Andrea Westerfeld
In 2013, the Supreme Court decided in Missouri v. McNeely that the mere dissipation of alcohol in the bloodstream was not an exigent circumstance to support a warrantless blood draw in a DWI case.1 As soon as McNeely was handed down, Texas courts began wrestling with how the case affected blood draws under Transportation Code §724.012(b), which requires blood draws in certain circumstances. The Court of Criminal Appeals finally waded into the issue just before Thanksgiving with a thorough opinion in State v. Villarreal and decided that such blood draws were unconstitutional.2 Although not the decision most prosecutors were hoping for, Villarreal addressed all the State’s arguments and gave a clear rule for the future—at least until the U.S. Supreme Court weighs in again.
Legal backdrop prior to Villarreal
Under the Texas Transportation Code, a person is “deemed to have consented” to a breath or blood test if he is arrested for an intoxication offense.3 This consent generally may be revoked, but the consent is irrevocable if the person was involved in a wreck causing serious injury or death or if he has prior convictions for intoxication offenses.4 This implied consent statute was generally recognized by the Texas courts as providing “another method of conducting a constitutionally valid search” where there was no search warrant.5
But in April 2013, the Supreme Court decided Missouri v. McNeely. McNeely dealt directly only with the argument that the natural dissipation of alcohol in the bloodstream did not create a per se exigency exception from the warrant requirement. It even favorably cited implied consent laws, such as those here in Texas, as ways states may expeditiously obtain blood tests in intoxication offenses.6 But broader language in the opinion rekindled the debate as to whether the implied consent statute in Texas could overcome the warrant requirement. Specifically, McNeely held that warrantless searches were reasonable only if they fell within a “recognized exception” and noted that a blood draw implicated a person’s “most personal and deep-rooted expectations of privacy,” requiring a heavy justification.7
The CCA weighs in
After several lower courts had struggled with the issue, the Court of Criminal Appeals opted to take up the question via a State’s appeal from the Thirteenth District, State v. Villarreal. This case involved a very typical DWI investigation where the defendant was stopped for a traffic violation, the officer noted signs of intoxication, and the defendant refused all field sobriety tests and a blood test.8 After learning Villarreal had prior DWI convictions, the officer took him to the hospital for a mandatory blood draw under §724.012(b). The officer admitted in the suppression hearing that he “could have” gotten a warrant, but he did not try to because he did not have to under the implied consent statute. The parties agreed there was no emergency or exigent circumstance, presenting a pure question of the implied consent statute.
The State raised a number of arguments to justify the mandatory blood draw post-McNeely, primarily arguing that the search was justified under the consent exception because of the implied consent statute. The Court of Criminal Appeals went through each argument in turn in a lengthy, thorough opinion written by Judge Alcala.
Implied consent can be withdrawn
The State’s main argument was that the consent exception applied because of the implied consent statute.9 The Court’s rejection of this claim was primarily based on two grounds. First, for consent to be valid, it must be freely and voluntarily given.10 The Court questioned whether the implied consent statute could qualify as voluntary consent when a person might not even be aware of the waiver. It contrasted this situation with some of the State’s examples in other areas. Other highly regulated areas, such as a U.S. Navy contractor11 or a federally licensed firearm dealer,12 included a contract that they “expressly” agreed to as part of the business agreement. The Court questioned whether consent could simply be assumed by a statute “in exchange for the enjoyment of everyday privileges” and may be “actually unaware” of the waiver.13
The second basis—but the one that the Court seemed to put the most emphasis on—was that consent by its nature requires that the person be able to “limit or revoke it.”14 The Court found simply that a defendant’s “explicit refusal to submit to blood testing overrides the existence of any implied consent.”15 This leaves open the ability to rely on implied consent where a defendant has not expressly withdrawn his consent, but those cases are few and far between.
The Court also distinguished more of the State’s examples in addition to the “highly regulated industries” example. Two federal cases, Knights and Samson, had held that parolees and probationers could be subject to warrantless searches based on their prior consent when accepting the terms of probation.16 But the Texas high court concluded that these cases were examples of where the person “expressly waived” his right to refuse consent, not that it was implied from a general statute.17 Additionally, the Court concluded that these cases were based on the general Fourth Amendment balancing test—discussed below—rather than a consent issue.18
A second example, where students in schools were subject to random drug testing as a condition of participating in extracurricular activities, was distinguished as applying solely in a non-criminal context.19 The CCA also noted that all the other states with implied-consent laws that have considered the issue post-McNeely have found that implied consent is not sufficient, including Idaho, Nevada, Tennessee, South Dakota, and Arizona.20
Overall, the Court concluded that a statute that merely implies a person’s consent rather than relying on his express prior waiver cannot control as consent, particularly if the person later expressly revokes that consent and refuses the search. Without consent, the State must find some other recognized exception to the warrant requirement to justify the mandatory blood draw. The State offered a number of potential exceptions, but the CCA rejected each in turn.
What doesn’t apply
Automobile exception
In addition to its consent argument, the State also argued for an expansion of the traditional automobile exception to cover a blood draw of a driver. Under this exception, a vehicle may be searched so long as there is probable cause to believe it contains contraband.21 The inherently mobile nature of the car serves as the exigent circumstance to avoid the need for a warrant. But the Court summarily rejected this argument, stating that this exception is expressly limited to the vehicular search context and cannot justify a bodily search of the driver.22
Special-needs exception
The Court also rejected the claim that the generalized “special needs” exception could justify the blood draw. This doctrine involves situations where “special needs beyond normal law … may justify departures from the usual warrant and probable-cause requirements, such as searches of probations’ homes.”23 However, the Court was not willing to apply this to the type of DWI stop at issue here. A typical DWI investigation is not one that goes beyond the issues of “normal law enforcements,” and there were no unusual circumstances here that would make seeking a warrant difficult.24 Also, the Court noted that the U.S. Supreme Court has never extended the special-needs exception where the “primary purpose” is to gather evidence for a criminal case.25
Search incident to arrest
Another proposed exception was the search incident to arrest, which allows the police to search a person and the area within his immediate reach upon arrest.26 But the Court noted that the justification for this rule is to ensure officer safety by finding weapons within an arrestee’s immediate reach and to prevent the loss of evidence. A search incident to arrest is therefore not justified if the search is “remote in time or place” from the arrest or lacks exigent circumstances.27 And because McNeely expressly found that the dissipation of alcohol in the blood is not an exigent circumstance, the possible destruction of evidence is not sufficient justification here.28
A blood draw is a search, not a seizure
The State also argued that a blood draw should be considered a seizure of evidence rather than a search and thus subject to different rules. The CCA summarily dismissed this claim, citing U.S. Supreme Court precedent holding that any intrusion “into the human body” is a search.29
General balancing test
The State’s final argument was that a simple balancing test under the Fourth Amendment would reveal the search was reasonable as a whole. Where special law enforcement needs are present, a warrantless search may be justified.30 The State argued that the government’s strong interest in protecting the public from intoxicated driving and the narrowly tailored rules of the implied consent statute were sufficient under the Fourth Amendment.
But the Court rejected this argument as well. It noted that McNeely acknowledged the strong public safety argument yet made it clear that the seriousness of the DWI problem alone was not enough to justify such an intrusive, intimate search as a blood draw.31 The Court distinguished this from the recent Maryland v. King case, where DNA was collected from all arrestees, because 1) the primary purpose was for identification rather than evidence collection and 2) a buccal swab is far less intrusive than a blood draw.32 The CCA also noted, as did the McNeely Court, that the ease of acquiring a warrant in most circumstances diminishes the State’s justification for a special exception.33
The dissent, however, found this exception the most persuasive. Presiding Judge Keller wrote that collecting blood under the implied consent statute falls on the continuum between warrantless searches of probationers and King-type buccal swabbing of all arrestees. Because King held that “the mere fact that a person is arrested for a serious offense” justified a minimally intrusive search, a more intrusive but statutorily standardized search of persons arrested for DWI should also pass constitutional muster.
The dissent notwithstanding, the majority determined that none of the State’s arguments were sufficient to overcome the hurdle of McNeely. A blood draw taken under the §724.012(b) exception does not meet any exception to the warrant requirement.
Going forward
What lessons should prosecutors take from Villarreal? Although the result was not what most prosecutors had hoped for, the Villarreal opinion does appear to address all the State’s arguments and provided a clear rule, though it does not spell out what “exigent circumstances” are (or are not). At the time of this writing, the prosecutors in Villarreal have filed a motion for rehearing, though it has not yet been ruled upon. Certainly a petition for writ of certiorari with the Supreme Court is possible as well. The Villarreal decision was 5–4, so close questions on similar issues may be decided differently.
But for now, unless and until the U.S. Supreme Court weighs in further on implied consent laws, the advice to prosecutors and police seems clear: If the case falls under the mandatory-draw statute, get a warrant for any nonconsensual blood draws—or have a strong exigency argument that depends on more than just the natural dissipation of alcohol in the bloodstream.
Endnotes
1 Missouri v. McNeely, 133 S.Ct. 1552 (2013).
2 State v. Villarreal, No. PD-0306-14 (Tex. Crim. App. Nov. 26, 2014) (slip op.).
3 Tex. Transp. Code §724.011.
4 Tex. Transp. Code §§724.012(b), 724.013.
5 Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002).
6 Id. at 1566 & n.9.
7 Id. at 1558.
8 Villarreal, slip op. at 3-4.
9 Id. at 21. The State had to first overcome the lower court finding that it had waived this argument at the hearing. Most of the lower courts had sidestepped the consent argument, leading to no clear ruling from any court on the issues of implied consent as its own exception. Let’s be thankful that the Court of Criminal Appeals concluded that the overall record did not show waiver so that they could address this complaint.
10 See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), noting that consent cannot be granted “only in submission to a claim of lawful authority.”
11 Zap v. United States, 328 U.S. 624, 627 (1946).
12 United States v. Biswell, 406 U.S. 311, 311-12 (1972).
13 Villarreal, slip op. at 27.
14 Villarreal, slip op. at 23, citing Florida v. Jimeno, 500 U.S. 248, 252 (1991), and Miller v. State, 393 S.W.3d 255, 266 (Tex. Crim. App. 2012).
15 Villarreal, slip op. at 23-24.
16 United States v. Knights, 534 U.S. 112, 116 (2001); Samson v. California, 547 U.S. 843, 852 (2006).
17 Villarreal, slip op. at 27-28.
18 Id. at 28-29. The Court of Criminal Appeals also found it significant that parolees and probationers had already been convicted in a court of law and are subject to different considerations than a person merely detained or arrested by the police.
19 Board of Education v. Earls, 536 U.S. 822, 825 (2002).
20 Villarreal, slip op. at 29-32.
21 California v. Carney, 471 U.S. 386 (1985).
22 Villarreal, slip op. at 32, citing California v. Acevedo, 500 U.S. 565, 580 (1991).
23 Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987).
24 Villarreal, slip op. at 33-34.
25 Id. at 35, citing Ferguson v. City of Charleston, 532 U.S. 67, 83 (2001).
26 United States v. Robinson, 414 U.S. 218, 224-26 (1973).
27 Villarreal, slip op. at 37.
28 Id., citing McNeely, 133 S.Ct. at 1568.
29 Id., citing Schmerber v. California, 384 U.S. 757, 770 (1966).
30 See Illinois v. McArthur, 531 U.S. 326, 330 (2001).
31 Villarreal, slip op. at 38, 47.
32 Id. at 39-42, citing Maryland v. King, 133 S.Ct. 1958 (2013).
33 Id. at 43.