         IN THE COURT OF CRIMINAL APPEALS
                     OF TEXAS
                                    NO. PD-0306-14



                               THE STATE OF TEXAS

                                             v.

                           DAVID VILLARREAL, Appellee

                   ON STATE’S MOTION FOR REHEARING
                AFTER OPINION ON DISCRETIONARY REVIEW
                FROM THE THIRTEENTH COURT OF APPEALS
                            NUECES COUNTY

        K EASLER, J., filed a dissenting opinion, in which H ERVEY, J., joined.

                               DISSENTING OPINION

      After exhibiting clear indications of intoxication during a routine traffic stop, David

Villarreal was escorted to a hospital, and his blood was drawn pursuant to a Texas statute

requiring such searches of drivers with two or more prior driving-while-intoxicated (DWI)

convictions. The judge suppressed the results of the blood draw as a Fourth Amendment
                                                                  VILLARREAL DISSENT—2

violation, and we affirmed.1 Properly weighing the circumstances of this particular case and

the underlying interests at play, I dissent from this Court withdrawing its order granting the

State’s motion for rehearing. Instead, I would withdraw our prior opinion and hold the

search reasonable.

                              I. Facts and Procedural History

       On the night of March 31, 2012, Corpus Christi police stopped David Villarreal’s

vehicle. The police suspected that Villarreal was intoxicated, and an officer from the

department’s DWI unit—trained and certified in field-sobriety tests—was called to the scene.

In the course of the traffic stop, Villarreal exhibited several signs of intoxication, including

red and watery eyes, slurred speech, and swaying. Villarreal refused the officer’s request to

undergo a standardized field-sobriety test. Based on his own observations and those

provided to him by the patrolman who initially stopped Villarreal, the officer then arrested

Villarreal for DWI, handcuffed him, and read him his Miranda rights. When the officer read

the statutory warning requesting a blood sample, Villarreal refused. But after searching

Villarreal’s criminal history, the officer learned that Villarreal had eight previous DWI

arrests and three prior DWI convictions. On the basis of those prior convictions, the officer

escorted Villarreal to a nearby hospital where his blood was drawn by a qualified technician.

       The officer obtained neither Villarreal’s affirmative consent to the blood draw nor a




       1
        State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov.
26, 2014).
                                                                VILLARREAL DISSENT—3

court-ordered search warrant authorizing it. The officers ordered the blood draw pursuant

to a provision of the Texas Transportation Code that mandates blood draws of drivers

arrested for DWI with at least two prior DWI convictions.2 The blood draw revealed a

blood–alcohol concentration (BAC) level of 0.16, twice the statutory 0.08 level sufficient to

qualify as “intoxicated.” 3

       Based on his three prior DWI convictions, Villarreal was indicted for felony DWI.4

Villarreal moved to suppress the results of the warrantless, non-consensual blood draw under

the Fourth Amendment and the Supreme Court’s recent decision in Missouri v. McNeely.5

At the suppression hearing, the arresting officer conceded that there were no exigent

circumstances and that he could have obtained a warrant for the blood draw, but argued that

he did not have to because of the Texas Transportation Code’s relevant provision. The judge

granted Villarreal’s motion, suppressed the blood-draw results, and denied the State’s motion

to reconsider. When the State filed an interlocutory appeal challenging the trial court’s

rulings, the court of appeals affirmed.6

                                            II. Analysis


       2
           See T EX. T RANSP. C ODE § 724.012(b)(3)(B).
       3
           See T EX. P ENAL C ODE § 49.01(2)(B).
       4
           See id. at §§ 49.04, 49.09(b).
       5
           133 S. Ct. 1552 (2013).
       6
        State v. Villarreal, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645, at *34
(Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted).
                                                                   VILLARREAL DISSENT—4

       Statutes like the Transportation Code’s mandatory blood-draw provisions “are

presumed to be constitutional until it is determined otherwise.”7 Nevertheless, the Supreme

Court’s recent holding in Missouri v. McNeely has sparked a renewed debate as to how the

Fourth Amendment operates in DWI cases. The Fourth Amendment secures the people “in

their persons, houses, papers, and effects” from “unreasonable searches and seizures.” 8 The

amendment itself can be broken into two clauses: (1) the Reasonableness Clause and (2) the

Warrants Clause.9 Although a properly obtained warrant is often the surest way to prevent

evidence from later being excluded at trial,10 it is not the only constitutionally valid method

of obtaining evidence.

       While a search pursuant to warrant supported by probable cause and issued by a

neutral magistrate will generally be presumed reasonable,11 a warrantless search can also be

reasonable if it falls within “a few specifically established and well-delineated exceptions.” 12

The State, however, bears the burden of establishing that the search falls under one of these

exceptions.13         Although the Supreme Court has recognized several of these discrete


       7
            See Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009).
       8
            U.S. C ONST. amend. IV.
       9
            See id.
       10
            See Terry v. Ohio, 392 U.S. 1, 20–22 (1968).
       11
            See United States v. Leon, 468 U.S. 897, 922 (1984).
       12
            United States v. Robinson, 414 U.S. 218, 242 (1973).
       13
            Id. at 243.
                                                                  VILLARREAL DISSENT—5

exceptions to the general warrant requirement—including exigent circumstances—these

exceptions are merely applications of the Fourth Amendment’s general reasonableness

standard.14 Therefore, the “touchstone of the Fourth Amendment is reasonableness, not

individualized suspicion.”15    And reasonableness is determined in relation to both the

search’s “scope and manner of execution.” 16

       When evaluating the “traditional standards of reasonableness,” we balance the degree

to which the search “intrudes upon an individual’s privacy” against the degree to which it “is

needed for the promotion of legitimate governmental interests.”17 However, the relevant

state interest is not a “fixed, minimum quantum of governmental concern.”18 Instead, it is

an “interest that appears important enough to justify the particular search at hand, in light of

other factors that show the search to be relatively intrusive upon a genuine expectation of

privacy.” 19

       14
        Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989) (“[T]he
Fourth Amendment does not proscribe all searches and seizures, but only those that are
unreasonable.”).
       15
            Samson v. California, 547 U.S. 843, 855 n.4 (2006).
       16
          Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (“Urgent government interests
are not a license for indiscriminate police behavior.”). See also Schmerber v. California,
384 U.S. 757, 768 (1966) (“[T]he Fourth Amendment’s proper function is to constrain,
not against all intrusions as such, but against intrusions which are not justified in the
circumstances, or which are made in an improper manner.”).
       17
            Wyoming v. Houghton, 526 U.S. 295, 299–300 (1999).
       18
            Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 661 (1995).
       19
            Id.
                                                                   VILLARREAL DISSENT—6

A.     The Transportation Code does not create a per se exigency exception to the
       Fourth Amendment and the State has failed to establish exigency in this case.

       In Missouri v. McNeely, the Supreme Court held that the “natural metabolization of

alcohol in the bloodstream” does not present a “per se exigency that justifies an exception

to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all

drunk-driving cases.”20 After a police officer observed a truck speeding and crossing the

center line, he stopped the truck and noticed that its driver—McNeely—exhibited several

signs of intoxication: bloodshot eyes, slurred speech, and the smell of alcohol on his breath.21

McNeely admitted to the officer that he had been drinking and later performed poorly on a

battery of field-sobriety tests.22 When McNeely refused to allow the officer to measure his

BAC level with a portable breath-test device, the officer drove McNeely to a nearby hospital

so that his blood could be tested.23 The test revealed a BAC level of 0.154, significantly

above the legal limit of 0.08.24 At no point did either McNeely affirmatively consent to the

blood test or the officer obtain a warrant for the blood test.25

       When McNeely moved to suppress the results of the blood test under the Fourth



       20
            McNeely, 133 S. Ct. at 1556.
       21
            Id.
       22
            Id. at 1556–57.
       23
            Id. at 1557.
       24
            Id.
       25
            Id.
                                                                  VILLARREAL DISSENT—7

Amendment, the prosecution argued that the “natural dissipation of alcohol in the

bloodstream” created a per se exigency under the Fourth Amendment.26 In effect, the

prosecution wagered everything on dissipation alone. The Supreme Court rejected that per

se approach to the exigency exception, opting instead for a “totality of the circumstances”

approach, which the Court explained was the approach that it applied earlier in Schmerber

v. California.27 It noted that, in Schmerber, it had cited the dissipation of alcohol in the

bloodstream only in conjunction with the “special facts” of the required hospitalization of

the accused and investigation of the crime scene, which meant that “there was no time to seek

out a magistrate and secure a warrant.”28 The Court further noted the advances that had

occurred “in the 47 years since Schmerber was decided that allow for the more expeditious

processing of warrant applications, particularly in contexts like drunk-driving investigations

where the evidence offered to establish probable cause is simple.”29 But the Court warned

that such advances did not foreclose all claims of exigency.30

       Although the Supreme Court’s holding in McNeely might appear at first glance to be


       26
            Id. at 1558.
       27
         Id. at 1559–60 (“Our decision in Schmerber applied this totality of the
circumstances approach.”).
       28
            Id. at 1560 (citing Schmerber, 384 U.S. at 770–71).
       29
         Id. at 1561–62 (noting technological advancements like warrant applications by
telephone, radio, email, and video-conferencing).
       30
           Id. at 1562 (“We by no means claim that telecommunications innovations have,
will, or should eliminate all delay from the warrant-application process.”).
                                                                  VILLARREAL DISSENT—8

a watershed decision in Fourth Amendment jurisprudence, its ultimate effect is narrow. The

Supreme Court admits as much, stressing that the Court was reviewing only a proposed per

se exigency exception to the Fourth Amendment based solely upon “the natural

metabolization of alcohol in the bloodstream.”31 But before McNeely, we had already

recognized that Fourth Amendment analysis generally disfavors per se rules and instead turns

on “the particular facts and circumstances of the underlying case,” with no one factor being

determinative.32    Therefore, any contention that the mandatory blood-draw provision

pertaining to recidivist DWI offenders could be based solely on an exigency exception that

itself is based solely on the dissipation of alcohol in the bloodstream has stood on shaky legal

footing for some time—and clearly lacks any footing whatsoever post-McNeely. And

because the arresting officer himself conceded during the suppression hearing that there were

no exigent circumstances and that he could have obtained a warrant for the blood test, there

is no reason that I would reject the judge’s finding of a lack of exigency under the

circumstances.33



       31
          Id. at 1556. See also id. at 1569 (noting that “the instant case, by reason of the
way in which it was presented and decided in the state courts, does not provide a
framework where it is prudent to hold any more than that always dispensing with a
warrant for a blood test when a driver is arrested for being under the influence of alcohol
is inconsistent with the Fourth Amendment.”) (Kennedy, J., concurring in part).
       32
            McGee v. State, 105 S.W.3d 609, 616 (Tex. Crim. App. 2003).
       33
         See State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) (“In
reviewing a trial court’s ruling on a motion to suppress, appellate courts must view all of
the evidence in the light most favorable to the trial court’s ruling.”).
                                                                 VILLARREAL DISSENT—9

B.     Given the circumstances of this case and the underlying interests at play, the
       blood draw was constitutionally reasonable.

       Nevertheless, my finding of a lack of exigency under the circumstances does not

foreclose all possibility of finding the search of Villarreal constitutionally reasonable.

Exigency is only one iteration of the general reasonableness framework of the Fourth

Amendment. And considering all the relevant circumstances and interests at play in this case

under that much broader framework—(1) Villarreal’s status as a recidivist DWI offender,

(2) the regulatory hallmarks of his offense, (3) the reasonable means and procedures of the

search, and (4) the Legislature’s enactment of the mandatory blood-draw provision itself—I

conclude that the blood draw performed on Villarreal was reasonable.34 While I believe that

no one circumstance or interest alone can overcome Villarreal’s subjective expectation of

privacy, when considered together under the totality of the circumstances—as McNeely

requires35 —I conclude that they do. Although this analysis may not provide as much

guidance to officers in the field as a bright-line rule would, as Justice Sotomayor stressed in

McNeely, it is “hardly unique.” 36


       34
           See Illinois v. McArthur, 531 U.S. 326, 330 (2001) (“When faced with special
law enforcement needs, diminished expectations of privacy, minimal intrusions, or the
like, the [Supreme Court] has found that certain general, or individual, circumstances may
render a warrantless search or seizure reasonable.”).
       35
            McNeely, 133 S. Ct. at 1559–60.
       36
           Id. at 1564 (“Numerous police actions are judged based on fact-intensive,
totality of the circumstances analyses rather than according to categorical rules, including
in situations that are more likely to require police officers to make difficult split-second
judgments.”).
                                                                  VILLARREAL DISSENT—10

       Because I find no error in the officer’s search of Villarreal, I do not address the State’s

alternative theories: (1) that Villarreal “is deemed to have consented” to the blood draw

under the Transportation Code,37 and (2) that the search resulted from a reasonable mistake

of law. The State bases the latter argument on the Supreme Court’s recent decision in Heien

v. North Carolina,38 an opinion issued after our initial holding in this case and which did not

require exclusion of evidence so obtained. But the idea that even searches based on an

erroneous understanding of the law do not require the exclusion of evidence if they result

from a reasonable mistake of law only serves to demonstrate the degree to which

reasonableness pervades Fourth Amendment analysis, and therefore bolsters my ultimate

conclusion.39

       1.       Villarreal’s status as a recidivist DWI offender results in a diminished
                expectation of privacy.

       First and foremost, under the Fourth Amendment’s general reasonableness standard,

the Supreme Court has often recognized a lower expectation of privacy based on an

individual’s status. Prisoners are a ready example. In Hudson v. Palmer, the Supreme Court

held that “society is not prepared to recognize as legitimate any subjective expectation of



       37
            See T EX. T RANSP. C ODE §§ 724.011, 724.013.
       38
            135 S. Ct. 530 (2014).
       39
          Id. at 540 (“It was thus objectively reasonable for an officer in Sergeant
Darisse’s position to think that Heien’s faulty right brake light was a violation of North
Carolina law. And because the mistake of law was reasonable, there was reasonable
suspicion justifying the stop.”).
                                                               VILLARREAL DISSENT—11

privacy that a prisoner might have in his prison cell.”40 While in prison serving multiple

convictions, Palmer’s locker and cell had been subjected to a “shakedown” search that

revealed a ripped pillowcase.41 Prison officials brought a charge of destroying state property

against Palmer, who was found guilty and ordered to reimburse the state.42 When Palmer

challenged the prison’s warrantless, non-consensual shakedown search under the Fourth

Amendment, the Supreme Court held that it was “satisfied that society would insist that the

prisoner’s expectation of privacy always yield to what must be considered the paramount

interest in institutional security.” 43

       The Supreme Court later expanded this reasoning to probationers in United States v.

Knights.44 Knights received probation for a drug offense that was conditioned on Knights

submitting his “person, property, place of residence, vehicle, personal effects, to search at

anytime, with or without a search warrant, warrant of arrest or reasonable cause by any

probation officer or law enforcement officer.”45 When a police officer later suspected that

Knights was involved in a vandalism and arson spree, he searched Knights’s

       40
            468 U.S. 517, 525–26 (1984).
       41
            Id. at 519–20.
       42
            Id. at 520.
       43
         Id. at 527–28 (“We believe that it is accepted by our society that ‘[loss] of
freedom of choice and privacy are inherent incidents of confinement.’”) (citing Wolfish,
441 U.S. at 537).
       44
            534 U.S. 112 (2001).
       45
            Id. at 114.
                                                               VILLARREAL DISSENT—12

apartment—based solely upon the probation condition—and found a cache of incriminating

evidence linking Knights to the crime spree.46 When Knights moved to suppress the fruits

of that warrantless search, the Supreme Court noted the “dual concern” implicit in probation:

“On the one hand is the hope that [the probationer] will successfully complete probation and

be integrated back into the community. On the other is the concern, quite justified, that he

will be more likely to engage in criminal conduct than an ordinary member of the

community.” 47

       The Court particularly stressed the recidivism rate of probationers as part of its

reasonableness analysis.48 The Court held that when “an officer has reasonable suspicion that

a probationer subject to a search condition is engaged in criminal activity, there is enough

likelihood that criminal conduct is occurring that an intrusion on the probationer’s

significantly diminished privacy interests is reasonable.”49 And in so doing, the Supreme

Court rejected the interpretations of the district court and the Ninth Court of Appeals that

held the search condition in the probation order “must be seen as limited to probation

searches, and must stop short of investigation searches.” 50


       46
            Id. at 115.
       47
            Id. at 120–21.
       48
         Id. at 120 (“The recidivism rate of probationers is significantly higher than the
general crime rate.”).
       49
            Id. at 121.
       50
            Id. at 116.
                                                                VILLARREAL DISSENT—13

       The Supreme Court continued this trend in 2006, when it extended this diminished

expectation of privacy to parolees in Samson v. California.51 In that case, the police detained

Samson, a parolee, on suspicion that he was the subject of an outstanding parole warrant.52

The police, however, quickly learned that no outstanding parole warrant existed.53 The police

nevertheless searched Samson “based solely on [his] status as a parolee.”54 Under California

law, every state parolee was required to “agree in writing to be subject to search or seizure

by a parole officer or other peace officer at any time of the day or night, with or without a

search warrant and with or without cause.”55 During the search the officers found a plastic

baggie containing methamphetamine.56

       The Supreme Court held the search constitutional because of Samson’s diminished

expectation of privacy as a parolee and the state’s legitimate interest as his custodian.57 The

Court noted that in California, a parolee remains in the legal custody of the California

Department of Corrections, must comply with all the terms and conditions of parole, and

must sign an order submitting to suspicionless searches—all of which spurred the Court to


       51
            547 U.S. 843 (2006).
       52
            Id. at 846.
       53
            Id.
       54
            Id. at 846–47.
       55
            Id. at 846 (citing C AL. P ENAL C ODE A NN. § 3067(a) (West 2000)).
       56
            Id. at 847.
       57
            Id. at 850–57.
                                                               VILLARREAL DISSENT—14

conclude that Samson “did not have an expectation of privacy that society would recognize

as legitimate.”58 And the Court again stressed the state’s interests in “reducing recidivism”

and “promoting reintegration and positive citizenship.” 59

       “No one can seriously dispute the magnitude of the drunken driving problem or the

States’ interest in eradicating it.”60 And recidivism is a significant issue plaguing DWI

offenders—just as the Supreme Court found it to be a significant issue plaguing probationers

in Knights61 and parolees in Samson.62 According to the National Highway Traffic Safety

Administration (NHTSA), “[h]istorically, drivers with prior DWI convictions have been

overrepresented in fatal crashes, and the risk elevates for drivers with multiple DWI

convictions.”63 Indeed, NHTSA recently calculated recidivism rates for DWI offenders at

25%, and calculated rates as high as 31% in 1995.64

       Although the Supreme Court in McNeely held that “the general importance of the


       58
            Id. at 851–52.
       59
            Id. at 853.
       60
         McNeely, 133 S. Ct. at 1565 (citing Michigan Dept. of State Police v. Sitz, 496
U.S. 444, 451 (1990)).
       61
            See Knights, 534 U.S. at 120.
       62
            See Samson, 547 U.S. at 853.
       63
         N AT’L H IGHWAY T RAFFIC S AFETY A DMIN., DOT HS 811 991, DWI R ECIDIVISM
IN THE U NITED S TATES: A N E XAMINATION OF S TATE-L EVEL D RIVER D ATA AND THE
E FFECT OF L OOK-B ACK P ERIODS ON R ECIDIVISM P REVALENCE 1–2 (Mar. 2014), available
at www.nhtsa.gov/staticfiles/nti/pdf/811991-DWI_Recidivism_in_USA-tsf-rn.pdf.
       64
            Id. at 1.
                                                                 VILLARREAL DISSENT—15

government’s interest in [policing drunk driving] does not justify departing from the warrant

requirement without showing exigent circumstances that make securing a warrant impractical

in a particular case,” we are not now presented with the sort of plain-vanilla exigency case

that the Supreme Court was in McNeely.65 We are instead presented with a case involving

a defendant who has at least three times already established a proclivity to endanger the

public at large by driving intoxicated and who, on yet another occasion, exhibited clear

indications of intoxication when pulled over and arrested. I do not believe that society is

prepared to recognize an expectation of privacy equal to that of an ordinary citizen for an

individual who has demonstrated such a clear and continual disregard for the safety of others

on the roadways.

       Knights also made clear that the State interest “in apprehending violators of the

criminal law, thereby protecting potential victims of criminal enterprise, may therefore

justifiably focus on probationers in a way that it does not on the ordinary citizen.” 66

Although Villarreal is not a probationer, I find that his status as a recidivist DWI offender

implicates the very same State interests as those pertaining to probationers: safeguarding the

populace from recidivism. Indeed it would be unwise to hold, based on the simple fact that

the Legislature has seen fit to protect that State interest by means of a mandatory blood-draw

provision, that somehow the State interest is significantly less compelling than its interest in



       65
            See McNeely, 133 U.S. at 1565.
       66
            Knights, 534 U.S. at 121.
                                                               VILLARREAL DISSENT—16

probation. The Legislature may have simply recognized that, as opposed to offenders who

pose a more general threat of recidivist criminality that would require continual probationary

supervision, recidivist DWI offenders pose a more specific threat—not that they are more

likely to commit some crime, but that they are more likely to commit the specific crime of

DWI—and fashioned its response accordingly.67

       Furthermore, as in Samson, the Legislature has even placed Villarreal on notice that

he would be subject to such a search based on his status as driver with two or more DWI

convictions.68 Although there is no evidence to show that he signed any notice agreement

as Samson did, I do not find this distinction compelling because ignorance of the law is

generally no excuse69 —an assumption that is especially compelling when a person chooses

to exercise not a right, but a privilege like driving.70 And given that the police already had

probable cause to arrest Villarreal for driving while intoxicated, any expectation of privacy




       67
            See Karenev, 281 S.W.3d at 434 (presuming statutes constitutional).
       68
          See T EX. T RANSP. C ODE § 724.012(b)(3)(B). See also Samson, 547 U.S. at 846
(citing C AL. P ENAL C ODE A NN. § 3067(a) (West 2000)).
       69
         See, e.g.,T EX. P ENAL C ODE § 8.03(a) (“It is no defense to prosecution that the
actor was ignorant of the provisions of any law after the law has taken effect.”). See also
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A., 559 U.S. 573, 581 (2010)
(“We have long recognized the ‘common maxim, familiar to all minds, that ignorance of
the law will not excuse any person, either civilly or criminally.’”).
       70
         See Tharp v. State, 935 S.W.2d 157, 159 (Tex. Crim. App. 1996) (“Driving is
not a constitutionally protected right, but a privilege.”).
                                                                 VILLARREAL DISSENT—17

Villarreal might have “necessarily would be of a diminished scope.” 71 Therefore, I would

hold that under the Fourth Amendment’s general reasonableness standard, the government’s

heightened interest in protecting our roadways from an established DWI recidivist who had

already been arrested after exhibiting clear indications of intoxication significantly

diminished Villarreal’s expectation of privacy.

       2.     The search of Villarreal bears the hallmarks of a regulatory search.

       Furthermore, although felony DWI is a criminal offense and the results of any blood

draw performed pursuant to an arrest under it will likely be used in a subsequent criminal

prosecution, it also exhibits many of the hallmarks of a regulatory offense, which generally

afford a defendant a diminished expectation of privacy. For example, beyond possible fines

and jail time, DWI convictions can also lead to license suspension or revocation, annual

surcharges to maintain a license, intervention and education programs, and the installation

of ignition interlock devices.72 And as we have explained before, the “primary purpose” of

such regulatory sanctions “is not to deter the licensee or to seek retribution, but is to protect

the public from the carnage on the public roads of Texas caused by drunk drivers.” 73 These


       71
         Bell v. Wolfish, 441 U.S. 520, 557 (1979). See also King, 133 S. Ct. at 1978
(“Once an individual has been arrested on probable cause for a dangerous offense that
may require detention before trial, however, his or her expectations of privacy and
freedom from police scrutiny are reduced.”).
       72
         See generally T EX. C ODE C RIM. P ROC. art. 42.12 § 13. See also T EX. T RANSP.
C ODE § 708.102.
       73
         See Tharp, 935 S.W.2d at 159 (addressing the administrative license-suspension
provision of the former T EX. R EV. C IV. S TAT. art. 6687b-1).
                                                                   VILLARREAL DISSENT—18

regulatory consequences of a felony-DWI offense further highlight the State’s legitimate

interest in protecting its roadways from DWI recidivism.

       In Skinner v. Railway Labor Executives’ Association,74 several associations of railway

workers sought to enjoin the Federal Railroad Administration under the Fourth Amendment

from promulgating regulations mandating similar blood and urine tests of railway workers

involved in train accidents. The Supreme Court initially recognized that a blood draw

“infringes an expectation of privacy that society is prepared to recognize as reasonable.” 75

But in rejecting this facial challenge to the regulation, the Court noted the governmental

interest “in ensuring the safety of the traveling public and of the employees themselves,”

which “plainly justifies prohibiting covered employees from using alcohol or drugs on duty,

or while subject to being called for duty.”76 And the Court held that this interest “requires

and justifies the exercise of supervision to assure that the restrictions are in fact observed.” 77

       Given the number of innocent people who travel our roadways and the numerous

DWI-related tragedies that occur each year, the State possesses just as compelling—possibly

even more compelling—an interest in ensuring the “safety of the traveling public” on our

roadways as on our railways. Therefore, that interest “requires and justifies” the same sort



       74
            489 U.S. 602 (1989).
       75
            Id. at 616.
       76
            Id. at 621.
       77
            Id. (citations omitted).
                                                             VILLARREAL DISSENT—19

of “supervision to assure that the restrictions are in fact observed” as the Supreme Court

allowed in Skinner.78 And I do not believe that a simple blood draw performed on a driver

with an extensive DWI history who has already been properly arrested on suspicion of DWI

and would therefore be subject to a whole battery of searches—fingerprinting, booking,

inventory, and possibly even buccal-swab searches—is any more unreasonable under the

circumstances than one performed on a railway worker who just happens to be working when

an accident occurs.

      3.       The means and procedures of the search performed on Villarreal were
               reasonable.

      It is also significant to a general reasonableness analysis that the blood draw

performed on Villarreal was reasonable in both its means and procedures. The Supreme

Court has acknowledged that blood draws—as invasions of a person’s bodily

integrity—implicate a person’s “most personal and deep-rooted expectations of privacy.” 79

But it has also recognized that the Fourth Amendment “neither forbids nor permits all such

intrusions,” but instead constrains against “intrusions which are not justified in the

circumstances, or which are made in an improper manner.”80 We have held that this requires




      78
           See id.
      79
           Winston v. Lee, 470 U.S. 753, 760 (1985).
      80
           Id. (citing Schmerber, 384 U.S. at 768).
                                                                VILLARREAL DISSENT—20

that both the “means” and “procedures” employed be constitutionally reasonable.81

       In order for the means employed to be reasonable, we must determine whether “the

test chosen was reasonable.”82 The Supreme Court has long recognized that the search

employed on Villarreal—a blood test—is a “highly effective means of determining the

degree to which a person is under the influence of alcohol.” 83 And this effectiveness stands

in marked contrast to the two most common substitutes for a blood test: (1) a less accurate

reading from a breath test, and (2) an officer’s subjective analysis of a driver’s performance

in a battery of field-sobriety tests. Thus, a properly performed blood test serves our judicial

system’s interest in ensuring, to the best degree possible, access to the most accurate and

objective evidence of a driver’s sobriety.

       Similarly, in order for the procedures of a search to be reasonable, we must determine

whether “the test was performed in a reasonable manner.”84 Although a blood draw does

implicate Fourth Amendment principles, the one Villarreal underwent—executed in a

hospital by a qualified technician—can hardly be deemed unreasonably performed under the




       81
        State v. Johnston, 336 S.W.3d 649, 658 (Tex. Crim. App. 2011) (citing
Schmerber, 384 U.S. at 768, 771).
       82
            Id.
       83
        See Schmerber, 384 U.S. at 771 (“[W]e are satisified that the test chosen to
measure petitioner’s blood-alcohol level was a reasonable one.”).
       84
            Id. See also Johnston, 336 S.W.3d at 658.
                                                                 VILLARREAL DISSENT—21

circumstances. In contrast, we held in McGee v. State85 that a warrantless cavity search

performed by a police officer in a fire station was reasonable under the circumstances. The

police received a tip that McGee and two other men had been selling crack cocaine at an

intersection and that McGee had been hiding the drugs between his buttocks.86 When police

arrived at the intersection, they found three men matching the descriptions given, smelled

marijuana, and saw blue smoke indicative of marijuana use.87 When McGee admitted that

someone else had been smoking marijuana, police handcuffed the three men and drove them

to a nearby fire station.88 At the station, a police officer found several rocks of crack cocaine

on McGee when he escorted McGee to a private area of the station and ordered him to “drop

his pants, bend over, and spread his buttocks.” 89

       When McGee challenged the constitutionality of this warrantless, non-consensual

search, we upheld it despite such “[v]isual body-cavity searches” being “among the most

intrusive of searches.”90 We determined that the “legitimate interests of law enforcement

outweigh[ed] the intrusiveness of the search.”91 In doing so, we noted that the search, while


       85
            105 S.W.3d 609 (2003).
       86
            Id. at 612.
       87
            Id.
       88
            Id. at 612–13.
       89
            Id. at 613.
       90
            Id. at 616.
       91
            Id.
                                                                  VILLARREAL DISSENT—22

uncomfortable, was not violent, was performed by an officer with on-the-job experience in

performing cavity searches, and was carried out in a hygienic environment with sanitary

rubber gloves.92

       In contrast to McGee’s ordeal, the search performed on Villarreal strikes me as far

more reasonable. Although both were initially arrested based on probable cause, only

Villarreal was searched within the sterile confines of a hospital.93 And only the search of

Villarreal was performed by a trained medical professional.94 The Supreme Court stressed

the importance of these two distinctions in Schmerber.95

       But most importantly, the nature of the two searches differed greatly. Since

Schmerber, the Supreme Court has considered blood draws “commonplace,” and has noted




       92
            Id. at 616–17.
       93
           See id. at 617 (“The search occurred in a fire station. . . . The fire station was not
as sterile an environment as a hospital.”). See also Johnston, 336 S.W.3d at 662 (“Though
a medical environment may be ideal, it does not mean that other settings are unreasonable
under the Fourth Amendment. According to our research, reasonableness depends upon
whether the environment is a safe place in which to draw blood.”).
       94
           See McGee, 105 S.W.3d at 616 (“Officer Rowan testified that while he had never had
formal training for conducting cavity searches, he had on-the-job experience while working with
senior officers.”).
       95
         See Schmerber, 384 U.S. at 771–72 (“We are thus not presented with the serious
questions which would arise if a search involving use of a medical technique, even of the
most rudimentary sort, were made by other than medical personnel or in other than a
medical environment—for example, if it were administered by police in the privacy of the
stationhouse. To tolerate searches under these conditions might be to invite an unjustified
element of personal risk of infection and pain.”).
                                                                VILLARREAL DISSENT—23

that “for most people the procedure involves virtually no risk, trauma, or pain.” 96 And

McNeely did not overrule Schmerber.97 Its sole critique of Schmerber—noting “the 47 years

since Schmerber was decided”—only questioned the exigent circumstances that drunk-

driving investigations can create, not the commonplace nature of a blood draw itself.98 In

contrast, the Supreme Court has warned that a body-cavity search, like the one performed on

McGee, “instinctively gives [the Court] the most pause.”99 We ourselves have found that

such searches can be “demeaning, dehumanizing, undignified, humiliating, and terrifying.”100

Thus, if the visual body-cavity search performed on McGee passed the rigors of the Fourth

Amendment’s reasonableness standard, how can we now find that the commonplace blood

draw performed on Villarreal does not?

       4.        The Legislature’s enactment of the Transportation Code’s mandatory
                 blood-draw provision is worthy of consideration.

       Finally, I believe the Legislature’s decision on this issue is worthy of consideration.

The United States Constitution is the “supreme Law of the Land.”101 No state can legislate

around its strictures, including the Fourth Amendment. And it is a bedrock constitutional

       96
             Id. at 771.
      97
         McNeely, 133 S. Ct. at 1560 (“Thus, our analysis in Schmerber fits comfortably
within our case law applying the exigent circumstances exception.”).
       98
             Id. at 1561–62.
       99
             Wolfish, 441 U.S. at 558.
       100
             McGee, 105 S.W.3d at 616 (citations omitted).
       101
             U.S. C ONST. art. VI, cl. 2.
                                                                 VILLARREAL DISSENT—24

principle that it is “emphatically the province and duty of the judicial department to say what

the law is.”102    Nevertheless, the Supreme Court has acknowledged—for example, in

circumstances relating to fingerprinting—some role for state legislatures in assisting to shape

the contours of the Fourth Amendment’s protections.103

       Therefore, judges should not interpret their authority as a monopoly on

constitutionality. It is not a license to act like bullies in black robes. Instead, legislatures

should be allowed some role in shaping and framing constitutional issues, especially those

like the Fourth Amendment that delve into vague and esoteric concepts like “reasonableness”

and “expectation[s] of privacy that society would recognize as legitimate.” 104 Compared to

the judicial branch, the Legislature is well-equipped structurally, as the representative of

Texans generally, to clarify these difficult concepts. And this concept is not new to our

jurisprudence. It is why we generally presume a statute constitutional “until it is determined

otherwise.” 105

       However, judges must never forget that the Fourth Amendment was established as a

check on government action, including action by the Legislature. Therefore, I would not


       102
           Marbury v. Madison, 5 U.S. 137, 177 (1803) (“Those who apply the rule to
particular cases, must of necessity expound and interpret that rule. If two laws conflict
with each other, the courts must decide on the operation of each.”).
       103
          Hayes v. Florida, 470 U.S. 811, 817 (1985) (referencing Davis v. Mississippi,
394 U.S. 721, 728 (1969) and Dunaway v. New York, 442 U.S. 200, 215 (1979)).
       104
             See Samson, 547 U.S. at 852, 855 n.4.
       105
             See Karenev, 281 S.W.3d at 434.
                                                                 VILLARREAL DISSENT—25

interpret the Transportation Code’s provisions as per se rules allowing warrantless, non-

consensual blood draws. The State cannot merely invoke a statutory provision to escape

Fourth Amendment analyses. Such an interpretation would comport with neither state nor

federal law.106 But that did not occur here. Although the arresting officer did focus his

authority to compel a blood draw of Villarreal on the relevant Transportation Code provision

and conceded that there were no exigent circumstances, he also testified that Villarreal

exhibited clear signs of intoxication, had been properly arrested on suspicion of DWI, and

possessed a DWI history well beyond the requirements of the provision.

       Therefore, I interpret the Transportation Code’s provisions as significant—but not

necessarily determinative—evidence of the nature and weight of the state interests at play in

policing intoxicated driving. They are but one consideration in the Fourth Amendment’s

overall “totality of the circumstances” analysis that we have long recognized and that the

Supreme Court reaffirmed in McNeely. And I find the provision pertaining to recidivist DWI

offenders a particularly compelling circumstance in that analysis, especially when considered

in conjunction with Villarreal’s clear indications of intoxication that led to his arrest and his

extensive DWI history beyond the provision’s requirements.

                                       III. Conclusion

       In light of all the circumstances particular to this case and the underlying interests at

play, I would hold that the blood draw performed on Villarreal was reasonable. Therefore



       106
             McNeely, 133 S. Ct. at 1559–60; McGee, 105 S.W.3d at 616.
                                                               VILLARREAL DISSENT—26

I would withdraw our prior opinion and conclude that the trial court erred in suppressing the

results of the blood draw. For these reasons, I respectfully dissent.




DELIVERED: December 16, 2015

PUBLISH
