The Texas 3rd Court of Appeals delivered three rulings Wednesday that essentially gutted a portion of the state law that allowed police in certain circumstances to draw blood from suspected drunken drivers without a warrant.
The court ruled that police can no longer rely on portions of the Texas Transportation Code that say they don’t need a warrant if a driver has two previous convictions for driving while intoxicated or if the driver had caused a serious injury.
One case reviewed by the court involved a suspected drunken driver who was involved in a 2011 crash that sent two people to the hospital. The driver, Gina Roop, refused sobriety tests and didn’t consent to police taking a blood sample.
However, at the Travis County Jail, the Austin police officer who detained her ordered her blood drawn, which indicated Roop’s blood alcohol level was 0.276, more than three times the legal limit. Roop tried to have the blood test suppressed in her case, but a judge ruled against that. She later pleaded guilty to felony driving while intoxicated.
One of the three rulings Wednesday voided her conviction and ordered a new trial. The appeals court ruled that blood could only be taken without a warrant if a police officer was in a situation in which a warrant couldn’t be obtained before the driver’s blood alcohol level returned to normal. In Roop’s case, a magistrate was on call at the time of her arrest, but the officer made no attempt to get a warrant.
The other two rulings reaffirmed orders from lower courts suppressing blood samples in criminal trials that had been taken without a warrant. Those cases relied on a portion of Texas law that says taking blood without a warrant is permitted if the driver has two previous convictions of driving while intoxicated.
The defense attorney in one of those two cases, Austin attorney Joe James Sawyer, said the rulings were expected. A 2013 Supreme Court ruling had essentially voided Texas laws that allowed police to take blood without a warrant.
“It’s a fictive construct that seeks to walk around the Fourth Amendment,” Sawyer said of the implied consent laws.
Correction: An earlier version of this story incorrectly reported which government agency prosecuted the three cases. While the Texas 3rd Court of Appeals’ website names a different agency, the Travis County District Attorney’s office handled the cases.