By Douglas Gladden and Joshua Vanderslice
Assistant Criminal District Attorneys in Dallas County
“Get a warrant.” We hear it all the time. If the police don’t have consent or exigent circumstances, the Fourth Amendment requires them to get a warrant before conducting a search.
But when is a warrant not enough? If you’ve prosecuted a DWI case in the last two years, you’ve probably had to deal with this question. “Sure, the police had a search warrant to draw my client’s blood,” the defense attorney says, “but they didn’t have a search warrant to analyze it!”
Depending on where you live, your judge has most likely replied with either, “Nice try. Motion to suppress denied,” or “I hadn’t thought of that. Even though the police had a warrant, this was a warrantless search. Motion to suppress granted.”
Which response is correct? On September 16, in Crider v. State, the Court of Criminal Appeals held that the correct response is, “Nice try.” When the police have a search warrant to draw a DWI suspect’s blood, the Court held, the subsequent chemical test is a reasonable search under the Fourth Amendment.
Crider and “the Martinez issue”
Robert Crider was arrested for DWI after police, responding to a 911 call reporting an erratic driver, encountered him and observed signs of intoxication. The arresting officer got a search warrant to draw Crider’s blood, and subsequent analysis showed he had a BAC of .19. The warrant, however, “did not explicitly authorize … chemical testing” of the blood. Crider asked the trial court to suppress the results of the analysis, arguing that it was a warrantless search because it wasn’t expressly authorized by the search warrant.
To understand where Crider came up with that argument, recall State v. Martinez. If you’ve read Martinez or even if you just read the fine article about Martinez that appeared in this journal last year, you know the actual holding in the case: “We hold that there is an expectation of privacy in blood that is drawn for medical purposes.”
But in getting there, Judge Walker also wrote some unfortunate dicta: “When the State itself extracts blood from a DWI suspect, and when the State conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes.”
Seizing on this “two discrete searches” comment, Crider’s attorney argued that two separate searches require two separate search warrants. The trial court, though, denied Crider’s motion to suppress, and a jury convicted the defendant. On appeal, Crider argued that, under Martinez, the trial court should have granted his motion to suppress because the State had only one warrant.
While Crider’s appeal was pending, this argument spread across Texas faster than a coronavirus in a convention hall. In Corpus Christi, for example, defendant Richard Hyland argued that a “re-test” of his blood, performed nearly 19 months after his blood was drawn, was a separate search that required a separate search warrant. Meanwhile, in Dallas, defendant Kristin Staton argued that a search warrant that commanded a peace officer to “search for, seize, and maintain as evidence … blood” did not authorize testing that blood. When the trial judge granted Staton’s motion to suppress, it opened the floodgates in Dallas.
The courts of appeals don’t buy it
About the time the Dallas trial judges began declaring war on DWI search warrants, however, the San Antonio Court of Appeals decided Crider, holding that Martinez did not require a second warrant after all. Martinez, the San Antonio court noted, dealt with a warrantless analysis of blood that had been drawn without a warrant for medical purposes. “Here, in contrast,” the court said, “the police obtained Crider’s blood sample pursuant to a valid search warrant.” And because “common sense dictates that blood drawn for a specific purpose will be analyzed for that purpose and no other,” the court “reasonably … assume[d] that where the police seek and obtain a blood draw warrant in search of evidence of intoxication, the blood drawn pursuant to that warrant will be tested and analyzed for that purpose.” Thus, the search warrant authorized both the drawing and testing of Crider’s blood.
The Corpus Christi Court of Appeals quickly followed suit in Hyland and—distinguishing “warrantless” search cases such as Martinez—held that a search warrant that instructs an officer to “search for, seize, and maintain as evidence … blood” also authorizes testing that blood. Earlier this year, in Staton, the Dallas Court of Appeals agreed. So did the Fort Worth Court of Appeals and the First Court of Appeals in Houston.
The Court of Criminal Appeals shuts down the argument
Meanwhile, Crider had taken his case to the Court of Criminal Appeals. He again argued that blood analysis is a separate search that must be “expressly” authorized by a search warrant. The State responded with a five-fold argument:
1) Martinez doesn’t control because there was no warrant in that case;
2) a search warrant authorizing a DWI blood draw “necessarily authorize[s] … BAC testing” and therefore the test is a “reasonable” search;
3) analysis isn’t a “search” because a DWI arrestee doesn’t have a reasonable expectation of privacy in his BAC;
4) a valid blood search warrant diminishes any expectation of privacy the suspect may have in his BAC; and
5) Martinez was wrong.
The Court of Criminal Appeals, in an 8-1 decision, affirmed the lower court’s ruling. The majority opinion, by Judge Yeary, adopted the State’s second argument and held that when a neutral magistrate has approved a search warrant for a blood draw based on probable cause to believe the suspect has committed DWI, the magistrate has “necessarily also made a finding of probable cause that justifies chemical testing of that same blood.” That’s all that the Fourth Amendment requires, the Court held, so the analysis of Crider’s blood was “reasonable.”
The Court also agreed with the courts of appeals that Martinez is distinguishable, reminding everyone that in Martinez, “it was not the State that extracted the blood in the first instance. Instead, the State obtained the already-extracted blood sample from a treating hospital and, without a magistrate’s finding of probable cause, had that blood sample tested for intoxicants.” But when the State seizes the blood with a valid search warrant, the Court said, a magistrate has already found probable cause “to justify its seizure <for the explicit purpose of determining its evidentiary value to prove the offense> of driving while intoxicated.”
Crider—and the Texas Criminal Defense Lawyers Association—had made an alternative argument that a search warrant that didn’t expressly authorize testing was an unconstitutional “general warrant.” Not so, the Court held: The warrant authorized testing for BAC; it didn’t authorize any other testing (such as genetic testing) that wasn’t supported by the magistrate’s probable cause determination.
What it means and what’s still unanswered
The Court held that, under the Fourth Amendment, a search warrant that authorizes a blood draw based on probable cause also authorizes chemical testing of the blood so long as the testing is supported by the same probable cause. Unfortunately, the Court’s holding isn’t the final word.
First, the Court waffled on why the warrant justifies the blood analysis. While the Court had focused on the fact that the magistrate “necessarily … made a finding of probable cause that justifies the chemical testing,” it also noted in a footnote that high courts in several other states have held that the search warrant itself “necessarily authorizes” the blood test. The Court concluded that this doctrinal distinction “is of no moment” because either way, there is a bright-line rule that chemical testing, when based on a warrant justifying a blood draw for that very purpose, is “reasonable” under the Fourth Amendment.
Second, this bright-line rule may be dimmer than we think. If a blood warrant is based on probable cause to believe the suspect is intoxicated on alcohol, can the police analyze the blood for other substances, such as marijuana or cocaine? Or, reverse that: If the warrant is based on probable cause to believe the suspect is high on marijuana, can the police analyze the blood for alcohol? The majority opinion could be read to support either answer to this question.
Third, Crider does not address consent. Consent cases will still turn on the voluntariness and scope of the consent, which the State must prove at the suppression hearing by clear and convincing evidence. If you intend to rely on consent, focus on the language in the DIC-24 that specifically informs the arrestee that his or her blood will be tested for intoxicants.
Finally, the Court’s opinion is based only on the Fourth Amendment. Searches and seizures in Texas, however, are also subject to statutory requirements in the Code of Criminal Procedure. For example, police ordinarily have three days to execute a warrant after it issues, and that period can be shortened by the issuing magistrate. In DWI cases, where probable cause is especially time-sensitive, the magistrate may shorten the execution period to mere hours. If the analysis of the blood is a “search” authorized by the warrant, must the analysis be performed within the prescribed execution period? The Dallas Court of Appeals has said “no”—under the Code of Criminal Procedure, the warrant is “executed” when the blood is drawn, not when it is analyzed. The Court of Criminal Appeals may yet have to weigh in on that.
So stay tuned. Despite Crider, we’ll still be facing arguments that “the warrant wasn’t enough.”
 See, e.g., Crider v. State, No. 04-18-00856-CR, 2019 WL 4178633 (Tex. App.—San Antonio Sept. 4, 2019), aff’d, — S.W.3d – (Tex. Crim. App. 2020); Hyland v. State, 595 S.W.3d 256 (Tex. App.—Corpus Christi 2019, no pet.); Jacobson v. State, 603 S.W.3d 485 (Tex. App.—Fort Worth 2020, pet. filed); Hunt v. State, No. 02-19-00264-CR, 2020 WL 3987995 (Tex. App.—Fort Worth Jun. 4, 2020, no pet. h.) (mem. op., not designated for publication); Davis v. State, — S.W.3d —, No. 01-19-00756-CR, 2020 WL 4354712 (Tex. App.—Houston [1st Dist.] Jul 30, 2020, no pet. h.).
 See, e.g., State v. Staton, 599 S.W.3d 614 (Tex. App.—Dallas 2020, pet. ref’d); State v. Bocanegra, No. 05-19-01148-CR, 2020 WL 3496353 (Tex. App.—Dallas Jun. 29, 2020, no pet.) (mem. op., not designated for publication); State v. Jones, — S.W.3d —, No. 05-19-00927-CR, 2020 WL 3867201 (Tex. App.—Dallas Jul. 9, 2020, no pet. h.); State v. Giordano, No. 05-19-00926-CR, 2020 WL 6110815 (Tex. App.—Dallas Oct. 16, 2020, no pet. h.) (mem. op., not designated for publication). Notice a pattern here?
 Crider v. State, — S.W.3d —, No. PD-1079-19, 2020 WL 5540130 (Tex. Crim. App. Sept. 16, 2020).
 Crider, 2020 WL 5540130 at *2.
 Id. at *1.
 State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019).
 See Clinton Morgan, “Martinez v. State is narrower than you may think,” The Texas Prosecutor, Vol. 49, No. 3 (May–June 2019) at 8–10.
 Martinez, 570 S.W.3d at 291.
 Id. at 285 (citing State v. Huse, 491 S.W.3d 833, 840 (Tex. Crim. App. 2016).
 Crider, 2019 WL 4178633, at *3.
 Crider, 2020 WL 5540130, at *1–2.
 But seriously, wear a mask.
 Hyland, 595 S.W.3d at 261.
 Staton, 599 S.W.3d at 616.
 See Bocanegra, 2020 WL 3496353, Giordano, 2020 WL 6110815, and Jones, — S.W.3d —, 2020 WL 3867201 for just a few examples.
 Crider, 2019 WL 4178633 at *2–3.
 Id. at *2.
 Id. (cleaned up).
 Hyland, 595 S.W.3d at 260–61.
 Staton, 599 S.W.3d at 617–18.
 Jacobson, 603 S.W.3d at 491–92; Davis v. State, 2020 WL 4354712, at *5.
 Appellant’s Br. on the Merits, No. PD-1070-19, 2020 WL 1325510.
 State’s Br. on the Merits, No. PD-1070-19, 2020 WL 1575737.
 Crider, 2020 WL 5540130, at *2.
 Id. *2–3.
 Id. at *3.
 Id. (emphasis added).
 See Appellant’s Br. on the Merits, 2020 WL 1325510, & TCDLA amicus brief, No. PD-1070-19.
 Crider, 2020 WL 5540130, at *3.
 Id. at *2, fn.1 (citing State v. Martines, 355 P.3d 1111, 1115 (Wa. 2015); State v. Frescoln, 911 N.W.2d 450, 456 (Iowa Ct. App. 2017)).
 Id. at *2. Judge Newell, in a concurring opinion joined by three other judges, would have explicitly based the ruling on the magistrate’s probable-cause determination to avoid the risk that the search warrant could become a general warrant given the right “type of evidence at issues and the probable cause supporting the seizure.” Crider, 2020 WL 5540130, at *4 (Newell, J., concurring).
 This problem is best addressed in the search warrant affidavit. Our blood warrant affidavits in Dallas, which our warrants incorporate by reference, specifically mention that the purpose of the blood draw is to obtain a sample to test for alcohol and other intoxicating substances. So long as the affidavit contains sufficient facts for the magistrate to conclude that the suspect may be intoxicated by either alcohol or drugs, any analysis within that scope should be admissible given Crider’s focus on the magistrate’s probable cause determination. If a DWI defendant invokes Crider to argue that the State cannot test for other drugs after a low BAC result, point out that such a test does not dispel the probable cause found by the magistrate.
 See Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012).
 A complication is that consent can be revoked. State v. Villareal, 475 S.W.3d 784, 799 (Tex. Crim. App. 2014). In State v. Randall, 930 N.W.2d 223 (Wis. 2019), the Wisconsin Supreme Court held that the State could analyze a consenting arrestee’s blood notwithstanding her attempt to revoke consent between the draw and the analysis. But be careful relying on Randall. First, due to the unique politics and internal operating procedures of the Wisconsin Supreme Court, there is no majority opinion. Second, the outcome in Randall depended on the premise that a DWI arrestee has no further expectation of privacy against blood-alcohol testing once the specimen is legally drawn for law enforcement purposes. 930 N.W.2d at 233, 238 (opinion of Kelly, J.), 243–45 (Roggensack, C.J., concurring). In Crider, by contrast, the Court of Criminal Appeals reiterated that DWI arrestees retain an expectation of privacy in blood drawn for law enforcement purposes. 2020 WL 5540130, at *1.
 See Tex. Code Crim. Proc. Ch. 18.
 Tex. Code Crim. Proc. arts. 18.06, 18.07(a)(3).
 See Tex. Code Crim. Proc. art. 18.07(a)(3).
 Jones, — S.W.3d —, 2020 WL 3867201, at *2.
 Until that happens, make the argument that prevailed in Jones. See Section 3 of the State’s Reply Brief, available at https://tinyurl.com/y68dw7eo. In short, “execution” as used in the warrant statutes means the seizure of the item named in the warrant, which in the case of a blood-draw warrant is the blood draw. No statute sets a deadline for the analysis, and a timely draw preserves in perpetuity the probable cause to believe the specimen contains evidence of DWI.