Texas Courts of Appeals
Islas v. State
No. 14-17-00660-CR 10/23/18
Issue:
Does an affidavit supporting a warrant for a blood draw after a warrantless blood draw was taken require a reference to the prior blood draw?
Holding:
No. The affidavit is not required to show why an additional blood sample would provide additional material evidence or why the previous blood draw was inadequate or ineffective. That the defendant previously had his blood drawn does not disprove probable cause and is not material to the magistrate’s decision. Read opinion.
Commentary:
This case is primarily a decision under Franks v. Delaware, the United States Supreme Court decision that held that an affirmative and material misrepresentation in a search warrant affidavit would render the warrant invalid. There has been some discussion in various appellate courts over whether Franks applies to omissions, not just affirmative misrepresentations. There has yet to be a definitive answer to that question, but this court of appeals has previously decided that Franks applies to omissions, as well as false statements. In any event, this is a very thorough and well-reasoned decision. It is not unusual for officers to seek a second blood draw from a suspect, especially after Missouri v. McNeely. This decision should be very helpful for prosecutors trying cases with multiple blood draws. However, because the opinion addresses an issue not yet decided by the Court of Criminal Appeals, make sure to watch and see if the Court decides to review the case.
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