There seem to be two approaches by the states: mandatory warrants and mandatory warrantless (largely based on implied consent). You really can't mix the two very well as they start from different points of view.

Mandatory warrants presumes that officers can always get a judge in a reasonable time.

Mandatory warrantless presumes that we are going to follow through on the driver's implied consent because this is a darn serious DWI. Perhaps we need to start arguing that, by driving, the driver has already received the benefit from the State of a license and, therefore, can't withdraw his consent.

What if everyone had to sign an actual consent for blood draw (assuming probable cause for the DWI) before receiving a DL and could only withdraw that consent by voluntarily turning in that DL before any criminal investigation takes place? Why wouldn't that be a proper consent?

After thinking about this for a while, I'm now interested in this particular part of the question- SCOTUS has said that dissipation + other (unknown and unknowable) factors = exigent circumstances, and an exception to the warrant requirement. Texas has chosen to codify this particular scheme as it applies to certain DWIs. Many *other* exceptions to the warrant requirement are not codified like these are, but are nonetheless recognized as being valid under both the Constitution and Texas statute.

McNeely seems to make no difference between the *level* of offense that's charged. In fact, the majority seems to explicitly reject the rationale for mandatory draws because of the difference in BAC levels.

So.

Does that mean now that if an officer can articulate exigent circumstances in a DWI 1st + ongoing dissipation, that we can now do a *warrantless* draw for those, too? I have personally seen in my (admittedly small) jurisdiction an offense report where and officer makes an arrest, reads DICs, the suspect refuses blood and breath. Officer takes the suspect tot the hospital and calls all three magistrates in the county. None of them answer their phone.

He now has ongoing dissipation + additional facts of exigent circumstances where a warrant is unobtainable. He's exhausted all remedies. Could he have a forcible draw done? McNeely seems to suggest that it would be objectively reasonable under the 4th.

Anyone one replying make sure you read Brody's question very carefully.

Please continue your discussion, but take a look at our front page under TDCAA News for my 3 page review of the case. We need to get in front of this and to share our best thoughts. Keep it up!

And reply to Brody's question. No because the Transportation Code prohibits it, not because the Constitution does. Beeman v State would indicate only a warrant circumvents the provion "Except as provided by (b) an officer shall not take a sample"

Clay's answer reminds us of the unique Texas statutory restrictions. Texas law creates implied consent and then takes it away by telling officers they must respect a refusal and then listing exceptions for mandatory blood draws. McNeely endangers those exceptions, making a mess of Texas law.

Thanks, Clay- that's what I was looking for. I wasn't aware one way or another of a more restrictive Texas statutory rule. I figured there was something out there, I just couldn't put my finger on the statute / caselaw.

It would seem to suggest that it could change in the future. I could well seeing a well intentioned legislator changing the blood draw statute in light of this ruling and inadvertently expanding the circumstances of non-consent draws rather than narrowing them. Or, alternatively, that the legislature could take a cue from SCOTUS and expressly allow for non-consentual blood draws that comply with McNeely.

I do think that this opinion will have potential for much greater impact in the mid-sized cities of Texas. Our limited resources mean that an officer may have a significantly easier time articulating exigent circumstances. Unfortunately, this is the exact perverse incentive that the majority claims its rule guards against. So long as we are under-resourced, then the mandatory draws will have additional exigent factors in our county. We can't afford iPads for our judges. Hell, I'm lucky to have post-its at times.

Incidentally, I DO very much like the idea of doing the mandatory draw *immediately* in cases where it's authorized, and while the phlebotimist is working on getting blood, doing the warrant application. If you get a warrant in a timely manner then your mandatory draw may be suppressed. No biggie, you've got the subsequent warrant draw. (Or, does anyone see a problem with the subsequent warrant being tainted? I think it's relevant that the officer couldn't know the results of the analysis yet.)

If you are unable to secure the warrant as the result of a magistrate's unavailability, or it turns out it can only be secured a couple hours later, then no biggie because you've very clearly articulated what the exigent circumstances are (the unavailability of a magistrate to review the warrant).

Ironically, that approach costs the D more blood than before McNeely.

File it under "Be careful what you ask for?"

The pitfall I potentially see is a court suppressing the subsequent warrant draw after a statutory draw done while the warrant application is pending. It's not fruit of the poisonous tree though, because you're not using any information gleaned from the initial statutory draw to form PC for the warrant.

[EDIT: I spel gud.]

Brody the issue I see with that is when an officer decides to proceed without a warrant he must be able to articulate what exigent circumstances he believed existed at that point in time to permit the warrantless search. Not what he may find out in the next thirty minutes or an hour about (your example) availability or unavailability of a Judge to sign the search warrant. So even if no judges available to sign warrant the evidence likely to be suppressed.

I disagree. The Court noted that there was not a showing that a judge was unavailable in McNeely's case. This indicates to me that the discovery that a warrant cannot be obtained because there is no magistrate is an exigency when combined with dissipation.

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

The problem with that analysis Chris is then that the officer must wait until all the evidence has dissipated before he can possibly prove an exigent circumstance. That's the critique of Roberts concurrence. I'd also point you to footnote 7 (majority at 16) in Sotomayor's minority as to part III that the reviewing court's shouldn't use the gift of 20/20 hindsight.

And this is where this opinion gets very unwieldy. There's no majority without Roberts, and he specifically does not join Sotomayor's part III, which might stand for the proposition you've articulated. Instead, if you look at the end of Roberts section II B, I think there's support for a "draw now, argue about it later" approach. This is even more clear in his III A - "If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue. (Roberts at 8)

Granted, this is the concurrence, not the majority- but Sotomayor's discussion of it is a concurrence as well, not a majority.

In any event, don't you think that you could still argue the facts as known to the officer at the time, especially in our jurisdictions? "Your honor, the officer was in the process of applying for the warrant. He knew that this county has only three magistrates capable of signing a warrant, and has knowledge in the past of times that all three have been unavailable. It was late at night, and the closest magistrate lives over 40 miles from the hospital."

Even Sotomayor's Part III seems to support that rationale.

All of which is why Thomas had the most coherent, bright-line solution. Every minute spent seeking a warrant is leading to the destruction of evidence. Even under ideal circumstances with an immediately available magistrate, there will be some loss of BAC while the warrant is drafted. The concurring opinions simply have a difference of opinion as to how much theoretical/actual destruction equals an exigency. Not a great constitutional rule.

Perhaps a scientist somewhere is developing a process for swabbing skin to establish a BAC without an invasion of privacy requiring a warrant. ("While transdermal testing cannot determine exact blood alcohol concentration (BAC) levels, it can qualitatively determine whether a person drank a little, a moderate, or a large quantity of alcohol.") Details.

So, is collection of urine now back to the top as the best way to test for BAC?

Brody I do believe those are all arguments that can be made considering this opinion. But I think having a policy of draw first and argue about it later approach leads to much uncertainty for our evidence. Which brings us back to the one salient point of all this...get a warrant....in light of this opinion. If your officer proceeds without one hopefully he has sufficient exigent circumstances to defeat the inevitable motion to suppress.

But you've just traded one uncertainty for another. If you tell your officers that they are not to proceed to a blood draw without a warrant, then hopefully he can get one signed before the inevitable metabolization of the evidence. That may not be much of a wager in Dallas or Bexar or Harris or Montgomery County, but it's far from certain in Limestone or Freestone (or Kleberg, or Kennedy, or Bee, or Maverick, or Cherokee, or, or, or...)

I guess it comes down to this- would you rather have the evidence in hand and risk that you will have it suppressed, or rely exclusively on a warrant (Trans. Code making the draw mandatory be damned) and risk never having the evidence at all? There's no guidance in the opinion either way, unfortunately.

"Get a warrant" is the perfect answer, but it's not the only legally permissible one, and may not even be a factually achievable one.

(Or put another way, who you gonna side with- Alpert or Diepraam?)

As to urine, I can only await the litigation of paruresis. Unless you want to use a catheter, and then we're back at square one.

I understand getting a warrant is not the only permissible legal route. What I think is most prudent to advise our officers is 1.) warrant route first.. If that is not possible for whatever exigency reason then proceed with 2.) get blood under statute & articulate exigent circumstances in offense report why you proceeded w/out warrant to obtain evidence.

Still have evidence and a solid legal basis for defeating legal attempts to suppress it. So to answer your question Brody... Alpert.

He was Prosecutor of the Year.

So how long are you going to advise officers to wait before deciding that the circumstances have now become exigent? How do you decide on the break point between when the circumstances aren't yet exigent, and when the delay means the results are no longer relevant? That's the concern in Robert's II A.

I don't mean that as a criticism of your answer, I think in every case that a warrant can be obtained, it should be. As much as anything I ask the question to point out the tension inherent in McNeely- you can't do that, unless you can, but we won't tell you when. There's going to be years of litigation about this, and agencies and offices having different policies is part of what's going to flesh out the boundaries.

This is why I firmly believe that telling officer's to get search warrants in all Mandatory cases is the safest approach. I fear that testimony in a future motion to suppress will include an officer saying "the exigency was brought on by his discussions with other officer's for an hour about whether there were sufficient exigent circumstances involved!
In the time we are asking them to take considering and documenting exigencies they could have obtained a warrant. Asking law enforcement to weigh, consider, and make judgments at the scene about what is or isn’t an exigency is a recipe for reversal and will inevitably further delay the blood draw.
I understand there are going to be situations where it is not possible to get a warrant and in those cases the factors that make it impossible will serve as the "exigencies" and a statutory mandatory sample should be obtained.

My suggestion to Brody. Write local officers a memo, tell them what numbers to call and how long to wait. You know your jurisdiction better than anyone, and you know the facts you must establish. Don't let 50 different officers from 50 different agencies decide how much effort they must make before it amounts to exigency due to the unavailibility of a magistrate. You do it.