                                                            February 26, 2015
                             No. PD-0097-15

                         IN THE
               COURT OF CRIMINAL APPEALS
                       OF TEXAS

                 NICHOLAS STEPHEN LLOYD,
                         Appellant

                                    v.

                     THE STATE OF TEXAS,
                           Appellee

               FROM THE COURT OF APPEALS FOR THE
                FIFTH JUDICIAL DISTRICT AT DALLAS

                 Cause number 05-13-01004-CR
_____________________________________________________________

       STATE’S PETITION FOR DISCRETIONARY REVIEW
_____________________________________________________________

APPEAL FROM THE 401ST JUDIDICAL DISTRICT COURT OF COLLIN
COUNTY, THE HONORABLE MARK RUSCH, JUDGE PRESIDING


GREG WILLIS                              JOHN R. ROLATER, JR.
Criminal District Attorney               Asst. Criminal District Attorney
Collin County, Texas                     Chief of the Appellate Division

ZEKE FORTENBERRY                         ANDREA L. WESTERFELD
GEETA SINGLETARY                         Asst. Criminal District Attorney
CALLI BAILEY                             2100 Bloomdale Rd., Ste. 200
Asst. Criminal District Attorneys        McKinney, Texas 75071
                                         State Bar No. 24042143
                                         (972) 548-4323
                                         FAX (214) 491-4860
                                         awesterfeld@co.collin.tx.us
                                     TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................ i

INDEX OF AUTHORITIES ................................................................................ iii
STATEMENT REGARDING ORAL ARGUMENT.............................................v

STATEMENT OF THE CASE ............................................................................. vi

STATEMENT OF PROCEDURAL HISTORY ................................................... vi

STATEMENT OF FACTS ................................................................................... vi

QUESTIONS PRESENTED FOR REVIEW .........................................................1

REASONS FOR REVIEW .....................................................................................1

ARGUMENT ..........................................................................................................2

   1. Is a warrantless, mandatory blood draw conducted pursuant to
   Section 724.012(b)(3)(B) with the implied consent of the subject
   reasonable under the Fourth Amendment? .........................................................2
      Consent is a long-recognized exception to the Fourth Amendment
      requirement to obtain a warrant before conducting a search. Section
      724.012(b) of the Texas Transportation Code implies a subject’s
      consent under certain circumstances. This Court should reconsider its
      recent opinion in State v. Villarreal and conclude that this implied
      consent is sufficient to dispense with the warrant requirement.
   2. Did the court of appeals err in failing to address one of the State’s
   arguments that would justify the warrantless blood draw? .................................4
   3. Did the court of appeals err in finding there were not exigent
   circumstances sufficient to justify a warrantless blood draw? ...........................4
      An appellate court is required to address every issue necessary to the
      resolution of the appeal. The Fifth Court of Appeals failed to address
      the State’s argument that exigent circumstances justified the
      warrantless blood draw in the instant case. Further, even if its opinion
      can be considered to have addressed the issue, it erred in concluding


                                                                                                                   i
      that exigent circumstances did not exist. The length of time in
      investigating a major accident, the late hour of the investigation, and
      Appellant’s attempts to impede the investigation all amounted to
      exigent circumstances that justified a warrantless blood draw.
PRAYER FOR RELIEF..........................................................................................8

CERTIFICATE OF SERVICE ...............................................................................9

CERTIFICATE OF COMPLIANCE ......................................................................9

APPENDIX




                                                                                                          ii
                                      INDEX OF AUTHORITIES

Statutes, Codes, and Rules

TEX. R. APP. P. 47.1 ...................................................................................................5

TEX. R. APP. P. 66.3(c) ..............................................................................................1

TEX. R. APP. P. 66.3(f) ...............................................................................................1

TEX. R. APP. P. 68.2(c) ............................................................................................. vi

TEX. TRANSP. CODE § 724.012........................................................... vi, vii, 2, 3, 4, 5

TEX. TRANSP. CODE § 724.012(b)(3)(B) ................................................................1, 2

Cases

Cheek v. United States,
 498 U.S. 192 (1991) ................................................................................................3
Douds v. State, No. PD-0857-14
 (granted Sep. 17, 2014) ........................................................................................... 3

Flores v. State, No. PD-0071-15
 (filed Feb. 17, 2015) ................................................................................................ 3

Holidy v. State, No. PD-0622-14
 (granted Aug. 20, 2014; argued and submitted Jan. 14, 2015) ............................... 3

Keehn v. State,
 233 S.W.3d 348 (Tex. Crim. App. 2007)................................................................5

Kentucky v. King,
 131 S.Ct. 1849 (2011) .............................................................................................5




                                                                                                                      iii
Lloyd v. State,
  No. 05-13-01004-CR, 2014 WL 7249747
  (Tex. App.—Dallas Dec. 22, 2014)
  (not designated for publication) ...................................................... vi, vii, 2, 4, 5, 6

McNeil v. State, No. PD-1171-14
 (filed Sep. 2, 2014)..................................................................................................3
Missouri v. McNeely,
 133 S.Ct. 1552 (2013) .................................................................................... 5, 6, 7
Reeder v. State, No. PD-0601-14
 (granted Aug. 20, 2014; argued and submitted Jan. 15, 2015) ............................... 3
Reeves v. State, No. PD-1048-14
 (filed Aug. 20, 2014) ............................................................................................... 3

Schneckloth v. Bustamonte,
 412 U.S. 218 (1973) ................................................................................................2

Schmerber v. California,
  384 U.S. 757 (1966) ............................................................................................5, 6

State v. Villarreal,
  No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014)................2

United States v. Biswell,
 406 U.S. 311 (1972) ................................................................................................2

Zap v. United States,
 328 U.S. 624 (1946) ................................................................................................2

Other Authorities

Texas Driver’s Handbook,
 p.60 (rev. July 2012) ............................................................................................... 3




                                                                                                                     iv
                                 No. PD-0097-15

                                IN THE
                      COURT OF CRIMINAL APPEALS
                              OF TEXAS

                       NICHOLAS STEPHEN LLOYD,
                               Appellant

                                        v.

                         THE STATE OF TEXAS,
                                Appellee
             ___________________________________________________

               STATE’S PETITION FOR DISCRETIONARY REVIEW
             ___________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now, the State of Texas, by and through its Criminal District

Attorney, Greg Willis, and respectfully urges this Court to grant discretionary

review of the above-named cause.

              STATEMENT REGARDING ORAL ARGUMENT

       The State requests oral argument. The constitutionality of the mandatory

blood draw statute in light of Missouri v. McNeely is a complex issue, and oral

argument will help develop the issue more fully before this Court.




                                                                              v
                         STATEMENT OF THE CASE

      Nicholas Lloyd was charged by indictment with Driving While Intoxicated,

third or more, a third-degree felony. CR 10. Following the denial of his motion to

suppress, he pleaded not guilty before a jury. 2 RR 226. The jury convicted him

and sentenced him to 8 years in prison and a $2,000 fine. CR 72, 78.

                 STATEMENT OF PROCEDURAL HISTORY

      The Fifth District Court of Appeals in Dallas held that the trial court should

have granted Lloyd’s motion to suppress and reversed the judgment. Lloyd v.

State, No. 05-13-01004-CR, 2014 WL 7249747, at *1 (Tex. App.—Dallas Dec. 22,

2014) (not designated for publication). The State timely filed a motion for

extension of time to file a petition for discretionary review on January 23, 2015.

Tex. R. App. P. 68.2(c). The State’s petition for discretionary review is timely,

being filed within the time granted by this Court.

                            STATEMENT OF FACTS

      The court of appeals summarized the facts as follows:

      Around 1:00 a.m. on April 27, 2012, Officer Jon Conduti of the Frisco
      Police Department responded to a call about a “major vehicle
      accident” at a residence. When he arrived, he saw appellant’s red
      Mercedes sitting in the yard, where it had crashed into the corner of
      the house. Conduti spoke with appellant, who had “a strong odor of
      alcoholic beverage on his breath” and bloodshot eyes. Appellant said
      something about making a mistake but then declined to talk further.
      Appellant also refused to perform any standardized field sobriety tests
      without an attorney present. Conduti arrested appellant for driving


                                                                                  vi
     while intoxicated and took him to the Frisco jail for a DWI interview.
     At the jail, appellant refused to give a blood sample. Conduti began
     completing paperwork for a search warrant for a blood draw;
     however, when he discovered appellant had been convicted two
     previous times for driving while intoxicated, he stopped processing
     the search warrant and took appellant to the hospital for a mandatory
     blood draw under the authority of section 724.012 of the Texas
     Transportation Code. Appellant’s blood was drawn around 3:00 a.m.,
     and he was charged with felony DWI third offense.

     Before trial, appellant filed a motion to suppress, alleging the
     warrantless, nonconsensual blood draw was a violation of his Fourth
     Amendment rights. The State conceded the officer had no warrant but
     argued (1) implied consent and (2) appellant had a reduced
     expectation of privacy because driving is a highly regulated activity
     and, under the totality of the circumstances, the search was
     reasonable. After the hearing, the trial court denied appellant’s motion
     to suppress and admitted the evidence at trial.

Lloyd, 2014 WL 7249747, at *1.




                                                                                vii
                  QUESTIONS PRESENTED FOR REVIEW

1. Is a warrantless, mandatory blood draw conducted pursuant to Section
   724.012(b)(3)(B)—the repeat offender provision—reasonable under the Fourth
   Amendment?

2. Did the court of appeals err in failing to address one of the State’s arguments
   that would justify the warrantless blood draw?


3. Did the court of appeals err in finding there were not exigent circumstances
   sufficient to justify a warrantless blood draw?



                           REASONS FOR REVIEW

1. The Fifth Court of Appeals has decided an important question of federal law in
   a way that conflicts with the applicable decisions of the Supreme Court of the
   United States. See Tex. R. App. P. 66.3(c).

2. The Fifth Court of Appeals has decided an important question of state law in a
   way that conflicts with the applicable decisions of this Court. See Tex. R. App.
   P. 66.3(c).

3. The Fifth Court of Appeals has so far departed from the accepted and usual
   course of judicial proceedings as to call for an exercise of the Court of Criminal
   Appeals’ power of supervision. See Tex. R. App. P. 66.3(f).




                                                                                   1
                                  ARGUMENT

   1. Is a warrantless, mandatory blood draw conducted pursuant to Section
      724.012(b)(3)(B)—the repeat offender provision—reasonable under the
      Fourth Amendment?

      The   warrantless   blood   draw    in   this   case   pursuant   to   Section

724.012(b)(3)(B) of the Texas Transportation Code was reasonable under Fourth

Amendment jurisprudence and should not have been suppressed. The Fifth Court

of Appeals relied on this Court’s ruling in State v. Villarreal, No. PD-0306-14,

2014 WL 6734178, at *1 (Tex. Crim. App. Nov. 26, 2014), in holding that a

mandatory blood draw violated the Fourth Amendment because the implied

consent statute does not provide a valid waiver of Fourth Amendment rights.

Lloyd, 2014 WL 7249747, at *2-3. But this Court should reconsider its holding in

Villarreal and hold that a Section 724.012 mandatory blood draw is constitutional.

      Although this Court noted in Villarreal that the consent exception had not

previously been applied in these precise circumstances, consent itself has long

been a “well recognized exception” to the warrant requirement. See, e.g.,

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). And the Supreme Court has

recognized that a person may consent via participation in a highly regulated

activity without the ability to revoke that consent. United States v. Biswell, 406

U.S. 311, 316 (1972); Zap v. United States, 328 U.S. 624, 626-27 (1946). Driving

on public roads is such a highly regulated activity, and the courts have long



                                                                                  2
recognized the government’s ability to impose certain restrictions in return for the

privilege of driving. And while Villarreal relied heavily on the fact that it was not

shown that the defendant was personally aware of the implied consent requirement,

a person is presumed to have knowledge of the law. Cheek v. United States, 498

U.S. 192, 199 (1991) (holding every person is presumed to know the law).

Additionally, the Texas Driver’s Handbook expressly informs both present and

prospective drivers of the implied consent law. See Texas Driver’s Handbook, p.60

(rev. July 2012). Because the consent implied under Section 724.012 provides a

valid exception to the warrant requirement, Lloyd’s motion to suppress was

properly denied.

      Review should be granted in this case because the same issue is pending

before this Court in numerous other cases. The State’s motion for rehearing in

Villarreal remains pending. Additionally, this Court has already granted review on

similar issues in Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued

and submitted Jan. 14, 2015); Reeder v. State, No. PD-0601-14 (granted Aug. 20,

2014; argued and submitted Jan. 15, 2015); and Douds v. State, No. PD-0857-14

(granted Sep. 17, 2014). Petitions for discretionary review are pending before this

Court in other cases, including Flores v. State, No. PD-0071-15 (filed Feb. 17,

2015); McNeil v. State, No. PD-1171-14 (filed Sep. 2, 2014); and Reeves v. State,




                                                                                   3
No. PD-1048-14 (filed Aug. 20, 2014). Lloyd’s conviction here should not be

reversed while the law at issue remains under consideration by this Court.

   2. Did the court of appeals err in failing to address one of the State’s
      arguments that would justify the warrantless blood draw?
   3. Did the court of appeals err in finding there were not exigent
      circumstances sufficient to justify a warrantless blood draw?

      The court of appeals also erred in rejecting the State’s argument that exigent

circumstances justified the blood draw even without regard to Section 724.012. In

its opinion, the court of appeals discussed the arguments raised in Section III of the

State’s brief, which argued that “sufficient aggravating factors” such as Lloyd’s

prior convictions and refusal to consent to field sobriety tests or a breath test

justified the blood draw. Lloyd, 2014 WL 7249747, at *3-4. But that section was

an extension of the State’s argument that the Section 724.012 mandatory blood

draw was constitutional. The State also, however, raised an independent exigent

circumstances argument in Section IV of its brief. State’s Brief at 23-28. The

exigent circumstances raised included the length of time the officer was required to

investigate a “major vehicle accident” before transporting Lloyd to the hospital, the

difficulty in obtaining a warrant in the early morning hours, and the additional time

involved in obtaining a warrant. The court of appeals never addressed the State’s

arguments on this matter and accordingly never determined whether the facts

raised in this case amounted to exigent circumstances. An appellate court is



                                                                                    4
required to address “every issue raised and necessary to final disposition of the

appeal.” Tex. R. App. P. 47.1; Keehn v. State, 233 S.W.3d 348, 349 (Tex. Crim.

App. 2007). Because the State raised an independent argument that would support

the trial court’s decision regardless of the applicability of Section 724.012, the

appellate court was required to address that ground in its opinion. Because it did

not, this case should be reversed and remanded to the Fifth Court of Appeals for

consideration of that issue.

      Furthermore, to the extent that the court of appeals addressed the exigent

circumstances argument, it erred in finding that no exigent circumstances existed.

Although not addressing the State’s arguments on the issue, the court of appeals

broadly held that “no exigent circumstances existed which would justify a

warrantless search.” Lloyd, 2014 WL 7249747, at * 3. A warrantless search may be

conducted where “the exigencies of the situation make the needs of law

enforcement so compelling that a warrantless search is objectively reasonable

under the Fourth Amendment.” Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013),

quoting Kentucky v. King, 131 S.Ct. 1849, 1856 (2011). One such exigency is to

prevent the imminent destruction of evidence. McNeely, 133 S.Ct. at 1559.

      The natural dissipation of alcohol in the bloodstream is a relevant, though

not dispositive, factor in determining exigent circumstances. In Schmerber v.

California, the Supreme Court held that the dissipation of alcohol in a



                                                                                 5
circumstance where the officer had already been significantly delayed in

investigating the scene of an accident and transporting the defendant to the hospital

was a reasonable exigent circumstance. 384 U.S. 757, 770 (1966). In McNeely, the

Supreme Court concluded that the natural dissipation of alcohol in the bloodstream

was not an exigent circumstance per se. 133 S.Ct. at 1562, 1568. But the McNeely

court nonetheless recognized that other factors, such as the inability to secure a

magistrate to obtain a warrant following a late-night arrest and “time-consuming

formalities” in obtaining a warrant, may still provide exigencies. Id. at 1562-63.

      In the instant case, there were exigent circumstances that justified a

warrantless blood draw. As in Schmerber and unlike McNeely, this case involved a

major accident—Appellant crashed his vehicle into the corner of a house—that

required significant investigation by the officer. Lloyd, 2014 WL 7249747, at *1.

Indeed, the trial court expressly found that the case was not a “typical DWI” and

spoke at length about its distinguishing features. 2 RR 222-27. This case involved a

greater passage of time at the scene than in McNeely. Even acting without a

warrant, Lloyd’s blood was not drawn until more than two hours after the officer

was dispatched. Id. Additionally, the accident occurred in the early morning hours

when a judge would less likely be available. See McNeely, 133 S.Ct. at 1562.

Furthermore, Appellant initially fled the scene following the accident, refused to

participate in field sobriety tests, and refused to provide a blood sample. 2 RR 73,



                                                                                     6
77-78; 3 RR 33, 44, 48. The trial court expressly found that these were “extra

circumstances that [were] thwarting the police investigation” and added to the

exigency of the situation. 2 RR 225. These are precisely the “practical problems of

obtaining a warrant within a timeframe that still preserves the opportunity to obtain

reliable evidence” discussed in McNeely. McNeely, 133 S.Ct. at 1568. The court of

appeals erred in finding there were not exigent circumstances sufficient to support

a warrantless blood draw.




                                                                                    7
                            PRAYER FOR RELIEF

      The State prays that the Court grant the State’s petition and set the case for

submission, reverse the judgment of the Fifth Court of Appeals, and affirm the

judgment of the trial court, or alternatively, remand the case for consideration of

the State’s exigent circumstances argument.

                                          Respectfully submitted,

                                          GREG WILLIS
                                          Criminal District Attorney
                                          Collin County, Texas

                                          JOHN R. ROLATER, JR.
                                          Assistant Criminal District Attorney
                                          Chief of the Appellate Division



                                           /s/ Andrea L. Westerfeld
                                           ANDREA L. WESTERFELD
                                           Assistant Criminal District Attorney
                                           2100 Bloomdale Rd., Ste. 200
                                           McKinney, Texas 75071
                                           State Bar No. 24042143
                                           (972) 548-4323
                                           FAX (214) 491-4860
                                           awesterfeld@co.collin.tx.us




                                                                                  8
                         CERTIFICATE OF SERVICE

      A true copy of the State’s Petition for Discretionary Review has been

electronically served on counsel for Appellant, Stephanie Hudson, and a courtesy

copy emailed to smhudson@gmail.com, and a true copy served on the Honorable

Lisa McMinn, State Prosecuting Attorney, P.O. Box 13046, Capitol Station,

Austin, Texas 78711-3046, Lisa.McMinn@spa.state.tx.us, on this, the 20th day of

February, 2015.



                                             /s/ Andrea L. Westerfeld
                                             Andrea L. Westerfeld




                      CERTIFICATE OF COMPLIANCE


      This brief complies with the word limitations in Texas Rule of Appellate

Procedure 9.4(i)(2). In reliance on the word count of the computer program used to

prepare this brief, the undersigned attorney certifies that this brief contains 1,814

words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).



                                           /s/ Andrea L. Westerfeld
                                           Andrea L. Westerfeld




                                                                                   9
         APPENDIX

Opinion of the Fifth Court of Appeals
Lloyd v. State,         S.W.3d --- (2014)



                                                                             Cases that cite this headnote
                         2014 WL 7249747
    Only the Westlaw citation is currently available.
                      OPINION                                         [2]    AutomobHes
              Court of Appeals of Texas,
                        Dallas.                                              Taking of blood of defendant who was arrested
                                                                             for driving while intoxicated (DWI) was not
              Nicolas Stephen Lloyd, Appellant                               justified by any recognized exception to the
                                  v.                                         warrant requirement, and thus the warrantless,
                     The State of Texas, Appellee                            nonconsensual blood draw violated defendant's
                                                                             Fourth Amendment rights, even though the state
                       No. os-13-o1oo4-CR                                    pointed to defendant's two prior convictions for
                    Opinion Filed December 22, 2014                          DWI, his refusal to engage in sobriety tests,
                                                                              and his refusal to consent to a voluntary blood
Synopsis
                                                                             draw; the circumstances identified by the state
Background: Defendant was convicted in the 401 st Judicial
                                                                              were simply those that invoked the statute on
District Court, Collin County, of driving while intoxicated
                                                                              mandatory blood draws. U.S. Const Amend 4;
(DWI) third offense. He appealed a denial of his motion to
                                                                              Tex. Transp. Code Ann. § 724.012.
suppress the results of a warrantless, nonconsensual blood
draw.                                                                        Cases that cite this headnote


                                                                       [3]   Searches and Seizures
Holdings: The Court of Appeals, Francis, J., held that:
                                                                             "Exigent circumstances" that provide an
[1] any implied consent to a blood draw that defendant was
                                                                             exception to the warrant requirement are those
deemed to have given under implied-consent law did not
                                                                             exigencies of the situation that make the
categorically extinguish defendant's Fourth Amendment right
                                                                             needs of law enforcement so compelling that
to withdraw consent to a warrantless search, and
                                                                             a warrantless search is objectively reasonable
                                                                             under the Fourth Amendment; these include
[2] the blood draw was not justified by any recognized
                                                                             the threat of imminent removal or destruction
exception to the warrant requirement
                                                                             of evidence, threat to human life, rendering
                                                                             emergency assistance to injured occupants, or
Reversed and remanded                                                        hot pursuit of a fleeing suspect U.S. Const
                                                                             Amend4.

                                                                              Cases that cite this headnote
  West Headnotes (4)
                                                                       [4]   AutomobHes
 [1]     AutomobHes
          'i:);;o                                                            In those drunk-driving investigations where
         Any implied consent to a blood draw that                            police officers can reasonably obtain a warrant
         defendant was deemed to have given under                            before a blood sample can be drawn without
         implied-consent law did not categorically                           significantly undermining the efficacy of the
         extinguish defendant's Fourth Amendment right                       search, the Fourth Amendment mandates that
         to withdraw consent to a warrantless search. U.S.                   they do so. U.S. Const. Amend 4.
         Canst Amend 4; Tex. Transp. Code Ann. §
                                                                              Cases that cite this headnote
         724.012.




 \Vestla'.'INexr © 2015 Thomson         F~.euters.   No cia 1m to original U.S. Government Works.
Lloyd v. State, - S.W.3d -     (2014)


                                                                  appellant had been convicted two previous times for driving
                                                                  while intoxicated, he stopped processing the search warrant
On Appeal from the 401st Judicial District Court, Collin          and took appellant to the hospital for a mandatory blood
County, Te:us, Trial Court Cause No. 401-81624-2012.              draw under the authority of section 724.012 of the Texas
Mark J. Rusch, Judge.                                             Transportation Code. Appellant's blood was drawn around
                                                                  3:00a.m., and he was charged with felony DWI third offense.
Attorneys and Law Firms

Stephanie Hudson, Allen, TX, for Appellant.                       Before trial, appellant filed a motion to suppress, alleging
                                                                  the warrantless, nonconsensual blood draw was a violation
Greg Willis, Calli Bailey, John R. Rolater, Zeke Fortenberry,     of his Fourth Amendment rights. The State conceded the
Geetangali Y. Singletary, McKinney, TX, for Appellee.             officer had no warrant but argued (1) implied consent and
                                                                  (2) appellant had a reduced expectation of privacy because
                                              1
Before Justices Francis, Lang, and Stoddart                       driving is a highly regulated activity and, under the totality
                                                                  of the circumstances, the search was reasonable. After the
                                                                  hearing, the trial court denied appellant's motion to suppress
                                                                  and admitted the evidence at trial. While this appeal was
                         OPINION                                  pending, the court of criminal appeals issued its opinion in
                                                                  State v. Villarreal, No. PD-0306--14,- S.W.3d--, 2014
Opinion by Justice Francis
                                                                  WL 6734178 (Tex.Crim.App. Nov. 26, 2014), addressing
 *1 Nicolas Stephen Lloyd appeals the trial court's order         involuntary blood draws taken under the authority of the
denying his motion to suppress the results of a warrantless,      Texas Transportation Code.
nonconsensual blood draw. At trial, appellant stipulated
to having been convicted twice previously of driving              In a single issue, appellant claims the trial cowt erred by
while intoxicated, and the evidence of his blood alcohol          denying his motion to suppress. He claims that, because he
concentration was admitted. A jury convicted him of driving       did not consent to the blood draw and the State did not
while intoxicated third offense, found he used or exhibited a     have a warrant to draw his blood, the search was reasonable
deadly weapon (a motor vehicle), and assessed punishment          only if the State could show exigent circumstances. Because
at eight years in prison and a $2000 fine. In a single            the State did not do so, appellant claims the search violated
issue, appellant claims the trial court erred by denying his      his Fourth Amendment rights, the motion should have been
motion to suppress because the warrantless, nonconsensual         granted, and the blood alcohol concentration evidence should
blood draw constituted an unconstitutional search and seizure     have been suppressed.
and violated his Fourth Amendment rights. We agree with
appellant. We reverse the trial court's judgment and remand        *2 We review a trial court's ruling on a motion to suppress
this case for further proceedings.                                evidence under a bifurcated standard State v. Kerwick, 393
                                                                  S.W.3d 270, 273 (Tex.Crim.App.2013). We grant almost
Around 1:00 a.m. on April 27, 2012, Officer Jon Conduti           total deference to the trial court's determinations of historical
of the Frisco Police Department responded to a call about         facts and mixed questions of law and fact that rely on
a ''major vehicle accidenf' at a residence. When he arrived,      credibility when supported by the record Id. But when mixed
he saw appellant's red Mercedes sitting in the yard, where it     questions of law and fact do not depend on the evaluation of
had crashed into the comer of the house. Conduti spoke with       credibility and demeanor, we review the trial court's ruling de
appellant, who had "a strong odor of alcoholic beverage on his    novo.Jd.
breath'' and bloodshot eyes. Appellant said something about
making a mistake but then declined to talk further. Appellant     The Texas Court of Criminal Appeals recently addressed
also refused to perform any standardized field sobriety tests     whether a warrantless, nonconsensual testing of a DWI
without an attorney present Conduti arrested appellant for        suspect's blood violates the suspect's Fourth Amendment
driving while intoxicated and took him to the Frisco jail for a   rights. Villarreal.- S.W.3d --,2014 WL 6734178. In
DWI interview. At the jail, appellant refused to give a blood     that case, a police officer stopped Villarreal for a traffic
sample. Conduti began completing paperwork for a search           violation. ld. at - - , at •1. When Villarreal displayed signs
 warrant for a blood draw; however, when he discovered            of intoxication, the officer asked him to perform standardized



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Lloyd v. State,- S.W.3d- (2014)


field sobriety tests, but Villarreal refused. /d. The officer then               the right to a warrant in these limited
arrested Villarreal on suspicion ofDWI and gave him written                      circumstances. The deal is sealed
statutory warnings requesting a blood specimen. Again,                           when he gets behind the wheel, and
Villarreal refused. /d. After a criminal history check revealed                  it can't later be revoked when he
Villarreal had been previously convicted of DWI several                          gets caught driving in an impaired
times, the officer took Villarreal to a hospital for a mandatory                 condition.
blood draw under section 724.012 of the transportation code.
                                                                      *3 Id. at - - , at *11. The court stated that to constitute a
Id at--, at *2.
                                                                     valid waiver of Fourth Amendment rights through consent,
After he was indicted for felony DWI, Villarreal filed a             a suspect's consent to search must be freely and voluntarily
motion to suppress stating there was no deemed consent to            given; an "additional necessary element of valid consent is
the taking of a blood specimen. Id. The trial court conducted        the ability to limit or revoke it" /d. Implied consent that
an evidentiary hearing; the officer, the sole witness at the         has been withdrawn or revoked is not a substitute for the
hearing, testified he "could have" obtained a warrant, but           voluntary consent required by the Fourth Amendment Id
believed he "did not statutorily have to" in light of the            The record clearly showed Villarreal refused consent. The
mandatory-blood~w provision in the code. ld. He said
                                                                     court concluded an "explicit refusal to submit to blood testing
his decision to require the blood draw was based solely on           overrides the existence of any implied consent" Id
the statutory authorization and not on any emergency at the
scene or the existence of exigent circumstances. /d. The trial       The court of criminal appeals then considered whether any
court granted Villarreal's motion to suppress, and the court of      "other justification for the search applie[d]." Addressing
appeals affirmed. Id at--, at *1. The State filed a petition         known exceptions to the warrant requirement, including
for discretionary review, alleging the trial court and the court     the automobile exception and search incident to arrest, the
of appeals erred by concluding the warrantless search of             court concluded the blood draw did not fall under any
Villarreal's blood violated the Fourth Amendment and that the        recognized exception to the warrant requirement. Id at
mandatory blood draw statute does not dispose of the warrant         - - - - - , at *12-16. The court also rejected the State's
requirement Id                                                       argument that the search could be upheld as reasonable
                                                                     under a general Fourth Amendment balancing test. Id at
On petition for discretionary review, the court of criminal          - - - - - , at *16--19. In sum, the court concluded "the
appeals noted that, as a general rule, to eomply with the Fourth     provisions in the Transportation Code do not, taken by
Amendment, a search of a person in a criminal investigation          themselves, form a constitutionally valid alternative to the
(1) requires a search warrant or a recognized exception to           Fourth Amendment warrant requirement" Id at - - , at
the warrant requirement and (2) must be reasonable under             *20. The court of criminal appeals affirmed the trial court's
the totality of the circumstances. /d. at - - , at *8. The           granting of Villarreal's motion to suppress the blood alcohol
Fourth Amendment is implicated in DWI cases because                  concentration evidence. /d. at--, at *21.
the collection of a suspect's blood invades a substantial
privacy interest, and the exigent circumstances exception            In our case, appellant refused to perform standardized
to the search-warrant requirement is not established merely          field sobriety tests and refused to consent to a blood
by the natural dissipation of alcohol. /d. The court of              sample. Although Conduti began completing a search warrant
criminal appeals then concluded that, because Villarreal did         affidavit for a blood draw, he abandoned the search warrant
not consent and the warrantless blood draw under section             upon discovering appellant had been convicted two previous
724.012 did not fall under any of the proffered exceptions           times for DWI. The officer estimated it usually took about one
to the warrant requirement, the search violated his Fourth           and one-half hours to complete a warrant and get it signed
Amendment rights. Id                                                 During that time, they ''would have lost some of the evidence
                                                                     of the alcohol in the Defendant's body." Conduti said the
In reaching this conclusion, the court rejected the State's          only reason he stopped processing the warrant was because
argument that, with respect to a roadside DWI stop, a driver:        he discovered ~llant's prior convictions and, under the
                                                                     transportation cOde, he did not need a warrant The reasons he
              impliedly agrees ahead of time that, in                thought he could bypass the warrant process were because (1)
              exchange for the privilege of driving                  the transportation code allowed him to and (2) "the alcohol
              on our roads, he is willing to waive                   was dissipating."


\NestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
Lloyd v. State, -S.W.3d -(2014)


                                                                   threat to human life, rendering emergency assistance to
                                                                   injured occupants, or hot pursuit of a fleeing suspect. See
 [1] On appeal, the State argues appellant gave "implied
                                                                   Kentucky v. King, -      U.S. - - , 131 S.Ct 1849, 1856,
consent'' which was irrevocable "as a person twice
                                                                   179 L.Ed.2d 865 (2011}. However, as a general rule, the
previously convicted of driving while intoxicated" and
                                                                   "context of blood testing is different in critical respects from
sufficient aggravating factors were present to satisfy the
                                                                   other destruction-of-evidence cases in which police are truly
exigent circumstances requirement With respect to the first
                                                                   confronted with a 'now or never' situation." Missouri v.
argument, the court of criminal appeals already considered
and rejected this precise argument See Villan-eal, -               McNeely, -U.S.--, 133 S.Ct 1552, 1561, 185 L.Ed.2d
S.W.3d at--, 2014 WL 6734178, at *II ("To the extent the           696 (2013}. Such cases should be considered on a case-by-
State suggests that the implied-consent and mandatory-blood-       case assessment of exigency, not a categorical rule. Id In fact,
draw provisions in the Transportation Code categorically           in ''those drunk-driving investigations where police officers
extinguish a DWI suspect's right to withdraw consent when          can reasonably !)btain a warrant before a blood sample can
some aggravating circumstance is present, that suggestion          be drawn without significantly undermining the efficacy of
cannot be squared with the requirement that, to be valid for       the search, the Fourth Amendment mandates that they do so."
Fourth Amendment purposes, consent must be freely and              ld. The factors the State relies on are simply those factors
voluntarily given based on the totality of the circumstances,      that invoke the mandatory blood draw statute. See TEX.
and must not have been revoked or withdrawn at the time of         TRANSP. CODE ANN. § 724.012 (West 2011}. Because
the search."}. We reject this portion of the State's argument      no exigent circumstances existed which would justify a
                                                                   warrantless search, we reject this argument as well.
  [2] [3] [4] Next, the State argues "sufficient aggravating
factors," specifically appellant's two prior convictions, his    *4 Appellant did not consent to the draw and the taking
refusal to engage in sobriety tests, and his refusal to consent of his blood did not fall under another recognized exception
to a voluntary blood draw, satisfied the exigent circumstances  to the warrant requirement We therefore conclude the
requirement These factors are not exigent circumstances that    warrantless, nonconsensual blood draw violated appellant's
provide an exception to the warrant requirement; exigent        Fourth Amendment rights. See McNeely, 133 S.Ct at 1561-
circumstances are those "exigencies of the situation" that      63; Villarreal, -     S.W.3d at - - , 2014 WL 6734178,
''make the needs of law enforcement so compelling that [a]      at *20. The trial court abused its discretion by denying
warrantless search is objectively reasonable under the Fourth   appellant's motion. We reverse the trial court's judgment and
Amendment" Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct.       remand this case for further proceedings consistent with this
2408, 57 L.Ed.2d 290 (1978}. These include, for example,        opinion.
the threat of imminent removal or destruction of evidence,


Footnotes
1      Th~ Honorable !ustice Craig Stoddart succeeded the Honorable Jim Moseley, a member of the original panel Justice Stoddart has
       revtewed the briefs and record before the Court.


End of Document                                                © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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  Case # PD­0097­15
   Case Information
   Location                                     Court Of Criminal Appeals
   Date Filed                                   02/20/2015 03:48:51 PM
   Case Number                                  PD­0097­15
   Case Description
   Assigned to Judge
   Attorney                                     Andrea Westerfeld
   Firm Name                                    Collin County District Attorney
   Filed By                                     Crissy Hinojosa
   Filer Type                                   Not Applicable
   Fees
   Convenience Fee                              $0.00
   Total Court Case Fees                        $0.00
   Total Court Filing Fees                      $0.00
   Total Court Service Fees                     $0.00
   Total Filing & Service Fees                  $0.00
   Total Service Tax Fees                       $0.00
   Total Provider Service Fees                  $0.00
   Total Provider Tax Fees                      $0.00
   Grand Total                                  $0.00
   Payment
   Account Name                                 Waiver
   Transaction Amount                           $0.00
   Transaction Response
   Transaction ID
   Order #

   Petition for Discretionary Review
   Filing Type                                                                EFileAndServe
   Filing Code                                                                Petition for Discretionary Review
                                                                              STATE'S PETITION FOR DISCRETIONARY
   Filing Description
                                                                              REVIEW
   Reference Number
                                                                              Please note that the State request oral argument.
   Comments
                                                                              Thank you­Crissy Hinojosa
   Status                                                                     Rejected
   Fees

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   Court Fee                                                                  $0.00
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   Rejection Information
   Rejection
             Time       Rejection Comment
   Reason
             02/26/2015 The petition for discretionary review does not contain the identity of Judge,
   Other     11:14:16   Parties and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected
             AM         petition.
   Documents
   Lead Document                  Lloyd, Nicholas Stephen PD­0097­15 (PDR).pdf                [Original]


   eService Details
                                                                                                                   Date/Time
   Name/Email                                 Firm                     Service Type              Status   Served
                                                                                                                   Opened
   Stephanie Hudson                                                                                                02/20/2015
                                                                       EServe                    Sent     Yes
   smdhudson@gmail.com                                                                                             03:53:37 PM
   Lisa McMinn                                                                                                     02/20/2015
                                                                       EServe                    Sent     Yes
   Lisa.McMinn@spa.state.tx.us                                                                                     03:53:49 PM




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