{"id":10284,"date":"2014-01-26T15:46:19","date_gmt":"2014-01-26T15:46:19","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2014-01-26T15:46:19","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=10284","title":{"rendered":"TX13: Being repeat DWI offender doesn’t dispense with warrant requirement for blood draw"},"content":{"rendered":"

The mere fact defendant was a repeat DWI offender is not an exigent circumstance to overcome the warrant requirement for a BAC test where there\u2019s no consent. State v. Villarreal<\/a>, 2014 Tex. App. LEXIS 645 (Tex. App. \u2013 Corpus Christi & Edinburg January 23, 2014):<\/p>\n

<\/p>\n

To date, neither the United States Supreme Court nor the Texas Court of Criminal Appeals has recognized the repeat offender provision of the mandatory blood draw law, quoted above, as a new exception to the Fourth Amendment’s warrant requirement separate and apart from the consent exception and the exception for exigent circumstances. In fact, in Beeman, the Texas Court of Criminal Appeals recognized that these laws do not give police officers anything “more than [what] the Constitution already gives them.” Beeman, 86 S.W.3d at 616. Accordingly, we conclude that the constitutionality of the repeat offender provision of the mandatory blood draw law must be based on the previously recognized exceptions to the Fourth Amendment’s warrant requirement.<\/p>\n

Here, by the State’s stipulation, “there was no consent.” There was nothing stopping the officer from obtaining a warrant. There were no exigent circumstances. We believe these are key distinctions between this case and other cases involving warrantless blood draws.<\/p>\n

Given the absence of a warrant, the absence of exigent circumstances, and the absence of consent, we agree with the trial court’s conclusion that the State failed to demonstrate that the involuntary blood draw was reasonable under the Fourth Amendment or that an exception to the Fourth Amendment’s warrant requirement is applicable to this case, as was its burden. See U.S. Const. amend. IV; Ford, 158 S.W.3d at 492. Accordingly, we overrule the State’s sole issue.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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