Drunken-driving cases jeopardized as courts toss blood draws

AUSTIN, Texas (AP) – Some motorists facing a third or fourth drunken-driving conviction in Texas could have a better shot at acquittal following a U.S. Supreme Court ruling that mostly barred police from drawing blood without a warrant.

In Austin, at least 17 arrests from 2013 or earlier could be in jeopardy for prosecutors as those cases begin moving through appeals courts, where judges are suppressing results from blood alcohol tests for lack of a warrant.

Court records show that blood tests obtained without a warrant have also been tossed in Houston, Dallas, San Antonio, Fort Worth and El Paso, the Austin American-Statesman reported Sunday (http://atxne.ws/1WSobfy ).

It has left a growing sense that the DWI cases – all felonies because the suspects had at least two prior drunken-driving convictions – will succeed or fail based on evidence other than the blood tests.

“Blood is very good evidence for us, so when we lose that, that hurts the case,” said Angie Creasy, an assistant Travis County district attorney who has been handling the appeals of the warrantless blood draws.

Prosecutors feared losing the persuasive evidence of intoxication after the U.S. Supreme Court effectively outlawed most warrantless blood draws in drunken-driving investigations with its 2013 ruling in Missouri v. McNeely, which rejected the argument that time pressure caused by the body’s metabolizing of alcohol justified blood draws without a warrant.

Instead, the high court said emergency conditions must be examined case by case to determine if a warrant was required.

Austin defense lawyer David Schulman believes police and prosecutors were engaging in wishful thinking when they determined that the Fourth Amendment’s protection against unreasonable search and seizure didn’t apply to blood draws in certain situations.

Of the 17 felony drunken-driving cases in Austin, appeals courts have thrown out three blood tests that had been allowed into evidence and affirmed 10 lower-court rulings that tossed out similar blood draws. The same results are expected soon in the four cases awaiting a ruling.