By Trent Hale*
Imagine for a moment that you are driving home at 3:00 in the morning after a long night shift at work. Naturally, you are exhausted, and this affects your driving. A police office follows you and suspects that you are intoxicated. The officer flashes her lights and pulls you over. She may ask you to perform a field sobriety test. Imagining your exhaustion, it might prove difficult to pass a standard field sobriety test. Next, the officer requests that she take a sample of your breath to determine if you are indeed intoxicated. So is an officer allowed to take a sample despite your refusal? When does an officer need a warrant? According to the Texas Transportation Code you have impliedly consented to a breath or blood sample just by driving on public roads. In our imaginary scenario, however, though you have, whether you know it or not, given your consent, can an officer force you to take such a sample without a warrant? Under what circumstances can an officer require a person to provide a breath or blood sample without a warrant? This was ultimately the question recently considered by the Sixth Court of Appeals in Texarkana.
On Tuesday, April 29th the court delivered an opinion that has the possibility of challenging the constitutionality of current traffic laws in the state of Texas. The case concerns Clayton Reeder, who was charged with a third degree felony of driving while intoxicated. Reeder was found after having crashed his car into a tree along a rural Texas road. The officer on the scene suspected Reeder of being intoxicated, and he requested to take a sample to which Reeder refused. When the officer gained knowledge that Reeder had two previous DWI convictions, the officer was able to, despite Reeder’s refusal, take a blood sample. Under the current Texas Transportation Code, this is one instance in which an officer may require a warrantless blood or breath specimen in a DWI case.
Reeder’s defense relied on an earlier Supreme Court case, Missouri v. McNealy. In McNealy, the United States Supreme Court questioned whether the natural metabolizing of alcohol was reason enough to allow for a sample of a subject’s breath or blood without a warrant. The Supreme Court ruled that this instance did not constitute an emergency or exigency which would merit a warrantless search or seizure. Before Missouri v. McNealy, it was understood by Missouri authorities that this natural metabolizing of alcohol presented such an emergency or destruction of evidence that breath and blood samples were constitutional without a warrant because such cases of emergency or destruction of evidence were traditional exceptions to one’s Fourth Amendment rights.
Reeder requested that the blood sample taken from him be suppressed (thus not admissible as evidence in court) because the sample was taken without a warrant and without any established circumstance of exigency. As later pointed out by the Court of Appeals, the trial court did not seek to establish or prove a circumstance of exigency by which the sample would be proven admissible without a warrant. Instead, the trial court denied Reeder’s request because, as stated in the Texas Transportation Code, a person known to have been convicted of two previous DWIs must provide a sample with or without his/her consent and certainly with or without a warrant.
It is this point which the Court of Appeals takes up to question. Do circumstances like the two previous DWI convictions constitute a valid exception to the requirement of a warrant in a blood or breath sample? According to the opinion of the Sixth Court of Appeals, no. The opinion of the court stated that the Texas Transportation Code’s allowing of an officer to forcibly take a breath or blood sample on the basis of this rule is unconstitutional and is not a recognized exception to the Fourth Amendment. The court’s opinion further implies that any warrantless search or seizure that is not justified by a case of emergency or destruction of evidence (exigency) is not constitutional. Not only does this reverse the trial court’s previous decision to deny Reeder’s request to have his blood sample suppressed in court, it also questions the constitutionality of a significant portion of the Texas Transportation Code that provides several exceptions to warrantless searches and seizures that are not based on exigency.
This decision may be appealed further. If upheld by higher courts, it is possible that such a decision will significantly limit the power of warrantless search and seizure that the State of Texas has built into it Transportation Code. So to answer our beginning question, according to the Sixth Court of Appeals, in the situation of a DWI, only a case of exigency can constitute an exception to the Fourth Amendment’s warrant requirement, and any provision in the Texas Code of Transportation that allows for an exception beyond a case of exigency may be unconstitutional.
So how might this court’s opinion apply to current practices? First, this court decision has certainly questioned the legality of the provision allowing for a warrantless sample in the presence of an individual’s two previous DUI convictions or arrests. What about a county or city’s practice of “no refusal” days or weekends? The City of Huntsville has, in the past, instituted these “no refusal” initiatives in which, if an individual is suspected of drinking while intoxicated, a blood or breath sample will be taken even if the individual refuses. This particular court case would have no bearing on these initiatives since, in the City of Huntsville anyway, the initiative is carried out by having additional police patrol as well as a judge present and available during the initiative to quickly approve the needed warrants for blood or breath samples.
If you would like to read additional advice about your rights and what options you have when being pulled over for suspected driving while intoxicated, take a look at this article in the Houston Chronicle. Furthermore, if you have any questions about DUI laws or cases, set up an appointment with Student Legal and Mediation Services by stopping by LSC 330, calling us at (936) 294-1717, emailing us at email@example.com, or visiting us online.