The Washington Post carried this BIG story yesterday, and I meant to get to it, but never had time. In an 8-1 opinion, written by Justice Sonia Sotomayor (Thomas was the lone dissenter), the court ruled that police must try or have a reasonable duty to obtain a warrant before forcing a blood test to test for BAC. I have no idea how “try” or “reasonable” will be interpreted by the states.
The case, Missouri v. McNeely, denoted that the extraction of blood for the purposes of testing constituted a “search” under the fourth amendment. Accordingly, a Judge’s warrant would be required before said extraction.
I did not think that this really applicable to Texas law, but, evidently, it is. Texas (especially Houston) generally allows for defendants to refuse BAC test (the individuals would then incur an automatic license suspension), but it is becoming less common in recent years. I have a hunch that back in the good ole’ boy days, since half the legislators seemed to be defense attorneys in their other jobs, exemptions and the like were a lot more ubiquitous.
However, times have changed and the average legislator nowadays is a Republican businessman from the suburbs, instead of a Democratic attorney from the country. Localities now have broad power to set “no-refusal weekends” during certain big-events, as well as the State providing exemptions from the privilege of refusing BAC tests for a variety of categories (repeat offenders, children in the vehicle, etc). The Statesman had a good article about all this. Austin generally uses warrants, and the article insinuated Houston did as well, but it suggested that rural areas rarely did.
The Statesman article stated that Austin PD will not be doing any more warrantless blood tests. I wonder if HPD will follow.
