Invalidating the Fourth Amendment, Texas style

In Missouri v. McNeely, the US Supreme Court held that the natural dissipation of alcohol in blood is not in and of itself an exigent circumstance that does away with the need for a search warrant to draw blood. The Court did say, however, that it could be one of the factors considered when trying to determine whether there were exigent circumstances that could justify a warrantless blood draw.

In Texas if a person is arrested for driving while intoxicated and has two prior DWI convictions, the Transportation Code provides that the police may take a sample of his blood without a warrant.

And that's exactly what happened to Clayton Reeder in September of 2012. He swerved to avoid hitting a deer that had run out into the road and ended up in a ditch. A state trooper arrived on the scene to investigate the accident and decided that Mr. Reeder was intoxicated. Mr. Reeder was arrested and, since he had two prior DWI convictions, he was charged with a felony DWI.

He declined the offer to provide a blood sample at the hospital so, based on Section 724.012(b)(3)(B) of the Texas Transportation Code, the officer obtained a blood sample anyway. Naturally the alcohol concentration was above the legal limit.

At trial Mr. Reeder asked the court to suppress the results of the blood test on the grounds that the mandatory blood draw violated his Fourth Amendment protection against unreasonable search and seizure. The trial court wasn't so moved and denied his motion. Mr. Reeder was later convicted and sentenced to six years in prison.

On appeal to the Sixth Court of Appeals in Texarkana, in Reeder v. State, the question was whether or not the mandatory blood draw provision of the law violated the Fourth Amendment by requiring warrantless blood draws in all felony DWI cases regardless of whether exigent circumstances did or did not exist.

The court, however, had a different idea. Sidestepping completely the issue of whether or not there were exigent circumstances present in Mr. Reader's case, the judges decided that the Implied Consent law in Texas trumped any need for a warrant. The court reasoned that a search was constitutional if it was conducted with the consent of the suspect. Since Texas law states that all motorists are considered to have given their implied consent to providing a sample of their breath or blood if the officer had either reasonable suspicion to stop or probable cause to arrest for DWI, then the forced blood draw was "consensual."

In other words, a statute that threatens a motorist with legal sanctions for not voluntarily giving up evidence to be used against her, trumps a constitutional protection. The decision is yet another example of a court bending over backwards to affirm a conviction regardless of the rationale.

To claim that a statutory provision of the Transportation Code that is not explained to anyone applying for a driver's license trumps a constitutional protection against unreasonable search and seizure is either laughable on its face or deeply disturbing in its application. Either way it is yet another hole punched through the Fourth Amendment.