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.