SCOTUS wasn't given any facts to consider. The officer in McNeely just presumed he could get a warrantless blood draw. A well-developed case showing a warrant would require a two-hour delay might be sufficient. Or not.

Something that we have done in our office that is absolutely revealing is to go through your active cases and compare times for no draw (or consent) v. warrant v. warrantless. This has let us determine, at least initially, how much longer a wattant draw takes officers in our jurisdiction versus a warrantless or consent draw. I can also start to have an idea of how long things like SFSTs, waiting for a wrecker, transport, etc, add in to the time from driving to sample collection. It's also let us identify instances where officers have tried to obtain warrants, but been unable to as the result of a magistrate being unavailable.

If you've got an intern to spare, it's probably a good idea to know these things and be forarmed going into an MTS.

Great advice. SCOTUS pointed out in the two lead opinions that these were all relevant factors, it would be great to get this stuff in the record.

This language is dicta, but it gives the first hint of what might constitute exigent circumstances after McNeely, based on Schmerber:

In Schmerber, the Court recognized that the human body's natural metabolic process, which causes the dissipation of alcohol in the blood over time, is an exigent circumstance for the purpose of warrantless searches. The Court went on to find that the dissipation of alcohol, combined with the defendant being involved in a serious accident and needing to be taken to a hospital for treatment, and the time needed for police to investigate the scene of the crash, established [an exception to the warrant requirement]. As in Schmerber, Moussa was involved in a serious accident. The police had to investigate the scene of the crash and secure the scene where Moussa's vehicle went off the road. Further, Moussa required medical care and was transported to the hospital and treated for injuries before he could be interviewed.

Moussa v. State, 2013 Ind. App. Unpub. LEXIS 1157 (Sept. 9).

So then in a typical Felony DWI with no accident and no attempt to obtain a warrant by the officer then good faith reliance on implied consent and the mandatory blood draw statute isn't enough? No exigent circumstance means suppressed blood draw?

My answer to that would be a big "No". No Court has said we can't rely on our statute. A long list of arguments we can make to support mandatory draws can be found in the McNeely brief posted under the DWI Resource tab.

quote:

Originally posted by TMC:
So then in a typical Felony DWI with no accident and no attempt to obtain a warrant by the officer then good faith reliance on implied consent and the mandatory blood draw statute isn't enough? No exigent circumstance means suppressed blood draw?

No. I've argued a few of these motions in the trial court now, and I always argue that the statute remains constitutional and officers were acting in good faith on the law as it existed at the time of the stop. Send me a private message if you need some more help.

Hope I sent the "private message" right. I've never done that before.

Here's a response I filed recently, if anyone finds it useful.

quote:

Originally posted by LAH:
Here's a response I filed recently, if anyone finds it useful.

I have a hearing coming up tomorrow. I'll be using it. Thanks!

Whatever else you are including in your response to motions based on McNeely, I think you might want to include some language from this opinion.

Montar_Opinion.pdf (55 Kb, 25 downloads) Montar Opinion

That would be nice if Texas had a similar good faith exception.

If the officer was relying on a state law presumed to be valid (under state law), the evidence was not illegally obtained and 38.23 has no application. The officer's good faith reliance is an exception to the federal warrant clause (before the McNeely amendment), so nothing illegal in his conduct at the time of the search.

Recognizing McNeely for what it is and what it isn't is the key.

Another appellate court weighs in:

To the extent that Appellant relies on the United States Supreme Court's recent decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013), we find such reliance to be misplaced. Implied consent is not the focus of Missouri v. McNeely, where the defendant was stopped for erratic driving, evidenced signs of intoxication, refused a breath test and was then arrested. When the defendant continued to refuse the breath test on the way to the police station, he was transported to a hospital for a warrantless blood test. The defendant in McNeely successfully suppressed the evidence from his blood test with the Missouri trial court, the Missouri Supreme Court, and ultimately with the United States Supreme Court, on the basis that there was no exigency to justify the warrantless blood draw. The United States Supreme Court expressly held in Missouri v. McNeely that in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case to justify conducting a blood test without a warrant. Id. at 1. Appellant seemingly concedes that McNeely is not on point with the instant case, stating that the United States Supreme Court's "holding as to the use of the 'exigent circumstances' exception to the warrant requirement is instructive regarding the claim of a consent search in the case at bar."

Commonwealth v. Mason, Pa. Superior Ct., (Sept. 27)

A Houston court of appeals upholds a warrantless blood draw but doesn't address the issue of whether the Transportation Code creates an irrevocable consent:

Details.

See our DWI Resources page, look under attachments for a copy of the opinion. Great job Brazoria County.

The dissent does sound a warning to prosecutors:

be prepared to put on detailed evidence about why the warrant requirement could be skipped.

A ruling today in a case that was specifically remanded by SCOTUS in the McNeely opinion- State v. Brooks (Minnesota).

In Brooks, the defendant was arrested 3 times in 6 months for DWI (!). Each time he consented to a chemical evaluation. On appeal, he argued that such consent was coerced because of the criminal penalties for refusal in Minnesota's implied consent law.

The Brooks, the Minnesota Supreme Court holds that the consent was valid and not coerced, even in the face of criminal penalties for not complying with the implied consent statute.

More usefully, the court goes on to consider whether or not a statute may "imply someone’s consent to waive his or her Fourth Amendment rights as a condition of granting the privilege to drive in Minnesota." The court rules that they CAN so condition the permission of driving. They don't, however, go the next step though to make that consent irrevocable (durn.)

Minnesota_State_v._Brooks.pdf (76 Kb, 10 downloads) State v. Brooks (Minnesota)

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).

My memory of ancient times recalls (wistfully) at least one state that created a rebuttable presumption of intoxication upon refusal of the breath test. Another made it an offense to refuse (although I think that was not a long enduring statute).

Driving is a privilege. Period. I wish we would get some fortitude and bring that point home to every driver, through appropriate legislation.

Some countries in Europe have a fairly low incidence of DWI. Why? Because they strictly enforce their laws. If you get a DWI, you may not go to jail, but your license is revoked. There is no such thing as an occupational license. If you get caught driving, you go to jail. There is no defense.

Personally I like the rebuttable presumption of intoxication. And I like the idea of no occupational license.

In the meantime, I am glad our Courts are at least upholding the statute for now.