The Fourth Amendment, which protects the individual from unreasonable search and seizure by the government, is probably the most difficult of all the bill of rights to understand and apply. The state and federal courts have sought to define the contours of the amendment for the past 100 years, including, on many occasions the U.S. Supreme Court. It has often proven to be a futile and convoluted process. This has been particularly so in DWI cases.
Requirement of Warrant to Search
As a general rule, the police must have a warrant before they can search an individual and seize their person or property. A warrant is obtained from a magistrate or a judge when the officer sets forth in a sworn affidavit the facts necessary to establish probable cause for the issuance of the warrant.
Exceptions to Warrant Requirement
Over time, the courts recognized the need to have exceptions of what is called the “warrant requirement.” These exceptions apply in the following general situations:
- Evidence is in immediate danger of being destroyed;
- The safety of the officer or public is at risk;
- The police are in hot pursuit of a suspect; and/or
- The suspect is likely to flee before a warrant can be obtained.
Law enforcement continuously face situations where they must make an on-the-spot determination of whether he or she has probable cause to conduct a warrantless search. It then becomes the responsibility of the courts to determine whether the warrantless search falls into one of the general or specifically recognized exceptions to the warrant requirement.
In 1999, the Supreme Court in Wyoming v. Houghton held that this judicial determination is made “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree which it is needed for the promotion of legitimate governmental interests.” This requires the court to consider the “totality of the circumstances’ in each given case because there are no per se rules in “the Fourth Amendment context.”
That’s why fashioning acceptable rules around DWI cases has always proven problematic.
Exception in Alcohol Related Cases
In 1965, the U.S. Supreme Court in Schmerber v. California extended a limited exception to the warrant requirement in alcohol-related cases. The exception held that when an officer faced an “emergency situation,” he did not have to obtain a search warrant before taking a blood sample from a person suspected of being intoxicated because delay would 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 the courts uniformly made dissipation of alcohol an “exigent circumstance” eliminating the need for a warrant in order to take a blood sample in suspected DWI cases.
2013 SCOTUS Dissipation Not Per Se Exigency
This legal landscape was dramatically altered in 2013 when the Supreme Court in Missouri v. McNeely held that the dissipation of blood-alcohol alone is not a per se exigency sufficient to justify dispensing with the warrant requirement.
The following year the Texas Court of Criminal Appeals in State v. Villarreal adopted the McNeely rationale; namely, that a warrantless search is almost always unreasonable unless it falls within a well-recognized exception to the warrant requirement.
But neither McNeely nor Villarreal addressed the specific issue of whether there are circumstances surrounding a warrantless blood draw that would create an “exigency exception” that would make the search constitutionally permissible.
The Court of Criminal Appeals addressed the issue on May 25, 2015 in Weems v. State.
The facts in the Weems case were not in dispute.
Weems v. State
In June 2011, the defendant and a friend were drinking together in a bar. They left together in a vehicle with defendant at the wheel. The vehicle veered off the road, flipped over, and struck a utility pole. A passing motorist stopped at the wreck scene. She saw defendant crawl out the driver’s window and stumble around trying to maintain his balance. The motorist asked the defendant if he was okay or drunk. He replied that he was drunk.
The passenger then got out of the vehicle and was pretty banged up. The motorist noticed a strong odor of alcohol coming from the wrecked vehicle. She called 911.
A Bexar County sheriff’s deputy arrived at the scene. He determined that the defendant had fled the scene. Another passing motorist who had stopped at the scene informed the deputy that a man was under her vehicle. The deputy instructed the defendant to come out from under the vehicle. He noticed that the defendant’s eyes were bloodshot, his speech slurred, his breath smelled of alcohol, he was unsteady on his feet, and his face was bloody.
Another deputy arrived at the scene. It was approximately 12:30 a.m. This deputy took the defendant into custody. Because of the injuries the defendant had received in the wreck, the second deputy decided not to conduct a standard field sobriety test.
Refused Breath or Blood
In any event, the defendant refused to give the deputies at the scene either a breath or blood sample.
EMS personnel arrived at the scene. They decided to transport the defendant to an area hospital. The trip took a “couple minutes,” according to the arresting deputy. The defendant was placed in the hospital’s trauma unit. The arresting deputy filled out a form requesting a blood sample for alcohol testing. Emergency room personnel were busy that Sunday morning. It was 2:30 a.m. before the blood sample was taken from defendant.
An ensuing test revealed defendant’s BAC was .18—well above the legal limit of .08.
Convicted of Felony DWI and Sentenced to 8 Years in Prison
Defendant’s counsel moved to suppress the blood sample evidence. The McNeely decision had been handed down in the middle of defendant’s trial. The trial judge denied the motion to suppress. Defendant was convicted of felony DWI and a jury assessed his punishment at eight years.
The Fourth Court of Appeals reversed defendant’s conviction. The appeals court found that in light of McNeely, Texas’s implied consent and mandatory blood-draw schemes did not create an exigency exception to the warrant requirement.
Court of Criminal Appeals Hears Suppression Issue
The Court of Criminal Appeals granted the State’s petition for discretionary review. The court recognized that the McNeely court had left open the door to circumstances that could justify a warrantless blood draw.
While dissipation of alcohol alone is not a sufficient exigent circumstance to conduct a warrantless search, the McNeely court said this circumstance in conjunction with the following circumstances could create exigencies justifying a warrantless blood draw:
- The procedures in place for obtaining a warrant;
- The availability of a magistrate judge; and
- The practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence.
The Weems court found these collateral circumstances not only persuasive but applicable to its decision to find that the defendant’s warrantless blood draw not justified by “exigent circumstances.”
Court Rejected Factors Supporting Exigent Circumstances
Before reaching this conclusion, the court considered and rejected the following circumstances favoring exigency:
- Defendant wrecked his vehicle at approximately 11:30 p.m.;
- He hid from law enforcement for about 40 minutes
- The defendant’s blood alcohol level dissipated during this timeframe; and
- Neither McNeely nor Villarreal required the court to turn a “blind eye” to dissipation of alcohol as a factor in determining exigency.
The court then pointed out that beyond these circumstances, there was “little else” in the record “to support [a] finding of exigency” in defendant’s case. For example, the court considered these circumstances to find the warrantless blood constitutionally unacceptable:
- The record was silent as to whether the deputy knew upon arriving at the hospital that it would take more than two hours to draw the defendant’s blood.
- The deputy did not “express surprise” over the blood draw delay.
- The deputy knew that on Sunday mornings, hospital ERs “tend to get kind of busy” and he was aware that this could lead to a delay in the blood draw.
- The deputy’s knowledge about ER practices suggests that the possibility that a delay was “at least foreseeable.
- The deputy described the “routine process” for securing a blood draw warrant: suspect is taken to Magistrate’s Office where they are asked to “consent to a blood draw;” and if they refuse, the officer prepares an affidavit for a warrant. There was no evidence in the record as to how long this process takes.
- The record did not reflect what procedures, if any, are in place when an arrestee is taken to the hospital rather than to the Magistrate’s Office and whether the deputy could have reasonably obtained a warrant during this process.
- A second deputy was present at the hospital with the transporting deputy, and while another deputy’s presence alone does not necessarily mean a warrant could have been obtained by one or the other, the second deputy’s “continued presence” at the hospital suggest that a warrant could have been reasonably obtained before the blood draw was taken.”
State Failed to Meet Burden and Establish Exigent Circumstances Justifying Warrantless Search
These circumstances led the court to its final conclusion:
“McNeely commands that ‘where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.’ On the record [in the Weems case], the State is unable to demonstrate that practical problems existed in obtaining a warrant ‘within a timeframe that still preserved the opportunity to obtain reliable evidence.’ The State failed to meet its burden and establish that exigency circumstances existed to satisfy the Fourth Amendment’s reasonableness standard.”