Before issuing such advice, you might want to check into whether you have immunity from lawsuit (probably limited to good faith) and whether the county will represent you if you get named in a civil rights lawsuit.

As prosecutors get drawn into providing investigative advice, the need for protection from civil exposure grows.

Thanks, John. You know how to give me the warm-and-fuzzies on a Monday afternoon.

I agree with Richard that the safest approach is to do warrants.

That being said, when you have a situation where you cannot locate a judge, in addition to thoroughly documenting the attempts you made to get a warrant prior to sticking the suspect, draft an affidavit for a search warrant and attach that affidavit as an exhibit to your report. That supports your testimony that you were genuinely trying to get a warrant rather than simply going through the motions to justify sticking the guy.

We have had our first motion to suppress based on McNeely during which we argued several exigency factors, that 724 TTC is a narrowly tailored exception to the warrant requirement, and that implied consent can't be revoked in DWI situations because driving is a highly regulated activity. I will be happy to email out our memo, but would ask that you do the same.

I am curious what y'all are arguing in your suppression motions?

I am also curious what the statewide response has been to McNeely? Search warrants on all mandatories or only on a case by case basis or no change?

Feel free to email me at warren.diepraam@mctx.org if you don't want to use the forum.

Warren, how did your hearing turn out?

RCC, the trial court overruled the defense's motion to suppress.

Try as I might, I can't see any solid reason to believe the sky is falling. About all that can be safely gleaned from this opinion is that warrantless seizures of blood, involving "routine" DWI stops, based purely on exigency and without statutory authority, won't automatically pass muster unless there was truly no reasonable chance to obtain a search warrant.

In fact, the opinion itself refers to Texas' mandatory blood draw statute (among others) as placing a "significant restriction" on when blood can be drawn without a warrant, and then goes on to refer to these statutes as "protecting privacy beyond the level that the Fourth Amendment requires." If anything the tone is one of tacit approval of these statutory schemes. Granted, these statements are contained within Section III, but nothing contained within the remaining sections directly contradicts them.

I think that buying into the defense-oriented view that this opinion has somehow hampered our existing statutory authority is only going to make things worse. Seeming to acquiesce on this issue will only lend credence to what is, at best, a weak argument. Perhaps this will require some further clarification down the road but I see no reason to assume the worst at this point.

I don't think we are "assuming" the worst but rather we are "preparing" for the worst. I agree that there is a strong argument that the opinion does not impact our mandatory blood laws but until that opinion gets the stamp of appellate approval I think we need to do all we can to protect the evidence we have and the evidence that will be collected in the future.

Obviously, there will be lots of cases where we can argue the statutory scheme's validity. All those cases where we already have blood but didn't think we needed a warrant... But, until we have some appellate authority on that, the conservative approach is to try and operate within McNeely. That's what I see Richard and Warren and Clay advising. Am I reading that wrong?

A cutionary approach to our most important cases. I think we all agree on that. I too think SCOTUS will uphold mandatory draws. I think Texas Courts will as well. I know Texas Trial Courts are already supressing.

Irrovocable implied consent and exigent circumstances should be argued everytime the issue raises its ugly head. Blood search warrants should be used when and where they are an option. Careful documentation of why they are not availible is also now a must.
Bottom line is we just lost our easy button and even all the sage minds on this forum are less than 100% in predicting how courts decide.

While I agree the sky is not falling, and I stress nothing in McNeely frees officers from the statutory obligation to get scientific evidence in mandatory cases, I think we need to be smart and not "double dog dare" the courts. The victims of these senseless crimes deserve no less.

Will be interesting to see how the CCA deals with implied consent after requiring clear and convincing consent under Texas Constitution.

What could be more clear and convincing than accepting a DL under the requirement that you consent to a breath/blood sample if arrested for DWI?

The courts will have to clean up the difference between an implied consent being irrevocable (I do like that turn of phrase, Clay) and Texas statutes telling police to respect a refusal.

The problem we had with telling officers to get warrants in the cases listed under 724.012(b) is that you're telling them to disregard a mandatory duty placed upon them by the statute. "A peace officer shall require the taking of a specimen..."

Unless and until a court decides that the mandatory blood draws are not, in fact, mandatory, we're advising our officers to follow the law.

I don't think the two are mutually exclusive. The officers are following the law with an added step of precaution. I think its particularly important when there is a serious injury/death involved.

I understand that different offices are going to take different positions on this issue. We are taking a proactive approach that we think will best prepare us for the worst case scenario. When we requested our local police departments get a warrant when they are faced with a mandatory blood situation we made it very clear that if it is not possible to get a warrant that they go ahead and get the sample as the law requires. We additionally asked that they articulate in the case file why they were unable to get a warrant. Obtaining a sample with a search warrant or without one are both options that are consistent with the mandates of the law. My primary responsibility is to see that the evidence is collected in a manner that will withstand challenges. It is also my goal to limit the need for officers to appear in Court and defend their actions. The best way to avoid having them caught up in protracted litigation and the consequential delay in disposition while the case travels up the appellate ladder for the next 3-4 years is to get a warrant. If given an option of the collecting evidence in a manner that encourages a plea or collecting it in a manner that will leave the case 3 to 4 years old when it can tried or pled I will go with the first option. The police chief’s I have spoken to directly appreciate our position and see how it is in the best interests of their department and the case to follow that advise.

The last thing I want to have to do is sit down with a family of a victim of intoxicated manslaughter and tell them the State has lost its most important piece of evidence. Then when they ask why I have to explain that I chose not to take a logical and prudent step of advising (post McNeely) the agencies that investigate and obtain this most crucial evidence in the safest way to obtain the evidence that ensures it will stand up to legal challenges.

I understand that our courts' have not ruled this way, but no one can predict with 100% certainty where after McNeely the finish line will be drawn.

Rule number one: Get a sample

Rule number two: Get it smart

So why not collect the mandatory sample and collect a second sample under a warrant? The officer has complied with the statute and if the mandatory sample is suppressed, you still have the sample collected under the warrant. If the mandatory sample is not suppressed, you have two samples (presumably at different times) to better address extrapolation issues.

This a "a" solution and one being employerd by Warren Diepraam and others. My concern is that officers may forgo the entire mess poised with this solution. Secondly, having obtained a warrant the officer has absolutely established a lack of exigency in the mandatory draw. Now, that may not be the end of the world because we will still argue "irrevocable consent" under the mandatory blood draw provisions of the Implied Consent statutes, and the later search warrant draw is clearly not fruit of the poisonous tree that was the mandatory draw if found to be unconstitutional.

My real objection is I think this solution is overly complicated. But reasonable minds can and here very obviously do differ.

Bottom line is you have to try your cases and I don't. I am just here to help. You have to make the call in your jurisdiction and then defend your call at trial and on appeal.

As Shannon so often says, "good luck with that".

Getting a warrant won't necessarily prove the absence of an exigency. Depends on how long it took to get the warrant. The loss of BAC over one hour is different than 2-3 hours. Might make a difference.

While WE know that there is a difference between loss of BAC at 1 hour vs 2 or 3 hours, the SCOTUS doesn't appear to realize that - At least from how I read the opinion....

So many options right now (before a ruling on Texas laws by the CCA). Search warrants, and doing mandatory draws when all else fails (and "everything" is properly documented) is the best bet right now, IMO. Better to have blood and lose it, than to never have had it at all...