Originally posted by Martin Peterson: Another Texas court chimes in: "McNeely clarified exigency; it did not invalidate Texas' implied consent statute." Smith v. State, 2013 Tex. App. LEXIS 13403 (Tex. App.--Corpus Christi Oct. 31).
Motion to publish, please.
Posts: 2129 | Location: McKinney, Texas, USA | Registered: February 15, 2001
i have my hands full with a warrantless blood draw. The D consented to give blood, after the officer implied or told (still unclear) the D that he could only return to his boat if he completed a successful blood test under the legal limit. That no other possibility of making it home for fathers day existed. Routine boating while intoxicated stop. 2nd offense, misdemeanor. Any ideas what we will get from the defense on this, and how to maneuver. Defendants counsel has tried referring to this as a warrantless blood draw.
I would have to say that any hope for a quick, definitive answer from a Texas appellate court has been dashed. The merits of the state's arguments in Zermeno are now unlikely to be addressed. Zermeno. The en banc court seems to be interested in rehearing the decision in Douds and the State has essentially asked the court to find the panel opinion was unnecessary to the decision of the case (since the court was addressing a matter not preserved for review). Finally, the October 31 opinion in Smith has now been withdrawn on the court's own motion as of November 26.
Well, the motion for rehearing en banc has been granted in Douds and the opinion in Reeder has now been withdrawn. Maybe this indicates how difficult the Supremes made it for anyone to know the scope or meaning of their opinion. In the mode of Big Bang terminology, I believe this episode can be appropriately labeled the "tarot card/tea leaf phenomenon." Or maybe the trial balloon paradox.
Along the lines of Skinner, you may want to see how the Supreme Court handles the petition for certiorari in No. 13-1123 (Lynch v. City of New York). The Second Circuit used the special needs exception to uphold the city's requirement that its officers involved in a shooting can be required to blow without a warrant. Expect decision in May or June.
Several courts of appeals have read significance into the fact that in mid-January, SCOTUS remanded the Aviles case back to San Antonio for reconsideration "in light of" McNeely. Whatever the basis for that decision, a stronger argument about the view of the Supremes can be drawn from their April 4 decision not to review the decision of the Minnesota Supreme Court in Brooks, 838 N.W.2d at 572, stating Brook's argument that the Legislature did not have the power to imply someone's consent to waive his Fourth Amendment rights as a condition of exercising the privilege to drive in Minnesota was "inconsistent with the Supreme Court's discussion of implied consent laws in McNeely."
Our courts should not be misled. Especially considering the contrary views being expressed in such states as Minnesota, California, Pennsylvania, and New Jersey. To me, the better reading of McNeely occurs in such cases as Bales v. Dupnik, 2014 U.S. Dist. LEXIS 62418, at *12 n.6 (D. Ariz. May 6, 2014) (“McNeely provides no support for Petitioner's claim, as its holding, although confirming that a blood draw taken pursuant to a state's implied consent law is in fact subject to the Fourth Amendment’s restrictions on warrantless searches, addresses the ‘well-recognized’ exception to the Fourth Amendment’s warrant requirement of ‘exigent circumstances.’ See McNeely, supra. The issue in this case is another ‘well-recognized’ exception of ‘voluntary consent,’ an issue not addressed by the McNeely Court.”)
When we go to the airport and stand in line at security, we submit to a search. What is the basis for that warrantless search by a government official?
Consent. Yet, no one makes you sign anything. Rarely are you even asked for oral consent. It's all implied from you getting in line.
How is that any different from the person who gets in a car and begins driving on a public road? In Texas, aren't you then impliedly consenting to a warrantless search should you be stopped and arrested for DWI?
Heck, the warrantless search is even more narrow than the personal body search conducted at the airport. At the airport, there is no probable cause, no restriction to certain people. It's everybody, every time.
At least on the road, there is the use of probable cause and a limiting factor of the driver being involved in certain misconduct that is deemed pretty serious by the legislature. I'm betting that is a reasonable approach.
And just like at the airport, if you don't want to consent, don't do the activity.This message has been edited. Last edited by: JB,
Why should an officer's conduct be subjected to a standard that didn't even exist when he conducted the warrantless arrest?
I guarantee that the same panel of judges who reversed the trial court's decision would have upheld it had McNeely not yet been decided. In other words, scads of judges thought a warrantless search for blood was reasonable until SCOTUS said otherwise. So, why should one officer's work be suppressed for thinking the same thing before McNeely?
For whatever can be divined, the SCOTUS denied the pet. for cert. in Lynch (see above). Sadly, the first state high court has now adopted the broader reading of the decision in McNeely. People v. Schaufele (Colo. Sup. Ct., June 2).
The Supreme Court of South Dakota has declared its implied consent statute unconstitutional because consent must be voluntary at the time the blood is drawn. It further makes clear that an officer's good faith belief that he must proceed without a warrant does not mean the search becomes reasonable. Fierro
The next case to watch is Schaufele, not only because it may be the first to present the issue to the high court, but also because a high-powered attorney (Charles Rothfeld) has agreed to represent Schaufele. No decision on certiorari until late November or early December. Will a decision in Baker or Villareal come before then? Curiously, the CCA has granted in review in Douds, Weems, and Reeder, but not in Sutherland or Aviles.