tag:blogger.com,1999:blog-8597101.post8564270443373686443..comments2024-03-15T05:45:01.402-05:00Comments on Grits for Breakfast: Tight CCA decision declares mandatory DWI blood draws unconstitutionalGritsforbreakfasthttp://www.blogger.com/profile/10152152869466958902noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-8597101.post-57733208995601826312014-12-03T06:32:02.708-06:002014-12-03T06:32:02.708-06:003:28, perhaps I should have used the word "wa...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.<br /><br />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.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-63341930143192741352014-12-02T15:28:34.751-06:002014-12-02T15:28:34.751-06:00In rural counties, where there is no magistrate av...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. <br />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. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-34526119599730379402014-12-01T21:52:44.826-06:002014-12-01T21:52:44.826-06:00A long overdue decision on an important issue. No...A long overdue decision on an important issue. No more "implied consent" to an invasive DWI blood draw. Get a warrant!Brandon Barnetthttp://www.bhwlawfirm.comnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-82611467943295998002014-12-01T20:51:43.858-06:002014-12-01T20:51:43.858-06:00Interesting that these justices believe that the s...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-37532514340505155212014-11-28T17:26:41.748-06:002014-11-28T17:26:41.748-06:00Some large jurisdictions already have judges/nurse...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-28244272157869970002014-11-28T12:41:33.434-06:002014-11-28T12:41:33.434-06:00Not all DWI convictions at all. This only affects ...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.<br /><br />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.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-53335170043719686832014-11-28T12:24:01.336-06:002014-11-28T12:24:01.336-06:00Grits what exactly is the effect of this CCA rulin...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? Anonymousnoreply@blogger.com