I've had a few calls on "what to do" post-Aviles. My answer is "stay the course."
The San Antonio COA decided Avilas pre-McNeely; that COA rejected the attack on the constitutionality of the blood draw statute. The defense PDR was denied by the CCA post-McNeely. Yesterday's SCOTUS decision to vacate and remand the case back to San Antonio simply acknowledges that Avilas preserved the claim while on direct appeal, but the issue went unaddressed because, time-wise, the San Antonio court did not have the benefit of McNeely. The remand order does not say that our statute is in jeopardy; nor does it say that the statute will be upheld. It tells the San Antonio COA to consider that issue.
Our office believes that the statute will be upheld . . . so, again, “stay the course.” Looks like the other COA decisions that we are all watching will percolate to the CCA first . . . and it is too bad that the SCOTUS didn't help us all out and grant the Bexar County case's cert and provide us with definitive caselaw and put a stop to the whirl of appellate orbit re McNeely progeny.
Posts: 62 | Location: Fort Worth, TX | Registered: November 02, 2001
Did the Thirteenth Court of Appeals contradict its own holding in Smith, 2013 WL 5970400, today, or did the State sabotage its own case by "conceding" that there was no consent in an implied-consent case?
The Villarreal court does seem to be careful in noting that the State stipulated there was "no consent". Does kind of make it hard to then argue implied consent through the Transportation Code.
The court also explores the concept of waiver. It might prove fruitful in future cases for prosecutors to include an argument that acceptance of a driver's license in Texas is either:
implied consent for providing a blood sample in certain circumstances or
a waiver of the warrant requirement in certain circumstances.
Even if these cases are unsuccessful, there are seeds of new legislation in the language of the court. Perhaps the Transportation Code could be amended to more clearly state the above theories.
I argued that in a brief I filed. I just wanted prosecutors to know NOT to concede a "lack of consent" when we are relying on "implied consent." A lack of express consent is not the same thing as no consent.
L.
Posts: 21 | Location: Conroe | Registered: May 09, 2012
Our office argued this case, and we did not waive implied consent. We did stipulate to the absence of "consent," but I think the Court read way too much into this. Stipulations involve facts and implied consent is a legal question. In context, it was clear that we were not waiving our reliance on the implied consent provided by the statute and I think we can win on appeal to the CCA.
Perhaps this is more of a contractual issue. The State offered a drivers license in exchange for consent to take a blood sample should certain circumstances arise. Having taken the DL, the driver can't now withdraw that consent. There was offer and acceptance and the court should impose the contractual obligation of consent.
Sort of an irrevocable implied consent by way of contract law.
I agree with that analysis. I think the best case we have on irrevocable consent/waiver is Zap v. United States, 328 U.S. 624, 627-28, 66 S.Ct. 1277 (1946). The other arguments may help us along the way, but it seems to me that this is the strongest peg to hang our hat on.
Douglas, if I'm following the history of the Smith opinion from the 13th COA correctly, the status of that judgement is that it is currently withdrawn, is that correct? The case was unpublished, then a new unpublished memo opinion was substituted, then your office requested it be published, that motion was granted, then the entire opinion was withdrawn... and that's where we stand right now... is that correct?
Posts: 200 | Location: San Marcos, Tx | Registered: June 12, 2012
Note that in Reeder the defense has moved for rehearing, arguing that the Aviles GVR shows that Reeder is wrong. TCDLA has filed a motion to file an amicus brief in Reeder as well.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
I just do not see how anyone can read more into a GVR than is already apparent from the opinion generating the remand.
The decision to remand says nothing yet discernible or definite about the admissibility of the blood test evidence in Aviles or any other case. The uncertainty about Justice Kennedy’s position and the language relied upon from the plurality opinion in McNeely by the Supreme Court of Minnesota in Brooks is still there.
This appears to be no more than a “GVR-in-light-of-nothing” ruling, as explained by Justices Scalia, Thomas and Kennedy in Youngblood v. West Virginia, 547 U.S. 867, 871-75 (2006) (Scalia, J., dissenting). See also Wellons v. Hall, 558 U.S. 220, 228, 227 (2010) (Scalia, J., dissenting) (observing that its decision provided “no hint” of what the majority really wanted the lower court to do because “the issue on which Cone throws light does not affect the outcome”). In short, the Aviles order is a non-event.
CCA granted a State's PDR yesterday on the following issues:
1. Did the appeals court err by failing to hold that the draw of Appellee’s blood was lawful under the implied consent mandatory blood-draw provision, which establishes advance voluntary and irrevocable consent under narrowly tailored circumstances?
2. Did the appeals court err in finding that exigency to draw Appellee ’s blood without a warrant was not established based on Missouri v. McNeely’s holding that dissipation of alcohol does not create exigency per se when additional relevant facts–investigating the accident, transporting Appellee to the hospital, time of day and probable limited access to a judge–show it was reasonable not to cause further delay?
Baker v. State, No. PDR-13-1592 (12-12-0092-CR)
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
The State offered a drivers license in exchange for consent to take a blood sample
Careful this is actually wrong. The State allowed the use of its highways, the ability to engage in "a highly regulated activity", that being operating a vehicle in a public place. Engaging in that activity creates an irrevocable consent under a "narrowly tailored" statute. We call it mandatory blood draws law, yet none of thoise words appear in the statute. As Nueces Countys trial attorney clearly showed we need to be very careful of what we say and what we call things.
That whole "you consented when you got a DL" thing is just dead wrong, we need to quit repeating it. Implied consent applies whether you have a Texas DL or not. It is engaging in a highly regulated activity that allows the state to create a narrowly tailored irrvocable consent to take a chemical sample after a DWI arrest based on PC.
Posts: 293 | Location: Austin, TX, US | Registered: September 12, 2002
I agree it is important to phrase the implied consent theory in the broadest language possible, at least until some court writes an opinion telling us all what the right language really is. And the statute does explain implied consent in broader terms than receiving a DL:
"If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance."
