'Twas strange enough that so many states were willing to declare their implied consent statutes unconstitutional by extrapolation from McNeely (although a few Texas courts sputtered at first). But, the process followed in Texas has had other interesting aspects.

For example, one must search long and hard for a prior instance where a motion for rehearing was granted, then considered for more than a year only to have the motion dismissed (accompanied, however, by concurring and dissenting opinions). Of course, another example of this curious procedure is found in today's handdown (in Robbins).

Why were the PDRs in Reeder and Holidy not dismissed as improvidently granted rather than opinions written affirming the intermediate court decisions?

Why was the opinion in Reeder ordered published (when it added nothing to the jurisprudence of the State, given what had already been said in Villarreal)?

Why were rulings of denial issued today with respect to only 20 of the 37 State's PDRs (filed since July, 2014) in which the constitutionality of 724.012 was raised? Is it still possible one or more of the remaining 17 might be granted? The need for more time offers no explanation; the PDR in Chidyausika has been in Austin for more than 9 months.

And, finally, why was there no ruling in William Smith's case (given the rulings in Moser and Richards)?

One program note: because the CCA has now reversed so many cases without discussing the conflict between art. 38.23 CCP and sec. 724.012, there is no chance the State will succeed in Cole (PD-0077-15). Hence, Texas will join Georgia, New Jersey, Delaware, and Hawai'i as the places where McNeely truly affected the outcome of prosecutions and not just future police practice (as everywhere else denied relief based on Davis).

This message has been edited. Last edited by: Martin Peterson,

I have now analyzed in greater depth the topsy-turvy, slow-motion world created by McNeely (particularly its effects on Texas DWI prosecution). For those who were actively involved, I thought it might be useful to share those observations. I realize that everyone else is certainly as tired of hearing about McNeely as someone recently said about some e-mails. With the denial of certiorari in the Cripps case, the meaning or application of McNeely in Oklahoma remains in doubt.

This message has been edited. Last edited by: Martin Peterson,

Unsteady_as_She_Goes.pdf (289 Kb, 0 downloads) Bloody Mess

Interesting.

But consider this. While all this litigation has created some temporary disruption, the overall result will be the substantial improvement in the collection and use of scientific evidence of intoxication. Texas is now using blood search warrants like never before to prove intoxication.

And technology will eventually provide a method for testing alcohol concentrations without the need for a needle, making warrantless collection of evidence as easy as a breath test and fingerprinting. And the day will come when no car will start with a drunk behind the wheel. That, sir, would be real progress.