Page 27 - November December 2019 TPA Journal

Joe C. Tooley, Legal Digest Editor
Joe C. Tooley, Attorneys & Counselors, Rockwall, Texas
www.TooleyLaw.com 972-722-1058

TEXAS POLICE ASSOCIATION

LEGAL DIGEST

November/December 2019

AUTHOR’S NOTE: It is the goal of this submission to extract those portions of relevant appellate
opinions or the syllabus of the legal reporter which bear directly upon law enforcement methods
and provide guidance for officers on an operational level. Much of the information pertaining to
these cases is lifted verbatim from the court opinion or syllabus with independent analysis inserted
as appropriate. Due to clarity for training purposes, the distinction between quotes from the
opinions and inserted analysis is not always identified and legal citations within the opinion are
often omitted. Emphasis is placed upon reported decisions from the Fifth Circuit Court of Appeals
and the Texas Court of Criminal Appeals.

SEARCH & SEIZURE: SEARCH & SEIZURE a breath test. In such cases, we hold, the
– BLOOD DRAW (U.S. Supreme Court) exigentcircumstances rule almost always permits a
blood test without a warrant. When a breath test is
In this case, we return to a topic that we have impossible, enforcement of the drunk-driving laws
addressed twice in recent years: the circumstances depends upon the administration of a blood test.
under which a police officer may administer a And when a police officer encounters an
warrantless blood alcohol concentration (BAC) test unconscious driver, it is very likely that the driver
to a motorist who appears to have been driving would be taken to an emergency room and that his
under the influence of alcohol. blood would be drawn for diagnostic purposes even
if the police were not seeking BAC information. In
We have previously addressed what officers may
addition, police officers most frequently come upon
do in two broad categories of cases. First, an officer
unconscious drivers when they report to the scene of
may conduct a BAC test if the facts of a particular
an accident, and under those circumstances, the
case bring it within the exigent-circumstances officers’ many responsibilities—such as attending
exception to the Fourth Amendment’s general to other injured drivers or passengers and
requirement of a warrant. Second, if an officer has
preventing further accidents—may be incompatible
probable cause to arrest a motorist for drunk
with the procedures that would be required to obtain
driving, the officer may conduct a breath test (but
a warrant. Thus, when a driver is unconscious, the
not a blood test) under the rule allowing warrantless general rule is that a warrant is not needed.
searches of a person incident to arrest. Today, we
consider what police officers may do in a narrow Today, “all States have laws that prohibit motorists
but important category of cases: those in which the from driving with a [BAC] that exceeds a specified
driver is unconscious and therefore cannot be given level.” And to help enforce BAC limits, every State

Nov./Dec. 2019 www.texaspoliceassociation.com • 866-997-8282 23