Does the Texas Transportation code (implied consent) trump the 4th amendment?
If there is one thing law enforcement hates, it’s the 4th Amendment’s requirement to get a warrant before searching. The reason? Warrants require an officer to have probable cause, and to explain said probable cause (in writing) before getting what they want (searching your house, stealing your blood etc). Warrants provide some degree of accountability for LEO, a very minor check on the almost limitless power of the State. Today let’s talk about searching your body, specifically your veins. In our DWI police state your blood is merely another piece of evidence for the State to gather, and they will hold you down GITMO style to do so.
The Supreme Court recently decided a case called McNeely vs. Missouri, which upheld the controversial position that holding down a DWI suspect and taking his blood without consent is a search, and a warrant is required unless there is some kind of emergency. I say this in controversial because a) prosecutors and law enforcement hate this idea and b) the Constitution usually doesn’t apply to DWI suspects.
So the Supreme Court rules on this blood search issue and now it’s up to Texas’ appellate courts to uphold this Constitutional safeguard. The problem is our appellate courts are largely pro-conviction police-state judicial activists who want the Government to win on appeal. Don’t believe me, today’s case of the day is Reeder Vs State from the Texarkana Court of Appeals.
Reeder had two prior DWI convictions, and was being arrested for a DWI 3rd. The officer asked for Reeder’s blood, and Reeder said no. The officer took his blood anyway, without consent or a warrant. Reeder appealed citing the Supreme Court decision in McNeely which says you can’t do that, because 4th Amendment.
A little background here, Texas has an “implied consent” law that says everyone who drives gives up their 4th Amendment Rights and “consents” to police searches in DWI cases. No shit, it really says that. You can revoke your “consent”, but then the State can take your license, which in a state like Texas where you must drive to get anywhere, is a big deal. The implied consent law also says that the police must take a sample in repeat DWI cases, even if you say no. You can find all this in the Texas Transportation Code Section 724.
What are the issues?
Does the 4th Amendment apply in Texas? Can a transportation code statute overrule the United States Constitution? Can a Texas court of appeals ignore the Supreme Court?
The Texas Transportation Code is an exception to the 4th Amendment. Really. From the opinion.
Because Reeder’s blood specimen was obtained in compliance with Section 724.012(b)(3)(B) of the Texas Transportation Code, a warrant was not required. The trial court’s refusal to suppress the blood-draw evidence was proper.
I’m wondering if any of the judges who authored this opinion actually read McNeely vs Missouri. Because the McNeely case was an implied consent case. McNeely was asked for his blood and he said no, the officer took it anyway. If implied consent laws were somehow an exception to the Constitution, then the Supreme Court could have easily upheld the conviction in McNeely.