Friday, November 28, 2014

Tight CCA decision declares mandatory DWI blood draws unconstitutional

Big week at the Texas Court of Criminal Appeals, which issued several important opinions related to topics covered on Grits. We'll run though them all in due course, but first up: a 5-4 decision in State v. Villareal which declared Texas' mandatory-blood draw statutes in DWI cases unconstitutional, following the US Supreme Court's McNeely decision.

Judge Elsa Alcala wrote the substantial majority opinion disallowing mandatory blood draws while Judges Keller and Meyers authored brief, rather perfunctory dissents holding that Texas' statutory exceptions should be upheld as reasonable under the Fourth Amendment. The overwhelming majority of judges in Texas' intermediate courts had agreed with Alcala's opinion, while more CCA judges adopted a contrarian view than among all the mid-level courts combined.

Villareal will have significant ripple effects, forcing police to get warrants for DWI blood draws in many more circumstances than before. Prosecutors around the state will consider this a big loss, though some remain in denial. OTOH, as Houston criminal defense attorney Grant Scheiner told the Associated Press, "Smart prosecutors and police agencies have been planning for this." Further:
Scheiner said it's unlikely the Legislature can modify state law to leave in any exceptions allowing warrantless blood draws.

"We can applaud the court of criminal appeals for doing the right thing. But it's not like they had much choice," he said.
That seems right to this non-attorney, with a couple of caveats: Three of the five judges in the majority will leave the bench in January and be replaced by newbies, two of whom have never before served as judges in any capacity but instead were appellate prosecutors. One supposes it's possible the CCA might accept another case in the future that results in a different outcome, or for that matter a motion for rehearing on this case after the new court is seated - one vote would have flipped the decision. Or, in theory, prosecutors could appeal to the US Supreme Court to overrule the CCA. Barring those outcomes, Villareal ought to settle the matter.

Many counties have implemented short-term "no refusal" periods around holidays or particular weekends where a judge is on call to issue warrants even in routine, first-offense DWI stops. Now, judges must issue warrants in categories of cases that previously did not require one. Will that mean there will be less focus on no-refusal tactics because judges will be spending more time issuing warrants for recidivists, arrests involving accidents, etc.? Or will their workload simply increase? Perhaps DWI blood-draws will decline overall, providing relief to overtaxed crime labs processing the evidence. What are the implications for older convictions based on now-unconstitutional mandatory blood draws? And how will Villareal interact with prior Texas court rulings related to exigent circumstances in blood-draw cases? Who knows?

Much remains uncertain. All we know for sure is police now need a warrant for DWI blood draws in most cases, even if now-mooted statutes say otherwise. Court decisions on exigency, not legislative pronouncements, will henceforth determine when blood can be taken in Texas without judicial approval.

Grits must admit I'm surprised at SCOTUS and the CCA reinvigorating the Fourth Amendment in DWI cases. There will be much weeping and gnashing of teeth over these decisions in the coming weeks and months. And they will probably cause the number of DWI convictions to decline, though I doubt the effect will be as large as the ignominious Driver Responsibility surcharge.

To me, though, McNeely and Villareal speak to the limits of an enforcement-only approach to DWI in a society ostensibly dedicated to protection of personal freedom. Cops, courts, and jails cannot be the only solution to every social problem, particularly drug and alcohol addiction. The question now becomes whether the political process is capable of conceiving and implementing a more holistic approach. My gut says "probably not" in the current political environment, but then a few years ago I wouldn't have predicted McNeely and Villareal could have been possible, either.


Anonymous said...

Grits what exactly is the effect of this CCA ruling? Are all current DWI convictions and active cases invalid? I know Villareal did not consent to a blood draw. What if the defendant never objected?

Gritsforbreakfast said...

Not all DWI convictions at all. This only affects cases where blood was drawn without a warrant under the "mandatory" provisions in statute. Cases from "no refusal weekends," etc., will find no relief here if the cops in their case actually got a warrant.

Otherwise, I'm not a lawyer, but as I understand it if the defendant consented that's an exception to the warrant requirement. As for the impact on old cases, like I said, who knows? Much remains uncertain.

Anonymous said...

Some large jurisdictions already have judges/nurses on duty 24/7/365 to sign warrants, like Dallas County. The biggest impact will be in rural counties where these resources do not exist.

Anonymous said...

Interesting that these justices believe that the state legislature even has the authority to invent new "exceptions" to the protections provided by the fourth amendment to the US constitution.

Brandon Barnett said...

A long overdue decision on an important issue. No more "implied consent" to an invasive DWI blood draw. Get a warrant!

Anonymous said...

In rural counties, where there is no magistrate available, police can still argue that an exigency exists and circumvent getting a warrant. Some COA opinions point this out as a factor (See Sutherland case for a good example of Travis Counties procedures). Good opinion by Alcala; the dissent is essentially arguing that the law is "close enough for government work" 4th Amendment exception.
Lastly, you said the mandatory blood draw statute is unconstitutional; I believe the court said that it was not. The Villareal opinion holds that the blood draw is mandatory under the statute BUT cop must get warrant first unless a recognized 4th Amendment exception exists. In other words, he SHALL get a specimen but only after getting a warrant if the suspect refuses.

Gritsforbreakfast said...

3:28, perhaps I should have used the word "warrantless" in the headline (a shortened summary by nature), but the text is clear. Warrantless blood draws (the way the statute has been used in the past) have been deemed unconstitutional sans exigent circumstances, right? (I can't remember which of the opinions mentioned the oddity of a statute obligating an officer to violate defendants' rights.) The officer is still obligated to try to get a warrant in those "mandatory" situations, but s/he can't take blood without it and what they've been doing in the past violated the constitution.

Also, police can certainly claim exigency, as I said in the post. ("Court decisions on exigency, not legislative pronouncements, will henceforth determine when blood can be taken in Texas without judicial approval.") But it cannot just be that BAC is dissipating. And currently there's little case law on the topic in Texas because cops have always relied on statutory authority, so there are presently many more questions than answers about what exigency means in that context.

Houston DWI Attorney said...

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