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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Monday, November 4, 2013

Whither Warrantless Blood Alcohol Testing after McNeely? Contrasting Views from Houston's 14th

Facts: Douds, apparently intoxicated, drives his wife from a party and hits another car occupied by other people leaving the party. Douds's wife complains of  chest and rib pain and that she cannot move her right arm. She refuses to transportation to the hospital by the EMTs, instead leaving the scene with the driver of the car hit by her husband. A police officer-- Tran-- arrests Douds and seeks a breath test from him. Douds refuses, and Tran takes him to a local medical center for a mandatory-- that is, warrantless-- blood draw. Douds moves to suppress admission of the blood specimen against him and also seeks to have the warrantless specimen law declared unconstitutional. Tran testifies that he required the blood draw based on the totality of the circumstances, because the wife was injured and would need medical attention. On cross-examination, Tran admits that Douds's wife did not promise to go to a hospital, but Tran maintained that he thought that the lady would seek medical care that night.
The trial judge refused the motion to suppress. Douds pleaded guilty to a reduced charge, but appealed the denial of the suppression and the overruling of the constitutional challenge. Justice William J. Boyce, writing for himself and Justice Martha Hill Jamison, held that the trial judge had found that Tran's testimony credible, and that that was the basis of the denial of the motion to suppress.  Because the trial judge had been able to assess Tran in person while the only thing the justices had was a cold record, the justices were loath to second-guess the trial court, and so affirmed on that issue.
As to the constitutional challenge, Schmerber v. California, 384 U.S. 757 (1966) upheld a warrantless blood draw in an intoxicated driving case against a self-incrimination objection and Missouri v. McNeely, ___ U.S. ___, No. 11–1425 (Apr. 17, 2013) sustained suppression of a warrantless blood draw alleged justified because the dissipation of alcohol from the blood took place so quickly that taking the time to get a warrant was never necessary. The majority of the panel held that Douds's was a different case. Texas's law did not, as the objectionable law in Missouri did, just allow all drunk-driving blood draws. Instead, it set up specific, limited circumstances  under which such blood draws will be allowed. Douds, they argued, had not shown why those circumstances did not constitute exigencies that would excuse the lack of  a warrant, and so upheld the law.
Justice J. Brett Busby dissented; a warrant is required for a blood draw anytime, he said, that there was no exigency or emergency making a warrant impractical or impossible, which is what is required to satisfy McNeely.
Busby's view does seem to me to be consistent with the principle that for a search, a warrant is presumed necessary unless there is a legally recognized excuse. As communication technologies improve, there are fewer and fewer excuses for not getting a warrant. Hence the no-refusal weekends of my home Montgomery County Texas.
Kenneth Lee Douds v. State of Texas, ___ S.W.3d ___, No. 14-12-00642-CR (Tex. App.-- Houston [14th Dist.] Oct. 15, 2013, no pet. h.)

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