1. TRANSPORTATION CODE §724.012: TAKING OF SPECIMEN

2. (b) A peace officer shall require the taking of a specimen of the person’s breath or blood if:
The person is arrested for a driving while intoxicated offense (and is believed to be the one who was driving),
The person refuses to give the specimen voluntarily,
And one of these circumstances are present:
any individual has died or will die;
someone suffered serious bodily injury, has been transported to a medical facility for treatment; or
There is a child passenger (<15) in the car
The person has been previously convicted of intox assault, intox manslaughter,
Two or more prior convictions for driving while intoxicated
Note: (d) In this section, "bodily injury" and "serious bodily injury" have the meanings assigned by Section 1.07, Penal Code  statute is defining those terms for you!

3. Missouri v. McNeely 133 S. Ct. 1552 (2013)
Holding: absent exigent circumstances or a warrant, not allow to perform nonconsensual blood draws
Dissipation of alcohol (the evidence will be lost because the body metabolizes the alcohol) alone is not enough to show an exigent circumstance

4. A caveat…
McNeely only addressed blood draws in light of the exigency created by the dissipation of alcohol; and
No specific discussion of warrantless nonconsensual blood draws that were authorized by a state’s “carefully tailored implied consent” laws.
Which means that in Texas, under Sec CONSENT TO TAKING OF SPECIMEN, McNeely did not apply.

5. State v. Villareal 475 S. W. 3d 784, 796 (Tex. Crim. App
State v. Villareal 475 S.W.3d 784, 796 (Tex. Crim. App. 2015), reh’g denied, 475 S.W.3d 817 (Tex. Crim. App. 2015) (per curiam)
Cannot rely on the statute to draw a person’s blood unless:
(1) Consent,
(2) Get a warrant, or
(3) Exigent Circumstances… what situations/facts are considered “exigent circumstances?”
A warrantless search is per se unreasonable unless it falls within a well-recognized exception to the warrant requirement.

6. Cole v. state PD
May 25, 2016

7. I was looking for the most recent decision
I was looking for the most recent decision! If you received less than 100 it is because you did not find the most recent decision.

8. Charge: Intoxication Manslaughter (death)
Issue: Did the circumstances render obtaining a warrant impractical so that the warrantless search (blood draw) was justified under the exigency exception to the Fourth Amendment’s warrant requirement?
Were these exigent circumstances?

9. Facts
Longview, Texas
Driver-Defendant (Cole) ran a red light, crashed into Jim Hightower’s truck. Hightower’s truck immediately exploded. Hightower died instantly.
Very chaotic accident scene, heavy traffic conditions, first responders putting out the fires of both vehicles, etc.
Numerous officers needed to secure the area
Driver responsive but confused, told officers, EMS and hospital staff that he took meth.
Obvious signs of “tweaking”, meaning that he was showing indicators of meth intoxication. It took approximately
8 hrs to secure scene and clear crash
Cole refused consent to a blood sample, officer had the hospital staff take his blood anyway.
Blood positive for methamphetamine

10. Holding Case by case based on the totality of the circumstances
Under these circumstances, obtaining a warrant was impractical.
Factors the court will look at in addition to dissipation of evidence (how quickly the body metabolizes the drugs or alcohol)…so not enough alone but in combo with these other factors:
Procedures in place for obtaining a warrant
Availability of a judge to sign the warrant
Practical problems of getting a warrant within the time to still get reliable evidence

11. Application to the Facts of This Case
Time it took to investigate the scene: nearly 8 hours
Accident’s severity: death, both cars caught on fire
Lack of available law enforcement personnel: 14 or so officers, but each was occupied with a specific job at the scene

12. WEEMS V. STATE PD-0635-14 Decided May 25, 2016

13. Charge: Felony driving while intoxicated What is felony driving while intoxicated?

14. Facts Driver-Defendant (Weems) driving home with his friend.
Single car crash—car flipped
Witness (A passerby) stopped, saw D crawling out of his car.
D told W he was drunk and then fled the scene.
Passenger pretty beat up, but responsive. Stayed at the scene. Was able to get himself out of the car.
Sheriff’s deputy found the driver nearby about 15 minutes after the accident.
Signs of intox, D refused consent for a breath or blood sample.
EMS took him to a nearby hospital for treatment and the deputy directed staff to draw his blood.

15. Issue
Issue: Did the circumstances render obtaining a warrant impractical so that the warrantless search (blood draw) was justified under the exigency exception to the Fourth Amendment’s warrant requirement?
Were these exigent circumstances?
Same analysis as Cole…look at the totality of the circumstances

16. Holding
No exigency
Acknowledged Weems’ self-imposed delay—ran from the scene and made law enforcement expend resources to look for him.
Otherwise, couldn’t really show why getting a warrant “impractical”:
hospital nearby accident scene,
plenty of staff available,
magistrate pretty readily available.

17. In class writing assignment on Monday, January 23, 2017!
Test grade
This will cover the material we discussed beginning on January 3rd—mandatory blood draws. You should review:
IRAC
Transportation Code (b)
McNeely 133 S. Ct. 1552
Villareal 475 S.W.3d 784
Cole PD
Weems PD
“Closed book”—no materials allowed except you brain.
You will be given a set of facts and asked to respond by applying the case law.

18. If you would like a copy of the PowerPoint slides to study, please send me an and I will a copy to you. You are strongly encouraged to contact me by Friday, January 20 at 3pm if you want to ensure you receive the materials in a timely fashion.

19. How you will be graded: Use of IRAC structure in your response
Citations/reference to the case law we discussed
You are not expected to use proper Bluebook citations. For this assignment only, you can cite to the case simply by writing and underlining the case name.
Application of the case law we discussed to the facts you are given
Conclusory writing: If you merely state a conclusion without discussing or making reference to any of the statutes or cases we covered, you will probably not receive a very high grade.

20. Example: You are a felony prosecutor in Small Town, Texas
Example: You are a felony prosecutor in Small Town, Texas. You have an intoxication assault case (DWI w/serious bodily injury but no death.) Your case is set for a motion to suppress the blood draw that was taken under Transp. Code (b)

21. You will be given some additional facts…how many officers, availability of the magistrate to sign a warrant, etc.

22. Your response should look something like this (you will need to use full sentences, paragraphs)
State the Issue
Rule: Under Villareal, I concur that the mandatory blood draw statute can no longer be relied upon. However, under [Cole or Weems] a blood draw can nonetheless be valid if there are exigent circumstances which make getting a warrant impractical. The Court should look at the totality of the circumstances to decide whether an exigency exists.
Application/Analysis: This case is similar to Cole or it is similar Weems because….
Conclusion: The blood should be suppressed or should not be suppressed because…