Search warrant procedure under attack in DUI cases

It’s one of the most invasive searches possible and in Richmond County, permission to do hundreds of these searches has been given by court clerks.

 

Nearly every day since a March 2015 Georgia Supreme Court opinion was issued in a drunken driving case, clerks in the Civil Court of Richmond County have been signing search warrants for officers to take DUI suspects to a local hospital for an involuntary blood draw. Later this month, a Supreme Court judge will be asked to issue a temporary restraining order to stop the practice.

Augusta area attorney John R.B. Long filed a civil lawsuit after learning a court clerk instead of a judge had signed the search warrant that enabled Richmond County Sheriff’s Office Deputy Hoy Darling to force his client to submit to a blood draw on Sept. 24, 2016.

“They are rubber-stamped warrants,” Long said.

A search warrant requires a finding of probable cause. But Long contends the search warrants for DUI blood draws are of a template design that doesn’t require officers to swear in person to the facts asserted in the affidavits.

The lawsuit is filed on behalf of Daniel Beasley and any other person who has had blood drawn involuntarily based on a search warrant signed by a clerk instead of a judge.

In Beasley’s case, the person who signed the warrant isn’t even a court clerk but an administrative assistant. According to the affidavit and warrant in Beasley’s case, the affidavit and search warrant were both issued at 2:21 a.m. on Sept. 24, 2016, which means there was no time to swear in the officer, Long contends.

Granting a clerk judicial power, as the Augusta code does, violates the state’s Constitution, Long contends.

“We elect (judges) to make these decisions,” Long said. He believes state law requires judges to determine probable cause for search warrants.

The Georgia Supreme Court ruled in 2015 that the state’s implied consent law – which says all drivers shall be deemed to have given consent to testing of blood, breath or any other bodily fluid – does not equal voluntary consent under the Fourth Amendment. If body fluid is taken without a warrant, it is the prosecutor’s burden to prove the search isn’t invalid, the opinion reads.

Richmond County State Court Solicitor Omeeka Loggins, elected last fall, said there is law supporting the practice of clerks signing search warrants, although it is old law. Meanwhile, her office is being proactive.

Several hundred cases in which search warrants for blood were signed by clerks will be examined individually, Loggins said. If there is other evidence of intoxication, the prosecution will proceed as a DUI or driving when less safe. If there isn’t any evidence but the blood alcohol content, the prosecution will be postponed until there is a ruling in the legal challenge, she said.

Since the first of the year in Richmond County, officers have obtained blood alcohol testing by use of a search warrant in about 240 cases, according to court records. In contrast, judges have signed search warrants for blood draws in seven potential felony cases this year.

Richmond County Civil and Magistrate Court Chief Judge William D. Jennings III declined to comment on the issue, citing the pending litigation.

Augusta area attorney Keith Johnson said it’s a fascinating legal issue. Although he hasn’t researched the issue, the officer’s testimony for a search warrant must be given under oath. “It’s a bedrock search warrant requirement,” he said.

In Columbia County Magistrate Court, the judges sign all search warrants 24/7, said Chief Magistrate Jason Troiano. But unlike Richmond County, the requests for search warrants for blood draws are fairly rare. They haven’t had one since April, Troiano said.

 

Reach Sandy Hodson at (706) 823-3226 or sandy.hodson@augustachronicle.com.

 

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