The answer is NO. However, when last week I was reading a few of the criminal cases that were decided by our Texas Court of Criminal Appeals, the highest court for criminal cases in Texas one case got me thinking about what the police might want to do when a person refuses. I was especially disturbed by a case that started here in Lubbock and involved some sadistic behavior of several Lubbock police officers. Several days later the same case caught my attention again when I was reading (yes that is a lot of what we do these days, read) Robert Guest’s blog. I’ve know Robert for several years and find his blog very informative. As Robert explains the case it goes something like this.
Facts- from the 7th Court of Appeals
One thousand-one, one thousand-two, one thousand-three, one thousand-four, one thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousand-nine, one thousand-ten, one thousand-eleven, one thousand-twelve, one thousand-thirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousand-twenty. That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr., according to the instrument’s log. At the time, appellant was handcuffed and being held down in a hospital emergency room. Arp wanted appellant to spit-out what he had in his mouth. When appellant did not comply after Arp’s first foray, the tasings resumed. No one viewed appellant as a threat to others during the episode. Nor had he attacked anyone. Arp simply wanted appellant to comply. When asked if “repeated taser use [was] acceptable” and whether “20 seconds worth of tasering” was “okay,” the policeman answered “yes” to both. Arp was not the first to tase appellant, though. Officer Williams had already done so twice at a locale miles away from the hospital. He too wanted appellant to remove the items, which Williams thought to be drugs, from his mouth, and met with no success. So, Williams decided to take appellant to the hospital in effort to gain medical assistance. In continuing where Williams had failed, Arp said he administered all but one of the electrical shocks to Hereford’s inner thigh region; others saw them being administered to appellant’s “groin area.
Fortunately, the Court of Criminal Appeals agreed that the 4th Amendment prohibits electro shock torture as an evidence gathering tool (Keller dissented).
One name stood out because he has made several DWI arrests of in the past that I have represented. What stood out more was what this officer did and his behavior started me thinking. I wonder if a citizen was stopped in Lubbock for a DWI and refused to take any field sobriety tests, would this officer simply pull out his taser and start counting? What if the citizen refused to take a breath test? We know the answer when it comes to blood testing and a warrant because they will strap the citizen down and take the blood if the police have a warrant or in certain situations even when they don’t have a warrant. The idea is the ends justify the means. The problem with that philosophy is where does the state or government stop? So what do you think, would the police taser a person who refuses to do field sobriety tests? Most no but a few I’m not so sure about. Here is a link to the court of appeals case if your interested.
