Page 183 - Texas police Association Peace Officer Guide 2017

Having concluded that the search incident to arrest doctrine does not justify the warrantless
taking of a blood sample, we must address respondents’ alternative argument that such tests are
justified based on the driver’s legally implied consent to submit to them. It is well established
that a search is reasonable when the subject consents. It is another matter, however, for a State
not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal
to submit to such a test. There must be a limit to the consequences to which motorists may be
deemed to have consented by virtue of a decision to drive on public roads. Borrowing from our
Fifth Amendment jurisprudence, the United States suggests that motorists could be deemed to
have consented to only those conditions that are “reasonable” in that they have a “nexus” to the
privilege of driving and entail penalties that are proportional to severity of the violation. But in
the Fourth Amendment setting, this standard does not differ in substance from the one that we
apply, since reasonableness is always the touchstone of Fourth Amendment analysis. And
applying this standard, we conclude that motorists cannot be deemed to have consented to submit
to a blood test on pain of committing a criminal offense.

Birchfield v. North Dakota, No. 14-1468, U.S. Sup. Ct., June 23, 2016.

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OPEN RECORDS – WHEN IS A WARRANT AFFIDAVIT A PUBLIC RECORD?

Pending before the Texas Attorney General’s Office is a request for opinion on this issue.
Request No. RQ-0138-KP. The Code of Crim. Proc. (18.01(b)) states that the affidavit is a
public record “if executed”. Apparently, some judges are taking the position that this means the
affidavit is a public record when it is signed and sworn to by the officer rather than the more
common view that the affidavit is a public record when the warrant is signed by a judge. We
expect the Attorney General’s office to issue on opinion on this question in the near future and
will update the Digest as appropriate.

The Texas Code of Criminal Procedure now states that warrant affidavits become public
record when the warrant is served – not when the affidavit or warrant is signed. CCP Art.
18.01.

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Texas Senate Bill #4 regarding sanctuary cities and immigration matters:

Many provisions of this statute have been suspended for the time being by a Federal Court action
in the San Antonio Division of the Western District of Texas. The case, No. 5:17-CV-00404, is
ongoing and additional developments will most certainly affect this statute, or portions thereof,
ultimately become effective. Stay tuned.
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A Peace Officer’s Guide to Texas Law 178 2017 Edition