SCOTUS seems ready to require warrants for DWI blood draws; recent Texas statutes implicated

Judging from the tone of oral arguments (pdf) at the Supreme Court yesterday, it appears the justices will likely end up requiring a formal search warrant for most DWI blood draws, though the possibly was raised of defining some set of exigent circumstances under which police could get around it. At SCOTUSBlog, Lyle Denniston opined that from the judges questioning, "it seemed quite predictable that the Court is not going to let police across the nation order — on their own authority — the taking of blood samples from those suspected of drunk driving." See also AP's coverage.

Justice Kennedy, who is so often a swing vote on criminal justice cases, seemed to argue that if the two dozen-plus states already required a warrant without any undue, negative consequences, then the practical concerns about timeliness were overstated. Other states, he noted, "do have a warrant requirement and from what we can best tell make it work very well, including some expedited procedures where you can get warrants within minutes." Justice Antonin Scalia emphasized that the intrusion into someone's body was an even greater violation than entering their home, which along with his other commentary seemed to imply he too favored a warrant requirement.

The question becomes, are there potentially exigent circumstances - beyond the natural dissipation of alcohol from drivers' blood - where a warrantless blood draw is justified? That seemed to be where the crux of the debate fell.

Texas is one of 25 or 26 states (both numbers were tossed out at different times during oral argument) that already requires a search warrant before police can subject suspects to a forced blood draw. (N.b., see the correction below.) To AG Greg Abbott's credit, Texas was not one of the 15 of those states that signed onto an amici brief urging SCOTUS to allow what their own state law forbade. See this summary of Texas case law on the subject.

UPDATE/CORRECTION: A commenter correctly emended this post to clarify that, "Texas allows warrantless blood draws for felony DWI cases," including where the defendant has two or more DWI priors or was convicted in the past of intoxication manslaughter. Grits had indeed forgotten that the 81st Texas Legislature took that step, which TDCAA's DWI resource prosecutor Clay Abott said  "virtually remove[d] the need for blood search warrants in felony cases." See his discussion of the statute, which seems likely to be affected if SCOTUS rules a warrant is required for DWI blood draws. Here's how Mr. Abbott described the warrant exceptions under Texas law:

As of September 1, 2009,  Chapter 724 of the Texas Transportation Code requires an officer to draw blood without a warrant if:

•    the subject, arrested for an offense under Penal Code Chapter 49, refuses to provide a breath sample and a person other than the suspect “has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment”;
•    the suspect is arrested for DWI with a child passenger under Penal Code §49.045;
•    the officer credibly believes that the suspect can be charged with felony DWI due to two prior Chapter 49 DWI offenses or one prior intoxication manslaughter; or
•    the officer credibly believes that the suspect committed DWI and was previously convicted of intoxication assault or DWI with a child passenger. (This offense would be enhanced to a Class A misdemeanor.)

When making a DWI arrest, the officer must request a breath or blood sample. If he has a reasonable belief that any of the above additional circumstances exist, then a blood sample must be drawn. It’s that simple. The officer has no discretion to call an early end to the shift, nor does he need a search warrant for blood. 

Prior DWIs and child passengers, one notes, aren't among the "exigent circumstances" hypothesized by SCOTUS justices during oral arguments.

MORE: From Orin Kerr at the Volokh Conspiracy and Scott Greenfield at Simple Justice.