By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

On January 9, 2013 the U.S. Supreme Court heard oral arguments in the case of Missouri v. McNeely. The Court granted this appeal to consider whether law enforcement may obtain a nonconsensual and warrantless blood draw from a suspected drunk driver under the “exigent circumstances” exception to the constitutional requirement of a warrant. The arguments advanced by the government were met with healthy dose of criticism from all sides of the bench.

Should the Court render an opinion consistent with their attitudes during oral argument, it would certainly impact the way officers do business. In Texas, there are 3 scenarios in which an officer may forcibly take a blood sample without a warrant: (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.

A blood draw implicates hundreds of years of Fourth Amendment search and seizure jurisprudence. Under the law, the government forcibly drawing a person’s blood is fairly analogous to the government forcibly entering a person’s home. In either of these scenarios, the Fourth Amendment guarantees protection from unreasonable searches by requiring law enforcement to obtain a search warrant, unless one of several constitutional exceptions apply. In the case of a warrantless forcible blood draw, which is considered a search, Texas and many other States have escaped neutral and detached scrutiny by a judge under the doctrine of “exigent circumstances.” The exigent circumstances doctrine forgives a warrantless search in cases where evidence will disappear in the 5 – 20 minutes it takes obtain a warrant via phone or fax.

The Justices seemed quite reluctant to accept this sort of an exception in the context of DWI blood draws. Justice Scalia noted his fear of granting officers unfettered authority when he explained “once police don’t need a warrant . . . the game’s over.” In a similar fashion, Justice Sotomayor commented that the court shouldn’t “reward police in the least efficient jurisdiction, warrant-wise, by writing a national decision that ended any warrant requirement.”

The written opinion, which is soon to follow, will bind all jurisdictions to a constitutional procedure which appears will be something short of wholesale disregard for the warrant requirement. It will (hopefully) be an interesting opinion to read.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.