Texas Stamp


PD-0176-18 04/25/2018

“Is it unreasonable under the Fourth Amendment for an officer to rely on a driver’s implied consent to a blood draw when the driver was involved in an accident, there is probable cause to believe he is intoxicated, and where the driver’s own unconsciousness prevents the officer from effectively obtaining the driver’s actual consent.”

Ruiz was involved in an accident and fled the scene. When police found him nearby, he smelled of alcohol and was unconscious. He remained unresponsive at the hospital.  An officer, believing she had probable cause to arrest Ruiz for DWI, directed hospital staff to draw a sample of his blood. The trial court granted Ruiz’s motion to suppress. Although the judge found Ruiz was unconscious and had not revoked his implied consent to a blood draw, the judge believed Missouri v. McNeely, 133 S. Ct. 1552 (2013), required that the blood evidence be suppressed.

The State appealed. The court of appeals held that implied consent would not justify the unconscious blood draw.  Consent, the court said, must be free and voluntary and because Ruiz was unconscious, he did not consent.  The Court of Criminal Appeals initially granted review and remanded for the court of appeals to consider the State’s exigent circumstances argument. In its opinion on remand, the court of appeals rejected both the exigent circumstances argument and implied consent.  

The Court of Criminal Appeals again granted review of the unconscious blood draw issue.  Once again, the State argues that the statutory implied consent law is reasonable under the Fourth Amendment.  It points out that driving is a privilege, which the State can make subject to reasonable conditions. While noting a sharp divide among the states on the issue, the State contends that implied consent that has not been withdrawn can satisfy the Fourth Amendment’s consent exception.

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