JUDGE WATCH: District Judge Berry Wins On DWI Charge, Any Appeal Will Go to Waco and Justice Tom Gray

Remember the story about Justice Tom Grey of Waco last week? Well, news flash:

Looks Like Justice Grey Will Judge Judge Dohoney’s Reversal of Judge Driver’s Decision regarding Judge Berry,

or

The Judge Who Judges Judges and Got Judged Is Judging Judge Dohoney’s Decision that Judge Driver Was Wrong in Issuing a Search Warrant for a blood test of Judge Berry.

Here’s the story:

Back in November, State District Judge Elizabeth Berry was pulled over a little ways south of Fort Worth, driving 92 mph in a 65 mph speed limit. The Alvarado, Texas, cop who pulled her over reported that he smelled alcohol on her breath and he saw beer cans in her car. Some of the beer cans were empty. Judge Berry refused to take any sobriety tests.

A request was made for a search warrant to take the district judge’s blood. The request was granted, and the search warrant was obtained from Judge Toni Driver.

A blood alcohol test was done, with results showing a BAC for Judge Berry above the Texas legal limit of 0.08.

District Judge Elizabeth Berry Charged With Misdemeanor Drunk Driving

Judge Berry was charged with misdemeanor drink driving, and faced a monetary fine of $2000 and a maximum jail time of 180 days. And what did she do then? What all smart folk do that are facing serious criminal charges: Judge Berry went and got herself a really good criminal defense lawyer.

Motion to Suppress the Blood Test is Filed – And Judge Berry Wins

Judge Berry’s savvy defense attorney quickly filed a motion to suppress evidence. It was heard last Friday before retired Senior Judge Robert Dohoney — so there’s no political agenda here, right? He’s retired….

And guess what? Berry won.

Judge Dohoney reviewed Judge Driver’s decision, and ruled that the police didn’t have probable cause to draw Judge Berry’s blood that day. The police officer didn’t give enough details in his affidavit to support the search warrant that was issued for the blood test. The search warrant shouldn’t have been issued in Judge Dohoney’s opinion.

What? Well, in Officer Archibald’s affidavit, he used words like “confused” and “quiet” to describe the judge, but didn’t get explicit — there wasn’t anything like “mumbling, slurred speech” or other types of descriptive behavior that is clearly part of being intoxicated. In Judge Dohoney’s opinion, words like “confused” don’t get you to probable cause that someone is drunk.

Throwing Out the BAC Evidence Likely Guts the Prosecution’s Case

Without this BAC evidence, the district attorney doesn’t have much left to take to trial. The prosecution needs that blood test or they really can’t justify spending taxpayer dollars — trying cases is expensive, and cost is a factor in deciding what cases go to a jury in any jurisdiction.

The Possible Appeal of Judge Dohoney’s Decision

Already, there’s been talk in the media about prosecutors opting for another route: appealing the decision of Judge Dohoney that Judge Driver was wrong to issue the search warrant, up to the appropriate appeals court. Have a higher court grade the papers of the judge who graded Judge Driver’s papers.

And guess which one that is? Yep.

The Appeal Will Be Heard in Waco

If they choose to appeal, Judge Dohoney’s analysis and ultimate decision will be reviewed by the Waco Court of Appeals, where Chief Justice Tom Gray presides.

You know Judge Tom Gray. He’s the justice who just got his own papers graded by the State Commission that oversees judicial conduct. (See the link below to this blog’s recent post on that story.)

What About that Judicial Commission Anyway?

Which brings up a question: is Judge Berry going to have to face that same commission here? Will she only have to face this commission review if she’s found guilty of the drunk driving charge? Hmmmmm.

Sources:

Cleburne Times Review
http://www.cleburnetimesreview.com/johnsoncounty/local_story_022182139.html?keyword=topstory

Fort Worth Star Telegram
http://www.wfaa.com/sharedcontent/dws/wfaa/latestnews/stories/wfaa090123_wz_judgedwi.22f817f2.html

Houston Chronicle
http://www.chron.com/disp/story.mpl/front/6226434.html

Dallas Criminal Lawyer
http://dallaslawyer.blogspot.com/2009/01/judge-watch-10th-circuit-justice-tom.html