April 2, 2014 | Share
Texas' "Take No Chances Policy:" A way around probable cause?
In 2013, Larry Davis was pulled over on suspicion of driving while impaired (DWI). He fully cooperated with a breath test, and blew a 0.0. He also offered to submit to a blood test to check for other types of drugs; the blood test found none in his system. He voluntarily performed a field sobriety test; the police decided Mr. Davis' performance was "subpar." Mr. Davis was arrested and forced to spend the night in jail. He also had to obtain an attorney, wait a year until his case worked its way through the system, and was eventually dismissed because it was too weak to win in court.
Mr. Davis was arrested under the "Take No Chances Policy" in place in Austin, Texas. Collin County Criminal Attorneys find that this policy has led to many arrests that then result in cases which are dismissed. In fact, since 2011, 30% of DWI cases per year are dismissed due to being unable to hold up in court. Even though the cases are ultimately dismissed, the policy is not without consequences. Like Mr. Davis, people are arrested, forced to spend time in jail, forced to secure an attorney, forced to miss work for court dates, forced to live with a charge hanging over their heads for as long as a year, and forced to deal with the anxiety and humiliation of the whole process.
Collin County Criminal Attorneys submit that the "Take No Chances Policy" brushes up against probable cause requirement for traffic stops. Pretextual traffic stops are constitutional so long as the underlying traffic stop is based on a valid infraction--however minor. In some of the Take No Chances cases, the underlying infraction is the subjective field test: e.g. in Mr. Davis' case, the results of both objective tests, the breath and blood tests, were negative, but the police based the arrest on the subjective test, the field sobriety test. This can be a slippery slope leading to an end-run around the requirement of probable cause.
Others have raised the issue of tort liability in the form of false arrest. False arrest occurs, among other ways, when someone is held in custody without probable cause. After arrest if the charges are dropped, sometimes the person held in custody pursues an action for false arrest. Once again, the issue is probable cause: if the police had probable cause to make the arrest, then their qualified immunity protects them from liability. If, however, the arrest was made on something less than probable cause--on something that would not hold up in court and/or something that was very subjective--the police might not be protected by that immunity.This is the slippery slope mentioned above; if the "Take No Chances Policy" bases arrests on any standard not equal to probable cause, justifying it by the later dismissal of the cases, then the policy and the arrests are open to challenge.
If you have been arrested for DWI, call the Collin County Criminal Attorneys today at Nordhaus Walpole, PLLC.
Categories: Criminal Defense