In a 1966 decision, Schmerber v. California, the U.S. Supreme Court issued a landmark decision extending a limited exception to the Fourth Amendment “warrant requirement” to certain alcohol-related cases. Specifically, the court held that when an arresting officer faces an “emergency situation,” he does not have to obtain a search warrant before taking a blood sample if he believes delay will result in the destruction of evidence. Because the percentage of alcohol in the blood stream quickly diminishes when the consumption of alcohol ceases, state law enforcement, prosecutors, and courts uniformly made dissipation of alcohol of exigent circumstances eliminating the need for a warrant in blood draw cases. This remained the rule of law until January 2013 when the Supreme Court in Missouri v. McNeely held that the dissipation of blood-alcohol alone is not a sufficient exigency to justify dispensing with the warrant requirement.
Texas courts have reached divergent conclusions about the constitutional impact of McNeely. On November 26, 2014, the Texas Court of Criminal Appeals in State v. Villareal offered significant clarification on the warrantless blood draw issue. The court held that “the warrantless, nonconsensual testing of a DWI suspect’s blood does not categorically fall within any recognized exception to the Fourth Amendment’s warrant requirement, nor can it be justified under a general Fourth Amendment balancing test.”
David Villareal was stopped for a traffic violation one Saturday evening in 2012 a police officer named Preiss. The officer believed Villareal exhibited signs of intoxication. He radioed another officer named Williams to conduct a DWI investigation. Upon arrival, Officer Williams noticed the following indicators of intoxication: slurred speech, strong odor of alcohol, red-watery eyes, and inability to stand straight. As required by state law, Officer Williams gave Villareal a “written statutory warning” requesting that he consent to a blood draw. Villareal was informed that a failure to consent could be used against him in any criminal prosecution and would automatically result “in the suspension or denial of his driver’s license for not less than 180 days.
Villareal refused to give consent. Pursuant to Tex. Transp. Code, § 724.012(b) (3) (B), Officer Williams then ran a criminal-history check on the defendant and found he had prior DWI convictions. As required by the statute, the officer transported Villareal to a hospital and had a qualified technician take a blood sample over the suspect’s objection. The sample indicated a blood alcohol content above the legal limit.
The relevant statutes before the Court of Criminal Appeals in the Villareal case were §§ 724.011(a) and 724.012(b)—the former involving implied consent and the latter involving mandatory blood draw. Both of these statutes have created the belief in the law enforcement community that they provide an exception to the warrant requirement. The appeals court explained the basis for this perceived misconception:
“ … Although [§ 724.011(a)] appears to create a blanket rule of consent for all individuals arrested for DWI, its terms are further modified by Section 724.013, which establishes a right to refuse to provide a breath or blood sample in routine DWI cases. That provision, … provides that, ‘a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.’ But this right of refusal is not absolute. Section 724.012(b), in turn, establishes that, when certain aggravating factors are present during a DWI stop, a suspect may not refuse to submit to a specimen and, even if a suspect refuses, an officer is required to obtain a specimen. Id. § 724.012(b).
In a criminal investigation, the Fourth Amendment protects against the search of a person absent a warrant or a recognized exception to the warrant requirement. Any warrantless search must be examined by the courts under the “totality of the circumstances.” In DWI cases, the Supreme Court in McNeely recognized that a blood draw from a suspect invades a substantial privacy interest, and therefore, the natural dissipation of alcohol does not create an exception to the warrant requirement.
There are, however, situations in a criminal investigation where the police must make on the spot determinations of whether probable cause exists to conduct a warrantless search. In the post-arrest trial process, courts are then asked to determine whether the police acted reasonably in conducting the warrantless search.
This mandates that the court take the “totality of circumstances” approach on a case-by-case basis because there are no per se rules in “the Fourth Amendment context.”
The McNeely court dramatically altered this rule in DWI cases by saying that the natural dissipation of alcohol alone is not a legitimate exception to the warrant requirement.
The Court of Criminal Appeals went further in the Villareal case, and said:
… [I]mplied consent that has been withdrawn or revoked by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires.”
Thus, the bottom line of the court’s decision is that “a DWI suspect’s privacy interests outweighs the State’s interest in preventing the general problem of drunk driving through warrantless searches. McNeely reaffirmed the principle that a compelled physical intrusion beneath the skin to obtain evidence in a criminal investigation implicates significant privacy interests, and this privacy interest is not automatically diminished simply because an individual is suspected of a serious DWI offense. McNeely further rejected the government’s interest in curbing drunk driving as a valid basis for departing from the traditional exceptions to the warrant requirement, stating that ‘the general importance of the government’s interest in this area does not justify departing from the warrant requirement without a showing’ that some established exception, such as exigency, applies. And, although we acknowledge the magnitude of the drunk driving problem in Texas and the government’s legitimate and substantial interest in curbing that problem, we see no compelling need on the part of law enforcement to undertake to solve this problem through warrantless, nonconsensual searches of suspects’ blood. This is particularly so in light of the fact that warrants for such blood testing are often readily available, thereby providing the ‘traditional justification that a warrant provides.’ The marginal benefit to law enforcement in combating Texas’s drunk-driving problem through warrantless searches is generally outweighed by an individual’s substantial privacy interest here.”
This decision will undoubtedly trigger consternation among DWI prevention advocates, but the rule of law must be obeyed. The reality in today’s modern world is that a magistrate or judge is just phone call away and the excuse that alcohol naturally dissipates is no longer a compelling argument to support exigent circumstances in avoiding the Fourth Amendment’s requirement of a warrant. In plain English, police have the time and ability to get a warrant before they draw blood after consent has been refused and the fact that the person is slowing sobering up is not a good excuse to avoid the Constitutional requirements of a warrant.
We must embrace all facets of the Constitution, not just those we like.