Last time we discussed Missouri v. McNeely and the effect it had or didn’t have on Josh Brent’s case. Brent’s attorney, like many DWI attorneys, thought, or at least hoped, the case meant that warrantless blood draws would be thrown out of court if the state could not show that exigent circumstances justified the warrantless blood draw. But there it another set of laws that conflict with the holding of McNeely: implied consent statues.
All states have an implied consent statute. Texas’s, for example, states that anyone arrested out of an offense involving a motor vehicle in a public place is “deemed to have consented” to the taking of blood or breath for analysis. Tex. Transp. Code § 724.011. In other words, by operating a vehicle in Texas you are assumed to have agreed to give blood if arrested for a driving related offense. Of course, if you refuse to allow the police to take your blood, they can’t strap you to the chair and force it out of you (unless it falls under an exception to the warrant requirement).
Refusing to give blood obviously violates the implied consent statute. This is why cops tell you that by refusing to take a breathalyzer test or give blood that your license can be revoked for 6 months. Essentially, by driving in Texas, you agreed with the Texas Department of Motor Vehicles to provide a breath or blood sample if you are ever suspected of Driving While Intoxicated. If you don’t the cop takes your license and the Texas Department of Motor Vehicles initiates civil proceedings against you to suspend your license. Within Texas’s implies consent statutes it states that you can’t refuse the blood draw if you were in an accident resulting in death or if it’s your third DWI arrest. Josh Brent’s accident resulted in the death of his friend and teammate, Jerry Brown, so he was unable to refuse the blood test under the Texas implied consent statute.
So there’s the problem. You have the Supreme Court holding that the police have to secure a warrant to take someone’s blood or breath, but implied consent statutes stating that you can’t refuse to give blood or breath under certain circumstances. The Supreme Court had the opportunity to clear this up. Justice Sotomayor, in the majority opinion, refers to implied consent statutes as a way states can deal with drunk-driving. The opinion seems to endorse the use of implied consent statutes to impose consequences on drivers that don’t consent, but falls short of saying that these implied consent statutes take this issue into the consent exception of the warrant requirement.
Here are a few possible readings. By implied consent statues you are deemed to have consented to a blood/breath draw. If you refuse, you can be civilly sanctioned for the refusal (license suspension), but the cops still have to secure a warrant to take a blood sample that can be used against you in a criminal proceeding. While reasonable, this doesn’t seem to be the popular reading.
The Superior Court of Delaware (Delaware’s highest court) held that McNeely did not overrule Delaware’s implied consent statute in State v. Flonnory, 2013 WL 3327526. Their reading of McNeely is that by mentioning the implied consent statutes but not overruling them, the Supreme Court endorsed them. Thus, if Delaware’s implied consent statute says you consented, police don’t need a warrant to secure your blood. The problem with this reading is that renders McNeely’s holding completely irrelevant. If implied consent statutes settle this whole issue, the Supreme Court wouldn’t have felt the need to write a 20+ page opinion about the need for warrants in blood draws full of phrases like this one: “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” McNeely at 1560.
I’m not alone in this interpretation. The Kentucky Court of Appeals in Duncan v. Commonwealth, 2013 WL 3816017, agrees that McNeely is controlling over implied consent statutes. Its unknown how Texas courts will react to McNeely. A few Texas cases have addressed McNeely, but all have declined to rule on whether McNeely makes Texas’s implied consent statute unconstitutional due to procedural issues. When they do decide to rule on this, hopefully they will see the wisdom of the Kentucky Court of Appeals, rather than selectively read like the Delaware Superior Court.