Sunday, November 02, 2014

TX appellate courts (barely) split on mandatory DWI blood draws

We haven't talked much in a while about the fallout from the US Supreme Court's McNeely ruling, which held that police must obtain search warrants to draw blood after a DWI and that the fact that alcohol dissipates in the blood is not an extenuating circumstance that justifies drawing blood without a judge's order.

At first there was speculation whether the court's ruling would apply to Texas' law; a footnote in McNeely referenced Texas' statute without including it in the category of cases the ruling would impact. But, by my count, we're now up to five intermediate Texas courts of appeal (12th, 13th, 7th, 4th, and 9th) which have said police must obtain a warrant to draw blood from alleged drunk drivers, even if they're among the category of "mandatory" blood draw subjects articulated in state statutes. The most recent was the Ninth Court of Appeals (see the opinion). Only the 14th Court of Appeals ruled the other way by a 2-1 margin on a three judge panel. (Update/Correction: The full 14th Court later ruled the other way; see below) Even so, the split means the Texas Court of Criminal Appeals must eventually step in.

Increasingly, however, it looks like we may not see that decision from the court as it's currently constituted. If they wait until next spring, three current court members will be gone and (presumptively) Bert Richardson, Kevin Yeary, and David Newell will have replaced them. Who knows what if anything that might mean for an eventual decision? I'm not a lawyer, but after reading McNeely my own, initial educated guess was that Texas' mandatory blood draw statute would stand. Having now seen 16 of 18 appellate judges who've ruled on it strongly make the opposite argument, I think my initial gut reaction was likely wrong and tend to lean the other direction.

Really, though, it's a complete tossup. Who knows what Sharon Keller and Co. might do once three new members are enshrined, alliances shift, etc.? Come 2015 in many ways we'll have a brand new court and this won't be the only case where three new members might make a difference.

CORRECTION/MORE: An attentive commenter informed me that the full 14th Court of Appeals heard the Douds case en banc and overruled the three-judge panel. It's true; mea culpa. Here's the later, controlling opinion. So if six out of six appellate courts all have agreed that McNeely applies, maybe the CCA won't feel obligated to take up the issue after all! I know the prosecutors are dearly hoping they'll come in at the last minute and save the day after this rough string of appellate losses. But at the moment, there's really no reason to do so. It's not as though they don't have other important stuff on their plate.


Anonymous said...

I have seen no less than 3 judges grant Motions to Suppress in DWI cases where the arresting officer obtained a blood sample without a warrant, all in courts that are not in the appellate districts mentioned here. Even more surprising is seeing a judge admonish a state trooper on the witness stand in open court for doing such a thing. The TCCP may be taking its time, but the local courts are hearing the message loud and clear.

Anonymous said...

Might want to check the Douds case again. The 14th reversed the three judge panel. Ruled in line with the other courts of appeals.

Anonymous said...

If the Texas DPS required drivers to sign a form waiving all of their 4th and 5th amendment rights before obtaining a drivers license most people would have no reasonable choice but to sign the thing.

Our society is built around cars... especially in the south. The land area of Houston is almost 50% larger than that of New York City despite having only 25% of the population. Try to imagine what it would do to property values near downtown if living out in the surrounding areas was simply not practical due to lack of transportation.

The claim that drivers voluntarily agree to provide a specimen when they get a license is laughable.

Anonymous said...

My gut went the opposite direction: I think McNeely is much broader than most criminal lawyers do. Yes, it's a case dealing with a mandatory draw statute, but the ruling holds that ANY statutory scheme that does not take into account the individual case (i.e. the exigencies that would excuse the officer from obtaining a warrant) are unconstitutional.

To me, that means that Texas's implied-consent statute goes down, too.

Jason Truitt

IC_deLight said...

I think your first sentence needs some adjustment where it says: "the fact that alcohol dissipates in the blood is not an extenuating circumstance that justifies delaying the blood draw until a judge signs off on it."

I think you might have meant that it "wasn't an extenuating circumstance that justifies taking a blood draw without prior approval from the judge/court"

Anonymous said...

I actually have oral argument on 11/19 in Weems v. State. I can't imagine the court would have set argument if they didn't plan on issuing an opinion before a third of them left the bench. PD-0635-14.

Further, the Court has already had oral argument in Villarreal v. State on a McNeely issue, mainly do you consent by driving, regardless of any withdrawal of consent. PD-0306-14.

Anonymous said...

How did your argument go in Weems on 11/19? I have a pending issue concerning this.

Anonymous said...

See state v. Villarreal issued today!!!!

Sir Roger Casememt said...

Texas prosecutors still don't want to accept they are wrong. No implied consent, big brother! I will win my case in 2015