The 1st Court of Appeals in Texas recently decided a DWI case from Fort Bend County, in which the police took blood from a DWI accident suspect after the suspect refused to consent to a blood draw. The case is McGuire vs, State # 01-14-01023-CR. In this case Mr. McGuire was returning home from a bar and stuck a man on a motorcycle, killing him. The police took Mr. McGuire to the hospital to obtain a blood sample. Mr. McGuire refused consent but the officer said since someone died in the traffic accident the Texas transportation code says it is a mandatory blood draw. The test showed Mr. McGuire had a BAC or 0.16 and he was convicted at trial.
On appeal the Court of Appeals ruled that the blood draw was unconstitutional and violated the 4th Amendment of the U.S. Constitution. The State relied on the Texas implied-consent statute. The Court of Criminal Appeals held that “taken by themselves,” the statute’s provisions do not “form a constitutionally valid alternative to the Fourth Amendment warrant requirement.” Villarreal, 475 S.W.3d at 813. Instead, for a warrantless blood test to be constitutional, the evidence must “fit within a recognized exception to the search-warrant requirement” even if the Transportation Code requirements have been met. Id. at 796. Thus, an officer’s compliance with the Transportation Code does not, by itself, mean that the blood draw was constitutional.
The State then argued that their was exigent circumstances to excuse the need for a warrant. The Court examined the totality of the circumstances, and concluded that the State failed to demonstrate an exigency to excuse the requirement of a warrant.
Bottom line is even with an implied consent law the State must, in most cases, get a warrant for a blood draw in a DWI case if the suspect refuses consent for a blood sample to be taken. IF they don't they have to show they tried to get a warrant but it was taking to long so that the BAC was being lost.