Forced DWI Blood Draws Tossed on Constitutional Basis by Texas Courts

Texas prosecutors have lost in 13 cases where they attempted to use warrantless blood draw evidence in recent DWI cases

Having someone stick a needle in your arm to draw blood is a rather intrusive activity. But when it is done for the express purpose of gathering evidence to be used against you by the State of Texas in a criminal prosecution, the intrusiveness is overwhelming.

While the U.S. Supreme Court has found such intrusiveness worthy of requiring law enforcement to obtain a search warrant for blood tests for 50 years, it was not until 2013 in Missouri v. McNeely, that the Court explicitly stated that absent exceptional circumstances, a blood draw from a DWI stop without a warrant is a violation of the Fourth Amendment's prohibition on unreasonable searches.

McNeely requires warrants for blood tests

With the McNeely case, the Court required that in most drunken-driving stops, law enforcement must first obtain a search warrant from a judge for a blood draw. Law enforcement had argued that because the alcohol in the blood of a driver accused of a DWI dissipates over time, it was too difficult to require an officer to obtain a warrant before drawing a blood sample.

In McNeely, the Court found that the underlying assumption that police never need to obtain a warrant for a DWI blood draw is incorrect and not supported by prior decisions of the Court.

As Justice Sotomayor noted, the "exigency" that law enforcement claimed always justifies a warrantless blood draw does not exist. In almost all jurisdictions today, a judge is on call 24 hours a day to review a warrant request. Sotomayor noted that there may be circumstances where exigent circumstance may apply to relieve police of the need for a warrant, but they will be examined on a case-by-case basis.

In most cases, because the blood draw is likely to occur at a medical facility, the officer has sufficient time to obtain a warrant prior to the accused even arriving at the facility. Police want a per se rule, because it, in essence, allows them the latitude to be lazy or sloppy.

McNeely in Texas

Recently, reports of numerous DWI cases being thrown out have appeared. These cases are the first where Texas Courts of Appeals have considered cases in light of McNeely and the Texas Court of Criminal Appeals ruling in Villarreal, which found that a state statute requiring officers to obtain blood draws in all cases involving drivers with prior DWI convictions did not absolve them of first obtaining a warrant for those blood draws.

The Austin Statesman reports on 17 cases, where blood tests were tossed out because of the lack of a warrant and Courts of Appeal have affirmed 10 cases where the trial court excluded that evidence.

Texas is asking the Court of Criminal Appeals to reconsider Villarreal, but there appears to be little real justification for such a challenge. Obtaining a warrant in most cases is not very onerous, and if it were in a particular circumstance, the prosecutor can argue such a case should be one of the "special cases" Justice Sotomayor mentioned in her opinion.

Of course, prosecutors can always use other evidence, such as observations of the driver and field sobriety tests to argue for a conviction, but they prefer the apparent scientific certainty of a blood test. But they should not get a free pass around the Constitution.

If you have a case that involves a DWI and a blood draw, you should speak with an experienced attorney like Dan Krieger, who has successfully defended several cases involving this issue in Galveston and Harris County.