DWI BLOOD DRAWS

DWI Blood-Draws Require a Search Warrant:

The Texas Court of Criminal Appeals (Tex. Ct. Crim. App.) ruled on November 26, 2014, that if a person suspected of a DWI offense refuses to provide a blood specimen pursuant to the Implied Consent and Mandatory blood-draw provisions of the Texas Transportation Code, then police must obtain a search warrant.  The Court stated:

We hold that a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment. State v. Villarreal (No. PD-0306-14).

This ruling follows Missouri vs. McNeely –an April 2013 United States Supreme Court case that held the Fourth Amendment requires police to obtain a search warrant to get a sample of your blood if there is no emergency or other exigent circumstances.   Click here to read our previous post on McNeely and its implications.

STATE v. VILLARREAL:

David Villarreal was arrested on suspicion of DWI after committing a traffic offense.  Police ran Mr. Villarreal’s criminal history and determined that he had two prior felony DWI convictions.  Villarreal did not consent to a blood draw.  Nevertheless, the arresting officer obtained a blood sample without a search warrant pursuant to Texas Transportation Code 724.012(b), which requires a mandatory-blood-draw for people who have two or more DWI convictions.  The tests showed that Villarreal’s blood-alcohol concentration (BAC) was .16–twice the legal limit.

DWI Blood Draws
DWI Blood Draws

The court of criminal appeals held that the officer should have obtained a search warrant to draw Villarreal’s blood.  The court noted that Texas’s statutory implied consent statute and mandatory-blood-draw provisions did not trump the Fourth Amendment of the United States Constitution that ordinarily requires police to obtain a search warrant–absent a warrant exception of course.  Because police did not comply with the warrant requirement, it held that the evidence from the blood draw was inadmissible.

News Coverage of Case:

This case has generated significant news coverage.  Click here, here, and here for more information on this case and its implications.

So what does this mean for me?

If you are arrested on suspicion of DWI in Texas, then police should ordinarily get a warrant-absent an exception to the Warrant requirement of the Fourth Amendment–to draw your blood if you decline to voluntarily provide a sample.

As a practical matter–police in San Antonio have been obtaining warrant’s to draw blood from suspected DWI offenders since April 2013, when the Supreme Court handed down Missouri vs. McNeely.

Final thoughts–law enforcement will still pursue their “No Refusal” initiatives–where police obtain search warrants to draw your blood if you are suspected of DWI and you decline to provide a breath or blood specimen.

But it is important to know your rights.  If you are detained or arrested on suspicion of DWI–then remember you have the right to remain silent and a right to speak with an attorney before you answer any questions.  This is important because anything you tell the officer can and will be used against you at your DWI trial.

Also, never fight with an officer or resist arrest.  You are only asking for more trouble if you do.  Remember–you will get your day in court–and an opportunity to confront and cross-examine your accuser–i.e., the arresting officer–if you choose to go to trial.


GENARO R. CORTEZ
PHONE:  210.733.7575

GRAND JURIES

What is an Indictment?  Why are grand-jury indictments necessary?  I received a subpoena to appear before a grand jury–should I consult an attorney before I testify?

These are some excellent questions people have recently asked me.  So, lets discuss them.

A.  What is an Indictment?

An indictment, generally speaking, is the written statement of a grand jury accusing a person of some act or omission–that by law is a criminal offense.

B.  Why is a grand-jury indictment necessary?

A grand-jury indictment is required by both the Federal and Texas Constitutions.  The Fifth Amendment to the United States Constitution provides in part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger….

The Texas Constitution has a similar provision:

[N]o person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in a penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.”  Texas Constitution, Art. I, Section 10

In short–grand juries act as a buffer between the government and an accused by requiring the Grand Jury to review the government’s case to determine if there is an adequate basis to formally charge a person of a criminal offense.  See United States v. Williams, 546 U.S. 36, 51 (1992).

If the grand jury finds there is probable cause to believe that a person committed an offense, then it will indict.  If the grand jury finds that there is not sufficient evidence, then it will return a “no-bill.”   [Fore more information on federal grand jury indictments–click here to see the United States Attorney’s Manual on its Grand Jury procedures.]

Nevertheless, there is legitimate criticism that grand juries act as “rubber-stamps” for the prosecution because they tend to indict in an overwhelming number of cases.  U.S. v. Navarro-Vargas, 408 F.3d 1184, 1195 (9th Cir. 2005).

C.  I’ve received a subpoena to testify before a grand jury–should I consult an attorney?

Yes.  You should always consult with an experienced attorney before you provide testimony to a grand jury.  Your attorney will help you determine what exposure, if any, you have to a criminal prosecution.  Specifically, he (or she) will help determine if you are a “target,” “subject,” or “witness” of the grand-jury’s investigation–as well as the pros and cons of testifying at the grand jury proceedings.


GENARO R. CORTEZ
ATTORNEY
PHONE:  210.733.7575


 

 

 

 

Collateral Consequences to Criminal Convictions

Consequences of Criminal Convictions:

State or federal criminal convictions carry the potential for severe and significant consequences.  The direct consequences of a criminal conviction are that a person may be placed on probation, sent to prison, ordered to pay a fine, or perform community service.

Legal Resources--Collateral Consequences
Legal Resources–Collateral Consequences

However, there are also collateral consequences that flow from a criminal conviction.

For instance, you may be prohibited from buying or possessing firearms, seeking elected office, serving on jury duty, or voting.  You may also have your professional license(s) suspended or revoked.

In some cases–the collateral consequences maybe harsher than the direct punishment that results from a criminal conviction.  For instance, if you are not a United States Citizen, then you may be deported, excluded, or denied admission into the United States if you are convicted of a criminal offense.

(Note:  If you are not a United States Citizen, then you should always discuss the immigration consequences of a potential conviction before you plead guilty or no contest.)

Self-Help Resources:

So what are the collateral consequences that occur after a criminal conviction?  The list of collateral consequences that follow from criminal convictions are too complex to write about in one blog post.  Fortunately, there are on-line resources that help provide answers to this question.

Professor Douglas A. Berman recently posted on his blog about a new website that addresses many of the collateral consequences arising after a person is convicted of an offense.  Collateral Consequences Resource Center (CCRC) is an excellent on-line resource center for anyone facing the possibility of being convicted of an offense.  The CCRC also connects to the Texas State Law Library, which has a link discussing the statutory restrictions on convicted felons.

Conclusion:

I’m hoping the links in this post provide a useful resource for anyone accused of a crime and facing the possibility of being convicted of a criminal offense.

Being aware of these consequences can help you start thinking about how to resolve your pending criminal charge.  For example, even if the evidence is sufficient to establish your guilt–it maybe possible to draft a plea-agreement that avoids or mitigates some of these collateral consequences.

Finally, if you are accused of a crime and facing a potential conviction, then you should always speak with a qualified criminal defense attorney to discuss the direct and collateral consequences that follow from a criminal conviction.

GENARO R. CORTEZ
ATTORNEY
PHONE:  210.733.7575