Are No Refusal Weekends Legal?

The dangers of drunk driving are not disputable.[1] Texas law recognizes those dangers by criminalizing the operation of a motor vehicle while intoxicated.[2] However, Texas law also generally gives drivers the right to refuse to offer a breath specimen,[3] the only penalty for doing so being a driver’s license suspension.[4] Not surprisingly, this results in a high rate of refusals.  “Nearly half of all drivers in the state deny requests to take [a breathalyzer] test, a rate that’s almost double the national one and surpassed by only four other states.”[5] For repeat offenders, the refusal rate is closer to seventy percent.[6] High refusal rates often leave prosecutors with insufficient evidence on which to convict.  Consequentially, “DWI cases jam court dockets and many charges end in dismissals or acquittals,”[7] thereby hampering law enforcement’s efforts to deter drunk driving.

In light of the grave dangers of drunk driving and in order to combat the high rate of refusals, a growing number of Texas cities—Arlington, Belton, Brownsville, El Paso, Forth Worth, Jacksonville, Palestine, Plano, Richardson, San Antonio, Tyler, and many more—along with at least twenty counties have implemented “No Refusal” weekends.[8] The program implements police procedure to obtain search warrants from readily available magistrates against persons who are both taken into police custody on suspicion of DWI and refuse to provide a breath or blood sample.[9] The plain purpose behind “No Refusal” weekends is to deter people from driving while intoxicated on weekends that are notorious for heavy drinking.  The idea is that people will be dissuaded from drinking and driving because they know that police officers will be conducting sobriety tests “with or without” a driver’s consent.[10]

Law enforcement officers across the state claim that the program is effective.[11] In December of 2008, Houston police successfully obtained over 300 DWI search warrants that returned an average BAC of 0.17.[12] Ninety-eight percent of those tested had a BAC of 0.08 or higher.[13] Over the 2008 Halloween weekend, Anderson county law enforcement officials made sixteen DWI arrests.[14] Of those sixteen arrestees, twelve consented to either a blood or breath test; against the remaining four, police secured search warrants to draw blood.[15] Over the 2008 Memorial Day Weekend, San Antonio police secured search warrants for the blood of thirty-eight DWI suspects.[16] And, over the 2008 Super Bowl weekend, Arlington police arrested seventeen DWI suspects, obtaining search warrants to draw blood from four.[17] The number of accidents in Arlington that weekend resulting in fatalities?  Zero.[18]

Success claims aside, the “No Refusal” program is not without its critics.  Civil libertarians call the blood draws an unnecessary invasion.[19] Many defense attorneys view the mandatory blood draws as a violation of civil rights.[20] Some critics believe that the judges who review the warrants are “rubber-stamping” the warrants and thus failing to decide each case on the merits.[21] They argue that sufficient probable cause is required in order to obtain a search warrant and that “just refusing a breath test is not sufficient.”[22] Dallas defense attorney Robert Guest blogged, “by ‘no refusal’ what is really meant is that the police are going to punish you for not taking their breath test, exercising your right to remain silent and not produce evidence, and exercising your right to not be held down while police goons steal your blood.”[23]

Other defense attorneys are doubtful that forced blood draws will be found illegal or unconstitutional and have resigned themselves to other battle grounds.  “[W]e’re left fighting over (a) the probable cause contained in the ‘four corners’ of the search warrant affidavit; (b) a possible ‘while’ defense; and (c) the integrity and accuracy of the blood test result,” blogged Houston area defense attorney Mark Bennett.[24] “If your BAC could possibly be 0.08 or higher, you’re better off with a breathalyzer than a blood test.  And since, if you’ve been drinking, you probably don’t know what your blood alcohol content is going to be, the better rule [on “No Refusal” weekends] is . . . to blow.”[25]

Implementation of the “No Refusal” program draws together two competing interests: the State’s interest in minimizing the dangers of drunk driving and the individual’s interest in preserving her rights.  While it is unlikely that the “No Refusal” program violates civil rights guaranteed by the Fourth, Fifth (excluding a probable cause challenge), or Fourteenth Amendments,[26] the argument can be made that the program violates Texas statute—namely, the right to refuse to offer a breath or blood specimen.

The right to refuse to blow derives from Chapter 724 of the Texas Transportation Code, entitled “Implied Consent,” which outlines the rules on implied consent and the procedure for obtaining specimens for alcohol content analysis.[27] In general, a person who is “arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle . . . while intoxicated . . . is deemed to have consented . . . to the taking of one or more specimens of the person’s breath or blood for analysis . . . .”[28] Upon a suspect’s arrest, blood or breath specimens “may be taken” if an officer has “reasonable grounds” to believe the person was operating a motor vehicle while intoxicated.[29]

The right to refuse falls under section 724.013.  It states that, “[e]xcept as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”[30] The 724.012(b) exception states that an officer “shall require the taking of a specimen of the person’s breath or blood” when four conditions are met: (1) the suspect is arrested for DWI; (2) the officer “reasonably believes” that the suspect caused an accident; (3) the officer “reasonably believes” that someone has died or will die or that someone besides the suspect has suffered serious bodily injury; and (4) the person refuses to give the specimen voluntarily.[31] Thus, in cases that do not involve some sort of auto accident, a person has an unfettered right to refuse.  Even in cases where there is an accident, a person still has an unfettered right to refuse where either (1) he is not arrested for DWI, (2) there is no reasonable indication that he is at fault,[32] or (3) there is no reasonable indication that someone died or was seriously injured.

A. Beeman: Putting the Cart Before the Horse

 

Because Texas statutory law does not allow for blood draws to be administered to those who refuse (except as provided by section 724.012(b)), the “No Refusal” program purports to derive its authority to draw blood by way of search warrants issued by neutral and detached magistrates.  The question, then, is whether the statute granting motorists the right to refuse precludes the taking of a defendant’s blood pursuant to a constitutionally firm search warrant.  In 2002, the Texas Court of Criminal Appeals addressed this very issue in Beeman v. State.[33] In that case, Knowel Beeman was rear-ended while driving.[34] There were no injuries, and the officer cited the other driver for following too closely; however, the officer also arrested Beeman for DWI.[35] Beeman refused a breath test, so the officer obtained a search warrant for his blood.[36] Over Beeman’s objection, his blood was drawn at the local hospital.[37] The test later revealed his BAC to be 0.21, well over the legal limit.[38] Citing section 724.013 of the Transportation Code, Beemen moved unsuccessfully to suppress the results.[39] The intermediate court upheld the suppression based on the “broader powers” of the search warrant over that of the statutory right to refuse.[40]

Before the Court of Criminal Appeals, Beeman argued that “despite the existence of a search warrant, this search was invalid because it violated our state’s implied consent statute,” and that that statute, “by implication, excludes the taking of blood without consent under any other circumstances, including by the authority of a search warrant.”[41] The State countered that “construing the law in this manner results in giving DWI suspects more protection than other criminal suspects—an absurd result contrary to the statute’s intent.”[42] The Court of Criminal Appeals agreed with the State and held that “once a valid search warrant is obtained by presenting facts establishing probable cause to a neutral and detached magistrate, consent, implied or explicit, becomes moot.”[43]

The Beeman decision was not unanimous.  Judge Johnson filed the lone dissent, noting that article 38.23 of the Texas Code of Criminal Procedure states that “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas . . . shall be admitted in evidence against the accused on the trial of any criminal case.”[44] Judge Johnson also noted that the “plain language of [the 724.012(b) exception] sets out four requirements which must be satisfied in order for the involuntary taking of a blood specimen to be authorized.”[45] In the instant case, she pointed out, only two of the four requirements were satisfied, and therefore, “[t]he taking of blood . . . was obtained in violation of section 724.013,” and “should have been suppressed under Article 38.23.”[46] She then explained:

The Legislature has chosen to give DWI arrestees the right to refuse to submit a breath or blood specimen unless the rather restrictive requirements of section 724.012(b) are met. The state would have us condone broad application by permitting use of a search warrant to circumvent the legislated prohibition. It is not unreasonable or absurd for the Legislature to decline to give carte blanche to officers to demand and forcibly obtain blood samples from all persons arrested for DWI.  The Legislature could quite reasonably decide to permit officers to require the taking of a specimen only in those situations in which the officer reasonably believes a life-threatening accident had been caused by the DWI offense.

. . . .

It is axiomatic that, while our constitutions limit the powers of government and provide protection for the rights of the people, the Legislature can pass laws that provide even greater protection. The Legislature has clearly and explicitly provided a statutory right for a DWI arrestee to refuse a request for a specimen, with one specific, limited exception. I do not acquiesce to the state’s request that we disregard and judicially repeal the Legislature’s clear and explicit statutory right to refuse to provide a specimen.[47]

 

In countering Judge Johnson’s argument, the majority stated that its holding gives “police officers nothing more than the Constitution already gives them—the ability to apply for a search warrant and, if the magistrate finds probable cause to issue that warrant, the ability to effectuate it.”[48] In sum, the majority’s position is that section 724.013 is rendered moot by the broader power of the search warrant given by the Constitution itself, and that therefore, the search warrant in the instant case was legal.[49]

The premise used by the Court of Criminal appeals—that law enforcement’s “ability to apply for a search warrant” and “effectuate it” is “giv[en]” by the Constitution—requires a closer look.   Does either the United States Constitution or the Texas Constitution really “give” law enforcement the power to apply for and effectuate search warrants?  The Fourth Amendment states in its entirety:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[50]

 

Section 9 of article 1 of the Texas Constitution contains a substantially identical provision:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.[51]

 

First, a careful reading reveals that nowhere does either the Fourth Amendment of the United States Constitution or section 9 of article 1 of the Texas Constitution give government the power to do anything.  Neither enables; to the contrary, both provisions restrict the power of government and its ability to use the warrant.  As the Schmerber Court noted, “[t]he Fourth Amendment’s proper function is to constrain . . . .”[52] The Beeman opinion itself begins its analysis by noting that “[t]he Fourth Amendment prohibits unreasonable searches and seizures.”[53] Second, the word “warrant” appears nowhere else in the Constitution.  Likewise, the Texas Constitution fails to use the term in the applicable sense.[54] In other words, while both documents contemplate the use of search warrants, nowhere does either document enable government to use search warrants.  The premise of Beeman—that law enforcement’s “ability to apply for a search warrant” and “effectuate it” is “giv[en]” by the Constitution—is completely unsupported by either the United States Constitution or the Texas Constitution.[55] The warrant power derives from some other source.

In Texas, article 18.02(10) of the Code of Criminal Procedure states that “[a] search warrant may be issued to search for and seize . . . property or items . . . constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense.”[56] Under case law, the word “items” includes blood samples.[57] The bill analysis for the 1977 amendment to article 18.02, which added subdivision (10) to authorize the seizure of “property or items,” states “[u]nder present Texas criminal procedure a search warrant can be issued only for certain designated items . . . .”[58] This indicates that article 18.02 is the sole source of the Texas warrant power.  Thus, the ability of law enforcement to apply for a search warrant and effectuate it upon a neutral magistrate’s finding of probable cause derives exclusively from statute, not from either constitution.[59]

The Court of Criminal Appeals has acknowledged as much.  In Smith v. State, [60] the court implicitly but necessarily held that the Code of Criminal Procedure is the sole source of the warrant power.  There, a trial court convicted defendant Harvey Smith of murder.[61] Prior to the trial, however, the trial court granted the State’s “Motion For Permission to Obtain A Sample Of Defendant’s Blood.”[62] Subsequently, a medical technologist obtained blood and saliva samples from Smith.[63] The issue on appeal was whether article 18.02 authorized the search for Smith’s blood and saliva.  At the time, however, article 18.02 did not include subdivision (10),[64] which currently authorizes the seizure of “property or items,” including blood and saliva.[65] Applying the previous version of article 18.02, the Court of Criminal Appeals held the following:

Since Article 18.02 . . . does not list “blood” as one of the “grounds of issuance” of a search warrant, a search warrant may not be issued to search for this type of evidence.  Consequently, we hold that absent a consent freely and voluntarily given, and a valid waiver of [a defendant’s] Article I, Section 9 right to be free from unreasonable searches, a defendant may not be subject to a blood test under Texas law, search warrant notwithstanding.[66]

 

In holding that article 18.02 did not authorize searches for blood or saliva samples and that a search warrant could not be issued, the court implicitly held that the source of the power to issue and execute search warrants derives from article 18.02 of the Texas Code of Criminal Procedure, that article alone, and not from either the Texas Constitution or the United States Constitution.  That implication is necessary to the court’s holding that “a search warrant may not be issued to search for this type of evidence.”  Thus, the court recognized that the legislature must first authorize the issuance of search warrants.  This must be done before any issues of constitutionality can arise.  In other words, the search warrant must be legally authorized in the first place.[67] In contrast, Beeman initially presumed the search warrant’s legality under the Constitution; what Beeman should have done initially was decide whether, under statutory law, the search warrant was legally authorized by the legislature.

B. Conflicting Provisions: Article 18.02 of the Code of Criminal Procedure and Section 724.013 of the Transportation Code

 

Because the warrant power derives from statute and not the United States Constitution or the Texas Constitution, the issue remains: whether the legislature, outside the 724.012(b) exception, has authorized the use of a search warrant for a DWI suspect’s blood where the suspect has refused to offer a specimen, or whether the legislature has restricted its use.  The Code of Criminal Procedure indicates that the legislature has authorized the search: “[a] search warrant may be issued to search for and seize . . . property or items . . . constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense . . . .”[68] The Transportation Code, however, indicates that the legislature has restricted the search: “a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”[69] The issue is one of statutory construction.

In Texas, the rules of statutory construction are codified in the Code Construction Act.[70] Applicable here is the in pari materia doctrine, codified in section 311.026, which states, “[i]f a general provision conflicts with a special or local provision,” and “[i]f the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.”[71] In other words, “when the general statute and a more detailed enactment are in conflict, the latter will prevail, regardless of whether it was passed prior to or subsequently to the general statute, unless it appears that the legislature intended to make the general act controlling.”[72] Alternatively, section 311.025 requires that “if statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails.”[73]

With respect to section 724.013 and article 18.02, therefore, it must first be determined (1) whether the two statutes are in pari materia—that is, whether a general statute and a specific statute are in conflict.  If the doctrine does not apply, section 311.025 and other statutory construction aids will control.[74] If the doctrine does apply, it must also be determined (2) whether any conflict is irreconcilable.  If it is, the reconciliation will control.[75] If it is not, it must be determined (3) whether the legislature intended that the general statute control over the more specific one.  If the legislature intended that the more general statute control, then the more general statute will prevail.  If, however, there is no such indication, then the specific statute will prevail.

1. In Pari Materia

In Cheney v. State,[76] the Court of Criminal Appeals described the scope of the in pari materia doctrine:

It is a settled rule of statutory interpretation that statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things, are considered as being in pari materia though they contain no reference to one another, and though they were passed at different times or at different sessions of the legislature.

. . . .

. . . . [In pari materia] applies where one statute deals with a subject in comprehensive terms and another deals with a portion of the same subject in a more definite way. . . .  [T]he rule is not applicable to enactments that cover different situations and that were apparently not intended to be considered together.

. . . .

. . . . [I]f two statutes do not deal with the same subject matter, persons or purpose, they are not in pari materia and should each be construed separately and in accordance with the plain wording of the particular statute.[77]

 

While in pari materia often applies to different provisions within the same code,[78] such is not always the case.  In Azeez v. State,[79] for example, the Court of Criminal Appeals applied the doctrine to two provisions: (1) section 38.10(a) of the Penal Code, which that court said “broadly defined the offense of failure to appear when conditionally released from custody”; and (2) section 543.009(b) of the Transportation Code, which the court described as the “more narrowly hewn . . . offense . . . specifically proscrib[ing] the failure to appear in court pursuant to a written promise upon being arrested for an offense under Title 7, Subtitle C of the Transportation Code . . . .”[80] In that case, the court determined that section 38.10(a) was a general provision and that section 543.009(b) was a special provision.[81]

Here, section 724.013 of the Transportation Code and article 18.02 of the Code of Criminal Procedure satisfy the requirements of Cheney because both “deal with” the authority of law enforcement to collect blood specimens from those suspected of DWI.  Second, they both have the same “general purpose” of defining the authority of law enforcement to collect the specimens.  Third, they both relate to the same class of persons and things: DWI suspects and blood specimens.

Moreover, the two statutes are fairly analogous to the two statutes in Azeez.  First, just as section 38.10(a) of the Penal Code “broadly defines” the offense of failure to appear, article 18.02(10) broadly defines the scope of law enforcement to “seize property or items constituting evidence of an offense.”  The sheer breadth of what may be seized as either “property” or “items” is almost limitless.  For all intents and purposes this subdivision acts as a “catchall” provision for ten of the other eleven enumerated classes of things which may be seized.[82] Its only self-imposed limitation is that it does not include the personal writings of the accused.  Notwithstanding, article 18.02(10)—an enabling statute—broadly enables law enforcement to seek, and the judiciary to issue, search warrants.  Thus, article 18.02(10) is, in any applicable sense of the word, a “general” provision.

Second, just as section 543.009(b) of the Transportation code “narrowly” proscribes the failure to appear in court pursuant to a written promise, section 724.013 narrowly defines a very specific situation: the refusal of DWI suspects to submit to the taking of a specimen designated by a peace officer.  That section also involves only a very narrow class of persons: those accused of DWI.  It is in this situation only, applicable to this class of persons only, that the law precluding law enforcement from obtaining blood specimens applies.  Section 724.013 narrows its application even further by excluding the situation and class of persons described in section 724.012(b): those who were arrested for DWI, were involved in an accident where someone was seriously hurt or killed, and appear to be at fault.[83] In contrast to article 18.02(10), thus, section 724.013 is a “special or local” provision.

In sum, because the two statutes deal with the same general subject, have the same general purpose, relate to the same class of persons and things, and because one is general and the other is specific, the doctrine of in pari materia applies.

2. Reconciliation

Where the in pari materia doctrine applies, all effort should be made to reconcile the two statutes.  However, even where the doctrine does not apply and section 311.025 controls, the law still prefers a reconciliation where reconciliation is possible.[84] Thus, wherever reconciliation is possible, the reconciliation will control.

Here, reconciliation is possible.  Article 18.02 states that a search warrant “may be issued”—not “must be issued”—to search for and seize several enumerated classes of things.[85] Under section 311.016 of the Code Construction Act, the word “may” creates “discretionary authority or grants permission or a power.”[86] In other words, the issuing of a search warrant to search and seize is permissible—that is, it is discretionary.[87] Section 724.013, on the other hand, states that a specimen “may not” be taken if a person refuses to submit to the taking of a specimen.[88] Also under section 311.016, “may not” imposes “a prohibition and is synonymous with ‘shall not.’”[89] In other words, where a person refuses to submit to the taking of a specimen, the taking of the specimen, outside the narrow 724.012(b) exception, is prohibited—that is, the taking may not, shall not, and cannot happen.  In instances where blood is forcibly taken under the authority of a “No Refusal” search warrant, that action complies with article 18.02 but violates section 724.013.  However, where blood is not forcibly taken pursuant to a “No Refusal” search warrant—that is, where “No Refusal” search warrants are not utilized, neither statute has been violated.  The reconciliation, thus, is that search warrants that require the production of specimens in violation of 724.013 are prohibited, but other search warrants to search and seize other items or property are perfectly permissible.  Under that reconciliation, any evidence obtained pursuant to a “No Refusal” search warrant is obtained illegally and, under article 38.23, must be excluded.

This reconciliation might not satisfy all.[90] Assume arguendo that there is no reconciliation because any reading of one statute requires an implicit exception to the other.  To elaborate, if article 18.02 is to be reconciled with section 724.013, it must be understood to mean that “[except as provided by section 724.013 of the Transportation Code,] a search warrant may be issued to search for and seize property or items constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense.”  Similarly, if section 724.013 is to be reconciled with article 18.02, it must be understood to mean that “[except as provided by article 18.02(10) of the Code of Criminal Procedure and] except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”  But that is not the plain and ordinary meaning of either statute.  The argument’s sum, assumed hereinafter, is that the two statutes cannot be reconciled without perverting the plain meaning of either, and therefore, it must be determined whether the legislature intended that the more general article 18.02 of the Code of Criminal Procedure control.

3. Legislative Intent

In order to ascertain the legislative intent behind article 18.02 of the Code of Criminal Procedure, it is appropriate to look to the original bill’s legislative history.  The Senate’s bill analysis offers limited insight.[91] Under the subsection labeled “Pros,” the bill analysis states:

The bill permits seizure of useful evidence which currently cannot be recovered.

 

Proponents cite two examples of the need for this bill.  Suppose a rapist drags a woman to his apartment.  The woman leaves a couple of hair curlers and puts her fingerprints on a glass.  Those items can be objects of an evidentiary search warrant.  Or suppose a man is found stabbed to death.  The police check the house of the probable murderer.  They find no weapon, but the carpet is bloodstained.  The carpet can be seized under an evidentiary search warrant.[92]

 

This quote illustrates the legislative motivation behind enacting subdivision (10): to enable law enforcement to gather evidence of a crime in a general way, where previously law enforcement, because it had not been enabled to do so, was only able to do so in specific and enumerated circumstances.  This excerpt nor any other legislative history reveals any specific indication that the legislature intended article 18.02 to control over section 724.013.  The history reveals only that the legislature sought quickly to enable law enforcement to gather evidence.[93] Because there is no indication that the legislature intended that the revised article 18.02 control over what is now section 724.013 of the Transportation Code, under the statutory laws of construction, section 724.013 prevails.[94]

4. Conflicting Provisions Summary

In sum, the Code Construction Act dictates that section 724.013 of the Transportation Code prevail over article 18.02 of the Code of Criminal Procedure.  As in Smith, the legislature never authorized the judiciary to issue search warrants of the type contemplated under the “No Refusal” program.  Where the judiciary has not been authorized by the legislature to issue the search warrant, the warrant cannot be valid, and thus, any evidence obtained by law enforcement pursuant to the unauthorized search warrant has not be obtained legally.  As Judge Johnson correctly pointed out, “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas . . . shall be admitted in evidence against the accused on the trial of any criminal case.”[95] Therefore, any evidence obtained pursuant to a “No Refusal” search warrant cannot be admitted.[96]

C. Conclusion: Beeman Remains Good Law

Right or wrong, Beeman represents current Texas law on the issue of whether a search warrant trumps section 724.013, and thus, lower courts continue to uphold evidence obtained pursuant to search warrants for a DWI suspect’s blood.[97] Additionally, because a challenge to Beeman presents a statutory issue of construction of state law as opposed to any federal issue, the Court of Criminal Appeals remains the highest authority.  In other words, that Court of Criminal Appeals is the only court that can overrule its own holding in Beeman.  Should that court readdress the issue in the coming years, it should do so, as Judge Johnson alluded, in terms of statutory construction, not in terms of constitutionality.


[1] In 2006, thirty-two percent of all nationwide traffic fatalities involved an alcohol-impaired driver.  National Highway Traffic Safety Administration’s (“NHTSA”) National Center for Statistics and Analysis, Traffic Safety Facts 2006 Data 1, (2008), available at http://www.nhtsa.dot.gov (follow “Newest Studies and Reports” hyperlink; then follow “Alcohol Impaired Driving (Updated March 2008)” hyperlink).  In other words, one alcohol-related fatality occurs on America’s roadways every thirty-nine minutes.  Id. In Texas, 1,354 traffic deaths—thirty-nine percent of all Texas traffic deaths in 2006—involved an alcohol-impaired driver.  Id.

[2] See Tex. Penal Code Ann. § 49.01(2) (Vernon 2003) (“‘Intoxicated’ means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.”); id. § 49.04(a) (“A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”).

[3] See Tex. Transp. Code Ann. § 724.013 (Vernon Supp. 2008).

[4] See id. § 724.035 (“If a person refuses the request of a peace officer to submit to the taking of a specimen, the department shall: (1) suspend the person’s license to operate a motor vehicle on a public highway for 180 days . . . .”).  This law, however, “has had little effect since drivers can easily obtain an occupational driver’s license for commuting to work.”  Karisa King, DWI Suspects Have Way to Thwart Prosecutors, San Antonio Express-News, Apr. 6, 2008, at 1A, available at 2008 WLNR 6504745.

[5] King, supra note 4, at 1A.  Texas is among the top five states in the nation for highest refusal rates.  Paul Stone, Agencies to Take Part in “No Refusal” Weekend, Palestine Herald-Press, Oct. 28, 2008, available at 2008 WLNR 20560564.

[6] King, supra note 4, at 1A.

[7] Id.

[8] Paul Bourgeois, Police Target DWI, Fort Worth Star-Telegram, Feb. 1, 2008, at B1, available at 2008 WLNR 1914510 (Arlington, Fort Worth); Brian Chasnoff & Karisa King, No Way to Say No, San Antonio Express-News, May 29, 2008, at 1B, available at 2008 WLNR 10166413 (El Paso); Jared Fields, Fewer Travelers, More Officers Expected, Reporter News, Dec. 22, 2008, available at http://reporternews.com/news/2008/dec/22/fewer-travelers-more-officers-expected-to-be-on/?partner=RSS (stating “more drunken drivers tend to be on the roads during the holidays”) (Tyler); Wendy Hundley, DWI Blood Testing Sticks in North Texas, Dallas Morning News, May 10, 2008, at 1B, available at 2008 WLNR 8839529 (Plano, Richardson); King, supra note 4, at 1A (San Antonio); Laura B. Martinez, Brief: Officials Crack Down on Drunken Driving With ‘No Refusal Weekend, Brownsville Herald, August 31, 2008, available at 2008 WLNR 16465587 (Brownsville); Paul A. Romer, Bell County Drawing Blood: Refuse Breathalyzer? You May Have Sample Taken, Temple Daily Telegram, Dec. 31, 2008, available at http://www.tdcaa.com/node/3790 (Belton); Paul Stone, Authorities Say ‘No Refusal Weekend’ Successful, Palestine Herald-Press, Nov. 4, 2008, available at 2008 WLNR 21067859 (Palestine); Kelly Young, Police: Drink, Drive, Go to Jail, Jacksonville Progress, available at http://www.jacksonvilleprogress.com/archivesearch/local_story_366122046.html (Jacksonville).  Some communities have gone so far as to implement the program year round.  Bourgeois, supra, at B1.  In Dalworthington Gardens, for instance, police are trained to draw the blood, which eliminates the need to have specially trained staff on stand-by. See Bourgeois, supra, at B1; see also Hundley, supra, at 1B (stating Burleson, like Dalworthington Gardens, has gone to implementing the Program year-round).  But cf. Tex. Transp. Code § 724.017(c) (authorizing only certain qualified medical personnel to make the blood draws).

[9] Bourgeois, supra note 8, at B1.

[10] Fields, supra note 8 (quoting Tyler Police public information officer Don Martin).  Tarrant County assistant district attorney Richard Alpert hopes word of the program “will convince people who might be tempted to engage in this conduct to abstain or get a designated driver.”  Bourgeois, supra note 8, at B1.

[11] See Tyler Morning Telegraph, County Officials Out In Force To Prevent Holiday Drunk Driving, Tyler Morning Telegraph, Dec. 19, 2008, available at http://www.tylerpaper.com/apps/pbcs.dll/article?AID=/20081219/NEWS01/812190309 (quoting Martin).

[12] Fox 26, Holiday Program Nets 16 Drunken Driving Suspects in 1 Day, My Fox Houston, Dec. 21, 2008, available at http://www.myfoxhouston.com/myfox/pages/Home/Detail?contentId=7429145&version=7&locale=EN-US&layoutCode=TSTY&pageId=1.1.1.

[13] Paul Romer, DWI Blood Test Use Increasing in Texas, Temple Daily Telegram, Jan. 1, 2009, available at http://www/tdnews.com/story/2009/1/1/54799.

[14] Stone, supra note 8.

[15] Id.

[16] Chasnoff, supra note 8, at 1B.

[17] Traci Shurley, Arlington’s No-refusal DWI Crackdown Nets 17 Arrests, Fort Worth Star-Telegram, Feb. 5, 2008, at B1, available at 2008 WLNR 2141810.

[18] Id.

[19] Tony Plohetski, Hospitals, Jail Officials Don’t Want to Collect Suspects’ Blood, Austin American-Statesman, Jan. 9, 2009, available at http://www.statesman.com/news/content/news/stories/local/01/09/0109blood.html.

[20] King, supra note 4, at 1A.  San Antonio DWI attorney James Balagia claims that blood draws threaten privacy rights.  Id. Similarly, Texas Civil Rights Project attorney Jim Harrington believes that the program raises serious constitutional issues because citizens have the right to refuse the breath test.  Nanci Wilson, Austin PD Will Again Hold “No-Refusal” Weekend Over New Year’s, K-Eye.com, available at http://www.texascivilrightsproject.org/?p=397.  “It’s a sham from the word go.  Exercise your right and then we’re going to take that as probable cause to get a judge to rubberstamp our desire to take your blood which is even more intrusive.  And that is a constitutional violation.”  Id.

[21] Chasnoff, supra note 8, at 1B; see supra note 20.

[22] Casey Knaupp, ‘No Refusal’ DWI Campaign Begins For New Year’s, Tyler Morning Telegraph, Dec. 30, 2008, available at http://www.tylerpaper.com/article/

20081230/NEWS01/812300303.  Still others oppose the program for different reasons.  In Austin, the city’s two major hospital networks and the Travis County Jail indicated that they no longer wanted to collect blood samples for criminal investigations.  Plohetski, supra note 20.  Some hospital staff feel that “the emergency room is [not] the most appropriate place to be doing those types of procedures because [the suspects] really aren’t being seen for a medical reason.”  Id. Similarly, jail officials have decided that nurses should be spending their time tending to inmates, not collecting evidence.  Id. Others believe that the program is cost prohibitive at $128 per test.  See King, supra note 4, at 1A; Chasnoff, supra note 8, at 1B.

[23] Robert Guest, New Years DWI No Refusal Round Up, available at http://www.dallascriminaldefenselawyerblog.com/2008/12/new_years_no_refusal_round_up.html.  One issue of concern is the great lengths police may go to in order to obtain the blood by force.  “We can hold them down and take their blood [after the warrant has been signed and they refuse to be tested],” said Brownsville District Attorney Armando Villalobos.  Martinez, supra note 8.  The ACLU takes the position that “forcing uncooperative people to have their blood drawn creates a general public distrust for police” and suggests that the law already in place, which requires a 180-day driver’s license suspension, is the appropriate deterrent.  Romer, supra note 13.

[24] Mark Bennett, DUI No-Refusal Weekend, available at http://bennettandbennett.com/blog/2008/07/dui-no-refusal.weekend.html.

[25] Id.

[26] See, e.g., Schmerber v. California, 384 U.S. 757 (1966).

[27] See generally Tex. Transp. Code § 724.001 et seq.

[28] Id. § 724.011.

[29] Id. § 724.012(a) (emphasis added).

[30] Id. § 724.013 (emphasis added).  Under the Code Construction Act, “‘[m]ay not’” imposes a prohibition and is synonymous with ‘shall not.’”  Tex. Gov’t Code Ann. § 311.016 (Vernon 2005).

[31] Tex. Transp. Code § 724.012(b) (emphasis added).  In Stidman v. State, 981 S.W.2d 227 (Tex. App.—Houston [1st Dist.] 1998), for example, Clyde Stidman was arrested for DWI after his 3-year old son, a passenger in his car, was seriously injured.  Id. at 228.  Upon being taken to the hospital for a blood test, Stidman refused and was physically forced into having his blood drawn.  Id. Citing section 742.012(b) of the Transportation Code, the court held that the blood test was admissible.  Id. at 229.

[32] See Badgett v. State, 42 S.W.3d 136 (Tex. Crim. App. 2001) (officer’s belief that accident occurred as a result of the driver’s intoxication must be reasonable and based upon specific and articulable facts of causation, not mere fact of accident and defendant’s DWI arrest).

[33] 86 S.W.3d 613 (Tex. Crim. App. 2002); see Chasnoff, supra note 8, at 1B (describing the Court of Criminal Appeals holding that warrants may be used to draw blood from suspected intoxicated drivers).

[34] Beeman, 86 S.W.3d at 614.

[35] Id. Neither the opinion from the Court of Criminal Appeals nor the El Paso Court of Appeals gives any information on what evidence, if any, the officer gathered against Beeman in order to justify his arrest.

[36] Id.

[37] Id.

[38] Beeman v. State, No. 08-00-00390-CR, 2001 WL 303050, at *1 (Tex. App.—El Paso Mar. 29, 2001) (mem. op.); see Tex. Penal Code § 49.01(2) (setting legal limit at 0.08.).

[39] Beeman, 86 S.W.3d at 615.

[40] Beeman, No. 08-00-00390-CR, 2001 WL 303050; Beeman, 86 S.W.3d at 615.

[41] Beeman, 86 S.W.3d at 615.

[42] Id. at 616.

[43] Id. at 615.

[44] Id. at 618 (Johnson, J., dissenting) (quoting Tex. Code Crim. Proc. art. 38.23).

[45] Id. at 618-19 (Johnson, J., dissenting).

[46] Id. (Johnson, J., dissenting).

[47] Id. 619-20 (Johnson, J., dissenting).

[48] Id. at 616 (emphasis added).

[49] Other states’ courts have used similar reasoning to reach the same outcome.  See People v. Wager, 594 N.W.2d 487 (1999); State v. Zielke, 403 N.W.2d 427, 428 (1987).

[50] U.S. Const. amend. IV.

[51] Tex. Const. art. I, § 9.

[52] Schmerber, 384 U.S. at 768.

[53] Id. at 615 (emphasis added).

[54] The Texas Constitution uses the word “warrant” six other times, see Tex. Const. arts. VIII, § 7-a, IX, § 5, IX, § 8, IX, § 11, XVI, § 33, XVI, § 40, but the word is never used in the sense applicable here.

[55] See Beeman, 86 S.W.3d at 616.

[56] Tex. Code Crim. Proc. art. 18.02(10).

[57] Gentry v. State, 629 S.W.2d 77 (Tex. App.—Dallas 1981), aff’d, 640 S.W.2d 899 (Tex. Crim. App. 1982).  The Gentry case involved an accusation of burglary, not intoxication.  Id. at 79.  Thus, there was no issue as to whether section 724.013 precluded the use of a search warrant .

[58] House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 156, 65th Leg., R.S. (1977), available at http://www.las.lrl.state.tx.us/LASDOCS/65R/SB156/

SB156_65R.pdf (emphasis added).

[59] Moreover, if the warrant power did not derive exclusively from article 18.02, that article would be rendered meaningless.  See Tex. Gov’t Code § 311.021(2) (“In enacting a statute, it is presumed that . . . the entire statute is intended to be effective . . . .”).

[60] 557 S.W.2d at 299 (Tex. Crim. App. 1977).

[61] Id. at 300.

[62] Id. at 301.

[63] Id.

[64] See Penal Code, 63rd Leg., R.S., ch. 399 § 2(E), 1973 Tex. Gen. Laws 982-83, amended by Act of April 19, 1977, 65th Leg., R.S., ch. 237, § 2, 1977 Tex. Gen. Laws 640-41.

[65] Tex. Code Crim. Proc. art. 18.02(10); see Longoria v. State, 636 S.W.2d 521, 522 (Tex. Crim. App. 1982).

[66] Smith, 557 S.W.2d at 302 (emphasis added).

[67] See also Sosa v. State, 4 P.3d 951 (Alaska 2000) (holding search warrant for suspect’s blood could not legally be issued in face of implied consent statute); Combs v. Commonwealth, 965 S.W.2d 161, 164 (Ky. 1998) (“plain language of [state’s right of refusal statute] prohibits compelled body searches of a DUI suspect following a refusal to take a blood test, unless death or physical injury are involved”); State v. DiStefano, 764 A.2d 1156, 1163 (R.I. 2000) (phrase in state’s right of refusal statute that “none shall be given” precludes the issuance of search warrant for blood outside of enumerated circumstances).

[68] Tex. Code Crim. Proc. art. 18.02(10) (emphasis added).

[69] Tex. Transp. Code § 724.013 (emphasis added).

[70] Tex. Gov’t Code § 311.001 et seq. The Code Construction Act applies to each code enacted (as well as each amendment, repeal, revision, and reenactment of the code) by the 60th or a subsequent Texas Legislature.  Id. § 311.002.  This includes both section 724.013, see Act of May 24, 1969, 61st Leg., R.S., ch. 434, § 2, 1969 Tex. Gen. Laws 1468, and article 18.02, see Act of April 19, 1977, 65th Leg., R.S., ch. 237, § 2, 1977 Tex. Gen. Laws 640-41; Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

[71] Tex. Gov’t Code § 311.026 (emphasis added).

[72] Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988); Ex parte Smith, 849 S.W.2d 832, 834 (Tex. App.—Amarillo 1992).

[73] Tex. Gov’t Code § 311.025(a).  This rule applies to amended statutes as well.  Id. § 311.025(b) (where statutes are amended, “if the amendments are irreconcilable, the latest in date of enactment prevails”).

[74] See Cheney, 755 S.W.2d at 127 (“Where two provisions not in pari materia are at issue, other rules of statutory construction will then dictate which statute controls.”); Burke v. Union Pac. Res. Co., 138 S.W.3d 46 (Tex. App.—Texarkana 2004) (applying first 311.026, then resorting to 311.025).  Under 311.025, a reconciliation of the two statutes is preferred.  Tex. Gov’t Code § 311.025(a).  Thus, in order for the “last in time” rule to apply, both (1) the in pari materia doctrine must not apply, and (2) the statues must be irreconcilable.

[75] Even under section 311.025, a reconciliation of the two statutes will control.  Tex. Gov’t Code § 311.025(a) .

[76] 755 S.W.2d 123.

[77] Id. at 126-27 (internal quotations, citations, and emphasis omitted); see Alejos v. State, 555 S.W.2d 444, 450 (Tex. Crim. App. 1977) (“Similarity of purpose or object is the most important factor in assessing whether two provisions are in pari materia.  The two provisions must have been enacted with the same purpose in mind in order for the doctrine to apply. They must be closely enough related to justify interpreting one in the light of the other.”).

[78] See, e.g., Rodriguez v. State, 879 S.W.2d 283 (Tex. App.—Houston [14th Dist.] 1994) (holding two penal provisions to be in pari materia).

[79] 248 S.W.3d 182 (Tex. Crim. App. 2008).

[80] Id. at 192-93 (internal quotations omitted).

[81] Id. at 193.

[82] Article 18.02 states, in its entirety, “A search warrant may be issued to search for and seize: (1) property acquired by theft or in any other manner which makes its acquisition a penal offense; (2) property specially designed, made, or adapted for or commonly used in the commission of an offense; (3) arms and munitions kept or prepared for the purposes of insurrection or riot; (4) weapons prohibited by the Penal Code; (5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia; (6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law; (7) a drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property, including an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of this state; (8) any property the possession of which is prohibited by law; (9) implements or instruments used in the commission of a crime; (10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense; (11) persons; or (12) contraband subject to forfeiture under Chapter 59 of this code.”  Tex. Code Crim. Proc. art. 18.02.  Subdivision (10) encompasses all other subdivisions except for subdivision (11): “persons.”

[83] See Tex. Transp. Code § 724.012(b).

[84] Tex. Gov’t Code § 311.025(a).

[85] Tex. Code Crim. Proc. art. 18.02.

[86] Tex. Gov’t Code § 311.016(1).

[87] See Burke, 138 S.W.3d 46, 75 (word “may” in a statute gives discretion).

[88] Tex. Transp. Code § 724.013.

[89] Tex. Gov’t Code § 311.016(5).

[90] It may be that the Court of Criminal Appeals did not think that the two principles of law were reconcilable.  In Beeman, the court did not simply declare an implied exception or that section 724.013 did not contemplate the use of a search warrant; rather, it opted to resolve the issue by playing what it mistakenly believed to be a constitutional trump.  While this reasoning might simply indicate that the court opted to resolve the issue in the simplest way it saw fit, it could also indicate that the court resorted to the only resolution it saw to an irreconcilable conflict.

[91] House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 156, 65th Leg., R.S. (1977), available at http://www.lrl.state.tx.us/scanned/hroBillAnalyses/65-0/SB156.pdf.

[92] Id.

[93] See Act of Apr. 19, 1977, 65th Leg., R.S., ch. 237, § 3, 1977 Tex. Gen. Laws 641 (bill passed as “an emergency and an imperative public necessity”).

[94] Although not controlling under the above analysis, common law construction aids offer further insight and seem to support the conclusion that section 724.013 controls.  For one, Texas courts occasionally refer to the maxim expressio unius est exclusio alterius—meaning “expressing one thing implies the exclusion of what was not expressed.”  Ex parte Campbell, 267 S.W.3d 916, 923-24 (Tex. Crim. App. 2008).  This maxim indicates that, because section 724.013 explicitly excluded the situation described in 724.012(b), section 724.013 meant not to exclude any other instances.  In other words, because 724.013 listed only the one exception, no other exceptions—such as a search warrant exception—apply.  The same argument can be made for article 18.02(10), which excepts the “personal writings by the accused.”  Tex. Code Crim. Proc. art. 18.02.  However, there is some indication that this exception was made explicit by the legislature because of constitutionality concerns.  See House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 156, 65th Leg., R.S. (1977), available at http://www.lrl.state.tx.us/

scanned/hroBillAnalyses/65-0/SB156.pdf.

[95] Beeman, 86 S.W.3d at 618 (Johnson, J., dissenting); see Tex. Code Crim. Proc. art. 38.23.

[96] The slippery slope counterargument to the construction described above is worth mentioning.  Some might argue that if section 724.013 were to preclude the use of search warrants for blood, the preclusion might apply across the board to all blood specimens sought by law enforcement by way of search warrants.  This argument would be misplaced, however, because section 724.013 applies only to specimens requested under that chapter of the Transportation Code.  There is no foundation to assert that section 724.013 was meant to apply across the board to all blood draws obtained pursuant to a search warrant.  The legislature’s clear and explicit intent behind that provision was merely to regulate “the use and performing of chemical tests under certain conditions on motor vehicle drivers to determine intoxication,” Act of May 24, 1969, 61st Leg., R.S., ch. 434, Preamble, 1969 Tex. Gen. Laws 1468, not to limit law enforcement’s ability to obtain blood analysis evidence under all circumstances.

[97] See, e.g., Cantrell v. State, — S.W.3d —-, 2008 WL 4737432 (Tex. App.—Amarillo 2008) (holding section 724.013 does not bar State from obtaining search warrant for blood specimen after defendant’s refusal to consent to blood test); Dye v. State, No. 08-02-00018-CR, 2003 WL 361289 (Tex. App.—El Paso Feb. 20, 2003, no pet.) (mem. op.) (holding section 724.013 does not preclude taking of defendant’s blood sample pursuant to validly-issued search warrant).

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