Tarrant County has now joined Nueces County in seeking review of implied consent by SCOTUS, see Texas v. Burks, No. 15-1323. Burks is the only one of the 18 cases decided by the CCA on January 27 (which included two other Tarrant County cases)that generated a petition for certiorari.
During the submission of Birchfield, et al, Justice Alito suggested that the situation involves reneging on the bargain made with the state when you are given the privilege to use the public roads, but no one else seemed to share that view. No one questioned the idea put forth by Birchfield that Skinner was not a special needs case, but rather dealt with safety regulation (something distinct from criminal investigation). The justices seemed very comfortable with saying there was no practical need to dispense with the requirement of a warrant, given their assumption that judges can be easily made available any place, any time. ArgumentsThis message has been edited. Last edited by: Martin Peterson,
May 03, 2016, 08:59
I am afraid that the assumption that judges are easily available at any time, any place isn't correct, at least in Texas. I have heard from Troopers in the more rural counties who have judges that simply refuse to answer their phones or respond to email after hours. In these counties, they tend to rely on the district court judge and restrict request for warrants to serious crashes or felonies. Fortunately, more and more rural county DAs are organizing there qualified judges into a rotation so someone is always available to consider a warrant application.
May 04, 2016, 13:07
Stacey L. Brownlee
My heart pounds every time ya'll post on this thread because I am still waiting on Cole.....
I know what the answer is going to be, but as long as there is no answer, I harbor a small glimmer of hope
May 06, 2016, 10:26
There may be further reason to take heart. The CCA has now granted review in McClintock (No. PD-1641-15) of these two issues: "1. "Does the United States Supreme Court's exception to the exclusionary rule, held under Davis v. United States, 131 S. Ct. 2419 (2001), apply to Texas' exclusionary rule? 2.If the United States Supreme Court's Davis exception to the exclusionary rule, or at least the purpose behind it, applies to Texas' exclusionary rule, the First Court of Appeals erred in excluding evidence obtained legally under binding authority at the time the search warrant was issued."
The ultimate irony will be if the erroneous dicta in Daugherty is only now discarded (long after McNeely was allowed to kill so many convictions). In addition to the arguments made by Harris County in its PDR, there are some others that might work.
May 18, 2016, 15:13
February 14, 2015 I posted a query (above) musing about how zealous Texas prosecutors should be in trying to get around the decision in Villarreal. While no one else offered any thoughts on the matter on the forum, I think it might be appropriate to review what prosecutors did in that regard. After all, actions always speak louder than words. So, here goes.
The State appealed from the decision of the trial court in 55 cases.
In 11 of those, the State accepted the decision of the court of appeals.
The State unsuccessfully filed for discretionary review in another 28 cases (but did not seek further review). Tarrant County filed a petition for certiorari in the 29th of those cases.
The State achieved discretionary review in 9 cases, but ultimately failed in 3 of those. Only Nueces County sought further review (in Villarreal). In two cases, the State merely succeeded in getting the cases remanded to the COAs. Four of those cases await a decision by the CCA, perhaps the most interesting of which is Ruiz (PD-1362-15) in which Gonzales County has sought to show implied consent remains valid where the suspect is unconscious.
Strangely, six PDRs have not yet been ruled upon.
Curious who carried the most water in all this?
Answers: The State Prosecuting Attorney filed 10 PDRs and gave serious thought to filing another.
Tarrant County filed the most appeals: 7
Appeals were generated from a total of 26 counties.
While I exercised diligence in compiling these numbers, there is no guarantee I did not miss something.
May 18, 2016, 15:55
Hey Martin -- Nice summary. You are correct: Lisa McMinn's SPA's office did so much work on this; they should be commended! Stacey Goldstein Soule wrote many, but not all, of their PDRs. They are always a great resource; if someone who reads this does not rely on them for insight, you should!
On the numbers, I just updated my McNeely stats yesterday. Some of our cases went to other COA's, so you may not have found them when digging, Martin. Tarrant County had 35 McNeely hearings. From those, we appealed 13 cases (3 were state's appeals). We followed up with 6 PDRs. Weirdly, 2 cases--submitted May of 2015 in different COAs--are still pending and 1 PDR awaits its disposition, too. And we filed a petition for writ of certiorari in Burks the end of April. So what started on an April day in 2013 has yet to end . . .
May 18, 2016, 18:02
I guess the problem lies in the fact that I relied primarily on whether McNeely was cited in the appellate court opinion in identifying the components of my survey. I am aware of a few instances where implied consent was the issue, but McNeely was not cited in the opinion. I guess there must be more of those. And, of course, I made the false assumption that all of the appeals had resulted in an opinion by now. Silly me.
Anyway, I think all can see that McNeely will stand out in terms of how challenging the system can be when no one knows exactly what to say or why something long and widely accepted as reasonable can prove unreasonable.
May 25, 2016, 11:03
I see the CCA decided both Weems and Cole today, finding exigent circumstances in Cole but not in Weems. I liked the language in Cole emphasizing that the standard is not what is the ideal conclusion after knowing all the facts but what the officer believed was reasonable in the middle of the situation.
May 25, 2016, 16:15
Stacey L. Brownlee
the wait was so worth it !! MANY MANY thanks to Zan Brown and the SPA for their hard work on Cole !
May 31, 2016, 19:05
In a sense, the issue of whether 38.23(a) was misinterpreted in Daugherty was not reached in Cole. But, the discussion of exigency would not have been required but for the underlying assumption that Davis did not establish a recognized exception to the requirement that a magistrate make an independent determination of probable cause and that the legislature made a choice not to modify the state exclusionary rule after Leon. Thus, whatever hope arose from the CCA granting review of the issue in Cole has been dashed and the outlook for a decision favorable to the State in McClintock considerably diminished. The fact that the appellate courts reached opposing conclusions about exigency in Weems illustrates how difficult reliance on that exception may prove to be. McNeely left that door available, but the key that fits the lock may be a little hard to recognize.
June 13, 2016, 09:46
The petition for cert. filed in Villarreal appears to have made it past the first hurdle. After being considered in last week's conference, no decision was announced today. But, so far, no sign it will be relisted. This perhaps implies the decision in Birchfield may affect Villarreal. That could be good, or bad.
Ah well, the State has only been waiting for a little over three years to know whether the blood test result is admissible. No need to hurry. Everyone will be able to remember what happened on March 31, 2012, without any problem, regardless of the length of the appellate orbit.
June 23, 2016, 09:59
We now know more:
"[T]he facts that establish probable cause are largely the same from one drunk-driving stop to the next and consist largely of the officer’s own characterization of his or her observations—for example, that there was a strong odor of alcohol, that the motorist wobbled when attempting to stand, that the motorist paused when reciting the alphabet or counting backwards, and so on. A magistrate would be in a poor position to challenge such characterizations."
Therefore, requiring a warrant in this type of case "impose[s] a substantial burden but no commensurate benefit."
Nevertheless, because "blood tests are significantly more intrusive, their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test."
Unfortunately, the Respondents in Birchfield, et al "offered no satisfactory justification for demanding the more intrusive alternative without a warrant." Specifically rejected was this contention: " Borrowing from our Fifth Amendment jurisprudence, the United States suggests that motorists could be deemed to have consented to only those conditions that are “reasonable” in that they have a “nexus” to the privilege of driving."
Net result: "The search [Birchfield] refused cannot be justified as a search incident to his arrest or on the basis of implied consent." The court thus concluded that he was "threatened with an unlawful search."
Or something like a buccal swab that can detect levels of intoxicants?
June 27, 2016, 17:26
Actually some technologies based on blood sugar testing that would allow blood alcohol testing without piecing the skin, but rather holding the thumb to a sensor pad for several seconds. Please please hurry that one along.
As for drugs and oral swabs, here the scientific news is very disheartening. Yes the technology exists, but it grossly under reports and is subject to real limitations for more than presence. It also is complicated because so many drugs (cocaine, inhalants) metabolize in minutes or seconds, not hours. Testing for the drug or for metabolites both adds an exponential problem. My humble opinion is oral saliva testing will be a "drug PBT" with existing science.
June 29, 2016, 23:12
With all that was said about the meaning of McNeely vs. implied consent, it seems ironic the answer came in a single sentence: a warrantless blood draw "cannot be justified . . . on the basis of implied consent." But, with the denial of review in Villarreal, it appears all is now quiet on the western front. 'Nuff said. There will be nothing new to report, except perhaps that the refusal to consent to a blood test is not admissible under 724.061.