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The Court of Criminal Appeals Ruled That Police Can’t Take Blood From DWI Suspects Without a Warrant

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Over recent years, a DWI enforcement policy called “no refusal weekend” has become increasingly popular in Texas cities. During weekends when DWI arrests are more common—usually holiday weekends, or on days like St. Patrick’s Day or Super Bowl Sunday—police will institute a policy that essentially prevents DWI suspects from refusing to provide a blood or breath sample to an arresting officer. 

No Refusal Weekend policies have been controversial since they started popping up in Texas about a decade ago: Nobody wants to be on the road with drunk drivers, but there’s been a longstanding Fourth Amendment concern with the process. Is it “unreasonable search and seizure” to be forced to provide a blood sample without a warrant and based solely on a police officer’s suspicion that you’re drunk? 

This has led to lawsuitsboth in and out of Texaschallenging aspects of the practice. The Texas Court of Criminal Appeals ruled on one such case last week, deciding that the “implied consent” provisions of the Texas Transportation Code (which holds that if you’re driving a car on a public road, you implicitly consent to breath or blood testing in the field if a police officer feels it’s necessary to gather evidence against you) are unconstitutional.

In a 5-4 decision, the highest criminal court in the state ruled against prosecutors

“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 wrote on behalf of the five majority opinion judges.

The most important words in Judge Alcala’s decision are “in the absence of a warrant,” which means that no refusal policies in many parts of the state will remain unchanged. In Bexar and Harris Counties, for example, a night judge approves a warrant before blood is taken, while in Travis County, that’s a “general policy.” (In Montgomery County, warrant paperwork can be approved within minutes of the stop.) In the places where field testing is done before a warrant is obtained, the process will change to comply with the requirement that officers receive the proper paperwork before administering the test. 

No refusal weekends and nights likely won’t end, and neither will the controversy surrounding them. There is also concern about the way that warrants are obtained during these events. As Daily Post contributor Jeff Winkler wrote for The Fix in 2012: 

Another one of [defense attorney Jamie] Balagia’s objections to No Refusal is the rubber-stamping of blood warrants. “I’ve never seen a judge say no,” he said. “Why not have a chimpanze rubber-stamp these warrants? Because they are not turning down or rejecting any of them.”

A local ACLU representative agreed, saying she couldn’t think of a single example of a judge declining to sign a warrant.

Evelyn McKee, presiding judge of the Austin Municipal Court, told The Fix why. Rejection of blood warrants doesn’t happen often because, she said, “Generally, if the probable cause for the underlying charge is sufficient, then it’s probably going to be sufficient for the warrant.”

So while it might sound like hyperbole when Balagia says that the No Refusal law essentially means, “We’re going to take your blood no matter what you do”—in practice, it rings true.

Perhaps this just means that opponents of the policy might start targeting the warrant process next, but regardless, the concept of “implicit consent” granted just by driving a car has been dealt a blow by a narrow margin in the court. The practical effects of that may just be that more late-night judges will be sitting by the phone during no refusal weekends. 

(image via Flickr)

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