I have a DWI w Child and there was a suppression hearing on the Search Warrant arguing the affidavit contained incorrect statements. While the rookie officer (1.5 months) did have some stuff in the affidavit that was not correct or not visible on video, I still believe if you struck that, there is plenty of PC within the 4 corners of the affidavit to support the blood warrant. However, IF the court suppresses the warrant, I need to confirm that I can fall back on the mandatory blood draw statute for DWI w child. Any suggestions?This message has been edited. Last edited by: C Siegert,
Boy, are you EVER in luck. Just yesterday the 1st Court of Appeals released the
opinion in Perez v. State. There, they upheld a warrantless blood draw otherwise authorized by implied consent in Tex. Trans. Code 724.012. The analysis should be familiar- a search must have a warrant, unless there is a recognized exception to the warrant requirement. Consent is a recognized exception. Implied consent does just that- it implies consent and creates another method to conduct a constitutuionally valid search. Beeman v. State 86 S.W.3d 613, 615 (Tex. Crim. App. 2002). Beeman has not been overturned, so is still good law.
Now, pay attention to procedural posture. The defendant in Perez argued that the draw violated the 4th amendment because it was without consent. He did NOT argue that the implied consent statute was unconstitutional in light of McNeely.
BUT. Even McNeely allows for implied consent (Follow Clay's sage lead here and use this terminology, not "mandatory blood draw."). Remember, the SCOTUS cites approvingly to Texas law on the issue in a footnote.
Perez should put you on a much better footing and give you some ammo for your judge.
Thanks. The most important part is can I still argue implied consent if the judge suppresses the Blood Warrant.
How does this play into "Weems v. State" from San Antonio? I have my opinion buy I want y'alls.
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