Texas Courts of Appeals
No. 11-12-00198-CR 7/31/14
1) Is implied consent the equivalent of voluntary consent for the purposes of establishing an exception to the warrant requirement of the Fourth Amendment?
2) Are warrantless searches under Texas’ “third-strike” implied consent statute legal without a warrant because they are not unreasonable?
1) No. At least when a defendant refuses to submit to a breath test, that person cannot be said to have freely and voluntarily consented to the search. Language to the contrary from the Court of Criminal Appeals in Forte v. State, 759 S.W.2d 128, 138 (Tex. Crim. App. 1988) establishes only that implied consent makes it illegal to refuse a breath or blood test under specific circumstances, and language from Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002) specifically stating that implied consent permits warrantless blood draws in Texas is only dicta. Finally, a footnote in Missouri v. McNeely, 133 S.Ct. 1552 (2013) that appears to endorse Texas’ implied consent statute does not go so far as to approve of warrantless searches under those laws, but it does imply that implied consent can be withdrawn.
2) No. Warrantless searches are presumed unreasonable and must be evaluated on a case-by-case basis. To do otherwise creates a per se exception to the warrant requirement, which is prohibited by McNeely.
This is a very thorough decision, and its reasoning may very well become the law of the state when this case (or one of the other cases like it) are reviewed by the Texas Court of Criminal Appeals. If an officer insists upon obtaining a suspect’s blood without a warrant, his best (and perhaps only) option is to articulate sufficient exigent circumstances that made getting a warrant impractical. But in most cases, that may be very hard to do, if not impossible. It is not clear when the Court of Criminal Appeals will issue its decision on the validity of Texas’ mandatory blood draw statute in light of McNeely. If you do not want to jeopardize your intoxication-related cases, you may want to urge law enforcement to obtain a warrant for suspects who do not provide actual consent.
Aviles v. State (on remand from the U.S. Supreme Court)
No. 04-11-00877-CR 8/6/14
Was a warrantless blood draw based on the third-strike implied consent statute constitutional?
No. The implied consent statute creates a per se exception to the warrant requirement of the Fourth Amendment, and such exceptions were rejected by the U.S. Supreme Court in McNeely. Read the opinion.
This decision is not nearly as thorough as the decision of the Eastland Court of Appeals in Forsyth v. State. The court here essentially followed its prior holding in Weems v. State. But surely you can see a pattern developing. We all now await the decision of the Texas Court of Criminal Appeals.
No. 04-13-00415-CR 8/6/14
1) If a county has no magistrate on-call to write blood warrants, is that fact alone sufficient to establish exigent circumstances that would permit a “third-strike” warrantless blood draw?
2) If an officer relies on the third-strike implied consent statute to obtain a warrantless blood draw, does the federal good-faith exception make the blood draw admissible?
1) No. The absence of an on-call magistrate, by itself, does not establish exigent circumstances.
2) No. An officer cannot make a warrantless blood draw in good-faith reliance on the statute because the statute does not purport to authorize warrantless blood draws.
While the State vigorously pursued the exigent-circumstances argument on appeal, that theory had not been vigorously pursued at trial. The State presented only the testimony of the officer, and he clearly was relying primarily upon the mandatory blood draw statute. If you wish to justify a warrantless blood draw based upon exigent circumstances, the facts will need to bear those exigent circumstances out. And all of that will need to be presented clearly to the trial judge from the first witness to the last.
No. 01-12-00920-CR 7/31/14
Was expert testimony from a licensed social worker regarding a “lethality assessment” of the defendant in a family violence case sufficiently reliable to be admitted as evidence in a family violence case?
No. A lethality assessment purports to evaluate the level of risk in a specific domestic violence situation. Although the State put on evidence that showed future dangerousness has been established as a legitimate field of expertise within the practice of psychology, a lethality assessment is a different field of expertise and requires a separate evaluation of its own methodology. Read the opinion.
You will find precious little case law about the validity of expert testimony on lethality assessments, and it is not clear that such testimony is absolutely necessary in domestic violence cases. Certainly expert testimony in general is well accepted in domestic violence cases, and this decision does nothing to squelch that well settled case law. Thankfully, in this case, this particular defendant was every bit as dangerous as the State argued, so he was not in any way harmed by any error that occurred at the punishment stage. After the victim put her children to bed, she and the defendant went downstairs, and—without warning—the defendant picked up his gun and shot the victim in the face. He then laughed and left the residence. Other admissible testimony was presented about the fear that the defendant forced the victim to live in. He deserved every bit of the fifty years in prison that he got.
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