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Statutory warrantless blood draws in doubt?

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April 17, 2013, 09:52
Statutory warrantless blood draws in doubt?
Today, a fractured Supreme Court upheld a lower court ruling that a warrantless blood draw was unreasonable absent exigent circumstances beyond the mere dissipation of alcohol. Could this call into question the various statutory warrantless blood draws we use in Texas?

This message has been edited. Last edited by: JohnR,


April 17, 2013, 09:58
Could you still argue consent, based on Transportation Code?
April 17, 2013, 10:10
I can't even spell "doubt" so I'm not sure I'm capable. It is certainly something we could throw out there, but does it apply to blood or only breath?
April 17, 2013, 10:17
Brody V. Burks
Just reading the caption and trying to figure out what the majority holding actually is makes my head hurt...
April 17, 2013, 10:24
Next up, Retroactivity?
April 17, 2013, 10:28
Don't forget good faith.
April 17, 2013, 10:36
My favorite part so far is how the Court notes that it is much easier to get a warrant now than when Schmerber was decided and that counts against a per se rule. So, does that mean we can blame this on Warren Diepram and the push for "no refusal" programs?
April 17, 2013, 11:26
C. Martin
Is anybody going to advise their law enforcement departments to do warrants on blood for felony DWI's in light of this decision just to be safe? I am thinking it would be prudent.
April 17, 2013, 14:13
Has anyone looked at the Missouri statute to see how it compares to ours?
April 17, 2013, 14:32
Correct me if I am wrong. Texas has statutory authority to take a blood sample under certain circumstances. In a DWI-1st the sample must be gained either by consent or by warrant which appears to be the situation in Missouri. I read it that the officer tried to circumvent the necessity of having to get the warrant by asserting that there was not enough time because the alcohol in the blood was being diminished. I do not see this opinion having an effect on a draw under the conditions authorized in Texas by statute. It is just saying if the officer wants to rely on exigent circumstances to bypass the warrant process the officer needs more factors than just alcohol dissipation.
April 17, 2013, 14:35
Richard Alpert
I agree with Gary. I do not see this opinion as anything more than a nod towards how smart Texas was to start expanding the use of search warrants seven years ago.
April 17, 2013, 14:45
Well, how can the Texas legislature create a law that narrows a constitutionally guaranteed right?
April 17, 2013, 17:13
The case rejects a warrantless blood draw for a standard felony DWI. Texas law can't overcome SCOTUS by pointing to the Transportation Code.

Maybe there is room to argue consent, but the safe route is search warrants for blood draws.
April 18, 2013, 15:27
C. Martin
I agree John. I think the Scotus decision directly impacts our warrantless blood draw statute. Applying the court's reasoning puts our law on even less stable ground than the argued exigent circumstance of dissipation of alcohol.
April 21, 2013, 08:36
Fewer than 1,000 drunken driving cases in Austin since 2011 involved involuntary blood tests that may be unconstitutional under a recent U.S. Supreme Court ruling, according to records the American-Statesman obtained under the Texas open records laws.

How many statewide?

April 22, 2013, 08:38
East Texas Attorney
I'll be in that Missouri county this weekend. Hoping to meet some of the prosecutors. Any questions I need to ask if I run into them.
April 22, 2013, 09:31
Fred Felcman
The case is utterly useless. It starts saying one thing and then ends saying something else. When the highest court in the land cannot write an opinion that makes sense and has guidance to law enforcement, then what use is the opinion. It says alcohol dissipation is not a per se reason for a warrantles search but then cites a case scenario that would allow a warrantless search because of alcohol dissipation. Overall, the court blames the State/appellant for requesting that alcohol dissipation is a "per se" rule for a warrantless search and not using the argument of "totality of circumstances, which it would have approved. Thus, we have reached the point where the label you use will decide the issue, not the facts.
April 22, 2013, 09:49
That is about the best summary I have seen of this case, Fred. I was left scratching my head as to exactly what the holding really was. I'm telling folks get a warrant for blood.
April 23, 2013, 10:37
Originally posted by JB:
Fewer than 1,000 drunken driving cases in Austin since 2011 involved involuntary blood tests that may be unconstitutional under a recent U.S. Supreme Court ruling, according to records the American-Statesman obtained under the Texas open records laws.
Ack! That seems like a big number to me as a warranties and repairs lawyer. But, it shows that changing from "statutory warrantless" draws to "warrant draws" ought not to have that big an impact at the front lines.

And absolutely, McNeeley does not impact those program where we were already obtaining warrants. Indeed, those programs appear to have been used by the Court to support its ruling.

This message has been edited. Last edited by: JohnR,
April 23, 2013, 11:23
Fred Edwards
We have already had a motion to suppress come into the office based on this case. Our case is an intoxicated manslaughter case. After reading Mc Neely, I’m not too worried about our chances of defending the blood test. I don’t think it will be too difficult to draw out exigent circumstances testimony from the investigating officer who is in the midst of a multi-vehicle, double death, rural crash situation. Careful ground work at the pre-trial level can point to exigent circumstances (in addition to blood/alcohol dissipation) in most cases unless the stop is in broad day light in front of the court house across the street from the hospital.
JB, correct me if I am wrong but doesn't Justice Sotomayor point specifically to those special no warrant blood draw statues to buttress her argument that States are placing restrictions on when police officers may obtain a warrant-less blood sample. It seems to me that “standard felony DWI” blood draws fall in that category.
Aside from remediation of existing cases, my advise will be to law enforcement as it has always been…GET A WARRANT.