TX10: Implied consent law not unconstitutional; doesn’t mandate 4A violation

The Texas implied consent statute mandating blood samples in certain types of cases is not facially unconstitutional because it does not mandate violating the Fourth Amendment. McGruder v. State, 2014 Tex. App. LEXIS 9022 (Tex. App. – Waco August 14, 2014):

Section 724.012(b) merely requires an officer to take a blood or breath specimen in certain circumstances. What makes the statute mandatory is that the officer has no discretion in those situations to obtain either a blood or a breath specimen. It does not mandate, nor does it purport to authorize, a specimen be taken without compliance with the Fourth Amendment. And although the Court of Criminal Appeals has said that the implied consent law, the body of law in which this particular statute is contained, enables officers to draw blood in certain limited circumstances, a.k.a. exigent circumstances, even without a search warrant, the Court also said that the law did not give officers the ability to forcibly obtain blood samples from anyone just because they were arrested for DWI. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). Further, the Court did not hold in Beeman, and has not yet held, that section 724.012(b) is an exception to the Fourth Amendment’s warrant requirement such as the consent exception or the exigent circumstances exception. See Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645, *35 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish).

Further, as written, section 724.012(b) does not require a blood or breath specimen to be taken contrary to the Fourth Amendment; that is, without a warrant or without a recognized exception to the warrant requirement. See Forsyth v. State, No. 11-12-00198-CR, 2014 Tex. App. LEXIS 8381, *22 (Tex. App.—Eastland July 31, 2014) (no pet. h.) (publish) (“…Section 724.012 does not instruct an officer to take a person’s blood without a warrant or in violation of the Fourth Amendment,” citing Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish)). We agree with the Houston Court of Appeals when it aptly noted, “We have no reason to fault the constitutionality of the mandatory blood draw statute in this case because it did not require [the officer] to obtain a blood draw without first securing a warrant. It is the officer’s failure to obtain a warrant and the State’s failure to prove an exception to the warrant requirement, not the mandatory nature of the blood draw statute, that violate the Fourth Amendment.” Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, *48-49 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish).