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Fourth Amendment triumphs over warrantless DUI blood tests

Fourth Amendment triumphs over warrantless DUI blood tests

No consent + no exigent circumstance = no warrantless DUI tests

A Texas appeals court has struck down a law allowing police officers to conduct warrantless blood tests on suspected drunk drivers.

The law borrows concepts from the Texas Transportation Code and other statutes, and has both attorneys and Fourth Amendment advocates up in arms over what it means to conduct an “unreasonable search and seizure.” In 2013, the Supreme Court ruled in Missouri v. McNeely that the natural dissipation of alcohol in the bloodstream does not constitute an exigent circumstance justifying blanket authorization for warrantless searches. Texas’ “No Refusal” periods, however, throw a wrench in an easy hypo by injecting statutorily-based “implied consent” into the mix. (“No Refusal” periods are exactly what they sound like.)

What happens if you refuse to provide a sample and/or perform sobriety tests in the field? Up until last week, the authorities would haul you into jail and forcibly extract the evidence from the crook of your right arm—without a warrant. The convenience of this level of “implied consent” was too much for the Texas Criminal Court of Appeals, however, and last week they ruled this type of search unconstitutional.

Via the Houston Chronicle:

“We hold that a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment,” Judge Elsa Alcala of the Texas Court of Criminal Appeals wrote on behalf of the five majority opinion judges. Four members of the nine-judge court dissented.

Constitution trumps statute, and it feels so right.

Accusations that when used, the warrant process for these types of convictions is little more than a rubber stamp aside, this is a great development for the Fourth Amendment. The ruling won’t kill No Refusal as a whole, but it will limit the admissibility of evidence obtained without a warrant.

Courts should be careful with their assessments of exigency; normally, evaluation of exigent circumstances happens on a case-by-case basis—the window in the convict’s apartment breaks, the woman screams, the gun fires—which makes sense considering the standard lives or dies at the hands of circumstance. To grant a blanket stamp of exigency onto the changing chemical makeup of a suspect’s blood wouldn’t just set us teetering at the top of the slippery slope; it would send us careening down headfirst with our pants down.


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I’m a member of D.A.M.M. [Drunks Against Madd Mothers], but this seems pointless and counterproductive to me. The cops will just have a magistrate on speed dial and then proceed with the blood test anyway after obtaining a warrant.

I think this may be a backlash against the ever-decreasing limits on permissible blood alcohol level to the point when it has become counterproductive. I’m a firm believer that many people can drive better with alcohol in their system than some people can drive sober.

Standing by for down dings…

I was a prosecutor for over ten years and I can tell you that the cops will not have a magistrate ready, willing, and able to sign a warrant at the drop of a hat. Judges may be more accommodating to the police, but absent some compelling reason to do a telephone warrant, I’m sure that the procedure in Texas is similar to that in my jurisdiction– which requires that the telephone conversation be taped, the conversation transcribed, and the warrant produced in written form for signature within 72 hours. This will be too much work for that procedure to be used at the drop of a hat.
That having been said, I find myself very comfortable with the majority opinion on this—glad to see the Constitution having some meaning somewhere in these 57 states of the union.

    snopercod in reply to persecutor. | November 30, 2014 at 5:51 pm

    Thanks for your knowledgeable reply. Am I correct that this ruling doesn’t apply to breathalyzer test?

      Ragspierre in reply to snopercod. | November 30, 2014 at 6:19 pm

      In Texas, a motorist cannot be compelled to give any kind of evidentiary sample without a warrant under this new ruling.

      You can…and you really SHOULD…always refuse a breathalyzer in favor of a blood test.

        snopercod in reply to Ragspierre. | November 30, 2014 at 8:08 pm

        May I ask why one should refuse the breathalyzer in favor of a blood test?

          maybe a blood test of blood alcohol level is more accurate than breath alcohol?

          Accuracy. Breathalyzer will show a higher BAC right after you drink and after use of most mouthwashes. IIRC several other chemicals can fool a breathalyzer into giving you a higher reading. With most of those the DUI would be the least of your worries.

          9thDistrictNeighbor in reply to snopercod. | November 30, 2014 at 10:16 pm

          Also, while a breathalyzer can be used immediately in the field, requesting a blood test buys time…they have to take you to the ER, where you might have to wait. You could request that your own physician do the blood test, further buying time, since they’d have to find him and get him to come down to the hospital. During all this time you might sober up a little…enough to get you under the limit. Theoretically.

        isn’t TX still implied consent though? meaning you’ll lose license for refusing breathalyzer?
        or does this nullify that law (724 or something like that?) they use?

          Ragspierre in reply to dmacleo. | November 30, 2014 at 9:29 pm

          Nope. If you refuse ANY test, your license CAN be “administratively” suspended, which still gives you some due process before an administrative law judge.

          As I understand… Not my wheelhouse….

          Well, that’s now the operative question:

          We have case-law in Texas that says that the you cannot be forced to choose between your Constitutional rights. Under the “Implied Consent” portion of the law, refusing a Breathalyzer CAN be used as an admission of “Guilt” at the trial phase (the DA can specifically comment on it).

          But does that now violate you’re 5th Amendment Right to “remain silent” if you refuse the test itself?

    “I was a prosecutor for over ten years and I can tell you that the cops will not have a magistrate ready, willing, and able to sign a warrant at the drop of a hat.”

    In fact, this is exactly what the cops have. I was actually surprised to read about the case cited above (taking blood WITHOUT a warrant) because it has been advertised in Bexar County and elsewhere that judges will be standing by to sign warrants during “no refusal” periods…which is every day in Bexar County. Maybe the case cited above prompted this.

    stevewhitemd in reply to persecutor. | November 30, 2014 at 8:31 pm

    In Illinois refusing to take a breath-test or provide a blood sample triggers a provision in the law that automatically doubles the suspension time of one’s license — and that starts prior to conviction for DUI. I’ve always wondered how that law managed to be constitutional.

      IThe suspension is considered an administrative remedy to a privilege to which you have no “Constitutional” right and thus the threshold for suspension is “because we feel like it.” Basically anything more than “arbitrary and capricious” will fly.

Hm… It is my understanding in Kansas at least, that the police can’t *force* you to take a breathalizer/blood test, but refusal to take a breathalizer or blood test (you get a choice to which you want) is considered admission of your impairment. Will this decision affect other states with similar (as far as I remember) laws?

    iirc here in maine (and I could be wrong) its implied consent to field sobriety test and then breathalyzer if FST shows issues.
    iirc blood test not part of implied consent.

Don’t hold your breath. Oh wait, that’s what they say for breath tests, right?

I blogged on this last week:
…(defense attorney Fred) Jimenez said while he is pleased with the ruling, it does not mean police officers no will longer be able to take blood and breath samples against a DWI suspect’s will. They just need to ensure they have a warrant first…

I wonder how a cop forced a breath sample from a suspect before? A breathalyzer requires the suspect to blow into a tube for up to 10 seconds for a proper sample. If I ask a suspect for a breath sample and he refuses (aka “F%^& You!, I ain’t doing it!) it’s not like I can shove him to the ground, place the tube down his throat and compress the check to force air from the lungs. If there is a technique out there guys, please let me know. I would like to use it on the other suspects as they come in.

Sometimes you just have to wonder if they know what they are writing!

Yes, I really wonder how to force breath from someone.

Also, in Harris County, we have a judge averrable 24/7/365. On No Refusal weekends a DA is present at the DWI center to prepare the warrants and present them to the judge for signature. So this is of little consequence as we have been in compliance with Missouri v. McNeely since last year.

    Ragspierre in reply to MikeAT. | November 30, 2014 at 7:46 pm

    Well, of course. They could ALWAYS take stuff extra-legally. That is not even a question.

    The issue here is that the CCA has re-erected a good and important due process safe-guard.

    Every step in the prosecutorial chain provides another potentially fatal weak link in a case against you.

    Same in El Paso. We already at least have a Magistrate on call 24/7. Usually there is a magistrate at the municipal courthouse (yes, even at 3 am). The El Paso 5 magistrates take turns taking overnight shifts, and any County Judge can fill in for them in a pinch.

    We’ve been doing the “get a warrant” thing as policy since McNeely was handed down.

    Now what they’re doing is training the officers and having them get the proper certifications to be eligible to draw the blood themselves. No hospital needed.

Magistrates on call. /sarcasm

Would these be the same, well trained magistrates that New York has? So well trained that the entire legal community has been bitching about underfunded training and out of control individuals for several decades now?

Why is it, when I hear the word “magistrate”, I immediately think “We’ll give someone just enough power to meet the letter of due process for prosecutorial purposes but screw everything else”?

    Yes, with a caveat: Most of the ones in El Paso have been practicing criminal attorneys for many, many years. When one retired to run for a County Judgeship last year, the City required that any applicant for the remainder of the elected term (yes, they’re elected in Texas) have been licensed a minimum of 3 years (which meant I didn’t qualify by about 8 months).

    Now, the next town over couldn’t find ANYBODY to even RUN for the position, and they ended up offering it to a newly licensed criminal attorney who happens to live about 10 blocks from the Municipal Court there. She’s green, and making mistakes, but she’s learning quickly and she recognizes her shortcomings so she’s constantly looking for advice from the older, wiser attorneys.

I would be very surprised if the police do not have a judge on call 24/7 to issue (rubber stamp?) such warrants. Requiring a warrant, especially one obtained through a tame judge, is not much protection but it is something. Sort of like the King being unable to enter the peasant’s cottage on royal whim.

Odds and ends from someone who owns a licensed NC DWI assessment, education, and treatment agency. The following is NC-specific:

On Breathalyzer vs. blood tests:

The breathalyzer is a presumptive test, versus a blood draw, which is a direct test. A breathalyzer does not measure alcohol on your breath. It measures waste gases known to be generated by alcohol metabolism, and based on the levels of those gases, *presumes* what the alcohol content in the blood must be. A blood alcohol test is a direct test. Accuracy? The blood test is better, but neither is perfect.

On BAC limits:

In NC, the offense is called Driving While Impaired, wherein ‘impairment’ is defined legally, not clinically. As in most states, NC’s limit for 21 and older is .08. There is nothing significant about this number – it is a political compromise between anti-impaired driving advocates and alcohol-reliant lobbyists (motel, restaurant, beer and liquor distributors, etc.). The last go-round in NC on this, the limit was .10 and the legislature wanted to drop it to .04. After a year of haggling, .08 was decided on.

In NC, if you’re .08 or higher, it’s a DWI for meeting or exceeding the legal limit. You are ‘impaired’, at least legally. For a 180 lb man, .08 is about 4 beers. However, there are profound differences in how different people experience a .08 alcohol level. My wife, who doesn’t drink ad weighs 95 lbs, would be passed out on the couch at .08. However, Uncle Rufus, who kills a fifth of cheap whiskey a day, would not only not be drunk at .08, he’d likely be in acute withdrawals. It is not feasible to test each suspected driver for their individual level of tolerance of alcohol (which determines clinical, or actual intoxication), so a one-size-fits-all limit of .08 is enacted.

On ‘drunk driving’:

This term, as old as the automobile, causes a lot of unnecessary DWI arrests and convictions. In NC, upon conviction for DWI, you are ordered to obtain a substance abuse assessment from a DWI agency, and complete whatever level program (of five) is recommended by the assessment. I’ve conducted perhaps 13,000 such assessments, which begin with a simple “what happened?” In about 30% of arrests, the driver left some drinking event – bar, party, ballgame with friends, whatever – thinking the right thing: am I too drunk to drive? They decided that, no, they were not, and many had friends confirm their opinion, and so drove on.. only to get a DWI at a checkpoint or traffic stop for some other violation, like speeding. The problem is that too many people are making their decisions based on a clinical sense of their actual intoxication, and not based on the legal definition of .08. The question to ask is not “am I too drunk to drive?” The question to ask is “would I blow a .08 if stopped?” How drunk you feel is irrelevant. What would you blow is the only consideration. There is no such thing as ‘drunk driving’.

On clinical impairment:

“I was fine! He stopped for an expired tag! It’s not like I was driving up on the sidewalk mowing people down!”

You don’t have to be clinically drunk (slurring speech, weaving) to be clinically impaired. Tests done at UMich long ago tested driver reaction times at incremental BAC levels: .01, .02, .03 and so on. It’s the driver’s reaction time that matters in traffic safety – recognizing a situation and making the correct move – braking, swerving, etc. The tests showed that a sizable percentage, about 35% of those tested, revealed significant reaction delays at .04.

Consider that a car driving 45 mph is covering 66 feet per second. Only a half second delay in the driver’s reaction time allows the car to move 33 feet forward in half a second. How many drivers have come within a half second or within 33 feet of a very bad accident or bump ‘n roll (as patrol officers refer to a auto/pedestrian accident)? At .06 a majority is impaired in terms of reaction times. At .08 just about everybody’s reaction time is delayed.

On refusing the breathalyzer:

In NC it is a condition of holding a driver license that you agree to submit to a breathalyzer test if asked. In NC, a Refusal To Blow conviction brings a one-year suspension of your driving privilege whether you were convicted on the DWI or not. Not saying it’s right or constitutional, but currently it is the law and to be considered if thinking about refusing to blow (states vary, check yours).

On alcohol and driving:

How it happens in NC very probably like everywhere else when it comes to enacting/reforming DWI laws. The last couple times here in NC, a horrible accident where innocents were killed by a DWI multiple offender. Last time here it was a mother and two kids killed by a man with 4 DWI convictions. It hits the news, public gets into an uproar, politicians jump on the bandwagon, and new DWI laws result, for better or worse.

The limit is currently at .08 in most states. In NC at least, any amount of alcohol in the system while driving and under age 21 is a charge (Drinking/Driving While Under 21) with penalties essentially identical to a DWI. Commercial drivers in NC have a special .04 limit. In NC, if you get a DWI conviction, you only have to blow a .04 witihin the next 3 years to get a second DWI. And so on.

If you are currently under 40 years old, I predict there will be a national BAC limit of .00 – zero tolerance, any alcohol on board is a DWI – during your lifetime. This won’t be a federal gov thing, it will be a group of states moving to it, followed by the rest of the states, just as we got to .08 essentially nationwide.

In NC, getting a magistrate to sign off on a warrant for a blood test is not a problem, per se, but the process can be:

Sometimes the delay in time allows a driver’s BAC to drop below legal limit it was at the time stopped.

In NC, almost all blood test samples are drawn at the hospital because of a wreck. The blood sample becomes evidence and some/much hospital staff are notorious for screwing up chain of custody.

In NC, DWI-related blood test samples go to our SBI forensics lab for actual testing. They tend to live in the back row, while other tests pf evidence from bigger crimes take precedence. It takes a looong time to get results here.