A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he alters, destroys or conceals any record, document or thing with intent to impair its verity, legibility or availability as evidence in the investigation or official proceeding.Just what does it mean to destroy evidence? The Texas statute would appear to mean a person has to do something with the knowledge that the evidence is wanted by the authorities. It requires a deliberate act on the part of the person being charged.
-- Texas Penal Code, Sec. 37.09
It doesn't, however, follow that involuntary bodily functions are a means of destroying evidence.
But somehow our police officers, prosecutors and legislators seem to be of the opinion that one can destroy evidence without intending to do so. And now it's time for the Nine in Robes to make the call.
Back in 2010, Tyler McNeely was stopped for exceeding the speed limit by 11 mph near Cape Girardeau, Missouri. The officer reported that Mr. McNeely did a poor job on the roadside calisthenics. He then had the gall to refuse to provide a blood sample.
That didn't sit too well with the Officer Winder who took him to a hospital and ordered a forcible blood draw. Of course the result indicated that Mr. McNeely was quite a bit over the legal limit.
At trial the state argued that it didn't matter that Officer Winder neglected to obtain a warrant to draw Mr. McNeely's blood because if he didn't, Mr. McNeely would destroy the evidence of his intoxication. The trial judge wasn't buying it and neither were the judges on Missouri's supreme court.
The state is arguing that the natural elimination of alcohol in the body is an exigent circumstance as defined by the Supreme Court in a 1966 case - a case that typically created an exception to a long-standing precedent that turned the meaning of the Fourth Amendment on its ear.
If the police want to strap a suspect down and jab a needle in his arm, the very least they should do is obtain a warrant from a judge authorizing the infringement upon the suspect's rights. Of course they should also be required to submit an affidavit that actually lays out clearly articulated facts that would lead one to the conclusion that the suspect may have been intoxicated. But that might be asking for too much.
As much as I would prefer to see the Court to proclaim that warrantless blood draws in DWI cases are an unconstitutional infringement upon the public's protections under the Fourth Amendment. That's not what I think we'll get, however. What's more likely is the Court deciding that there were no exigent circumstances in Mr. McNeely's case and then laying out some examples of what might constitute exigent circumstances in a DWI case.
The end result will be an even more tangled mess of the Fourth Amendment and an expansion of the power of the state over the individual.