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Mandatory Blood Draws After McNeely and Villarreal

Drawing blood from a vein for laboratory analysis

You had several beers at the local bar.  You know driving is dangerous but you decide to chance it.  Suddenly, a police officer flashes his lights behind you.  You are caught.  Panic sets in. However, things get worse!  The officer informs you this is the non-refusal weekend, and he asks for a blood sample.  You refuse. He takes you to the local hospital and instructs the nurse to extract the blood sample despite your refusal.  He never pursued a warrant.  What are your rights?

Missouri v. McNeely

Well, a similar scenario happened to a Missouri man in the United States Supreme Court case of Missouri v. McNeely, 133 S.Ct. 1552.  The defendant’s name is Tyler McNeely.  An officer arrested Mr. McNeely for drunk driving after noticing that he had signs of intoxication, including bloodshot eyes, slurred speech, and the smell of alcohol on his breath. Additionally, Mr. McNeely failed the standard field sobriety tests and refused to give a breath or blood sample.  The officer took him to a nearby hospital and directed a lab technician to draw his blood despite his refusal. The officer never got a search warrant and charged Mr. McNeely with a DWI.  Mr. McNeely was subsequently convicted because the blood sample determined that he was intoxicated.

Warrantless Searches Unconstitutional In Blood Draws

The Court used McNeely to reaffirm the fundamental principle that the Fourth Amendment protects Americans from warrantless searches and seizures.  The Court said this fundamental principle is especially robust when it comes to a nonconsensual intrusion into one’s body.

Unless There Are Exigent Circumstances

Nevertheless, the Court said there are exceptions to the warrant requirement.  One such exception is where there are exigent or emergency circumstances.  Missouri argued that there was an exigency or emergency condition in the McNeely case: the fact that the alcohol in McNeely’s blood would have evaporated if the officer had waited to get a warrant.  Missouri went even further arguing that given the evanescent nature of blood alcohol there should be a “per se” exigency in all blood draw cases, forgoing the need for warrants.

The Court rejected Missouri’s arguments.  It held that the evanescent nature of blood alcohol alone does not constitute a per se exigency to justify warrantless blood draws.  Instead, the Court held that it is necessary to conduct a case-by-case analysis based on the totality of circumstances to determine whether an exigency exist.  Hence, Mr. McNeely’s DWI conviction was overturned, and criminal defense attorneys across the nation celebrated.

State of Texas v. David Villarreal

Wait a minute, says Texas prosecutors, not so fast, Texas is not bound by McNeely.  Texas prosecutors made this argument on appeal in State v. Villarreal, 2014 WL 6734178.  In this case, a Texas law enforcement officer arrested David Villarreal for DWI following a traffic violation.  The arresting officer “observed that Villarreal was exuding a strong odor of alcohol, was swaying back and forth, and had red, watery eyes and slurred speech.”  Mr. Villarreal refused to do the standardized field sobriety tests or give a blood sample.  The officer instructed a nurse to take a sample of Mr. Villarreal’s blood despite his refusal.  The test showed that Mr. Villarreal’s blood alcohol concentration was 0.16, which is twice the legal limit.  Moreover, he had multiple DWI arrests.  Hence, he was indicted for a DWI third, a felony.

Implied Consent Not A Justification Warrantless Blood Draws

Mr. Villarreal’s attorney filed a Motion to Suppress the blood evidence pursuant to McNeely.  The trial court granted his motion and suppressed the blood evidence.  The state appealed.  The case went to the Court of Criminal Appeals (CCA), the highest criminal court in Texas.  Despite McNeely, the state argued on appeal, among other things, that the implied consent provision in Section 724.011 of the Texas Transportation Code was an exception to McNeely.  Essentially, the State argued that Texas residents forfeited their Fourth Amendment rights when they decide to drive on Texas roads and highways.  Fortunately, the CCA rejected this senseless argument and held that McNeely was indeed the law of the land in Texas and Texans do not waive their Fourth Amendment rights to drive on Texas roads and highways.  True to form, the State has not given up its fight.  It filed a Motion For Rehearing and the CCA granted it.  Hence, Villarreal will be argued and/or briefed again.

Bottom Line

In conclusion, local jurisdictions may still implement a no refusal policy making it mandatory for Texans to give blood samples in DWI cases.  However, for now, officers must get a warrant prior to the blood draw unless there are exigent circumstances to justify precluding the warrant requirement.

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