1. “Does TEX. CODE CRIM. PROC. art. 14.03(a)(1) have an exigency requirement for warrantless arrests?”
2. “If Article 14.03(a)(1) has an exigency requirement for a warrantless arrest in public, it was satisfied here because the integrity of blood-alcohol- content evidence would have been compromised had Appellee been free to leave.”
McGuire filed a motion to suppress challenging his warrantless arrest for DWI that was made in public after he was involved in a fatal accident. The trial court granted the motion, and the court of appeals affirmed. Citing Gallups v. State, 151 S.W.3d 196 (Tex. Crim. App. 2004), and Swain v. State, 181 S.W.3d 359 (Tex. Crim. App. 2005), the court concluded that TEX. CODE CRIM. PROC. art. 14.03(a)(1) requires the State to prove exigent circumstances. In this case, the court opined, the State failed to prove that exigency justified dispensing with a warrant. Considering the merits of exigency, the court held: (1) McGuire was not in danger of subsequent intoxicated driving; (2) the possibility of his flight was ambiguous; (3) the police could have seized McGuire’s truck to avoid the destruction of evidence; and, (4) the need to expeditiously draw blood has been precluded by Missouri v. McNeely.
The State argues that Article 14.03(a)(1) does not have an exigency requirement. It points out that neither the U.S. nor the Texas constitutions demand a warrant to conduct an arrest in public. Next, the State contends that contrary case law—Gallups and Swain—was erroneously developed. The State explains that Gallups and Swain relied on Judge Cochran’s concurring opinion in Dyar v. State, which in turn discussed Professor Reamey’s concern that Article 14.03(a)(1) could, in practice, result in a unfettered crime-scene warrant exception. 125 S.W.3d 460 (Tex. Crim. App. 2003) (Cochran, J., concurring); Gerald S. Reamey, Arrests in Texas’s “Suspicious Places”: A Rule in Search of Reason, 31 TEX. TECH L. REV. 931 (2000). Professor Reamey proposed that an exigency requirement be applied to Article 14.03(a)(1)’s requirement that an arrest be made in a “suspicious place.” The State contends that Judge Cochran’s Dyar concurrence offered only a suggestion; it was not an accurate statement of law, particularly since there is no constitutional warrant requirement. When later cited in Gallups and Swain, the State argues, the Court erroneously restated dicta. Further, neither case announced a new exigency rule.
Next, even assuming that Article 14.03(a)(1) has an exigency requirement, the State contends the lower court missed a conclusive fact in the State’s favor. The integrity of any BAC evidence was more at risk in this context than in the warrantless search situation. Had McGuire been released, he could have ingested more alcohol or another faculty-altering substance. Finally, the accuracy of the BAC at the time the analysis is performed is important because Texas law allows for enhancement to a Class A misdemeanor for DWI if the defendant’s BAC was .15 at the time the analysis was performed. TEX. PENAL CODE § 49.04(d) (emphasis added).