By Collin County Criminal Lawyer Jeremy Rosenthal
Texas has several compulsory blood draw statutes under the Transportation code. In short police can draw blood without a warrant a for felony DWI arrest which includes DWI with a minor, DWI (3rd or more), or Intoxicated Assault (manslaughter or homicide).
Last week, the United States Supreme Court decided Missouri v. McNeely which may call these laws into question. The Court held a search warrant is necessary to draw blood absent “exigent circumstances” which could give the police a reason for drawing blood without a warrant — perhaps in an emergency situation. The Court further held that the mere elapsing of time (while the human body eliminates alcohol from the blood) does not, in and of itself, constitute “exigent circumstances.”
In McNeely, the Court held a warrantless blood draw was unconstitutional although the police officer claimed he was not required to under law.
Similarly, in Texas, a police officer could claim no warrant is required for a felony DWI arrest but McNeely might be interpreted to hold the State must still how exigent circumstances to justify the blood draw.
It may take some time before the full implications of this opinion are understood.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about this case or any other situation you should consult with an attorney directly.