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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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    tphillip | December 1, 2014 at 6:30 am

    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.

    Henry Hawkins | December 1, 2014 at 12:11 pm

    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.

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