The dangers of drunk driving are not disputable.[1] Texas law recognizes those dangers by criminalizing the operation of a motor vehicle while intoxicated.[2] However, Texas law also generally gives drivers the right to refuse to offer a breath specimen,[3] the only penalty for doing so being a driver’s license suspension.[4] Not surprisingly, this results in a high rate of refusals. “Nearly half of all drivers in the state deny requests to take [a breathalyzer] test, a rate that’s almost double the national one and surpassed by only four other states.”[5] For repeat offenders, the refusal rate is closer to seventy percent.[6] High refusal rates often leave prosecutors with insufficient evidence on which to convict. Consequentially, “DWI cases jam court dockets and many charges end in dismissals or acquittals,”[7] thereby hampering law enforcement’s efforts to deter drunk driving.

In light of the grave dangers of drunk driving and in order to combat the high rate of refusals, a growing number of Texas cities—Arlington, Belton, Brownsville, El Paso, Forth Worth, Jacksonville, Palestine, Plano, Richardson, San Antonio, Tyler, and many more—along with at least twenty counties have implemented “No Refusal” weekends.[8] The program implements police procedure to obtain search warrants from readily available magistrates against persons who are both taken into police custody on suspicion of DWI and refuse to provide a breath or blood sample.[9] The plain purpose behind “No Refusal” weekends is to deter people from driving while intoxicated on weekends that are notorious for heavy drinking. The idea is that people will be dissuaded from drinking and driving because they know that police officers will be conducting sobriety tests “with or without” a driver’s consent.[10]

Law enforcement officers across the state claim that the program is effective.[11] In December of 2008, Houston police successfully obtained over 300 DWI search warrants that returned an average BAC of 0.17.[12] Ninety-eight percent of those tested had a BAC of 0.08 or higher.[13] Over the 2008 Halloween weekend, Anderson county law enforcement officials made sixteen DWI arrests.[14] Of those sixteen arrestees, twelve consented to either a blood or breath test; against the remaining four, police secured search warrants to draw blood.[15] Over the 2008 Memorial Day Weekend, San Antonio police secured search warrants for the blood of thirty-eight DWI suspects.[16] And, over the 2008 Super Bowl weekend, Arlington police arrested seventeen DWI suspects, obtaining search warrants to draw blood from four.[17] The number of accidents in Arlington that weekend resulting in fatalities? Zero.[18]

Success claims aside, the “No Refusal” program is not without its critics. Civil libertarians call the blood draws an unnecessary invasion.[19] Many defense attorneys view the mandatory blood draws as a violation of civil rights.[20] Some critics believe that the judges who review the warrants are “rubber-stamping” the warrants and thus failing to decide each case on the merits.[21] They argue that sufficient probable cause is required in order to obtain a search warrant and that “just refusing a breath test is not sufficient.”[22] Dallas defense attorney Robert Guest blogged, “by ‘no refusal’ what is really meant is that the police are going to punish you for not taking their breath test, exercising your right to remain silent and not produce evidence, and exercising your right to not be held down while police goons steal your blood.”[23]

Other defense attorneys are doubtful that forced blood draws will be found illegal or unconstitutional and have resigned themselves to other battle grounds. “[W]e’re left fighting over (a) the probable cause contained in the ‘four corners’ of the search warrant affidavit; (b) a possible ‘while’ defense; and (c) the integrity and accuracy of the blood test result,” blogged Houston area defense attorney Mark Bennett.[24] “If your BAC could possibly be 0.08 or higher, you’re better off with a breathalyzer than a blood test. And since, if you’ve been drinking, you probably don’t know what your blood alcohol content is going to be, the better rule [on “No Refusal” weekends] is . . . to blow.”[25]

Implementation of the “No Refusal” program draws together two competing interests: the State’s interest in minimizing the dangers of drunk driving and the individual’s interest in preserving her rights. While it is unlikely that the “No Refusal” program violates civil rights guaranteed by the Fourth, Fifth (excluding a probable cause challenge), or Fourteenth Amendments,[26] the argument can be made that the program violates Texas statute—namely, the right to refuse to offer a breath or blood specimen.

The right to refuse to blow derives from Chapter 724 of the Texas Transportation Code, entitled “Implied Consent,” which outlines the rules on implied consent and the procedure for obtaining specimens for alcohol content analysis.[27] In general, a person who is “arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle . . . while intoxicated . . . is deemed to have consented . . . to the taking of one or more specimens of the person’s breath or blood for analysis . . . .”[28] Upon a suspect’s arrest, blood or breath specimens “may be taken” if an officer has “reasonable grounds” to believe the person was operating a motor vehicle while intoxicated.[29]

The right to refuse falls under section 724.013. It states that, “[e]xcept as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”[30] The 724.012(b) exception states that an officer “shall require the taking of a specimen of the person’s breath or blood” when four conditions are met: (1) the suspect is arrested for DWI; (2) the officer “reasonably believes” that the suspect caused an accident; (3) the officer “reasonably believes” that someone has died or will die or that someone besides the suspect has suffered serious bodily injury; and (4) the person refuses to give the specimen voluntarily.[31] Thus, in cases that do not involve some sort of auto accident, a person has an unfettered right to refuse. Even in cases where there is an accident, a person still has an unfettered right to refuse where either (1) he is not arrested for DWI, (2) there is no reasonable indication that he is at fault,[32] or (3) there is no reasonable indication that someone died or was seriously injured.

A. Beeman: Putting the Cart Before the Horse

Because Texas statutory law does not allow for blood draws to be administered to those who refuse (except as provided by section 724.012(b)), the “No Refusal” program purports to derive its authority to draw blood by way of search warrants issued by neutral and detached magistrates. The question, then, is whether the statute granting motorists the right to refuse precludes the taking of a defendant’s blood pursuant to a constitutionally firm search warrant. In 2002, the Texas Court of Criminal Appeals addressed this very issue in Beeman v. State.[33] In that case, Knowel Beeman was rear-ended while driving.[34] There were no injuries, and the officer cited the other driver for following too closely; however, the officer also arrested Beeman for DWI.[35] Beeman refused a breath test, so the officer obtained a search warrant for his blood.[36] Over Beeman’s objection, his blood was drawn at the local hospital.[37] The test later revealed his BAC to be 0.21, well over the legal limit.[38] Citing section 724.013 of the Transportation Code, Beemen moved unsuccessfully to suppress the results.[39] The intermediate court upheld the suppression based on the “broader powers” of the search warrant over that of the statutory right to refuse.[40]

Before the Court of Criminal Appeals, Beeman argued that “despite the existence of a search warrant, this search was invalid because it violated our state’s implied consent statute,” and that that statute, “by implication, excludes the taking of blood without consent under any other circumstances, including by the authority of a search warrant.”[41] The State countered that “construing the law in this manner results in giving DWI suspects more protection than other criminal suspects—an absurd result contrary to the statute’s intent.”[42] The Court of Criminal Appeals agreed with the State and held that “once a valid search warrant is obtained by presenting facts establishing probable cause to a neutral and detached magistrate, consent, implied or explicit, becomes moot.”[43]

The Beeman decision was not unanimous. Judge Johnson filed the lone dissent, noting that article 38.23 of the Texas Code of Criminal Procedure states that “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas . . . shall be admitted in evidence against the accused on the trial of any criminal case.”[44] Judge Johnson also noted that the “plain language of [the 724.012(b) exception] sets out four requirements which must be satisfied in order for the involuntary taking of a blood specimen to be authorized.”[45] In the instant case, she pointed out, only two of the four requirements were satisfied, and therefore, “[t]he taking of blood . . . was obtained in violation of section 724.013,” and “should have been suppressed under Article 38.23.”[46] She then explained:

The Legislature has chosen to give DWI arrestees the right to refuse to submit a breath or blood specimen unless the rather restrictive requirements of section 724.012(b) are met. The state would have us condone broad application by permitting use of a search warrant to circumvent the legislated prohibition. It is not unreasonable or absurd for the Legislature to decline to give carte blanche to officers to demand and forcibly obtain blood samples from all persons arrested for DWI. The Legislature could quite reasonably decide to permit officers to require the taking of a specimen only in those situations in which the officer reasonably believes a life-threatening accident had been caused by the DWI offense. . . . . It is axiomatic that, while our constitutions limit the powers of government and provide protection for the rights of the people, the Legislature can pass laws that provide even greater protection. The Legislature has clearly and explicitly provided a statutory right for a DWI arrestee to refuse a request for a specimen, with one specific, limited exception. I do not acquiesce to the state’s request that we disregard and judicially repeal the Legislature’s clear and explicit statutory right to refuse to provide a specimen.[47]

In countering Judge Johnson’s argument, the majority stated that its holding gives “police officers nothing more than the Constitution already gives them—the ability to apply for a search warrant and, if the magistrate finds probable cause to issue that warrant, the ability to effectuate it.”[48] In sum, the majority’s position is that section 724.013 is rendered moot by the broader power of the search warrant given by the Constitution itself, and that therefore, the search warrant in the instant case was legal.[49]

The premise used by the Court of Criminal appeals—that law enforcement’s “ability to apply for a search warrant” and “effectuate it” is “giv[en]” by the Constitution—requires a closer look. Does either the United States Constitution or the Texas Constitution really “give” law enforcement the power to apply for and effectuate search warrants? The Fourth Amendment states in its entirety:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[50]

Section 9 of article 1 of the Texas Constitution contains a substantially identical provision:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.[51]

First, a careful reading reveals that nowhere does either the Fourth Amendment of the United States Constitution or section 9 of article 1 of the Texas Constitution give government the power to do anything. Neither enables; to the contrary, both provisions restrict the power of government and its ability to use the warrant. As the Schmerber Court noted, “[t]he Fourth Amendment’s proper function is to constrain . . . .”[52] The Beeman opinion itself begins its analysis by noting that “[t]he Fourth Amendment prohibits unreasonable searches and seizures.”[53] Second, the word “warrant” appears nowhere else in the Constitution. Likewise, the Texas Constitution fails to use the term in the applicable sense.[54] In other words, while both documents contemplate the use of search warrants, nowhere does either document enable government to use search warrants. The premise of Beeman—that law enforcement’s “ability to apply for a search warrant” and “effectuate it” is “giv[en]” by the Constitution—is completely unsupported by either the United States Constitution or the Texas Constitution.[55] The warrant power derives from some other source.

In Texas, article 18.02(10) of the Code of Criminal Procedure states that “[a] search warrant may be issued to search for and seize . . . property or items . . . constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense.”[56] Under case law, the word “items” includes blood samples.[57] The bill analysis for the 1977 amendment to article 18.02, which added subdivision (10) to authorize the seizure of “property or items,” states “[u]nder present Texas criminal procedure a search warrant can be issued only for certain designated items . . . .”[58] This indicates that article 18.02 is the sole source of the Texas warrant power. Thus, the ability of law enforcement to apply for a search warrant and effectuate it upon a neutral magistrate’s finding of probable cause derives exclusively from statute, not from either constitution.[59]

The Court of Criminal Appeals has acknowledged as much. In Smith v. State, [60] the court implicitly but necessarily held that the Code of Criminal Procedure is the sole source of the warrant power. There, a trial court convicted defendant Harvey Smith of murder.[61] Prior to the trial, however, the trial court granted the State’s “Motion For Permission to Obtain A Sample Of Defendant’s Blood.”[62] Subsequently, a medical technologist obtained blood and saliva samples from Smith.[63] The issue on appeal was whether article 18.02 authorized the search for Smith’s blood and saliva. At the time, however, article 18.02 did not include subdivision (10),[64] which currently authorizes the seizure of “property or items,” including blood and saliva.[65] Applying the previous version of article 18.02, the Court of Criminal Appeals held the following:

Since Article 18.02 . . . does not list “blood” as one of the “grounds of issuance” of a search warrant, a search warrant may not be issued to search for this type of evidence. Consequently, we hold that absent a consent freely and voluntarily given, and a valid waiver of [a defendant’s] Article I, Section 9 right to be free from unreasonable searches, a defendant may not be subject to a blood test under Texas law, search warrant notwithstanding.[66]

In holding that article 18.02 did not authorize searches for blood or saliva samples and that a search warrant could not be issued, the court implicitly held that the source of the power to issue and execute search warrants derives from article 18.02 of the Texas Code of Criminal Procedure, that article alone, and not from either the Texas Constitution or the United States Constitution. That implication is necessary to the court’s holding that “a search warrant may not be issued to search for this type of evidence.” Thus, the court recognized that the legislature must first authorize the issuance of search warrants. This must be done before any issues of constitutionality can arise. In other words, the search warrant must be legally authorized in the first place.[67] In contrast, Beeman initially presumed the search warrant’s legality under the Constitution; what Beeman should have done initially was decide whether, under statutory law, the search warrant was legally authorized by the legislature.

B. Conflicting Provisions: Article 18.02 of the Code of Criminal Procedure and Section 724.013 of the Transportation Code

Because the warrant power derives from statute and not the United States Constitution or the Texas Constitution, the issue remains: whether the legislature, outside the 724.012(b) exception, has authorized the use of a search warrant for a DWI suspect’s blood where the suspect has refused to offer a specimen, or whether the legislature has restricted its use. The Code of Criminal Procedure indicates that the legislature has authorized the search: “[a] search warrant may be issued to search for and seize . . . property or items . . . constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense . . . .”[68] The Transportation Code, however, indicates that the legislature has restricted the search: “a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”[69] The issue is one of statutory construction.

In Texas, the rules of statutory construction are codified in the Code Construction Act.[70] Applicable here is the in pari materia doctrine, codified in section 311.026, which states, “[i]f a general provision conflicts with a special or local provision,” and “[i]f the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.”[71] In other words, “when the general statute and a more detailed enactment are in conflict, the latter will prevail, regardless of whether it was passed prior to or subsequently to the general statute, unless it appears that the legislature intended to make the general act controlling.”[72] Alternatively, section 311.025 requires that “if statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails.”[73]

With respect to section 724.013 and article 18.02, therefore, it must first be determined (1) whether the two statutes are in pari materia—that is, whether a general statute and a specific statute are in conflict. If the doctrine does not apply, section 311.025 and other statutory construction aids will control.[74] If the doctrine does apply, it must also be determined (2) whether any conflict is irreconcilable. If it is, the reconciliation will control.[75] If it is not, it must be determined (3) whether the legislature intended that the general statute control over the more specific one. If the legislature intended that the more general statute control, then the more general statute will prevail. If, however, there is no such indication, then the specific statute will prevail.

1. In Pari Materia

In Cheney v. State,[76] the Court of Criminal Appeals described the scope of the in pari materia doctrine:

It is a settled rule of statutory interpretation that statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things, are considered as being in pari materia though they contain no reference to one another, and though they were passed at different times or at different sessions of the legislature. . . . . . . . . [In pari materia] applies where one statute deals with a subject in comprehensive terms and another deals with a portion of the same subject in a more definite way. . . . [T]he rule is not applicable to enactments that cover different situations and that were apparently not intended to be considered together. . . . . . . . . [I]f two statutes do not deal with the same subject matter, persons or purpose, they are not in pari materia and should each be construed separately and in accordance with the plain wording of the particular statute.[77]

While in pari materia often applies to different provisions within the same code,[78] such is not always the case. In Azeez v. State,[79] for example, the Court of Criminal Appeals applied the doctrine to two provisions: (1) section 38.10(a) of the Penal Code, which that court said “broadly defined the offense of failure to appear when conditionally released from custody”; and (2) section 543.009(b) of the Transportation Code, which the court described as the “more narrowly hewn . . . offense . . . specifically proscrib[ing] the failure to appear in court pursuant to a written promise upon being arrested for an offense under Title 7, Subtitle C of the Transportation Code . . . .”[80] In that case, the court determined that section 38.10(a) was a general provision and that section 543.009(b) was a special provision.[81]

Here, section 724.013 of the Transportation Code and article 18.02 of the Code of Criminal Procedure satisfy the requirements of Cheney because both “deal with” the authority of law enforcement to collect blood specimens from those suspected of DWI. Second, they both have the same “general purpose” of defining the authority of law enforcement to collect the specimens. Third, they both relate to the same class of persons and things: DWI suspects and blood specimens.

Moreover, the two statutes are fairly analogous to the two statutes in Azeez. First, just as section 38.10(a) of the Penal Code “broadly defines” the offense of failure to appear, article 18.02(10) broadly defines the scope of law enforcement to “seize property or items constituting evidence of an offense.” The sheer breadth of what may be seized as either “property” or “items” is almost limitless. For all intents and purposes this subdivision acts as a “catchall” provision for ten of the other eleven enumerated classes of things which may be seized.[82] Its only self-imposed limitation is that it does not include the personal writings of the accused. Notwithstanding, article 18.02(10)—an enabling statute—broadly enables law enforcement to seek, and the judiciary to issue, search warrants. Thus, article 18.02(10) is, in any applicable sense of the word, a “general” provision.

Second, just as section 543.009(b) of the Transportation code “narrowly” proscribes the failure to appear in court pursuant to a written promise, section 724.013 narrowly defines a very specific situation: the refusal of DWI suspects to submit to the taking of a specimen designated by a peace officer. That section also involves only a very narrow class of persons: those accused of DWI. It is in this situation only, applicable to this class of persons only, that the law precluding law enforcement from obtaining blood specimens applies. Section 724.013 narrows its application even further by excluding the situation and class of persons described in section 724.012(b): those who were arrested for DWI, were involved in an accident where someone was seriously hurt or killed, and appear to be at fault.[83] In contrast to article 18.02(10), thus, section 724.013 is a “special or local” provision.

In sum, because the two statutes deal with the same general subject, have the same general purpose, relate to the same class of persons and things, and because one is general and the other is specific, the doctrine of in pari materia applies.

2. Reconciliation

Where the in pari materia doctrine applies, all effort should be made to reconcile the two statutes. However, even where the doctrine does not apply and section 311.025 controls, the law still prefers a reconciliation where reconciliation is possible.[84] Thus, wherever reconciliation is possible, the reconciliation will control.

Here, reconciliation is possible. Article 18.02 states that a search warrant “may be issued”—not “must be issued”—to search for and seize several enumerated classes of things.[85] Under section 311.016 of the Code Construction Act, the word “may” creates “discretionary authority or grants permission or a power.”[86] In other words, the issuing of a search warrant to search and seize is permissible—that is, it is discretionary.[87] Section 724.013, on the other hand, states that a specimen “may not” be taken if a person refuses to submit to the taking of a specimen.[88] Also under section 311.016, “may not” imposes “a prohibition and is synonymous with ‘shall not.’”[89] In other words, where a person refuses to submit to the taking of a specimen, the taking of the specimen, outside the narrow 724.012(b) exception, is prohibited—that is, the taking may not, shall not, and cannot happen. In instances where blood is forcibly taken under the authority of a “No Refusal” search warrant, that action complies with article 18.02 but violates section 724.013. However, where blood is not forcibly taken pursuant to a “No Refusal” search warrant—that is, where “No Refusal” search warrants are not utilized, neither statute has been violated. The reconciliation, thus, is that search warrants that require the production of specimens in violation of 724.013 are prohibited, but other search warrants to search and seize other items or property are perfectly permissible. Under that reconciliation, any evidence obtained pursuant to a “No Refusal” search warrant is obtained illegally and, under article 38.23, must be excluded.

This reconciliation might not satisfy all.[90] Assume arguendo that there is no reconciliation because any reading of one statute requires an implicit exception to the other. To elaborate, if article 18.02 is to be reconciled with section 724.013, it must be understood to mean that “[except as provided by section 724.013 of the Transportation Code,] a search warrant may be issued to search for and seize property or items constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense.” Similarly, if section 724.013 is to be reconciled with article 18.02, it must be understood to mean that “[except as provided by article 18.02(10) of the Code of Criminal Procedure and] except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.” But that is not the plain and ordinary meaning of either statute. The argument’s sum, assumed hereinafter, is that the two statutes cannot be reconciled without perverting the plain meaning of either, and therefore, it must be determined whether the legislature intended that the more general article 18.02 of the Code of Criminal Procedure control.

3. Legislative Intent

In order to ascertain the legislative intent behind article 18.02 of the Code of Criminal Procedure, it is appropriate to look to the original bill’s legislative history. The Senate’s bill analysis offers limited insight.[91] Under the subsection labeled “Pros,” the bill analysis states:

The bill permits seizure of useful evidence which currently cannot be recovered. Proponents cite two examples of the need for this bill. Suppose a rapist drags a woman to his apartment. The woman leaves a couple of hair curlers and puts her fingerprints on a glass. Those items can be objects of an evidentiary search warrant. Or suppose a man is found stabbed to death. The police check the house of the probable murderer. They find no weapon, but the carpet is bloodstained. The carpet can be seized under an evidentiary search warrant.[92]

This quote illustrates the legislative motivation behind enacting subdivision (10): to enable law enforcement to gather evidence of a crime in a general way, where previously law enforcement, because it had not been enabled to do so, was only able to do so in specific and enumerated circumstances. This excerpt nor any other legislative history reveals any specific indication that the legislature intended article 18.02 to control over section 724.013. The history reveals only that the legislature sought quickly to enable law enforcement to gather evidence.[93] Because there is no indication that the legislature intended that the revised article 18.02 control over what is now section 724.013 of the Transportation Code, under the statutory laws of construction, section 724.013 prevails.[94]

4. Conflicting Provisions Summary

In sum, the Code Construction Act dictates that section 724.013 of the Transportation Code prevail over article 18.02 of the Code of Criminal Procedure. As in Smith, the legislature never authorized the judiciary to issue search warrants of the type contemplated under the “No Refusal” program. Where the judiciary has not been authorized by the legislature to issue the search warrant, the warrant cannot be valid, and thus, any evidence obtained by law enforcement pursuant to the unauthorized search warrant has not be obtained legally. As Judge Johnson correctly pointed out, “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas . . . shall be admitted in evidence against the accused on the trial of any criminal case.”[95] Therefore, any evidence obtained pursuant to a “No Refusal” search warrant cannot be admitted.[96]

C. Conclusion: Beeman Remains Good Law

Right or wrong, Beeman represents current Texas law on the issue of whether a search warrant trumps section 724.013, and thus, lower courts continue to uphold evidence obtained pursuant to search warrants for a DWI suspect’s blood.[97] Additionally, because a challenge to Beeman presents a statutory issue of construction of state law as opposed to any federal issue, the Court of Criminal Appeals remains the highest authority. In other words, that Court of Criminal Appeals is the only court that can overrule its own holding in Beeman. Should that court readdress the issue in the coming years, it should do so, as Judge Johnson alluded, in terms of statutory construction, not in terms of constitutionality.