Today the Texas Court of Criminal Appeals (CCA) for the first time clearly ruled that the U.S. Supreme Court’s decision in Missouri v. McNeely will be honored in DWI cases. The ruling was a 5 to 4 majority opinion. In State v. Villereal, officers applied a requirement in the Texas Transportation Code that blood be obtained in a felony DWI case, to mean that the blood could be taken without the need for a warrant or consent. The CCA confirmed today that the officers were wrong. In cases where a driver arrested for DWI does not wish to consent to have their blood taken, officers must now get a search warrant from a judge before taking blood from someone.
The U.S. Supreme Court decided in April 2013 that absent consent, warrants were needed to get blood in most DWI cases. Missouri v. McNeely (2013). For the past 2 1/2 years, many Texas prosecutors and some Texas judges have resisted this Constitutional limitation on police power in DWI arrests. Many officers continued to take blood without the consent of those being punctured with needles and without getting warrants from judges.
In the Villeral case, officers relied on language in the Texas Transportation Code 724.012 that states: “A peace officer shall require the taking of a specimen…” if a person has two or more DWI convictions. The statute doesn’t actually say no warrant is required, but officers in Texas DWI cases have interpreted the words to mean they can just take the blood on their own. Unfortunately, Texas DWI lawyers have also allowed this interpretation for decades without seriously contesting it based on the U.S. Constitution.
Harris County, Texas has been seeking search warrants in virtually all DWI refusal cases for the past couple of years. In Houston, judges are on duty 24/7 to review officers’ requests for blood search warrants in DWI arrests. Because of this fairly well entrenched practice, the Villereal case will not affect Harris county DWI cases much.
Many other counties in Texas do not seek search warrants in every DWI refusal case. Texas law does allow the prosecution to simply try to use a driver’s refusal to consent as evidence that they are guilty of DWI. The best DWI lawyers in Houston can minimize the impression that the good choice to refuse can create.
For those counties in Texas that were holding out for the Constitution to fail, today’s holding will require them to get in line with the rest of the country and obtain warrants when they want to take someone’s blood without their permission.
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