The varied applications of McNeely have truly been something to behold: herky-jerky, about-face, and muddled in the extreme. Who ever thought the government would prevail in states like Hawaii, California, Minnesota, and Pennsylvania, only to lose in states like South Dakota, Colorado, Texas, Kansas, and Kentucky? The very slow pace of decisions has merely created more turmoil. Perhaps the one person most interested and annoyed by all of this is William Smith. He was sentenced in Nueces County more than 3 years ago. His appeal was finally submitted for decision more than 20 months ago. Updated briefs were filed in March of this year. While it seems pretty clear that his conviction will get reversed in Corpus Christi, he still sits in the Goree Unit, unable to achieve parole because the need for release on parole remains unclear. Aviles, on the other hand, has discharged his sentence.

Nevada often follows decisions first made in California, but not this time. Another implied consent statute falls victim. The Nevada Supreme Court found: "A necessary element of consent is the ability to limit or revoke it." It adds: "We have found no jurisdiction that has upheld an implied consent statute that allows an officer to use force to obtain a blood sample upon the driver's refusal to submit to a test." Byars

Another state supreme court has found implied consent to be involuntary, and thus the Idaho statute has been declared unconstitutional. Wulff

The decision in Forsyth is on its way to becoming final, as the CCA has refused to grant discretionary review. This seems to be a strong signal about the ultimate resolution by the court of the issue.

PDRs can get refused for many reasons...

The decision in Perez will disappear. The First Court has joined its sisters. Gore. The Fourteenth Court joined the bandwagon too in Leal, with its Chief Justice boldly declaring an opposing view.

13th Court issued a new opinion in Smith that ratchets things up even tighter.

"even if we were to accept the viability of a Fourth Amendment balancing test here as a substitute for the established exceptions to the warrant requirement, we would conclude that, on balance, a DWI suspect’s privacy interest outweighs the State’s interest in preventing drunk driving through warrantless searches"

With this premise, the ultimate conclusion is essentially foregone.

Our legislature made a bad choice.

With the CCA opinion it is very clear. While the implied consent statute still requires an officer obtain a breath or blood sample under the mandatory blood draw portions of the statute, that statute does not create either "irrevocable consent" or an exception to the 4th amendment principle that warrantless searches are unreasonable.

An officer must therefore (to comply with the law) obtain a sample by #1 Consent, #2 exigent circumstance, or #3 obtaining a warrant.

Since the good faith provisions apply to cases with warrants and not cases following the statute we now are exercising the exclusionary rule to punish officers who follow the law. While I may disagree, the issue is resolved. Get consent, if not clearly establish exigent circumstances (and with McNeely that means more than destruction of evidence by elimination), failing that get a warrant.
My practical advice is get consent, if that fails get a warrant, if that fails explaining why you could not get a warrant is hopefully exigent circumstances. Yet a statutory directive to obtain evidence in these cases is still a good idea. The Texas legislature (and by the way 50 of 50 other state legislatures) messed up because they could not predict the opinion of 4 Supreme Court justices, or their epically unhelpful and deliberately vague opinion.

Any chance that Nueces County or the AG might take it up to the Supremes?

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

Clay, Villarreal does not address the proper interpretation of article 38.23(a). Thus, I must disagree that that issue has been resolved, except for purposes of the decision in Villarreal (although the issue was raised and not accepted for review in Forsyth). Possibly it will be decided in Reeder or Douds or Weems, and, of course, things are not looking good for a favorable decision, except possibly in the fact that Judges Womack, Cochran, and Price are all about to be replaced.

My argument on this issue is as follows:

The Fourth Amendment does not dictate exclusion of evidence where the law enforcement officials’ only mistake lay in their inability to “foretell the future.” State v. Brooks, 838 N.W.2d at 576 (Stras, J., concurring). “It is one thing for our courts to eschew involvement in admitting evidence seized unlawfully. It is another thing entirely to exclude evidence seized in conformity with the law as it existed at the time of the seizure.” State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680, 689 (2013). State v. Reese, 353 Wis. 2d 266, 844 N.W.2d 396, 402-03 (2014) (“because the officer reasonably relied on clear and settled Wisconsin Supreme Court precedent in obtaining the warrantless blood draw and because exclusion in this case would have no deterrent effect, we conclude that the blood draw evidence should not be suppressed”).

It is impossible to say that the evidence was illegally obtained within the meaning of article 38.23(a) of the Code of Criminal Procedure, when the taking of the blood specimen was mandated by section 724.012(b) of the Transportation Code, unless that statute was unconstitutional on its face. Davis, in effect, creates an exception to any requirement of police conduct based on the warrant clause, or at least to the retroactive application of the federal exclusionary rule under Mapp v. Ohio. See also People v. Carter, 655 N.W.2d 236, 239 n.1 (Mich. Ct. App. 2002).

The evidence in question would be admissible in a federal court trial in Texas and thus cannot sensibly be declared to be off-limits in a Texas state court proceeding.

The Texas legislature did not intend to give the phrase “in violation of any provisions . . . of the Constitution . . . of the United States of America” any broader purpose or meaning than ascribed to the Constitution by the Supreme
Court of the United States. When the provision was enacted in 1921, there was no federal exclusionary rule applicable to the states and no attention was paid to state police practices under the Fourteenth Amendment before the decision in Mapp. The meaning of the phrase at issue has never been altered by the legislature and thus retains its original scope.

This message has been edited. Last edited by: Martin Peterson,

HMMM, I will stand corrected and wait patiently for the other cases.

I still believe our best advice to police was given in my earlier post. If you are right (and trust me I hope you are) it would be difficult to argue good faith after this opinion.

My hope is that this very complete and well written opinion will be a great conduit to a second opinion by SCOTUS who may this time deem to provide even a little clue as to how to proceed.

The Texas Code of Criminal Procedure Article 38.23 remedy/suppression issue is not before the Court in Reeder, Douds, or Weems. Douds and Weems raised the issue, but the Court declined to review the issue in both cases.

Summaries of the pending PDR cases are available on the State Prosecuting Attorney's website.

So, I guess the CCA is content to let that part of these cases be decided at the intermediate court level. That is very sad since it cannot be said the issue was decided in either Howard or Daugherty (or Leon). Subsection (a) of the statute should be construed without reference to subsection (b). Davis is as much a part of the Fourth Amendment as Mapp. The courts in California, New Jersey, and Wisconsin have correctly construed the remedy part of the law, so should those in Texas.

Could we use this situation to argue for an amendment to the good faith rule in 38.23 to bring it more in line with its federal counterpart?

The issue of implied consent is not involved in Schaufele, nor has it yet been raised by petitions for certiorari in any of the Nevada, Idaho, Kansas, or South Dakota cases. So, frankly, it is imperative that the decision in Villarreal (or Aviles) be subjected to further review if we want to get to the bottom of the matter. In the meantime, perhaps a favorable decision will come out of the Hawaii, Tennessee, New Jersey, or California Supreme Courts.

For whatever it may mean, the dissenting opinion in Schaufele was not enough to gain review of the case in Washington. So the chance of any further explication this term seems virtually nil.

Conceivably the next case to come before the SCOTUS will be the decision of the North Dakota Supreme Court in Birchfield, 2015 ND 6 (1/15/15). I am guessing that a petition for certiorari will get filed by the defendant.

It appears the CCA might declare the statute unconstitutional on its face. The court, as reconstituted, has granted review of the 10th court's decision in McGruder (PD-1263-14). Yet, the motion for rehearing in Villarreal has not been ruled upon, so there is a scintilla of hope.

While it will not generate any opinion this term, one more case has appeared on the radar for possible consideration by SCOTUS before the summer recess. All prosecutors should encourage the State of Delaware to seek review of Flonnory, decided by the Delaware Supreme Court on January 28. There is a good dissenting opinion and statutory implied consent is the issue.

If only the lower courts would abide by the advice given by the Supremes in October in Lopez v. Smith, warning that they should not attempt to "refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the court] has not announced."