U.S. Supreme Court Rules In Favor of Fourth Amendment on DWI Blood Draws


A version of this story ran in the June 2013 issue.

The pesky U.S. Supreme Court has once again disappointed the Texas legal system.

In 2009, when the Texas Legislature passed a bill requiring police officers to take blood samples from some suspected drunk drivers even without warrants, prosecutors were ecstatic. Blood tests showing illegal blood-alcohol levels in DWI cases can be as powerful as matching DNA samples in sexual assault cases. But before 2009, an officer in Texas could take a warrantless blood sample only if the suspected drunk driver had just seriously injured or killed someone. Otherwise, the driver could refuse a Breathalyzer test and sit around metabolizing alcohol while the officer worked to get a warrant. To cops and prosecutors, that’s destruction of valuable evidence.

Under the 2009 law, a police officer was required to get a blood sample if a suspected drunk driver refused a breath test and either had a child in the car, had two previous DWI convictions, had a prior conviction for intoxication manslaughter or intoxication assault, or had been in an accident in which anyone but the suspected drunk driver was hurt. Having guaranteed blood samples in the most serious cases didn’t just mean more successful prosecutions; it meant fewer DWI cases going to trial. As Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association, put it, “If it bleeds, it pleads.”

Predictably, some naysayers thought that letting officers decide without judicial oversight whether to forcibly take blood samples from people in custody was creepy and weird—if not unconstitutional. If the Fourth Amendment protection against unreasonable search and seizure applies to your house, shouldn’t it also apply to your veins?

Clay Abbott, the Texas District and County Attorneys Association’s DWI Resource Prosecutor in Austin, had some pretty smug words for those people. In the September-October 2009 issue of the group’s magazine, The Prosecutor, Abbott wrote, “The initial media coverage of this new law was full of ‘concerned’ criminal defense lawyers and civil rights experts ‘wondering about its constitutionality.’ Real lawyers need not worry: The U.S. Supreme Court and Court of Criminal Appeals have both found that DWI cases present very clear exigent circumstances allowing warrantless draws.”

Alas, now even real lawyers need worry. In April, the Supreme Court turned out to be packed with those experts “wondering about” the law’s “constitutionality.” In an 8-1 ruling in Missouri v. McNeely, the Court determined that the mere fact that alcohol dissipates over time does not, by itself, create an exigent (urgent) circumstance overriding the whole Fourth Amendment thing.

But the justices also stopped short of requiring warrants for all blood draws. Exigent circumstances may occur, they said, but will have to be determined case by case and based on the totality of circumstances.

That left Texas prosecutors a bit freaked out. “The following attachment is my attempt to answer the dozens of questions you’ve sent me by email, phone calls, and texts,” wrote Clay Abbott in a letter to association members titled, “Don’t panic… thoughts on adapting to SCOTUS’s McNeely decision.”

“I am sure many defense counsel will cite McNeely as the end of everything related to blood evidence in DWI cases,” Abbott wrote, “but this is just not so.” The question isn’t whether warrantless draws will continue—Austin and San Antonio stopped the practice immediately, and the prosecutor association advised members to educate their local law-enforcement officers on the new necessity of at least trying to get a warrant—but whether the ruling will endanger prosecutions or convictions from after 2009.

The same day that the court decided Missouri v. McNeely, defense attorneys in San Antonio filed a motion to suppress the blood evidence in their client’s murder trial.

Christopher Hughes Lamar had multiple drugs in his system and a blood alcohol level nearly three times the legal limit when he caused a wreck that killed a woman and her 10-year-old daughter.

But this is still Texas. The motion was denied.