Last week the United States Supreme Court ruled on the issue of warrantless blood draws in the case of Missouri v. McNeely. The Court’s opinion looks to severely restrict what has become a somewhat common practice in Texas and particularly in Collin County—taking a person’s blood without consent or warrant. Some people may wonder how they found the authority to do that in the first place.
In Texas, there are three scenarios in which an officer may forcibly take a blood sample without a warrant and they are found in Article 724.012 of the Transportation Code. These scenarios include: (1) A DWI in which there is an accident involving death or serious bodily injury, (2) a DWI in which there is a child passenger in the vehicle, and (3) A DWI in which the suspect has previously been convicted twice of DWI or any felony DWI.
What Was the Rationale Behind 724.012?
Clearly, the legislature doesn’t have the authority to simply legislate around constitutional rights. A blood draw implicates almost a century of Fourth Amendment search and seizure law which guarantees protection from unreasonable police conduct by inserting into the equation the approval of a neutral and detached magistrate. Article 724.012 has existed by virtue of a doctrine called “exigent circumstances.” The exigent circumstances doctrine forgives warrantless searches where evidence is subject to removal or destruction in the time it would take to obtain a warrant via phone or fax.
Whether it is reasonable to consider the elimination or metabolization of alcohol as an exigent circumstance in a day and age where a warrant can be obtained in less than half-an-hour is precisely the question addressed by the Court in Missouri v. McNeely.
The Supreme Court’s Opinion
The Court’s opinion was a fragmented one—a majority, two separate opinions supporting the result, and one dissenting opinion. The majority opinion held that the natural dissipation of alcohol in bloodstream does not constitute an exigent circumstance in every case. The majority explained that whether an exigent circumstance exists in a DWI investigation will depend on a case by case analysis. However, the majority hinted that such circumstances may be few and far between in today’s age of streamlined warrant application-and-approval process, which in many cases can be done telephonically.
Justice Kennedy’s concurring opinion will remain an important one as it was necessary to attain a majority opinion in this case. Justice Kennedy suggests that local officials retain the authority to develop “rules and guidelines that give important, practical instruction to arresting officers, instruction that in any number of instances would allow a warrantless blood test in order to preserve the critical evidence.”
Effect on Article 724.012 Transportation Code
There is no question the Transportation Code authorizes per se warrantless blood draws without any consideration of case-by-case circumstances. To the extent Texas law permits an officer to draw blood without consent or warrant and without considering (and later articulating) the impracticality of obtaining a warrant, the Texas law is unconstitutional.
In Collin County, the availability of judges to sign blood warrants and the streamlined process for obtaining such signatures leaves little to imagine what circumstances may present an exigency, especially when there are backup officers on the scene of every DWI investigation. While there may be the occasional accident which presents a ripe scenario for a warrantless blood draw, the safest and most likely policy will be to obtain a blood warrant from now on.