Texas Court Tackles “No Refusal” Law

By Trent Hale*

Earlier this year, here at Bearkatlaw.com, we presented a court case from Texarkana, Texas that questioned the constitutionality of Texas’s “No Refusal” statute. Again, the state’s court system has ruled about this particular section of the Texas Transportation Code that has, up until recently, allowed for police officers to draw a warrantless blood sample of an individual suspected of driving while intoxicated.

On November 26th, the Texas Court of Criminal Appeals (the highest criminal court in the state) ruled that the provisions for a mandatory, involuntary blood sample found within the Texas Transportation Code does not allow for officers to dispense with the Fourth Amendment requirement of obtaining a warrant.

In 2012, the appellee in the recent ruling, David Villarreal, was stopped for a traffic violation. Upon observing signs of intoxication, the officer requested that Villarreal perform standard field sobriety tests. Villarreal refused, and he was arrested on suspicion of driving with intoxicated. The officer then requested a blood specimen, but Villarreal again refused. After running a background check, the officer uncovered that Villarreal had been previously convicted for DWI on two more occasions. It is at this point that, under Texas Transportation Code 724.012(b)(3)(B) , the officer invoked his authority to have a blood specimen drawn despite Villarreal’s refusal. According to this particular section of the Transportation Code, if an individual is discovered to have been convicted of DWI two or more times before, then a mandatory blood specimen will be collected even if the individual did not give his/her consent.


From 13wmz.com


In a 5 to 4 vote, the Court of Criminal Appeals sided with Villarreal, holding that the taking of his blood without a warrant violated the Fourth Amendment. The court, however, did not declare the section of the Transportation Code in question unconstitutional. The court’s opinion stated that the language of the Transportation Code nowhere suggested that an officer could dispense with the requirement of obtaining a warrant. In this way, the court points out that, while the Transportation Code (in the case of a person having two or more previous DWI convictions) does require that a blood specimen be taken despite an individual’s refusal, it still requires that a judge issue a warrant in order for the blood draw to be conducted.

Like the case in Texarkana, the opinion of the Court of Criminal Appeals relied on the precedent of the Supreme Court’s ruling in Missouri v. McNeely. In this case, the Supreme Court held that the natural dissipation of alcohol did not constitute an exigent situation in which officers could constitutionally dispense with the requirement of a warrant. Since the “No Refusal” statute in question here does not, like the situation considered by the Supreme Court in Missouri v. McNeely, present a situation of exigency, the application of Fourth Amendment would still dictate that a warrant be obtained.

The State argued several points before the Court of Criminal Appeals in support of the officer’s actions. First, the State argued that, according to Texas law, driving on public roads is a privilege, not a right. In this way, when drivers submit to the registration, regulation, certification process of the State in order to drive, they are giving implied consent for searches and seizures. Following this line of thought, drivers should expect a lessened right to the privacy of their vehicle, and this should be extended to the driver him/herself. The State also argued that the danger of drunk driving and the gravely important responsibility the State has to protect drivers far outweighs the marginally intrusive nature of a blood draw, and for this reason, the courts should allow for the continued application of Transportation Code 724.012(b)(3)(B).

The Criminal Court of Appeals decision, however, rejected the State’s arguments in that the Fourth Amendment’s requirement of a warrant can only be waived in the case of consent given freely and voluntarily – neither of which is constituted in the implied consent legislation described by the State. Furthermore, the court argued that, citing Missouri v. McNeely, a blood draw is “an invasion of bodily integrity [that] implicates an individual’s most personal and deep-rooted expectations of privacy.” In this way, although the task of curbing DWIs in the State of Texas is of paramount importance, it also is not a tenable dispensation of the personal rights found within the Fourth Amendment.

So what direct affect with this ruling have on Texas law enforcement? Although the Court of Criminal Appeals upheld that the legislation in question was constitutional, it did deliver the interpretation that the law does not (as was previously the practice of law enforcement) allow for blood samples to be drawn without a warrant in the case of those individuals who are found to have two or more DWI convictions.

As in the case in Texarkana, the question that has come up with this most recent ruling is whether or not “No Refusal Weekends” are still permissible. It is common practice around the state of Texas that local governments will have “No Refusal Weekends” (typically around holidays). During these times, local law enforcement have the ability to take breath or blood specimens of individuals suspected of DWI regardless if they consent to it or not. In light of the November 26th ruling of the Court of Criminal Appeals, this practice is still a constitutional option for local governments because, during these times, local judges and magistrates can be on call to review and sign warrants before blood or breath specimens are collected.

If you would like to read additional advice about your rights and what options you have when being pulled over and suspected of 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 slms@shsu.edu, or visiting us online.

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