concluding that “a DWI suspect’s privacy interest outweighs the State’s interest in preventing drunk driving through warrantless searches” and quoting the McNeely plurality in “stating that ‘the general importance of the government’s interest in this area does not justify departing from the warrant requirement without a showing’ that some established exception . . . applies”
How later courts described this case
- concluding that “a DWI suspect’s privacy interest outweighs the State’s interest in preventing drunk driving through warrantless searches” and quoting the McNeely plurality in “stating that ‘the general importance of the government’s interest in this area does not justify departing from the warrant requirement without a showing’ that some established exception . . . applies”
- holding that implied con- give a blood sample. He refused, so blood-draw sent statutes, “taken by themselves, [do technician Adam Tomlinson performed the blood not] form a constitutionally valid alternat- draw without Appellant's consent while Officer ive to the Fourth Amendment warrant re- Martin was present. Tomlinson worked for the quirement”
- explaining that “necessary element of valid consent is the ability to limit or revoke it” and that “[i]t would be wholly inconsistent with these principles to uphold the warrantless search of a suspect’s blood on the basis of consent when a suspect has . . . expressly and unequivocally refused to submit to the search”
- holding that “a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment”
Written by the judges who cited it.
The opinion
OPINION CONCURRING TO THE DENIAL OF STATE’S MOTION FOR REHEARING
MEYERS, J.,
filed a concurring opinion,
In the original opinion in this case, I had authored a dissent indicating that I thought the Legislature had created an exception- to the warrant requirement with *818 Texas Transportation Code Section 724.012(b)(3)(B). While I do believe that is what the Legislature did in other sections of the mandatory:blood-draw statute, I no longer think that is what happened with the specific section we are examining, related to prior intoxication-offense convictions.
All the Legislature did in Section 724.012(b)(3)(B) was establish the criteria that it felt indicated that an. individual was giving implied consent to or waiving his right to object to a warrantless blood draw. I now do not believe that the criteria outlined in the statute-two prior convictions of an intoxication offense-is sufficient to establish that there was a waiver or consent, absent any additional evidence showing the individual’s consent to this particular blood- draw. ■
When a defendant pleads guilty, we have well-established criteria and admonishments that the court must make in order for the defendant's waiver of a jury trial to be considered knowing and voluntary. It should not be different in such a significant way when'an individual is waiving his right to refuse a bodily search or blood draw. Both are basic constitutional rights.
My analysis today differs somewhat from the original majority opinion in this case, which indicated that “a statute providing for irrevocable implied consent cannot supply the type of -voluntary consent necessary to establish an exception to the Fourth Amendment requirement.” I would point out that, unlike some of the cases the original majority examined, here, the Legislature provided for additional criteria that must exist before the blood draw is required. -It is not a blanket provision that mandates blood draws be done across the board, on the sole basis that an individual was driving on the Texas roadways. Regardless, however, it is still not permissible for the statute to provide for an individual’s knowing consent or waiver based only on past convictions. You cannot make the presumption that a past intoxication offense indicates consent to an unwarranted blood draw.
For the foregoing reásons, I join the Court’s opinion denying the State’s motion for rehearing.