Are Warrantless Blood Draws Legal?
When the Texas Criminal Court of Appeals affirmed the felony DWI conviction of Anthony Aviles based on a warrantless blood draw, the U.S. Supreme Court vacated the judgment. This was in January. His conviction was based on a Texas statute that called for a mandatory blood draw if the suspect has two prior DWI convictions. This law is found in Sec. 724.012(b)(3)(B) of the Texas Transporation Code. Here is the Texas Fourth Court of Appeals opinion of Aviles’ conviction: Aviles v. State
The Case of Anthony Aviles
In June of 2011, Officer Joe Rios of the San Antonio Police Dept. pulled over a Mazda pickup truck driven by Aviles for swerving and drifting across lane markers. After the arrest while Aviles was handcuffed in the back of the patrol car, Rios checked Aviles’ criminal history on his car computer and discovered two prior DWI convictions. A driver can refuse a warrantless blood draw, but the driver will be notified in writing about the mandatory license suspension of 180 days. Under Texas law, a driver with two prior DWI convictions cannot refuse to submit to a warrantless blood draw. Accordingly, Rios took Aviles to a hospital and and obtained his blood. At his felony DWI trial, Aviles tried unsuccessfully to suppress evidence of the the warrantless blood draw. He was found guilty and sentenced to two years in the Texas Dept. of Corrections.
Warrantless Blood Draws are Generally Unconstitutional
After losing all his Texas appeals, Aviles appealed to the U.S Supreme Court on the issue that the warrantless blood draw was an illegal search and seizure. Indeed, just last April, the Supreme Court decided in Missouri v. McNeely that, absent some sort of extreme crisis, an officer needs a warrant to draw blood. In McNeely, the state argued that the dissipation of alcohol in the blood stream constitutes such a crisis. The state lost. Warrantless blood draws are unconstitutional.
The Supreme Court reversed Aviles case without issuing an opinion, essentially telling the Court of Criminal Appeals to go back and re-read Missouri v McNeely and try again.
Fort Worth Police will Generally Obtain a Warrant
It is not difficult for an officer to obtain a warrant to draw a suspect’s blood. This is especially true in Fort Worth where, on weekends, warrant-issuing magistrates are a phone call away at all hours of the night.
