Saturday, June 25, 2016

SCOTUS, DWI Blood Testing and Brazos County

The Supreme Court of the United States (SCOTUS) decided two 4th Amendment cases this past week. The first, Utah v. Strieff has received the bulk of press coverage, with much ink being split on Justice Sonia Sotomayor's impassioned dissent. Strieff is important, and the dangers expressed by both Justice Sotomayor and, separately, by Justice Elena Kagan in her more muted but equally effective dissenting opinion are real.

However, it is the other 4th Amendment case, Birchfield v. North Dakota, which may have more wide ranging, practical effect in Texas. For example, I fully expect to see legislation introduced next session seeking to criminalize refusals by DWI arrestees of law enforcement requests (with probable cause) to provide a breath specimens. Birchfield approved of such a scheme, and with SCOTUS's blessing, it makes sense that a legislative push will occur.

If this comes to pass, think of how coercive such a situation will be: Already cuffed and stuffed, an arrestee is told the refusal to provide a breath specimen will possibly be admissible in a later DWI prosecution, their license or privilege to drive will be suspended for a minimum of 180 days, AND they will be charged with ANOTHER misdemeanor offense as a result of their refusal.

Powerful stuff.

Birchfield held blood specimens are another matter. Criminal penalties are verboten for warrantless collection of blood specimens under Birchfield. SCOTUS reasoned because blood testing is more intrusive than breath testing, warrantless collection, including implied consent laws, having criminal penalties for refusal to provide blood specimens violate the 4th Amendment.

Currently, Texas implied consent laws do not (at least according to our courts) carry penal penalties. That is to say, a defendant arrested for DWI who refuses, after proper request, to provide a breath or blood specimen can have their license or privilege to drive subject to suspension are not subject to penal sanction for the refusal.This type of implied consent statutory scheme is beyond the reach of the holding of Birchfield:
Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them. (citations omitted).
So what's the problem? Well, Brazos County is almost exclusively a blood testing jurisdiction. In other words, most of the specimens collected under the implied consent laws here are blood specimens. With Birchfield, that may change, but only time will tell.

However, I have written before about DWI arrests in College Station, which because of the college demographic, occur frequently. In College Station, if a DWI arrestee consents to provide a specimen (at least based on my experience) they are allowed to bond out of the city jail on a pre-set $2000-$3000 bond. If the DWI arrestee refuses to provide a (blood) specimen, they are held, and later transported to the Brazos County Jail to await magistration and the setting of bond, which if they provide an out of county address (most college students do) will be total $4000. Moreover, if College Station PD transport get the arrestee to the Brazos County Jail late, the arrestee will have to wait another 24 hours until the magistrate returns for the next morning jail run.

If this type of policy was problematic before Birchfield, it is an even more so now.

Under Birchfield, I believe the consequence of continued detention of an arrestee who refuses DWI blood testing, while releasing a consenting DWI arrestee is penal. Under authority of Birchfield, this category of DWI arrestee now has a legitimate claim the refusal should be suppressed as evidence in a later DWI prosecution. To the extent the refusal also taints probable cause in an affidavit supporting a later search warrant for a blood draw, it could also result in loss of the entirety of the results of the warrant based blood draw.

We shall see.

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