Texas Mandatory Blood Draws and McNeely: An Update

Fall 2014 Newsletter

By Alex Aguirre,Criminal Attorney

Imagine a pleasant afternoon at home with your family and friends. You are in the backyard in front of the glowing coals of your charcoal grill. The aroma of the grilled food is filling the air, as is the sounds of the big game on the TV. You are enjoying this afternoon, relaxing and having a few beers with friends and family. Your spouse tells you that the ice is running low. Could you please go to the store and get some more? You hop in the car and go. As you are approaching the intersection, another car fails to yield and you are both in an accident. The other driver is seriously hurt. The police arrive and smell the beers on your breath. They ask you questions regarding your drinking. Politely (and intelligently), you refuse to answer. The officer gives you an “opportunity to prove that you are ok to drive” by performing a battery of tests. Once again, you (intelligently) refuse: “Gee officer, why are you worried about my further driving? Can’t you see my car is now inoperable?” You are now likely arrested. He then asks you for a specimen of your breath or blood after reading you a statutory warning. No thank you. He informs you that he can force you to give a blood specimen. Is this true?

Texas law mandates law enforcement officers to require a blood specimen under certain proscribed DWI situations: 1) there was an accident and someone has died, suffered serious bodily injury, and/or someone was transported to the hospital with a serious bodily injury (not including the DWI suspect); 2) it a case of DWI with a Child Passenger; or 3) at the time of the arrest, the officer learns that the DWI suspect has had two prior DWI convictions. This is known as the implied consent statute dealing with mandatory blood samples. Prosecutors have successfully argued that as long as the conditions of the statute were met, the officer could force you to give a blood sample regardless of the Fourth Amendment’s protection against unreasonable searches and seizures performed without a warrant. Courts that have adhered to this view essentially hold that the Texas implied consent statutes were being treated as exceptions to the Fourth Amendment. As long as a police officer had probable cause to arrest the defendant for DWI and the conditions of the implied consent statute were met, he didn’t need a warrant; he could force the suspect to submit to a blood test (by physical force if necessary).

The 4th Court of Appeals in Aviles, set the stage for the current legal status of mandatory blood samples under the Texas implied consent laws. In Aviles, the court held that a mandatory blood draw of a DWI suspect did not offend the Fourth Amendment if done in accordance with the Texas statutes; whether or not a warrant could have been obtained beforehand was immaterial. Other courts agreed, following the reasoning in Aviles. The Texarkana court of appeals in Reeder v. State, held that because Texas law implies consent to submit to a sample, the Fourth Amendment is not violated because consent is a recognized exception to the warrant requirement. It also adhered to the general holding of Aviles. In several courts across Texas, prosecutors argued: “C’mon judge. The defendant’s consent was implied. Just because he sees the red and blue lights, he shouldn’t be allowed to refuse a blood specimen when it’s convenient!” Sadly, many judges agreed. But then, reason started to prevail in the form of a case from Missouri.

The Supreme Court of the United States ruled in Missouri v. McNeely that a warrantless search of a person (to include the intrusive blood draw) is reasonable only if it falls under one of the recognized exceptions to the warrant requirement of the Fourth Amendment. Exigent circumstances, such as emergencies or an unusual delay in being able to obtain a warrant, are a recognized exception. McNeely held that the suspect’s metabolization of alcohol by his body alone does not create an exigency per se. Instead, the court ruled that exigency must be determined on a case-by-case basis.

To say that this case has had a profound effect on DWI cases is an understatement. As a result, Texas courts and prosecutors are scrambling to deal with the issue. The foundation of Aviles and similar cases was rocked in January 2014, when the Supreme Court of the United States vacated Aviles and remanded it for consideration in light of McNeely. Since then, several Texas appellate courts dealing with the issue have withdrawn their support of Aviles. Many have granted motions for rehearing and have performed an about-face on their holdings. The 4th Court of Appeals has since essentially abandoned its holding in Aviles.

So what does this mean for you, the driver? Can this police officer force you to give a blood specimen? In typical lawyer fashion, the answer is: It depends. Is there an exigency that requires the officer to forego getting a warrant? In Sutherland v. State, the 7th Court of Appeals heard a case arising out of Travis County dealing with this issue. The trial attorney did an excellent job of pointing out that Travis County has a magistrate available 24 hours per day. In fact, the room where blood was drawn is a couple of hallways from the magistrate’s office, mere minutes away. The time required for the officer to obtain a warrant was negligible. This scenario is common in most larger counties and some counties that boast “no refusal” policies for DWI suspects. The Austin Police Department, as a matter of policy, now seek a warrant in all blood draw cases where no exigency exists. Bottom line: if they can get a warrant, they should get a warrant, especially if there is no emergency.

What about consent being “implied” by the implied consent statutes? A hallmark of law concerning consent is that it must be given freely and voluntarily. Additionally, like all consent, it can be withdrawn. You can give consent for police to search your home, but you can withdraw it at any time. You can give someone consent to hold your hand, but you can withdraw that consent and pull away. To argue that consent is the basis for forcing someone to submit to someone sticking a needle in your arm borders on the absurd. The entire idea that someone can be forced to give blood (assuming the conditions of the mandatory blood draw statutes are met) is premised on the fact that the person refused to submit to a test in the first place. In other words, they withdrew their implied consent. What some courts failed to see is that implied consent may have been given by law, but actual consent was withdrawn when the person refused.

As defense attorneys, we realize that DWI is a prevalent crime in our great state. Our legislators have realized this as well and have given law enforcement primarily two different ways to increase the number of blood draws for DWI arrestees. First, your driver’s license can be suspended for refusing to submit to the taking of a breath, blood or urine specimen. This simple law is certainly a deterrent for many drivers to refuse, and many will submit to giving a specimen voluntarily in order to avoid the suspension. Second, wait for it….police officers can submit an affidavit for a search warrant which will be reviewed by a detached, neutral magistrate and can then force you to give blood if the warrant is approved.

None of the attorneys at Peek & Toland condone driving while intoxicated. It is dangerous to the impaired driver and to the public at large. However, the mere fact that someone is arrested for DWI does not mean that their rights are thrown out the window. It does not mean that a police officer can decide to have your body invaded with a needle against your will absent some emergency. It does mean that the police need to get a warrant before doing so.

So, while you are in your backyard enjoying a few beers while grilling some food and your spouse asks you to run to the store to get more ice, politely tell him or her to get it themselves. Better yet, avoid politeness in order to safeguard you from your spouse’s powers of charm and persuasion. You might wind up sleeping in the doghouse in your backyard for such a response, but this might be a small price to pay in order to avoid the criminal justice system. Note: Some spouses might disagree.

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