July 5, 2019

United States Supreme Court

Mitchell v. Wisconsin

No. 18-6210       6/27/19


Does the exigent circumstances exception to the warrant requirement permit a warrantless blood test when a driver suspected of DWI is unconscious and unable to give a breath test?

Holding (Alito, J., joined by Roberts, C.J., and Breyer, Kavanaugh, JJ.):

Yes. Although the natural dissipation of blood-alcohol evidence alone is not enough to meet the exigent circumstances exception, additional factors may heighten the urgency and threaten the destruction of evidence through further delay. An exigency exists when the BAC evidence is dissipating and some other factor creates pressing health, safety, or law enforcement needs that take priority over obtaining a warrant. In this case, the officer conducted a preliminary breath test using a portable machine, but the defendant fell unconscious before the officer had a reasonable opportunity to administer a breath test using evidence-grade breath testing machinery. A suspected drunk driver’s unconsciousness—itself a medical emergency—presents a pressing need for medical intervention and treatment that could delay or alter the results of a blood draw conducted later. “When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.” Read opinion.

Concurrence (Thomas, J.):

“Today, the plurality adopts a difficult-to-administer rule: Exigent circumstances are generally present when police encounter a person suspected of drunk driving—except when they aren’t. The plurality’s presumption will rarely be rebutted, but it will nevertheless burden both officers and courts who must attempt to apply it. The better (and far simpler) way to resolve this case is to apply the per se rule I proposed in Missouri v. McNeely. Under that rule, the natural metabolization of alcohol in the blood stream ‘creates an exigency once police have probable cause to believe the driver is drunk,’ regardless of whether the driver is conscious. Because I am of the view that the Wisconsin Supreme Court should apply that rule on remand, I concur only in the judgment.” (internal citations omitted) Read opinion.

Dissent (Sotomayor, J., joined by Ginsburg, Kagan, JJ.):

“The plurality’s decision rests on the false premise that today’s holding is necessary to spare law enforcement from a choice between attending to emergency situations and securing evidence used to enforce state drunk-driving laws. Not so. To be sure, drunk driving poses significant dangers that Wisconsin and other States must be able to curb. But the question here is narrow: What must police do before ordering a blood draw of a person suspected of drunk driving who has become unconscious? Under the Fourth Amendment, the answer is clear: If there is time, get a warrant. The State of Wisconsin conceded in the state courts that it had time to get a warrant to draw Gerald Mitchell’s blood, and that should be the end of the matter. Because the plurality needlessly casts aside the established protections of the warrant requirement in favor of a brand new presumption of exigent circumstances that Wisconsin does not urge, that the state courts did not consider, and that contravenes this Court’s precedent, I respectfully dissent.” Read opinion.

Dissent (Gorsuch, J.):

“We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute. That law says that anyone driving in Wisconsin agrees—by the very act of driving—to testing under certain circumstances. But the Court today declines to answer the question presented. Instead, it upholds Wisconsin’s law on an entirely different ground—citing the exigent circumstances doctrine. While I do not doubt that the Court may affirm for any reason supported by the record, the application of the exigent circumstances doctrine in this area poses complex and difficult questions that neither the parties nor the courts below discussed. Rather than proceeding solely by self-direction, I would have dismissed this case as improvidently granted and waited for a case presenting the exigent circumstances question.” Read opinion.


The Supreme Court continues to operate in a fantasy world where an endless supply of police (who are trained constitutional lawyers) have perfect knowledge of all relevant facts in their jurisdictions and unfettered 24-7 access to an endless supply of magistrates waiting around to review search warrants. The Court would really benefit from having a justice who had actually prosecuted or defended a DWI case, or at least presided over a DWI trial.

Texas Court of Criminal Appeals

Smith v. State

No. PD-0715-17                7/3/19


May a trial court give a voluntary-intoxication instruction in the punishment phase of trial?


Yes. A voluntary-intoxication instruction is appropriate “if there is evidence from any source that might lead a jury to conclude that the defendant’s intoxication somehow excused his actions.” When the State is introducing evidence of extraneous offenses during the punishment phase of trial, the trial court has discretion to include the instruction if there is evidence that might lead the jury to conclude that the extraneous offenses (unlawful bad acts) were turned into simply bad acts by the defendant’s intoxication. The application of the instruction must be expressly limited to consideration of these extraneous offenses.  Read opinion.


Prosecutors must be sure to review old jury charges to avoid similar errors in the future.

Franklin v. State

No. PD-0787-18                7/3/19


Is a defendant’s age at the time of an offense an element of capital murder that the State must prove at trial?


No. A mandatory sentence of life without parole for a defendant who was under the age of 18 when the offense was committed violates the Eighth Amendment’s prohibition on cruel and unusual punishment. However, the claim that the defendant was underage at the time is a defensive issue relating to punishment for which the defendant bears the burden of producing some evidence. Read opinion.


The defendant’s attorney on appeal gets kudos for creativity here. Thankfully, the law will generally win over creativity.

Alfaro-Jimenez v. State

No. PD-1346-17                7/3/19


Is evidence that the defendant carried and used a fake Social Security card sufficient to support a conviction for tampering with a governmental record under Penal Code §§37.10(a)(4) and 37.10(a)(5)?


No. Penal Code §37.10 sets out six different ways that the offense of tampering with a governmental record can be committed, with punishments ranging from a Class A misdemeanor to a second-degree felony. Sections 37.10(a)(4) and 37.10(a)(5) deal with the unlawful possession, sale, and use of real governmental records, not fake documents intended to be taken as genuine. Use of a counterfeit document falsely presented as a genuine governmental record is prosecutable under §37.10(a)(2). Read opinion.


The State will not be able to save a case on appeal if it was not charged under the right statute in the first place.

Ruiz v. State

No. PD-1348-17                7/3/19


Does the exclusionary rule require suppression of evidence obtained from a cell phone when a private citizen searches the phone and seizes it as evidence without committing any criminal offense?


No. Texas’ exclusionary rule (Code of Criminal Procedure Art. 38.23) is not implicated when a private citizen acts in violation of the warrant requirement but violates no law while doing so. In this case, after students complained that a substitute teacher was taking “up-skirt” photos of female students, the school principal called the substitute teacher into his office and asked to see his phone. After discovering photos of students, the principal turned the phone over to law enforcement, and officers obtained a warrant to search the contents of the phone. Because the principal’s actions did not violate any laws, nor does the exclusionary rule extend the Fourth Amendment to private citizens acting in a private capacity, the exclusionary rule is inapplicable here. Read opinion.


This case is yet another example showing that Texas needs to discard the statutory exclusionary rule in Article 38.23. It is an illogical and inflexible penalty in an era where rights and proper law enforcement are constantly changing and evolving. Mindlessly excluding evidence without looking in detail at how and why it was seized is contrary to almost all other applications of civil and criminal procedure. The Court here has to dance around and reorder its many conflicting precedents attempting to square Article 38.23 with reality on the ground.


Heart of Texas Human Trafficking Coalition Training August 2019

Collective Liberty and the Heart of Texas Human Trafficking Coalition would like to invite you to a free 5-day training institute from August 19 to August 23 in Waco. Collective Liberty, in collaboration with the Heart of Texas Human Trafficking Coalition, has designed a training for law enforcement and prosecutors in Texas to walk through lessons learned, best practices, and ways to fight human trafficking in your communities. This multi-day training will also be an opportunity for you to connect with and learn best practices from colleagues throughout the region working on these same difficult-to-investigate crimes. All participants can engage in a dynamic, hands-on case study that will take them from community complaint through to trial and sentencing, facilitated by national law enforcement and prosecution experts. More information and brochure are available here.

Recall Notice of Becton Dickinson Blood Alcohol Tubes

A notification from the Texas DPS Crime Lab about the BD blood alcohol tube recall is available here.

Prosecutor Trial Skills Course July 2019

Registration is open for our Prosecutor Trial Skills Course this July in Austin. Walk-ins will be welcome as well. It’s a full week of intensive training that prepares newly hired prosecutors for their work both in the courtroom and out. Seasoned faculty advisors are assigned to small groups of attendees to answer questions and direct discussions at each table, and two aspects of trial—jury selection and opening statement—are demonstrated by veteran prosecutors. Other elements of trial are covered, from opening statements to closing arguments, as are DWI and domestic violence prosecution (two of the most common offenses new prosecutors handle), plea bargains, probation revocation hearings, and motions to suppress. There’s even an optional forum on Class C misdemeanors for those prosecutors who practice in JP or municipal courts. New prosecutors won’t want to miss this intensive, high-quality training customized especially for them! 

Reminder:  TDCAA dues-paying members get a $50 discount on TDCAA Legislative Updates!  

One of the benefits of being a dues-paying member at TDCAA is a steep discount on the TDCAA Legislative Updates. If you are a dues-paying member and register in advance online, you will receive a $50 discount off the $150 non-member registration fee. If you want to become a member before you register for an update, just go to www.tdcaa.com/membership. Unsure if you are a member? Contact Kaylene at [email protected].    

Legislative Update Seminars

We have opened online registrations for our Legislative Update tour this summer! We’ll visit more than 20 locations throughout Texas in July and August to teach you, your staff, and your local court and law enforcement communities about all the new laws that will impact your work. If you haven’t already received your brochure listing all the locations and details, a PDF version is available online here. Find a date and location convenient for you and your staff and join us for the big show!

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]