July 1, 2016

United States Supreme Court

Birchfield v. North Dakota

No. 14-1468        6/23/16


Can a defendant, lawfully arrested for driving while intoxicated, be convicted of a crime for refusing to consent to a warrantless breath test or blood draw to test his BAC?


Yes for a breath test, but no for a blood draw. The search incident to arrest exception to the Fourth Amendment allows a warrantless search after lawful arrest. Because a breath test does not implicate significant privacy concerns, an officer may perform such a test without a warrant, but because a blood test imposes more significant privacy concerns (especially with a less-intrusive breath test alternative), blood may not be drawn without a warrant via a search incident to arrest. If officers want to test a suspect’s blood for other reasons—for instance, to test for drugs—a warrant is necessary unless exigent circumstances are present and can be demonstrated. Because a blood test cannot be imposed as a legal search incident to arrest, criminal punishment for refusing a blood test is not allowed; civil or evidentiary penalties may still be allowed, however. Read.

Concurrence & Dissent (Sotomayor, J.):

Justice Sotomayor would hold both breath and blood searches incident to arrest unconstitutional under the Fourth Amendment and would require a warrant unless there were exigent circumstances. She would hold that the burden of getting a warrant is not so great as to frustrate the legitimate interest of law enforcement in stopping intoxicated drivers; thus, there is no need for a categorical exception to the warrant requirement for breath tests. Read.

Concurrence & Dissent (Thomas, J.):

Justice Thomas would find both breath and blood tests for BAC constitutional based on exigent circumstances from the natural dissipation of alcohol in the bloodstream (an argument rejected in Missouri v. McNeely). Read.


This decision may breathe new life into the breath-testing regime. It should not, however, save Texas cases such as Villareal on the issue of irrevocable implied consent. The opinion shows the Court has become much better informed about the issues in DWI cases since the McNeely case and even since the arguments in this case. The Texas legislature should consider whether to impose a criminal penalty for breath test refusal like that in Minnesota. Here’s hoping that scientists will invent a breath-testing machine that will detect and measure intoxicating drugs like the current machines detect alcohol. In the meantime, be sure your agencies are getting warrants in cases where suspects won’t or can’t take a breath test.

Voisine v. United States

No. 14-10154      6/27/2016


Does a misdemeanor conviction for recklessly assaulting a domestic relation disqualify a defendant from possessing a gun under 18 U.S.C. §922(g)(9)?


Yes. “The federal ban on firearms possession applies to any person with a prior misdemeanor conviction for the ‘use … of physical force’ against a domestic relation.” The language in the statute contains acts of “force undertaken recklessly with conscious disregard of a substantial risk of harm.” This language, along with “the state-law backdrop provision, which included misdemeanor assault statutes covering reckless conduct in a significant majority of jurisdictions, indicates that Congress meant just what it said.” Read.

Dissent (Thomas, J.):

“In construing the statute before us expansively so that causing a single minor reckless injury or offensive touching can lead someone to lose his right to bear arms forever, the Court continues to ‘relegat[e] the Second Amendment to a second-class right.’” Read.


This could potentially lead to some buyer’s remorse via habeas corpus for folks who tried to plead their way out of the firearms restrictions that apply to family violence cases.

McDonnell v. U.S.

No. 15-474          6/27/16


Does arranging meetings, hosting events, and contacting other government officials constitute an ”official act“ for purposes of a bribery prosecution under the Hobbs Act (18 U.S.C. §201(a)(3))?


No. An official act is a decision or action on a “question, matter cause, suit, proceeding or controversy” that involves formal exercise of government power (similar to a lawsuit before a court) and that is specifically focused on a pending issue. Setting up meetings or expressing support for a project does not qualify as a decision or action, as long as the public official does not intent to exert pressure on another official. Read.


Here, the Supreme Court narrowly construed the term “official act” for purposes of the Hobbs act. This will make it more difficult for the feds to pursue state officials in corruption cases. After all, a corrupt politician is seldom going to send an email or a memo stating “buy ACME paint” or “rule against Jones.” Rather, the facts will often show little more than “selling access” as was the case here. The Court was concerned that “the Government’s boundless interpretation of the federal bribery statute” would make it difficult for politicians to properly respond to their constituents’ needs. The Texas bribery statute, by contrast, is much more clear than the federal statute at issue and should not present the same issue.

Whole Woman’s Health, et al. v. Hellderstedt, et al.

No. 15-274          6/27/16


Has the Texas Legislature unconstitutionally placed an obstacle to women obtaining an abortion through requirements that: (1) the physician performing the abortion must have admitting privileges at a hospital no further than 30 miles away from the abortion facility, and (2) the abortion facility must adhere to standards applicable to ambulatory surgical centers?

Holding (Breyer, J.):

Yes. The two requirements provide “few, if any, health benefits for women,” present a “substantial obstacle to women seeking abortions,” and therefore constitute an “undue burden on their constitutional right to do so.” Read.

Concurrence (Ginsburg, J.):

Justice Ginsburg noted that the justification the state gave for the regulation of abortions via HB 2 (2013)—protecting the health of women who experience complications from abortions—is invalid because complications from abortions are rare and seldom dangerous. Read.

Dissent (Thomas, J.):

Justice Thomas disagreed with the majority’s willingness to apply “different rules to different constitutional rights—especially the putative right to abortion. … Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.” Read.

Dissent (Alito, J., joined by Roberts, C.J. and Thomas, J.):

The dissent would find that res judicata should bar the plaintiffs’ suit and that HB 2 included a severability clause that would allow any unconstitutional provisions to be severed and the rest left intact. The dissent would have instead remanded the case so the lower courts could have considered severing any unconstitutional provisions. Read.


Texas Court of Criminal Appeals

Henley v. State

No. PD-0257-15                 6/29/2016


Was the defendant entitled to an instruction on defense of a third person (and the ability to introduce evidence supporting that defense) when he contended his assault of his ex-wife was intended to protect his sons from the potential of future harm by someone living with his ex-wife who had sexually assaulted the boys in the past?


No. To be justified in using force in defense of third persons under Penal Code §9.33, there must be an immediate need to act. The harm must be imminent. In this case, the evidence of the prior sexual assault of the defendant’s sons and the impact that had on the children’s custody arrangement was not relevant because none of the evidence showed that the defendant had to make a split-second decision to keep his sons from immediately being harmed. Read.

Concurrence (Meyers, J.):

Judge Meyers wrote that this defense was “an attempt to secure a jury nullification so that he could get away with retaliating against his ex-wife for the conduct of a third person that occurred over six months ago.” There is no basis in law or fact for the trial judge to have allowed the defendant to present this defense. Read.

Dissent (Keller, P.J.; Hervey, J.; Newell. J.):

Judge Keller would find that the use or attempted use of unlawful force does not have to be imminent for a person’s conduct to be “immediately necessary.” Imminent harm is not required for the defendant to raise a defense of a third person defense. Read.

Dissent (Hervey, J.; Keller, P.J; Newell, J.):

Judge Hervey would conclude that the question is not whether the majority of the Court believes this defense is reasonable; the question is whether the defendant was entitled to present his defense to the jury. Read.

Dissent (Newell, J.; Keller, P.J.; Hervey, J.):

“If we were considering whether the jury acted rationally in rejecting Appellant’s defensive claim, I would have no qualms about weighing whether a jury’s determination was rational. But the jury never had the chance to consider Appellant’s defense because the trial court would not allow Appellant to admit his defensive evidence. That, to me, is unreasonable.” Read.


This is a fact-bound decision; study it carefully before relying on it as a basis to object to evidence offered by a defendant. The key here is the chief rationale for admission—defense of a third party—was based on the speculative presence of third parties and extraneous acts committed by those third parties months prior to the offense in question.

State v. Robinson

No. PD-0974-15


Does a court of appeals have subject-matter jurisdiction to entertain a State’s appeal from a trial court’s grant of shock probation, and if so, does the pendency of that State’s appeal deprive the trial court of subject-matter jurisdiction to consider a motion for shock probation after the mandate has issued on that appeal?


Yes and no. The State may appeal a grant of shock probation, but that appeal stays the proceedings in the trial court. The State is authorized to appeal a trial court’s order that modifies its previous judgment regardless of the legal grounds of the appeal, including an order that modifies a judgment by imposing shock probation. However, when the State appealed the trial court’s grant of shock probation, that stayed the proceedings until the appeal was resolved. This avoids depriving the defendant of a remedy in the event the State appeals and the 180-day limit of trial court jurisdiction runs out during the appeal. Read.

Concurrence (Richardson, J.; Johnson, J.):

Judge Richardson agreed with the decision but also expressed concern that allowing the State to appeal an order granting shock probation “would seem to open the State’s right to appeal all decisions granting shock probation, even discretionary and ‘nonreviewable’ ones.” Read.


This is a reasoned decision that reaches fair results. The concurrences’ concern about the State appealing all decisions granting shock probation seems overblown—there are many discretionary decisions prosecutors could (but do not) appeal. This is likely because prosecutors prudently exercise their discretion whether to appeal.


Texas Courts of Appeals

Glover v. State (14th COA)

No. 14-15-00082-CR        6/21/2016


Does the State have an affirmative duty under Code of Criminal Procedure Art. 39.14 to produce before trial all information related to a traffic stop that an officer brings up during testimony, regardless of whether that information was included the offense report, even when the information is not properly requested?


No, not in this case. The State has the affirmative duty to produce all exculpatory information. In this case, the defendant did not properly request the information, nor was the information (for instance, that the defendant looked back at the officer through the rear-view mirror and made eye contact with the officer) exculpatory. Read.


Put this opinion under the “Discovery” tab in your trial notebook. Trial testimony will always be different in certain respects than offense report narratives. That situation does not equate to a violation of Article 39.14.

Rideaux v. State (14th COA)

No.14-15-00317-CR         6/28/2016


Is a trial judge automatically disqualified from a case if he was the acting criminal district attorney when the alleged crime took place?


No. The Court of Criminal Appeals has held that to qualify as “counsel for the State,” the prosecutor must “actually have participated in the very case which is before” the judge. In this case, the judge had no participation or knowledge of the case during his time as the district attorney. Simply being the district attorney during the time at which the accused was indicted does not require a disqualification. Read.


The court mentions Williams v. Pennsylvania, 2016 WL 3189529, at *5 (U.S. June 9, 2016), but distinguishes it on the basis that Williams involved a Due Process claim rather than a disqualification claim and the judge at issue in Williams did participate in the case by choosing to seek the death penalty against him. The judge here was unaware of the defendant’s case, spoke to no personnel about the case, and took no active role as a prosecutor in the case.

Office of the Attorney General

Letter from the 79th Judicial District Attorney

KP-0098                6/27/16


When and where can a governmental entity post notices prohibiting handguns at open meetings under Penal Code §§30.06 and 30.07?


Because the statute prohibiting handguns from open meetings specifically states “room or rooms where a meeting is held,” the §§30.06 and 30.07 notices must be placed outside those specific rooms, and a city cannot prohibit carrying a handgun throughout the entire building. Additionally, if the room or rooms used for an open public meeting are also used for other purposes, the §§30.06 and 30.07 notices must be removed when the room is not being used for an open public meeting. Read.


On a side note, there are only 204 more days until the Legislature starts changing the law in this area (again).

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