Mandatory Blood Draws Silently Go Poof

The opinion of the Supreme Court of the United States in Missouri v. McNeely in
mid-April of 2013 caused a huge amount of confusion about the admissibility of alcohol-
concentration test results derived from blood drawn at the request of the police without
the express consent of a suspect. One court concisely stated the holdings in McNeely
thusly: “the Supreme Court concluded that a warrantless blood draw was not available,
per se, under the exigency exception to the Fourth Amendment’s prohibition on
warrantless searches and seizures. Instead, a warrantless blood draw would only be
available after analysis of the totality of the circumstances.” The Superior Court of
Pennsylvania, in ruling on the issue of implied consent, found this clipping dispositive:
“The McNeely Court ruled that ‘[i]n those driving situations where police officers can
reasonably obtain a warrant before a blood sample can be drawn[,] without significantly
undermining the efficacy of the search, the Fourth Amendment mandates that they do
so.’”
Knowing the long use of section 724.012(b) of the Transportation Code and the
fact that a statute enjoys a presumption of constitutionality, many Texas prosecutors
elected to argue that the decision in McNeely did not affect the drawing of blood under
that law, which essentially said that a suspect in certain types of DWI cases could not
countermand the consent the legislature had implied or deemed to arise for the taking of a
blood sample. Texas courts had previously found this statute permitted the drawing of
blood (a type of search) without the necessity of first also securing review by a magistrate
(through the warrant process) of the factual basis for an officer’s belief that evidence of
blood alcohol concentration would be found. As Missouri had no similar statute, McNeely
did not involve any of the special circumstances established in section 724.012
presumably demonstrating an increased need for a blood sample and thus a more
streamlined procedure for getting one. See State v. Won, 332 P.3d 661, 680 (Haw. App.
2014), vacated, 372 P.3d 1065 (Haw. 2015). Nevertheless, defense attorneys were quick
to argue the statute could not be constitutionally applied without a showing of “exigent
circumstances” (aside from the mere metabolic dissipation of alcohol by the human body)
that might render the delay in securing a warrant something that would destroy the
usefulness of blood testing.
Some Texas trial court judges determined searches under section 724.012(b)
remained reasonable, or at least that McNeely did not require a contrary ruling. And,
having secured a favorable pretrial ruling, prosecutors often chose to proceed to
disposition of their DWI or associated cases, using the favorable ruling as leverage for
negotiating a guilty plea and waiver of trial by jury so as to avoid actually offering the
test result as evidence at trial. Many trial judges went the other way, finding that evidence
obtained through reliance on section 724.012 had become inadmissible. In those cases,

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many prosecutors chose to file an interlocutory appeal and placed the prosecutions on
hold. Other times, they went to trial, electing to try to prove their case without the blood
test results.
As difficult as McNeely made it for Texas prosecutors to know what to do, the
response of the Texas appellate courts, and particularly the Court of Criminal
Appeals, proved equally frustrating.
The first application of McNeely to section 724.012 came on October 15, 2013,
just six months after “McNeely motions” started to be filed. In Douds, the panel majority
observed: “The statute does not purport to authorize a warrantless blood draw based
solely on the natural metabolization of alcohol in the bloodstream; instead, it sets forth
multiple, specific circumstances in which a blood draw is required. The circumstances
here do not involve solely the natural metabolization of alcohol in the bloodstream.” The
court, however, found the need for a warrant was excused under the particular
circumstances of the case because considerable time “had to be taken to investigate the
scene of the accident and determine the need for medical treatment.” It thus felt the case
was analogous to the search that had been authorized in Schmerber.
A couple of weeks later (on October 31, 2013), in Smith the Thirteenth Court of
Appeals found the statute’s provision for a search based on implied consent was another
method of conducting a constitutionally valid search. The court specifically said:
“McNeely clarified exigency; it did not invalidate Texas’ implied consent statute.” The
Smith rationale was then adopted by the Sixth Court of Appeals on January 8, 2014 in
deciding Reeder. Both Smith and Reeder involved persons whose blood test was actually
used as evidence against them. Thus, trial judges likely became more comfortable in
denying McNeely motions. And, equally important, defense attorneys were comfortable in
advising clients to go ahead and enter conditional guilty pleas under Tex. R. App. P.
25.2(a)(2)(A) (hoping to win a reversal on appeal, if ever).
But, Texas’ appellate judges were soon to flip-flop. On January 23, 2014, the
Thirteenth Court of Appeals now found section 724.012 actually called for a non-
consensual search because “the mandatory blood draw law is premised on refusal to
consent.” It determined the statute was inconsistent with the Fourth Amendment if
intended to specify some “new exception to the Fourth Amendment’s warrant
requirement separate and apart from the consent exception and the exception for exigent
circumstances.” The Seventh Court of Appeals reached the same conclusion on April 7,
2014 in Sutherland, depending not so much on McNeely as the fact that the Supreme
Court had remanded the 2012 decision in Aviles back to the Texas Fourth Court of
Appeals for further consideration in light of McNeely. The Amarillo Court reasoned: “By
vacating and remanding Aviles, it would seem that the United States Supreme Court has

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rejected any position that would treat Section 724.012(b)(3)(B) as an exception to the
Fourth Amendment, separate and apart from the traditional, well-established exceptions.”
These decisions, as well as a stream of similar decisions over the next many
months from all of the other Texas intermediate courts, were nevertheless slow to change
the minds of some prosecutors (but increasingly resulted in trial judges granting pretrial
suppression motions based on McNeely). The ultimate effect was misuse by prosecutors
of section 724.012 in about 40 prosecutions. Almost all of those convictions have now
been reversed and remanded for new trials (to be conducted without the benefit of the
alcohol test result). In a few, the appellate courts affirmed the convictions, finding that the
issue had not been properly preserved for review or had been waived. In a few instances,
the appellate court found the state had proved the blood draw was reasonable in light of
exigent circumstances (that made the warrant requirement impractical). In a few others,
the conviction was upheld upon a finding that admission of the blood test result was
harmless. In one case, the court found actual, voluntary consent was given (to the doctor)
despite the officer’s intent to secure blood based on implied consent. Donjuan v. State,
461 S.W.3d 611 (Tex. App.—Houston [14th Dist.] 2015, no pet.). In general, however,
this course by prosecutors in several jurisdictions proved ultimately to be a waste of
resources and no doubt clogged some trial dockets.
Additionally, in some 35 or so instances, prosecutors chose to delay DWI trials by
filing an appeal from an order granting suppression. Travis County prosecutors
spearheaded this approach, eventually filing at least 17 such appeals and then PDRs in 13
of those cases. Other counties whose prosecutors were active in the battle included those
in Nueces, Tarrant, and Bexar Counties. The decisions in many of those cases were long
in coming, sometimes more than two years later. The decision not to accept the ruling of
the trial court was not frivolous. But, the net effect of those appeals was likely that many
of the cases (already made weaker by the loss of the blood test results) could no longer be
successfully prosecuted—due to the long delays generally encountered in getting a ruling
from the appellate courts.
The principal cause of this chaos likely lies in how the Villarreal case was
handled by the Court of Criminal Appeals and the failure of the Supreme Court of
the United States to clarify its holding in McNeely until June 23, 2016.
While Villarreal (as an appeal from a pretrial ruling) was by law entitled to faster
determination, the Court of Criminal Appeals was slothful in its resolution. The PDR was
filed on March 11, 2014. Review of the case was granted on May 7, 2014. Indicative of
the importance of a prompt resolution, the State filed its brief on May 19. But, the court
then allowed Villarreal to postpone filing his brief until July 28. And the case was not
submitted until October 1. An opinion was delivered on November 26, 2014. Based on
the submission date, this 56-day turnaround was much quicker than usual.

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 Unfortunately, the Nueces County prosecutor filed a motion for rehearing. With
three of the judges who had ruled in the case (as part of the five-judge majority) leaving
the court on December 31, 2014, this posed a difficult problem for the court.
Uncharacteristically, it granted a rehearing on February 25, 2015, but without issuing an
opinion. Instead, presumably because of the change in the makeup of the court, the case
was reset for oral arguments on March 18, 2015. Everyone then waited breathlessly for a
decision, month after month after month. It did not come until December 16, 2015,
perhaps in part because Judge Meyers decided to switch his vote (to form a new five-
judge majority). In effect, the motion for rehearing kept everyone in limbo almost 13
months.
Of interest, the Supreme Court of the United States declined to review the decision
in Villarreal (as well as in Burks, another case involving section 724.012). While refusal
to grant certiorari supposedly says nothing about the validity of the lower court’s ruling or
its holdings and the high court’s decision is actually limited to the specific case before it,
everyone presumes section 724.012(b) is now a dead letter, as decided by five state
judges’ perception of what a higher court had implicitly ruled. So, life could finally go on.
The Oklahoma Court of Criminal Appeals, however, in a decision handed down
after the June 23 decision in Birchfield, stated:
The exigent circumstance justifying the per se rule in § 10-104(B) is
the existence of great bodily injury or a fatality to persons including the
driver. Put another way, § 10-104(B) does not depend solely on the
dissipation of alcohol in the bloodstream over time as an exigent
circumstance. Missouri’s implied consent statute contains a similar (though
not identical) provision; however, there was neither an accident nor a
fatality in McNeely and that provision was not used. The majority in
McNeely rejected the claim that states needed a per se rule based on the
dissipation of alcohol in the blood in order to promote enforcement of laws
against drunk driving. The per se rule found unconstitutional in McNeely is
simply a different rule from the per se rule in § 10-104(B), and the
difference is material. . . . Under that statute, Cripps had no right to revoke
his implied consent. Cripps' blood was legally taken under § 10-104(B). No
warrant was necessary. . . .
In his dissent in Cripps, Judge Hudson argued: “The majority's insistence upon
marginalizing McNeely and Schmerber in this way adds uncertainty to the law where
there should be none. We leave the bench, bar and public wondering what the law truly is
and, in the process, leave the fate of DUI-related vehicular accidents involving immediate
death or injuries hanging in the balance. Today's decision is not built to last—we are
simply delaying the inevitable.” Cripps v. State, 387 P.3d 906, 914-15 (Okla. Crim. App.

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June 30, 2016). On May 30, 2017, the Supreme Court of the United States denied Cripps’
petition for certiorari. So, there is no means of knowing whether the high court agrees
with Judge Hudson. But, this action seemed to renew the controversy, if not the
uncertainty about McNeely, if only for Oklahoma prosecutors. That changed, however,
with the decision in Stewart v. State, 442 P.3d 158, 162 (Okla, Crim. App. 2019) (finding
that the reasoning in Cripps was “simply at odds with the central point of McNeely that no
such blanket rule will satisfy the Fourth Amendment requirement of individualized
consideration of the existence of probable cause and exigent circumstances to justify the
taking of a blood sample from a driver without a warrant”). See also Timothy Andrea,
The Exigencies of Drunk Driving: Cripps v. State and the Issues with Taking Drivers'
Blood Without a Warrant, 59 B.C. L. Rev. E. Supp. 482 (2018).
http://lawdigitalcommons., bc.edu/bclr/vol59/iss9/27.
As we are about to see, the Tennessee Supreme Court also found no clear answer
about the validity of implied consent was provided in either McNeely or Birchfield. The
Court of Criminal Appeals, however, seems to have reaffirmed its holding in Villarreal
on January 27, 2016, when it refused the State’s petition for discretionary review in
Aviles, No. PD-1055-14. Villarreal has since been accepted as settled law. E.g., State v.
Hughes, No. 03-14-00179-CR (Tex. App.—Austin Mar. 11, 2016) (mem. op., not
designated for publication); See also Womack v. State, No. 13-19-00544-CR (Tex.
App.—Corpus Christi Aug. 26, 2021) (mem. op., not designated for publication)..
Even after Villarreal, the issue remained with respect to a blood draw from a
Texas driver who is “incapable of” withdrawing consent or objecting to a search as
provided in section 724.014(a) of the Transportation Code. The Court of Criminal
Appeals did not answer that question until September 11, 2019 in Ruiz v. State, 581
S.W.3d 782, 787 (Tex. Crim. App. 2019) (finding drawing blood from an unconscious
person was an unreasonable application of the consent exception to the Fourth
Amendment warrant requirement). The Arizona Supreme Court determined its similarly
worded statute to be unconstitutional (accepting the State’s concession) in State v,
Havatone, 241 Ariz. 506, 389 P.3d 1251, 1254-55 (2017). Courts in California, Georgia,
North Carolina, and Pennsylvania issued similar decisions. By the time the issue arrived
before the Supreme Court of Florida in McGraw v. State, 289 So.3d 836 (2019), the court
found it unnecessary to determine the constitutionality of that state’s statute because of
the decision in favor of the implied consent statute in Mitchell v. Wisconsin, 588 U.S.
___, 139 S.Ct. 2525 (2019) (holding that when law enforcement has a reasonable basis to
believe that an unconscious driver was intoxicated while driving, the exigent
circumstances created by the natural metabolization of alcohol in the blood stream
combined with the driver's unconsciousness “almost always” permits law enforcement to
secure a blood sample for blood alcohol testing without a warrant). Id. at 2531, 2539. In
its 4-1-4 decision, Justice Alito observed that like Schmerber, unconscious-driver cases

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will involve a heightened degree of urgency for several reasons. And when the driver’s
stupor or unconsciousness deprives officials of a reasonable opportunity to administer a
breath test using evidence-grade equipment, a blood test will be essential for achieving
the goals of BAC testing. Remarkably, Alito was also the author of Birchfield.
The question in Ruiz was ultimately answered in favor of the admissibility of the
evidence. State v. Ruiz, 622 S.W.3d 549 (Tex. App.—Corpus Christi 2021, no pet.) (op.
on second remand). Remarkably, Ruiz has still not been brought to trial.
A rationale for holding such statutes constitutional was first well-expressed by
Justice Gableman of the Wisconsin Supreme Court in his concurring opinion in State v.
Howes, 373 Wis.2d 478, 893 N.W.2d 812, 831-37 (2017) (Gableman, J. concurring). The
court then rebuffed a challenge to this part of Wisconsin’s implied consent law in State v.
Mitchell, 383 Wis.2d 192, 914 N.W.2d 151, 163-67 (2018). But, Justices Bradley and
Abrahamson remained convinced that “the lead opinion attempts to create a statutory per
se exception to the constitutionally mandated warrant requirement . . . [improperly
embracing] a categorical exception over the constitutionally required consideration of the
totality of the circumstances”). 914 N.W.2d at 172. Mitchell successfully applied for
review of his case by the Supreme Court of the United States, but did not get the result
that he wanted. The decision in Mitchell will presumably finally put to rest the
misinformation drawn from Schmerber and McNeely. A new issue, however, has
arisen in Kentucky, where its Supreme Court determined that because a driver has a
constitutional right to refuse an officer’s request for a blood sample, no evidence of the
refusal may be offered as an implication about what a defendant thought the test result
would show. This finding was vigorously challenged by the Kentucky Attorney General
without success.
https://www.supremecourt.gov/DocketPDF/21/21-940/206175/20211222141047459
_Petition%20for%20certiorari.pdf
Of interest, a scenario similar to the Texas’ experience was played out in
Tennessee. On November 12, 2014, the Tennessee Court of Criminal Appeals ruled blood
taken by the police from Corrin K. Reynolds without a warrant was nevertheless
admissible under that state’s implied consent statute. It reasoned that “chemical tests
performed in compliance with the implied consent law satisfy the Fourth Amendment as
consent searches.” The court added, “it is no great innovation to say that implied consent
is legally effective consent, at least so long as the arrestee has not purported to withdraw
that consent.” The Tennesse Supreme Court granted review of the case, but took almost
two years to render a decision. On November 3, 2016, the court “punted.” It adopted a
Davis v. United States good-faith exception to the exclusionary rule, i.e., that an officer
could rely on “binding appellate precedent” that specifically authorizes a particular police
practice,.and was thus enabled to say:

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 Thus, although Birchfield shed some light, it failed to answer
definitively the question of whether implied consent satisfies the consent
exception to the warrant requirement. Based on the limited guidance
Birchfield provided, the unusual facts of this case, and our ability to resolve
this appeal on another ground, we decline to determine in this appeal
whether the implied consent statute satisfies the consent exception to the
warrant requirement or whether the implied consent statute violates the
federal or state constitution by authorizing warrantless blood draws.
State v. Reynolds, 504 S.W.3d 283, 308 (Tenn. 2016).
Thus, even in those states where the courts ultimately upheld the admission of
warrantless blood testing conducted before the McNeely decision (based not on McNeely,
but rather on an officer’s “good-faith” reliance on the perceived meaning of Schmerber),
some courts were very slow in providing guidance even on that issue. See also People v.
Harrison, 58 N.E.3d 623, 631 (Ill. App. 2016).
While the Supreme Court of the United States prides itself on deciding an issue on
the narrowest possible ground, the McNeely opinion demonstrates that the full logical
extent of what is said cannot be ignored, even if strong policy arguments might suggest a
contrary inference or alternate “line of reasoning.”