According to a press release issued by the Plano Police Department, the Plano Police plan to conduct a so called no refusal weekend over the Memorial Day weekend. The press release is here.
During a no refusal operation, if you are arrested on suspicion of DWI and refuse to submit to a breath or blood test, the police will prepare an affidavit in support of a search warrant application. The affidavit must recite facts that demonstrate that the police have probable cause to believe that you were DWI and that evidence of alcohol or drugs will be found in your blood. The police will then present the affidavit to a judge who will review if for probable cause. In practice, the police rarely appear in person before a judge and swear to the affidavit. Rather, the typical practice is for them to fax it or recite it over the phone.
Recently, the Fifth Court of Appeals in Dallas sidestepped the question of whether the Texas Code of Criminal Procedure requires that the police swear to the facts contained in the affidavit in the personal presence of the magistrate.
In the case of Swenson v. State of Texas the Court stated that
"The issue of whether an officer's telephonic oath and presentation of the affidavit by facsimile satisfies the requirement of personally swearing to the facts before the issuing magistrate need not be determined on this record."
Why, you ask. Well, because the Court relied upon the good faith exception to the warrant requirement. The good faith exception doctrine basically says that even if the warrant is technically unlawful, it may still be upheld if the police were relying in good faith on the signed search warrant. So, the Court did not answer the question of wether section 18.02 of the Texas Code of Criminal Procedue requires the personal appearance of the officer. That issue will have to be fought again in the County Court's at Law and in the appeals courts. In order to have the question directly addressed by the Court, we may need a case in which good faith reliance is utterly absent.
My cousin recommended this blog and she was totally right keep up the fantastic work!