Two of this week’s Texas McNeely opinions

Defendant’s warrantless blood draw was without exigent circumstances after he withdrew his consent. The motion to suppress should have been granted. Leal v. State, 2014 Tex. App. LEXIS 12286 (Tex. App. – Houston (14th Dist) November 13, 2014) (with dissent).*

Despite DUI implied consent statute, the state must still comply with McNeely. A driver’s license is not a blanket consent to a blood search. Gore v. State, 2014 Tex. App. LEXIS 12326 (Tex. App. – Houston (1st Dist.) November 13, 2014):

A few courts have discussed the import of Justice Sotomayor’s comments on the necessity for warrants in states with implied consent laws. In Anderson, the Beaumont court of appeals addressed an argument identical to that made by the State here, i.e., that the plurality’s mention of implied consent laws as a “legal tool[] to enforce their drunk-driving laws and to secure BAC” means that implied consent laws provide a lawful method for a warrantless blood draw. The Anderson court points out that the McNeely plurality actually states that implied consent statutes provide “a broad range of legal tools to enforce [a State’s] drunk driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws.” 2014 WL 5033262, at *10 (quoting McNeeley, 133 S. Ct. at 1566 (plurality opinion) (emphasis added)). And, the Tennessee Court of Criminal Appeals has noted that Justice Sotomayor’s plurality points out that implied consent laws “impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist refusal to take a BAC to be used as evidence against him in a subsequent criminal prosecution.” Wells, 2014 WL 4977356, at *13 (quoting McNeely, 133 S. Ct. at 1566 (plurality opinion) (emphasis added)).

We agree with the Anderson and Wells courts and conclude that Justice Sotomayor’s plurality opinion does not provide support for the State’s position. The plurality opinion points out that implied consent laws are another tool for obtaining BAC evidence; it does not, however, hold that such laws authorize warrantless nonconsensual blood draws. Instead, it points out that defendants may consent to avoid the penalties of noncompliance such as the loss of a driver’s licence. Similarly, the plurality opinion supports the position that consent provided under these statutes can be withdrawn.

The State in this case argues that “[t]he acceptance of a driver’s license is conditioned upon the implied consent for providing a blood sample or a waiver of the warrant requirement in certain circumstances.” Essentially, the State argues that in order to obtain the privilege of driving in Texas, one must give up one’s Fourth Amendment right to be free from warrantless searches in certain circumstances.

The Supreme Court considered this issue in another context. In Frost v. Railroad Comm’n of Ca., 271 U.S. 583, 593, 46 S. Ct. 605, 607 (1926), the Supreme Court considered a statute that required a private carrier, in order to have the privilege of using California highways, to submit to regulations applicable to common carriers. The Supreme Court had already held that private carriers could not be converted to common carriers against their will, and in Frost, further held that legislation conditioned on the waiver of that constitutional right could not stand. Id. In so holding, the Court stated: ….