Plenty of blame to go around in Tarrant judge's DWI case

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by STEVE BLOW

wfaa.com

Posted on August 15, 2009 at 4:45 PM

Updated Friday, Oct 16 at 12:33 PM

A week has passed and I'm still hacked. Many of you are, too. So let's talk about it.

I'm referring to the ruling last week that threw out the blood-alcohol test in the drunken-driving case against Tarrant County Judge Elizabeth Berry.

Compounding my frustration is that I don't know exactly whom to be mad at.

Berry was stopped for speeding last year in Alvarado, south of Fort Worth. She refused to take a field sobriety test, a breath test or a blood test, so a municipal judge signed a search warrant authorizing a blood test against her wishes.

Last week, after a three-hour hearing, Judge Robert Dohoney ruled that the results of the blood test can't be used against Berry because the arresting officer's supporting affidavit was too vague.

Too vague?

It said Berry was driving 92 miles an hour, appeared confused and unusually quiet, had eight beer bottles on the floorboard of her SUV and the smell of alcohol on her breath.

I'm no legal expert, but let's just apply the parent test. If you caught your kid driving almost 30 mph over the speed limit, acting weird, with beer bottles in the car and smelling of alcohol, who isn't going to think "drunk"?

But that's just common sense. And as we have seen before, courts and common sense often don't mix.

In the Johnson County courtroom last week and in a phone conversation with me this week, defense attorney Mark Daniel really tortured the limits of common sense on what arresting officer Taylor Archibald should have included in his affidavit.

"It just said he observed beer bottles in the floorboard. Daniel said. "Which floorboard? The front or the back? If in back, which side, right or left? Were the bottles empty or full? Were they warm or cold?"

When I mentioned the smell of alcohol as solid information, he attacked that as too vague, too. "Was it strong or minimal? Was it the smell of beer? Or bourbon. Or isopropyl alcohol?"

Daniel bristled at my suggestion that all this amounts to technicalities. "Some people may call it technicalities. Some call it the Constitution," he said. "And I think the Constitution matters."

Then he really landed a low blow, saying maybe I ought to be commiserating with Dick Cheney on what a darn nuisance that Constitution is.

OK, OK. I do fully support our protections afforded by the Constitution. I know specific standards must be met. I accept the painful reality that a few guilty may go free in protecting the rights of us all.

And that's why I say I'm frustrated by not knowing exactly where to direct my anger. It sure looks like Officer Archibald and the Alvarado Police Department have to take some blame here, too.

Common sense may be enough elsewhere. But officers should know what the legal requirements are to support a search warrant.

In last week's hearing, it came out that Officer Archibald's original affidavit did not include the crucial information about alcohol on Berry's breath. That was added only after the municipal judge coached the officer on the need for more specific information before she could sign the warrant.

It will be a real shame if this case falls apart on the basis of sloppy police work. It's already a shame that the case has further eroded respect for our legal system.

A jury may never get to decide Judge Berry's fate, but voters will have the chance next year. And as far as I know, common sense is still permitted there.

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