The ambiguous decision in McNeely has spawned opinions in more than 40 Texas appellate cases on the constitutionality of our implied consent statute.

Sadly nothing can be conclusively resolved without further guidance from Washington. Possibly that may come in Birchfield v. North Dakota, No. 14-1468, but not until sometime in early 2016.

The present uncertainty raises issues for how zealous prosecutors wish to be. Some (perhaps many) have stopped with an adverse decision by their trial judge. Four have folded at the intermediate court level. No one sought review of the decisions in Forsyth or Lloyd by the SCOTUS.

Should Texas prosecutors continue to fight for use of this evidence at least until certiorari has been granted on the issue? Absolutely. No one should be discouraged by the results so far. There will be a strong, sensible dissent, even if the result in Villarreal remains unchanged on rehearing. Moreover, there is still hope that (at least for searches before April 17, 2013) art. 38.23 will be found by the CCA not to apply where 724.012 permitted a blood draw without a warrant or exigency.

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Well SPA's brief on Cole (Gregg Co.) just submitted.

Rehearing has been granted in Villarreal.

It appears 7 judges voted in favor of reconsidering what was said in November. That has to be considered a good sign, especially considering Richardson and Yeary were among the 7. At a minimum, this may cause all of the intermediate courts to adopt a wait and see attitude (a la the Third and Eighth) rather than forcing more PDRs by the State before anyone knows for certain how the CCA reads McNeely.

For what it may be worth, the Delaware Attorney General cited a different authority in its brief in Flonnory than I have seen elsewhere: “A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant.” Fernandez v. California, 134 S. Ct. 1126, 1137 (2014).

that's the case last term where they limited Georgia v. Randolph, the case where one spouse was able to override the consent of another spouse when he was at the scene.

Oh well, the granting of rehearing in Villarreal did not slow down the flow of conviction reversals in Fort Worth. C'est la vie. Interestingly, the Second Court has declined to conduct any harm analysis before reaching the constitutionality of the statute, something the Third Court found necessary in Noria.

Another Texas case has now become eligible for petition for writ of certiorari. The CCA refused the PDR in Lloyd, PD-0097-15, from Collin County. While there was no corresponding decision in any of the other PDR cases, e.g., Sutherland or Aviles, this cannot be taken as a good sign for approval of implied consent in Villarreal or the other cases. I would really have expected the CCA to rule on several cases at one time rather than piecemeal. The strange saga continues.

For what it is worth, the solution to the problem chosen in New Jersey is as follows: "the exigency . . . should be assessed in a manner that permits the court to ascribe substantial weight to the perceived dissipation that an officer reasonably faced. Reasonableness of officers must be assessed in light of the existence of the McNeely opinion [taking into account that the] police may have believed that they did not have to evaluate whether a warrant could be obtained, based on prior guidance from our Court that did not dwell on such an obligation. [Accordingly], we direct reviewing courts to focus on the objective exigency of the circumstances that the officer faced in the situation." State v. Adkins, ___ A.3d ___ (N.J. May 4, 2015).

I have no idea what the addition of the adjective, "objective," means, but it does seem to make the wrong choice, viewed in hindsight, a little more reasonable? "Perceived dissipation that an officer reasonably faced" seems pretty flexible language to work with.

Just an FYI . . . this grant by the CCA in Cole v. State, PD-0077-15 (Apr. 22), seems to have flown under the radar, and it's pretty significant since all previous attempts to get the 38.23 issue granted have failed.

"If a warrantless blood draw conducted pursuant to Tex. Trans. Code § 724.012(b) violates the Fourth Amendment, must that evidence be suppressed when, at the time of the search, the statute was presumptively valid and that it dispensed with the warrant requirement?"

Now . . . we can all only hope that the courts of appeals start to realize that rehearing was granted in Villarreal.

Assuming the Governor does not disapprove, HB 326 will be important going forward as we move to the age of "electronic" search warrants and affidavits. It appears the "four corners" rule is also going by the wayside. Any examination transcript will also now need to be consulted. HB 326

The Texas legislature was serious in undertaking to provide for circumstances under which it believed a search would be reasonable without a warrant. Like 724.012, it has just enacted another statute providing for a warrantless search based on some things other than overt exigency. See HB 1396, which provides:

Notwithstanding any other law, a peace officer may search a cellular telephone or other wireless communications device without a warrant if: (3)the officer reasonably believes that: (A)the telephone or device is in the possession of a fugitive from justice for whom an arrest warrant has been issued for committing a felony offense . . .

It now appears almost any use of an implied consent warning will lead to exclusion of blood evidence. The message becomes too mixed. "You have, you haven't, will you" critically impairs ability to make the determination to submit the sample. See State v. Medicine, 865 N.W.2d 492, 496-99 (S.D. 2015)(citing U.S. Supreme Court authority).

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One of the biggest problems with McNeely is that it encourages litigation over the existence of exigency on a case by case basis, with the great and contentious difficulty noted by the Oregon Court of Appeals in State v. Ritz, 270 Ore. App. at 98, 347 P.3d 1052 ("How much time police have to obtain a useful BAC test will depend on factors unlikely to be known to police in most cases ...").

The Texas legislature chose to try to avoid that litigation by spelling out circumstances that it equated to exigency or special need. While that proved successful for many years, no more. If everyone agrees to use the warrant procedure and the procedure is made as easy as pie, there will be no further need for statutes like 724.012. But, there appears to be an even broader legislative response to McNeely available.

You institute a "failure to provide sample" crime that carries a penalty equivalent to that for DWI. This also eliminates litigation over the accuracy of the intoxilizer (either due to operator problems, maintenance problems, or "slope detector"-type arguments). The Minnesota courts have repeatedly now upheld the constitutionality of their "failure to provide" statute and the Eighth Circuit has just said:

"Minnesota goes a step further by imposing direct criminal consequences on refusal. See Minn. Stat. § 169A.20, subd. 2. The reasoning in Neville, however, gave no apparent regard to the harshness of "the attendant penalties for making th[e] choice" to refuse a test. Neville, 459 U.S. at 563. And the challenged law in Neville also imposed criminal consequences on a suspect's refusal-the state could convict the suspect of a DWI using the refusal as evidence of impaired driving. See id. at 560, 562-63." Wall v. Stanek, 794 F.3d 890, 894 (8th Cir. 2015).

Wall (No. 15-518) joins Birchfield and Bernard (No. 14-1470) as candidates for review in Washington, but it does stand for something (until McNeely is further explained by the judges that count).

In fact, I would argue that Texas already has some statutes that could penalize sample refusal decisions. See 37.09(a)(1), (d)(1), 38.03, and 38.15, P.C.

Blood testing is not a panacea for DWI prosecutions (big or small), but imposing a warrant requirement costs time and money and headaches without any true protection of privacy (because the affidavits for such warrants read very much alike and are rarely refused by the magistrate).

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Another reason the CCA should rule in Cole (PD-0077-15) that blood-draw evidence obtained before April 17, 2013 is admissible is that "decisions overruling prior constructions of the Fourth Amendment" are, as a matter of constitutional law, nonretroactive. Mackey v. United States, 401 U.S. 667, 672, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971). "[P]hysical evidence seized in violation of a new interpretation of the Fourth Amendment, is concededly relevant and probative even though obtained by the Government through means since defined by this Court as constitutionally objectionable." 401 U.S. at 675. The rules governing the gathering of evidence should be those in effect at the time the evidence is gathered.

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My comments of February 14 must now be supplemented. The question arises whether Texas should seek review by SCOTUS in Villarreal or Aviles or neither.

The Supreme Court of North Dakota offered this rationale about implied consent:

"A licensed driver has a diminished expectation of privacy with respect to enforcement of drunk-driving laws because he or she is presumed to know the laws governing the operation of a motor vehicle, and the implied consent laws contain sufficient safeguards to prohibit suspicionless requests by law enforcement officers to submit to a chemical test.

It is reasonable for the Legislature to condition its grant of the privilege of driving on a person's agreement to submit to alcohol testing if arrested on probable cause that alcohol will be found."

Those were among the essential holdings in Birchfield, which presumably will be approved or disapproved by the SCOTUS in its review of the case, in which certiorari was recently granted.

It seems unlikely that Justice Kennedy agrees with those holdings. It would be nice to actually get the Texas statute in front of the high court. But, because certiorari has essentially already been granted on the issue, it will be more difficult to deviate from the decisions about further review made in Lloyd and Forsyth. The prosecutors in Delaware, New Jersey, Georgia, and Kansas have also spoken. The prosecutor in Missouri got McNeely to plead guilty even without his blood test result. Looks like he should have been a bit more reticent. Sometimes three years seems like an eternity, but the light at the end of the tunnel can now be seen. Still not entirely clear whether it is green or red, but it seems definitely to be from somewhere on the red side of the color wheel. There are no shortcuts to the end of a tunnel, but when you run out of gas . . .

The Supreme Court of Minnesota observed that its statutory exclusionary rule, Minn. Stat. § 626.21, "relates only to seized 'property,' or items 'obtained' pursuant to an unlawful search and seizure." It therefore held that because it was the blood that constituted the property seized or item obtained by the unlawful search and seizure and because the motion was "not seeking the return or suppression of this property, but rather to suppress the result of tests conducted on that property," the defendant could not rely on the statute for exclusion of the test results. State v. Lindquist, 869 N.W.2d 863, 875 (Minn. 2015).

Art. 38.23(a) refers to "evidence" obtained in violation, but did that term incorporate derivative evidence prior to Wong Sun? Maybe the only reason for exclusion of that type of evidence in Texas is under the federal exclusionary rule (which is, of course, limited in scope by Krull). Does the Fourth Amendment prohibit blood testing, or just blood drawing? Does McNeely answer that question?

Nueces County determined to seek further review in Villarreal, so be on the lookout for the disposition in No. 15-1063. Since the response to the petition will likely not be filed until late April, there is a good chance there will be no ruling during this term of the court. Then again, if Birchfield, et al are decided before June 23, maybe we will know more sooner. Will be of interest to see the questioning when Birchfield is submitted on April 20.

What may be the last case in the 724.012 pipeline in Texas was finally decided in Bell (No. 11-14-00098-CR) on March 10. I doubt any other issue has ever moved so slowly through the appellate process. The issue still awaits decision in Tennessee. We have a new example of torture.

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Would it be "torture," or "enhanced judicial analysis"?

Depends on one's point of view, of course. Maybe the Donald will write a book for us about the "Art of Semasiology" to answer such questions.