Mandatory DWI Blood Draws

Texas Transportation Code’s mandatory blood draw faces constitutional challenge

The Texas Legislature has created a special type of defendant that is treated in a special way. The special defendant is an individual who has either been convicted of driving while intoxicated (DWI) two times or has been placed on community supervision for DWI two times and is arrested a third time for DWI. If, during the arrest for the third DWI, that person refuses to consent to the taking of a sample of his blood, the Texas Transportation Code requires the arresting officer to take a sample. See Tex.Trans.Code 724.012(b)(3)(B). An officer acting pursuant to that section of the Texas Transportation Code has to have reliable information from credible source that the arrestee has two prior DWI convictions. Such an officer need not secure a search warrant, nor does he have to establish specific and articulable facts to support one of the exceptions to the search warrant requirement.

The constitutionality of this type of “implied consent” statute has recently been called into question. The United States Supreme Court recently addressed whether a search warrant is required before the police may seized a sample of a suspects blood for alcohol testing. Missouri v. McNeely, 133 S.Ct.1552 (20130). In McNeely the State of Missouri argued because the alcohol content of a suspect’s blood dissipates over time, the destruction of this evidence is an exigent circumstance. Because an exigent circumstance is present, then the police do not need a warrant to seize the blood from someone who is suspected of driving while intoxicated. The McNeely Court did not completely agree with that reasoning. The McNeely Court agreed that upon arresting an individual for DWI exigent circumstances may exist that allow the arresting officer to forego a search warrant. However, if the arresting officer seizes a sample of blood from a suspect, he is required by the United State Constitution to establish something more than the seizure was pursuant to an implied consent statute and the exigent circumstance is the dissipation of blood alcohol concentration over time.

After McNeely the validity of Texas’s implied consent statute, which is embodied in Tex.Trans.Code 724.012(b)(3)(B), has been called into question by the United States Supreme Court, the Sixth Appellate District Court (Texarkana), and the Thirteenth Appellate District Court. In Reeder v.Texas, the Sixth Appellate District Court sitting in Texarkana applied the U.S.Supreme Court’s holding in McNeely. In Reeder the State established that the defendant had consumed two alcoholic drinks, crashed his car, exhibited glassy, red, bloodshot eyes, and smelled of alcohol. The defendant testified that the crash occurred because he swerved to miss a deer. The State and the defendant both stated that the defendant refused to provide a sample of his blood for testing, the defendant had two prior DWI convictions, and a blood sample was taken without a warrant but pursuant to Tex.Trans.Code 724.012(b)(3)(B).

Within the opinion, the Sixth Appellate Court draws guidance from Aviles v.State. After deciding McNeely the United States Supreme Court directed the Fourth District Court of Appeals sitting in San Antonio to modify its judgment so that it aligned with the holding in McNeely. Aviles v.Texas, 134 S.Ct.902 (2014). Following the directions of the McNeely Court to the Fourth District Court of Appeals, the Sixth Appellate District Court held that the taking of the defendant’s blood based only upon the implied consent provisions of Tex.Trans.Code 724.012(b)(3)(B) violated the defendants Fourth Amendment right to be free from unreasonable searches and seizures.

If you have two prior DWI convictions, did not consent to a blood draw, but the State took a blood sample then you need representation. The attorneys at Guest and Gray Law Firm have the knowledge and skills to effectively represent you. You rights may have been violated and you should contact Guest and Gray Law Firm to discuss the facts of your case.We have offices in Forney and Rockwall and we fight for DWI defendants across Dallas and Fort Worth.No case is too tough for our experienced DWI defense team.Need the best DWI Lawyers on your side? Call Guest and Gray Law Firm.

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