As a Fort Lauderdale criminal lawyer, I can tell you there is a new, disturbing trend in DUI enforcement. Namely, judges are participating in DUI checkpoints run by police. While I have not personally seen a case involving this new scenario, my understanding is that the judges are on hand to order blood draws in the event that a DUI arrestee refuses to submit to breath testing.
So far, to the best of my knowledge, this scheme has not been used in any DUI checkpoint in Broward County, Florida.
Police and prosecutors may think it is pretty smart to have a judge present at DUI checkpoints, but in truth, it is fraught with problems and in my opinion, creates a law enforcement scheme that is contrary to our legal tradition.
First and foremost, any judge present at the scene of a DUI checkpoint immediately becomes a witness. As a witness present on the scene of a DUI checkpoint, a judge may be required to testify at trial, during deposition, and certain pre-trial hearings. Judges would also be subject to cross-examination by opposing parties. Moreover, since a judge’s presence at a DUI checkpoint would be known to prosecutors, the prosecution would have an affirmative duty to disclose the judge’s name in their discovery submission to defense lawyers.
In a sense, a judicial presence at DUI checkpoints is no different than a prosecutor who does a “ride-a-long” in a police car. For those who are not familiar with ride-a-longs, these are one time events where a prosecutor will actually ride with a police officer in his/her patrol car to learn about police procedure and to observe police operations in the field first hand. Ride-a-longs are very effective learning tools because they give new prosecutors a tangible learning experience that enhances their ability as lawyers in the courtroom.
However, there is a caveat to participating in ride-a-longs. First, the prosecutor’s presence must be disclosed to defense lawyers. Second, the prosecutor may be required to submit to deposition by defense lawyers. Third, the prosecutor may be required to testify during trial and certain pre-trial hearings.
A judge would be no different. In fact, I would even go as far as to suggest that Rules of Judicial Conduct would require no less. But more on that later…
Judicial witnesses at DUI checkpoints creates a second problem. Namely, as a witness, a judge would be barred from presiding over any case that he/she was witness to.
Just imagine how a trial would look… Who would rule on objections made during the judge’s own testimony? The judge? But he/she is the witness!?!?! Would the judge testify from the bench or step down and take the witness stand? Would he/she leave their robe on or take it off?
These questions may sound silly, but they illustrate the impossibility of this scheme.
This leads me to my second point. Since a witness-judge is conflicted and cannot therefore preside over a matter in which he/she is a witness, the same rule applies to the issuance of search warrants to draw blood from arrestees who refuse a blood test.
Keep in mind that a judge who is also a witness has an inherent conflict that precludes him/her from issuing any rulings on the same matter in which he/she is a witness. Therefore, a witness-judge may not issue a ruling on any case in which he/she is also a witness.
Put simply, a person can only be one thing: a witness or a judge. The inherent conflict then ensues when these lines are crossed preclude a person from being both simultaneously.
As a result of this conflict, any search warrant issued by a witness-judge would necessarily be invalid. If the warrant is invalid, it defeats the entire purpose of having the judge present in the first place.
This entry will be the first of at least a two part series. In my next blog, I will be discussing the implications of the Rules of Judicial Conduct, the implications of a judicial presence at DUI checkpoints has on our system of law, and some practical considerations of employing judges to participate in DUI checkpoints on a regular basis.