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Analysis of the slow demise of the implied consent statute in Texas and the resulting problems
Unsteady as She Goes; Mandatory Blood Draws Silently Go Poof
The opinion of the Supreme Court of the United States in Missouri v. McNeely in mid-April of 2013 caused a huge amount of confusion about the admissibility of alcohol concentration test results derived from blood drawn at the request of the police without the express consent of a suspect. One court concisely stated the holdings in McNeely thusly: “the Supreme Court concluded that a warrantless blood draw was not available, per se, under the exigency exception to the Fourth Amendment’s prohibition on warrantless searches and seizures. Instead, a warrantless blood draw would only be available after analysis of the totality of the circumstances.” The Superior Court of Pennsylvania, in ruling on the issue of implied consent, found this clipping dispositive: “The McNeely Court ruled that ‘[i]n those driving situations 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.’”
Knowing the long use of section 724.012(b) of the Transportation Code and the fact that a statute enjoys a presumption of constitutionality, many Texas prosecutors elected to argue that the decision in McNeely did not affect the drawing of blood under that law, which essentially said that a suspect in certain types of DWI cases could not countermand the consent the legislature had implied or deemed to arise for the taking of a blood sample. Texas courts had previously found this statute permitted the drawing of blood (a type of search) without the necessity of first also securing review by a magistrate (through the warrant process) of the factual basis for an officer’s belief that evidence of blood alcohol concentration would be found. As Missouri had no similar statute, McNeely did not involve any of the special circumstances established in section 724.012 as demonstrating an increased need for a blood sample and thus a more streamlined procedure for getting one. See State v. Won, 332 P.3d 661(Haw. App. 2014). Nevertheless, defense attorneys were quick to argue the statute could not be constitutionally applied, except perhaps where so-called “exigent circumstances” (aside from the mere metabolic dissipation of alcohol by the human body) made the warrant process much more likely a destruction-of-evidence process.
Some Texas trial court judges determined searches under section 724.012(b) remained reasonable, or at least that McNeely did not require a contrary ruling. And, having secured a favorable pretrial ruling, prosecutors often chose to proceed to disposition of their DWI or associated cases. Many trial judges went the other way, finding that evidence obtained through reliance on section 724.012 had become inadmissible. In those cases, many prosecutors chose to file an interlocutory appeal and placed the prosecutions on hold. Other times, they went to trial, sometimes electing to try to prove their case without the blood test results, but other times assuming they could defend the trial judge’s favorable ruling upon any appeal.
As difficult as McNeely made it for Texas prosecutors to know what to do, the response of the Texas appellate courts, and particularly the Court of Criminal Appeals, proved equally frustrating.
The first application of McNeely to section 724.012 came on October 15, 2013 2013, just six months after “McNeely motions” started to be filed. In Douds, the panel majority observed: “The statute does not purport to authorize a warrantless blood draw based solely on the natural metabolization of alcohol in the bloodstream; instead, it sets forth multiple, specific circumstances in which a blood draw is required. The circumstances here do not involve solely the natural metabolization of alcohol in the bloodstream.” The court found the need for a warrant was excused under the particular circumstances of the case, however, because considerable time “had to be taken to investigate the scene of the accident and determine the need for medical treatment.” It thus felt the case was analogous to the search that had been authorized in Schmerber.
A couple of weeks later (on October 31, 2013), in Smith the Thirteenth Court of Appeals found the statute’s provision for a search based on implied consent was another method of conducting a constitutionally valid search. The court specifically said: “McNeely clarified exigency; it did not invalidate Texas’ implied consent statute.” The Smith rationale was then adopted by the Sixth Court of Appeals on January 8, 2014 in deciding Reeder. Both Smith and Reeder involved persons whose blood test was actually used as evidence against them. Thus, trial judges likely became more comfortable in denying McNeely motions. And, equally important, defense attorneys were comfortable in advising clients to go ahead and enter conditional guilty pleas (hoping to win a reversal on appeal, if ever).
But, Texas’ appellate judges were soon to flip-flop. On January 23, 2014, the Thirteenth Court of Appeals now found section 724.012 actually called for a non-consensual search because “the mandatory blood draw law is premised on refusal to consent.” It determined the statute was inconsistent with the Fourth Amendment if intended to specify some “new exception to the Fourth Amendment’s warrant requirement separate and apart from the consent exception and the exception for exigent circumstances.” The Seventh Court of Appeals reached the same conclusion on April 7, 2014 in Sutherland, depending not so much on McNeely as the fact that the Supreme Court had remanded the 2012 decision in Aviles back to the Texas Fourth Court of Appeals for further consideration in light of McNeely. The Amarillo Court reasoned: “By vacating and remanding Aviles, it would seem that the United States Supreme Court has rejected any position that would treat Section 724.012(b)(3)(B) as an exception to the Fourth Amendment, separate and apart from the traditional, well-established exceptions.”
These decisions, as well as a stream of similar decisions over the next many months from all of the other Texas intermediate courts, were nevertheless slow to change the minds of some prosecutors (but increasingly resulted in trial judges granting suppression motions based on McNeely). The ultimate effect was misuse by prosecutors of section 724.012 in about 40 prosecutions. Almost all of those convictions have now been reversed and remanded for new trials (to be conducted without the benefit of the alcohol test result). In a few, the appellate courts affirmed the convictions, finding that the issue had not been properly preserved for review or had been waived. In a few instances, the appellate court found the state had proved the blood draw was reasonable in light of exigent circumstances (that made the warrant requirement impractical). In a few others, the conviction was upheld upon a finding that admission of the blood test result was harmless. In one case, the court found actual, voluntary consent was given (to the doctor) despite the officer’s intent to secure blood based on implied consent. Donjuan v. State, 461 S.W.3d 611 (Tex. App.—Houston [14th Dist.] 2015, no pet.). In general, however, this course represented a waste of resources and no doubt clogged some trial dockets.
Additionally, in some 35 or so instances, prosecutors chose to delay DWI trials by filing an appeal from an order granting suppression. Travis County prosecutors spearheaded this approach, eventually filing at least 17 such appeals and then PDRs in 13 of those cases. Other counties whose prosecutors were active in the battle included those in Nueces, Tarrant, and Bexar Counties. The decisions in many of those cases were long in coming, sometimes more than two years later. While the decision not to accept the ruling of the trial court was not frivolous, the net effect of those appeals may be that many of the cases (already made weaker by the loss of the blood test results) can no longer be successfully prosecuted—due to the long delays generally encountered in getting a ruling from the appellate courts.
The principal cause of this chaos likely lies how the Villarreal case was handled by the Court of Criminal Appeals and the failure of the Supreme Court of the United States to clarify its holding in McNeely until June 23, 2016.
While Villarreal involved a case entitled to faster determination by law, the Court of Criminal Appeals was slothful in its resolution. The PDR was filed on March 11, 2014. Review of the case was granted on May 7, 2014. Indicative of the importance of a prompt resolution, the State filed its brief on May 19. But, the court then allowed Villarreal to postpone filing his brief until July 28. And the case was not submitted until October 1. An opinion was delivered on November 26, 2014, that is, much quicker than usual—based on the submission date.
In what turned out to be a disservice, the Nueces County prosecutor filed a motion for rehearing. With three of the judges who had ruled in the case (as part of the five-judge majority) leaving the court on December 31, 2014, this proved an enticement to continue the fight as far as many prosecutors were concerned. It also proved to be a difficult problem for the court. Uncharacteristically, it granted a rehearing on February 25, 2015, without issuing an opinion. Instead, presumably because of the change in the makeup of the court, the case was reset for oral arguments on March 18, 2015. Everyone then waited breathlessly for a decision, month after month after month. It did not come until December 16, 2015. The apparent reason was that Judge Meyers needed to switch his vote. Regardless, the timing and scope of the turnover on the court ended up pushing back the final solution to the problem by almost 13 months.
Of interest, the Supreme Court of the United States declined to review the decision in Villarreal (as well as in Burks, another case involving section 724.012). While refusal to grant certiorari supposedly says nothing about the validity of the lower court’s ruling or its holdings and the high court’s decision is actually limited to the specific case before it, everyone presumes section 724.012(b) is now a dead letter, as decided by five state judges’ perception of what a higher court had implicitly ruled . And life can finally go on.
Unfortunately for prosecutors in Tennessee, a similar scenario is playing out there. The Tennessee Supreme Court has now taken almost two years to determine whether the state can use blood test results in the case of Corrin K. Reynolds, having granted review of the November 12, 2014 decision of the Court of Criminal Appeals holding the evidence admissible (without any apparent urgency in reaching a decision). In the meantime, the Tennessee Court of Criminal Appeals has largely retracted what it said in the Reynolds case. State v. Carter, ___ S.W.3d ___ (Tenn. Crim. App. May 20, 2016). And even in those states where the courts ultimately upheld the admission of warrantless blood testing conducted before the McNeely decision (based not on McNeely but rather on an officer’s “good-faith” reliance on the perceived meaning of Schmerber), some courts were very slow in providing guidance even on that issue. E.g., People v. Harrison, ___ N.E.3d ___ (Ill. App. Feb. 18, 2016).
5s and no doubt clogged some trial dockets.
Additionally, in some 35 or so instances, prosecutors chose to delay DWI trials by filing an appeal from an order granting suppression. Travis County prosecutors spearheaded this approach, eventually filing at least 17 such appeals and then PDRs in 13 of those cases. Other counties whose prosecutors were active in the battle included those in Nueces, Tarrant, and Bexar Counties. The decisions in many of those cases were long in coming, sometimes more than two years later. While the decision not to accept the ruling of the trial court was not frivolous, the net effect of those appeals may be that many of the cases (already made weaker by the loss of the blood test results) can no longer be successfully prosecuted—due to the long delays generally encountered in getting a ruling from the app