can turn to for an immediate order. Instead, I have to wait, like everyone else, until I can get a hearing scheduled in that judge’s courtroom.
There is nothing special about the police that gives them any more right to judicial access than an individual.
When judges participate on the scene of DUI checkpoints, they give police VIP access to the courts that the rest of us don’t have. By affording law enforcement greater access to the courts than individuals, this scheme not only violates the Constitution’s notion of Equal Protection, but it even further undermines the public’s faith in the independence, integrity, and impartiality of our courts.
While this scheme may have begun as a shrewd way to force blood samples out of DUI suspects, it is clear that having judges on the scene of DUI checkpoints is a bad idea. As much as I support legitimate DUI enforcement for my own safety, I am very much against this idea.
I can guarantee you one thing, if this scheme comes to Broward County, you can rest assured that the local Defense Bar will fight it tooth and nail in the courtroom.
As a constituent who wants aggressive DUI enforcement on our roadways, I want legitimate, lawful prosecutions that uphold our legal system, not undermine it.
In any event, I am sure this is a hot topic that will be developing over the coming months throughout our State.