Texas Finds Per Se DWI Search Statute Unconstitutional

Posted On August 15, 2014

If we told you Texans were smarter than Minnesotans, you would laugh all the way to the Alamo.

That is, perhaps, unless you happened to stumble upon the recent Texas Supreme Court Decision of Aviles v. The State of Texas. In the wake of last year's Missouri v. McNeely decision, the various States have all been given their own opportunity to interpret exactly how to protect the constitutional rights of drivers suspected of being impairedâ??and Texas decided to respect the rights of those drivers, rather than to water them down.

In Aviles v. The State of Texas, the Texas Supreme Court held the state's warrantless search of Aviles's blood to be without an exception, and therefore, unconstitutional. The procedural background of the case parallels Brooks in that Aviles was remanded from the U.S. Supreme Court be decided in light of McNeely.

The facts of Aviles are pretty straightforward: after Aviles was arrested for DWI, the officer brought up his laptop and discovered Aviles had two prior DWI's. Bingo! The officer no longer needed a warrant because of a Texas statute permitting a police officer "to take a blood specimen from DWI suspect without a warrant if the officer has credible information that the suspect has been previously convicted on at least two prior occasions of DWI.|

Before forcing a blood draw, however, the officer asked Aviles if he would voluntarily submit to a breath or blood test. Interesting question because two aspects of it further distinguishes Texas from Minnesota: (1) there was no urine test offered because they do not withstand scientific scrutiny to be allowed in court; and (2) the officer, attempting to elicit valid consent, used the word |voluntary| because it must be free and voluntary to be legal consentâ??a question never asked in Minnesota DWI cases.

But, Aviles declined the warrantless search (yet another distinguishing aspect: he wasn't automatically charged with a crime). Herein lies the crucial moment: there is a failed attempt to elicit consent for a warrantless search that does not seem to have an exception. Does the officer have to get a warrant?

The officer took a test against Aviles's will, relying on the Texas Statute for the |two prior convictions| exception. But does McNeely leave room for such a per se exception? The Texas Supreme Court said |no.| The court instead held that the state must take into account the totality of the circumstances present in each case, specifically noting that |it was incumbent upon the State to prove the warrantless blood draw was reasonable under the totality of the circumstances.|

Texas's conclusion is the polar opposite of the one reached by our own Court of Appeals in Bernard (a case which is currently being reviewed by our own Minnesota Supreme Court). Let's hope that Minnesota follows the lead of Texas, and everyone can start chanting |Don't Mess With the Constitution.|