Article from: www.thenewspaper.com/news/49/4978.asp
6/10/2016Texas Appeals Court Rejects Challenge To Implied Consent Law
Being penalized for saying no to a breath test is not a First Amendment violation, Texas Court of Appeals rules.
Requiring motorists to undergo a breath test at a a police officer's request does not offend due process or the constitution, according to a ruling handed down last week by the Texas Court of Appeals. A three-judge panel weighed five arguments John Andrew Rankin posed in a failed attempt to strike down the state's implied consent statute.
Rankin had been pulled over by McAllen Police Officer Luis Villarreal on July 19, 2014, and during the stop the officer noticed signs of intoxication. Officer Villarreal he decided to place Rankin under arrest and take him to the station for a breath test. Rankin refused to blow, even after being advised that he would automatically lose his driver's license for six months.
At an administrative hearing before the Texas Department of Public Safety, the police officer showed that there was probable cause for the stop, probable cause to believe the defendant was drunk and the defendant refused the breath test. That was all the hearing officer needed to impose the suspension under state law. This setup, Rankin insisted, violated his rights.
For example, Rankin argued that suspending his license for saying "no" amounted to a restriction on his First Amendment rights. The appellate judges dismissed the claim since Rankin did not bother to develop the argument with any case law or supplemental authorities. Rankin then argued that it violated due process to use the implied consent statute as a way around the requirement to obtain a warrant from a judge.
"The Fourth Amendment is bigger than anything coming out of Austin," Rankin's attorney wrote. "They did not go get a warrant, but want to take Rankin's license away for two years because he exercised a constitutional right."
Once again, the court remained unmoved, insisting that the statute is reasonable.
"Case law provides that when one refuses to provide a breath test when arrested for DWI, the suspension of his driverís license is a regulation that is reasonably calculated to promote care on the part of those who use the highways and to protect the lives and property of those using the highways," Justice Nelda V. Rodriguez wrote for the appellate panel. "Following binding law of the United States Supreme Court and the Texas Supreme Court, we conclude that the regulations found in this implied consent statute do not deprive Rankin of his fourth amendment rights."
The appellate judges cited a passage implicitly approving implied consent laws from the recent US Supreme Court McNeely decision (view opinion) , which affirmed the importance of securing a warrant in DUI cases.
"Officer Villarreal did not forcibly obtain a specimen of Rankin's breath or blood; he did not obtain a specimen without a warrant," Justice Rodriguez explained. "Rankin's ability to refuse a breath or blood test is derived from statute and carries with it the consequences of his choice."
A copy of the ruling is available in a 275k PDF file at the source link below.
Source: Rankin v. Department of Public Safety (Court of Appeal, State of Texas, 6/2/2016)
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