Wednesday, January 13, 2016

Blood draw vote casts light on CCA Fourth Amendment divisions

Grits earlier examined the Texas Court of Criminal Appeals' recent Fourth Amendment jurisprudence for patterns and trends ("Divided Court of Criminal Appeals in flux"), and a commenter suggested the opinions in State v. Villareal, in which the CCA narrowly required warrants for police to perform blood draws in routine DWI cases, might usefully contribute to that discussion. The CCA denied a motion for rehearing last month, essentially settling the legal issue. The press has recently begun to take note.

The vote patterns, though, fall roughly along the lines of the Fourth Amendment sniffer-dog case Grits discussed earlier, with two of the new members (Newell and Richardson) insisting on upholding the Fourth Amendment and one (Yeary) aligning with Keller, Hervey, and Keasler on the side of maximizing state power.

This case had originally been decided 5-4 in 2014, but three of the five judges in the majority left the court during the last election cycle and were replaced. Soon thereafter, prosecutors sought rehearing by the new batch of judges.

Once again they were rebuffed, barely. Keasler and Yeary filed dissents, Newell and Richardson wrote concurrences, and Meyers wrote a concurrence explaining why he flipped his vote from the last time the case was heard. For those interested in the meat of the issue, those discussions are fascinating and well worth the read.

In the end, though, the court's decision was fairly routine and pro forma from Grits' non-lawyerly perspective. The issue, as it is so often with Keller and Co., was whether the court would thumb its nose at the US Supreme Court or comply with its clear dicta.

For the time being, the CCA's sometimes-open rebellion against SCOTUS is being squelched on Fourth Amendment questions. But the margin remains narrow and, with two judges in the Villareal rehearing majority leaving the court next year, there's a risk the maximize-state-power faction could once again find itself in ascendance after the next election cycle.

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