SCOTUS ruling leaves Texas' warrantless DWI blood draws in legal limbo

Last week, the US Supreme Court (sort of) decided Missouri v. McNeely relating to the authority of police to take blood samples from DWI suspects without a warrant. See the opinions (pdf). A divided court split along non-partisan lines ruled (barely) that mere, natural dissipation of blood alcohol levels did not per se create exigent circumstances justifying the state to draw blood without a judge's approval. It left open, though, the possibility that other exigent circumstances, which the court declined to articulate, might conceivably justify warrantless blood draws. The decision has prosecutors around the state questioning whether relatd Texas law - which allows blood draws without a warrant for several types of felony DWI cases - may be in jeopardy.

The Austin Statesman ("High court weighs in on DWI blood tests without a warrant," April 17) described the circumstances under which  warrantless blood draws occurred in Texas before the ruling:

Under Texas law, officials said, several circumstances allow for a blood test without a warrant: in a crash with a death or serious injury; when children are in the vehicle; when the suspect has two or more drunken driving convictions; or when the suspect has a single previous conviction for intoxication assault, intoxication manslaughter or drunken driving with a child passenger, among others. Austin and other cities typically require warrants, but a few cities still routinely allow warrantless tests — a practice that most lawmakers and prosecutors said will surely be halted by Wednesday’s opinion.

Former Williamson County District Attorney John Bradley said that in recent years, as state law allowing the warrantless draws had expanded, the standard practice was for officers to skip getting a judge’s approval in felonies. “The only time we were getting warrants for blood was on misdemeanors,” Bradley said.

Another Statesman story estimated that, "Since 2011, Austin police drew blood without a warrant in 7% of DWIs" (April 19), declaring that "In the 13,297 drunken driving arrests since 2011 through March of this year, 901 were done with a warrantless blood draw, or slightly more than 1 per day."

The Texas District and County Attorneys' Association warned prosecutors to "Expect motions to suppress in pending intoxication manslaughter and intoxication assault cases if you have blood draws performed pursuant to the statute rather than a warrant." The group also put out written guidance from their DWI resource prosecutor Clay Abbott, who optimistically suggested that, "This new opinion may be the push we need to make Texas no-refusal all the time."

Lyle Denniston at SCOTUSBlog may have summed up the situation best, declaring that now "every case will be judged on its own facts, so the officer can never know whether failure to get a warrant will scuttle a drunk-driving case altogether." In the near term, the ruling will end all mandatory blood draws in some jurisdictions. In San Antonio, for example, “In an abundance of caution, we're going to be changing our procedures,” First Assistant Bexar DA Cliff Herberg told the Express-News, "explaining that prosecutors locally will now advise police to seek warrants in all felony DWI cases." Richart Alpert in Tarrant County advised police henceforth to get warrants in all felony DWI cases:

Therefore, we are requesting that you instruct your officers to obtain a search warrant in all mandatory blood-draw scenarios (those arrested for Intoxication Manslaughter, Intoxication Assault, Felony DWI, DWI w/Child, DWI with bodily injury + transport, DWI with prior conviction for Intoxication Manslaughter, Intoxication Assault, or DWI w/Child). While it is tempting to continue to rely on our mandatory provisions that might not even be in jeopardy, we believe that it is our primary duty to protect these more serious cases from protracted litigation and outcome uncertainty that would follow from our ignoring this case's potential impact.  Using a search warrant in these cases will thwart any additional litigation that might arise post-McNeely.

Others, by contrast, seem intent on fleshing out the exigency loophole suggested by the court. In Montgomery County, prosecutor Warren Diepraam advised police:

In the meantime, I have asked MCTX prosecutors and officers to be aware of exigency factors when doing mandatory blood draws and to make sure the officers document their reports.  I have set out three guidelines:  First, in all mandatory blood draw cases where the officer can’t articulate an exigency, I am asking them to get a warrant.  Second, during No-Refusal (when a judge is obviously available), I am asking law enforcement to get warrants in all DWI refusals.  Third, in Intoxication Manslaughter and Intoxication Assault cases, officers get a mandatory sample before we arrive (generally) and I am having them continue that practice but am getting a warrant an hour after the mandatory draw.

On the TDCAA discussion board, prosecutors are busy hashing out the implications, including some who would like to read the opinion to expand the use of warrantless blood draws in misdemeanor cases when exigent circumstances can be articulated. Former Williamson DA John Bradley rightly noted that "retroactivity" is the next big question, followed by whether the ruling implicates Texas statutory exceptions for warrantless blood draws. This appears to be one of those instances where a divided SCOTUS ruling arguably raised as many questions as it answered.

RELATED: From the Austin Statesman, "Many DAs, judges, lawmakers stay in office after DWIs," April 21.