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



                                THE STATE OF TEXAS

                                             v.

                           DAVID VILLARREAL, Appellee

                    ON STATE’S MOTION FOR REHEARING
                 FROM THE THIRTEENTH COURT OF APPEALS
                             NUECES COUNTY

              N EWELL, J. filed a concurring opinion.

                                      OPINION

       In any case involving the Fourth Amendment, I believe the exceptions to the warrant

requirement should be carefully considered and only extended based on a proper

reasonableness analysis. And if we are to recognize a new exception to the warrant

requirement, we should not employ a totality-of-the exceptions approach that picks among

the desired qualities of established exceptions while discarding the rationales that justify

those exceptions. Instead, we should employ a proper Fourth Amendment balancing test that
                                                                             Villarreal Concurring Opinion – 2

weighs the State’s interest in the detection and prevention of crime against an individual’s

privacy interest in his own blood. As the original majority opinion correctly holds, under a

proper Fourth Amendment balancing test, a per se warrantless blood draw is not permissible

based upon the criminal status of the subject and the dissipation of alcohol from his

bloodstream.1 This is why I join the order dismissing the State’s motion for rehearing as

improvidently granted and agree with the original majority opinion.

         Fourth Amendment analysis of warrantless searches rests heavily on a simple notion:

“It remains a cardinal principle that searches conducted outside the judicial process, without

prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -

subject only to a few specifically established and well-delineated exceptions.” California v.

Acevedo, 500 U.S. 565, 580 (1991).2 These exceptions have been established by engaging

in a balancing test in which legitimate government interests are weighed against the

individual’s expectation of privacy. See, e.g. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.

Crim. App. 2007). However, the United States Supreme Court, in conducting that inquiry,

has repeatedly cautioned that “[t]here is no formula for the determination of reasonableness.

Each case is to be decided on its own facts and circumstances.” Ker v. California, 374 U.S.



        1
          It is worth noting that no member of this Court appears to argue that the warrantless search for and seizure
of blood in this case was justified under an established exception to the warrant requirement. Rather, the proponents
of the search and seizure in this case seem to rely upon the general Fourth amendment balancing test to recognize a
new exception to the search warrant requirement, or perhaps an extension of the existing exigent-circumstances
exception.

        2
         Established exceptions to the warrant requirement include the consent exception, the exigent-circumstances
exception, the automobile exception, the search-incident-to-arrest exception, and the special-needs doctrine.
                                                               Villarreal Concurring Opinion – 3

23, 33 (1963) (plurality opinion) (citations and quotations omitted).

         Per Se Rules Are Strongly Disfavored Under the Fourth Amendment

        As the United States Supreme Court has repeatedly realized, per se rules are

incompatible with the Fourth Amendment’s protection and respect for an individual’s right

to be free from unreasonable searches. United States v. Drayton, 536 U.S. 194, 201 (2002)

(“[F]or the most part per se rules are inappropriate in the Fourth Amendment context.”);

Florida v. Royer, 460 U.S. 491 (1983) (expressly disavowing any “litmus-paper test” or

single “sentence or . . . paragraph . . . rule,” in recognition of the “endless variations in the

facts and circumstances” implicating the Fourth Amendment); Michigan v. Chesternut, 486

U.S. 567, 572-573 (1988) (rejecting bright-line rule urged by the parties as contrary to the

“traditional contextual approach”); Florida v. Bostick, 501 U.S. 429 (1991) (rejecting a per

se rule adopted by the Florida Supreme Court). “While the desire for a bright-line rule is

understandable, the Fourth Amendment [does] not tolerate adoption of an overly broad

categorical approach that would dilute the warrant requirement in a context where significant

privacy interests are at stake.” Missouri v. McNeely, 133 S. Ct. 1552, 1564 (2013) (plurality

op.).

        In Missouri v. McNeely, the Supreme Court reiterated its rejection of per se rules in

the context of the warrantless search and seizure of blood by declining to recognize a per se

exigency claim based upon the destruction of alcohol evidence in a DWI defendant’s

bloodstream. 133 S.Ct. at 1563 (“In short, while the natural dissipation of alcohol may
                                                             Villarreal Concurring Opinion – 4

support a finding of exigency in a specific case, as it did in Schmerber, it does not do so

categorically.”). The Court had granted review to resolve a split of authority on the question

of whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency

that suffices on its own to justify an exception to the warrant requirement for nonconsensual

blood testing in drunk-driving investigations. McNeely, 133 S.Ct. at 1558. The Court

rejected this per se exigency claim, not only on the basis of its own history of disinclination

towards per se rules, but also because the record failed to establish any exigency beyond the

dissipation of alcohol attendant to any DWI case. Id. at 1567.

        A plurality of the Court expressed its concern that a per se rule that “categorically

authorizes warrantless blood draws” on a particular basis would “discourage efforts to

expedite the warrant process.” Id. at 1563. Leading the plurality, Justice Sotomayor

observed that “the Fourth Amendment [does] not tolerate adoption of an overly broad

categorical approach that would dilute the warrant requirement in a context where significant

privacy interests are at stake.” Id. at 1564. And the plurality opinion pointed to widespread

state statutory restrictions upon nonconsensual blood testing without a warrant as support for

the proposition that compelled blood draws implicate a significant privacy interest. Id. at

1567.

        Justice Kennedy did not join this portion of the Supreme Court’s opinion, writing

instead to note the limited nature of the Court’s holding. He observed that states and other

governmental entities that enforce driving laws can adopt rules, procedures, and protocols
                                                                           Villarreal Concurring Opinion – 5

that meet the reasonableness requirements of the Fourth Amendment and give helpful

guidance to law enforcement officials. Id. at 1569 (Kennedy, J. concurring). Of course, he

gave no hint as to what such rules, procedures, or protocols might be.3 And, he did not join

the concurring and dissenting opinion authored by Chief Justice Roberts, which proposed a

bright-line rule based upon the exigency attendant to the natural dissipation of alcohol and

a showing that there was no time to secure a search warrant. Id. at 1568. At most, Justice

Kennedy agreed with eight other members of the Court that the natural elimination of alcohol

from a suspect’s bloodstream was an exigent circumstance, but that circumstance alone did

not justify a per se rule dispensing with the warrant requirement itself. Id. at 1569.

                          The Warrant Requirement and its Exceptions

        Given the constitutional antipathy for per se rules and the affinity for a proper

balancing test of the interests involved, I agree with the original majority opinion that Texas

Transportation Code § 724.012(b)(3)(B) does not create a per se rule that a minimum number

of prior offenses justifies a warrantless blood draw when coupled with the natural dissipation

of alcohol in a suspect’s blood stream. The Fourth Amendment requirement that a search

warrant be secured from a neutral magistrate before carrying out a search is not officious

formalism. As the Supreme Court explained in Johnson v. United States, 333 U.S. 10, 13-14



        3
           This is hardly an earth-shattering observation on the part of Justice Kennedy that states or governmental
entities can pass laws consistent with the Fourth Amendment. W e have recognized as much in other contexts. See
e.g. Hudson v. State, 662 S.W .2d 957, 960 (Tex. Crim. App. 1984) (noting that article 15.25 of the Code of Criminal
Procedure must be interpreted consistently with the Supreme Court rulings on the Fourth Amendment). But I do not
read into Justice Kenndy’s explicit refusal to reach the issue any implication that he would decide the issue in a
particular way (much less his approval of the Texas statute at issue in this case).
                                                               Villarreal Concurring Opinion – 6

(1948):

       The point of the Fourth Amendment . . . is not that it denies law enforcement
       the support of the usual inferences which reasonable men draw from evidence.
       Its protection consists in requiring that those inferences be drawn by a neutral
       and detached magistrate instead of being judged by the officer engaged in the
       often competitive enterprise of ferreting out crime. Any assumption that
       evidence sufficient to support a magistrate's disinterested determination to
       issue a search warrant will justify the officers in making a search without a
       warrant would reduce the Amendment to a nullity and leave the people's
       homes secure only in the discretion of police officers. Crime...is, of course,
       of grave concern to society, and the law allows such crime to be reached on
       proper showing. The right of officers to thrust themselves into a home is also
       a grave concern, not only to the individual but to a society which chooses to
       dwell in reasonable security and freedom from surveillance. When the right of
       privacy must reasonably yield to the right of search is, as a rule, to be decided
       by a judicial officer, not by a policeman or Government enforcement agent.

The mere fact that the warrant may seem like an unnecessary, additional step does not

sufficiently justify abandoning the constitutional safeguard of a prior determination of

probable cause by a neutral magistrate. It is a requirement subject only to certain, well-

establish exceptions.

       To be clear, these exceptions are established independent of one another. We should

not craft an entirely new exception by mashing up all the existing exceptions and picking and

choosing from their most attractive qualities. Each exception to the warrant requirement has

an individual rationale behind it. Searches incident to arrest are justified based on the interest

of officer safety, the prevention of escape, and the destruction of evidence. See Chimel v.

California, 395 U.S. 752 (1969). The automobile exception was established because

historically there is a lower expectation of privacy in the interior of motor vehicles as well
                                                             Villarreal Concurring Opinion – 7

as an inherent exigency in the automobile’s mobility. See Carroll v. United States, 267 U.S.

132 (1925). The exigent circumstances exception concerns the imminent destruction of

evidence and the inability of law enforcement to obtain a warrant. See McNeely, 133 S.Ct.

at 1558-559 (listing variety of circumstances giving rise to exigency, but noting that, under

each type of circumstance, a warrantless search is justified because there is a compelling

need for official action and no time to secure a warrant).

       All of these exceptions involve varying government interests and differing levels of

privacy interests. Yet, none of the exceptions to the warrant requirement are interchangeable

in their basic principles. Therefore, we should not sanction a rule in which an impermissible

warrantless search that cannot satisfy the automobile exception,4 the search-incident-to-arrest

exception,5 the exigent-circumstances exception,6 or the hot-pursuit exception 7 somehow

equals a permissible warrantless search when all those exceptions are added together because

the defendant has a minimum number of DWI offenses and the alcohol in his blood is

naturally dissipating. This unprecedented totality-of-the-exceptions approach adds zeros to

create one, ignoring that the exceptions to the Fourth Amendment warrant requirement “have

been jealously and carefully drawn.” Hudson v. State, 588 S.W.2d 348, 351 (Tex. Crim. App.




       4
           Wyoming v. Houghton, 526 U.S. 295 (1999) .

       5
           Riley v. California, 134 S. Ct. 2473 (2014) .

       6
           McNeely, 133 S. Ct. at 1566.

       7
           Welsh v. Wisconsin, 466 U.S. 740 (1984).
                                                             Villarreal Concurring Opinion – 8

1979) (quoting Jones v. United States, 357 U.S. 493, 499 (1958)). We cannot Frankenstein

them into an entirely new exception that would consume its predecessors.

       In other words, although a balancing approach to Fourth Amendment analysis is

permitted, it should not be at the sacrifice of other carefully delineated exceptions to the

warrant requirement or the warrant requirement itself lest the balancing-test exception

swallow the whole rule.      Instead, it is in keeping with the notion that a search is

presumptively valid with a warrant even though there are certain circumstances, particularly

where legitimate government interests abound, when an exception may validate a search

done without a warrant. See New Jersey v. T.L.O., 469 U.S. 325, 337 (1985) (“The

determination of the standard of reasonableness governing any specific class of searches

requires balancing the need to search against the invasion which the search entails.”)

(emphasis added). As the original majority opinion correctly notes, the Supreme Court has

recently made very clear that, “in the absence of a warrant, a search is reasonable only if it

falls within a specific exception to the warrant requirement.” Riley, 134 S.Ct. at 2482;

McNeely, 133 S.Ct. at 1558 (“[A] search of a person is reasonable only if it falls within a

recognized exception [to the warrant requirement]”); see also Kentucky v. King, 131 S.Ct.

1849, 1856 (2011) (noting that a warrant must generally be secured subject to certain

reasonable exceptions). I join the majority in returning to our original opinion in this case

because I cannot support the creation of a new exception to the warrant requirement where

the search at issue is not supported by any of the rationales underlying the carefully
                                                               Villarreal Concurring Opinion – 9

delineated exceptions to the warrant requirement set out by the Supreme Court.

                      Appellee’s Privacy Interest Is Not Diminished

       The individual’s right to be free from an “invasion of bodily integrity” is obvious and

substantial. McNeely, 133 S. Ct. at 1558. Just as no one can deny that drunk driving is a

scourge upon our roadways, nor can they deny the fact that the government’s intrusions

beyond the body’s surface “implicate most personal and deep-rooted expectations of

privacy.” McNeely, 133 S. Ct. at 1558 (quoting Winston v. Lee, 470 U.S. 753, 760 (1985)).

The Supreme Court made clear in Schmerber v. California, that the Fourth Amendment

forbids any such intrusions “on the mere chance that desired evidence might be obtained.”

384 U.S. 757, 769-70 (1966). Under the plain text of the Fourth Amendment, a person’s

right to be free from a search of his or her body is “first among equals.” U.S. C ONST. amend.

IV (“The right of the people to be secure in their persons, houses, papers, and effects, against

unreasoanble searches and seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.”).

       Villarreal’s “privacy interest in preventing an agent of the government from piercing

his skin,” cannot be minimized to that of a probationer or parolee based on the fact that he

has prior offenses. McNeely, 133 S.Ct. at 1565. As we correctly noted in our original

opinion, parolees are in the legal custody of the State and, therefore, cannot enjoy the privacy

rights of a general citizen. One’s status as a probationer or parolee is “salient” and, by virtue
                                                                          Villarreal Concurring Opinion – 10

of that status, neither “enjoy[s] the absolute liberty to which every citizen is entitled.” United

States v. Knights, 534 U.S. 112, 119 (2001) (quoting Griffin v. Wisconsin, 483 U.S. 868, 874

(1987)); see also Samson v. California, 547 U.S. 843, 848 (2006). The Supreme Court has

noted that both parolees and probationers are on the “continuum” of state-imposed

punishments thereby allowing for diminished privacy rights much like a prisoner has.

Samson, 547 U.S. at 850. Additionally, while recidivism is certainly the State’s concern in

the context of probationers and parolees, so too is rehabilitation.8 Thus, diminished privacy

rights are justifiable given the interest in providing “restrictions...meant to assure that the

probation serves as a period of genuine rehabilitation.” Griffin, 483 U.S. at 875; see also

Knights, 534 U.S. at 119; see also Samson, 547 U.S. at 853.

         The circumstances that justify a diminished privacy right in probationers and parolees

are not present in cases that involve repeat offenders like Villarreal. Repeat offenders are

not part of that punishment continuum expressed in Samson nor are they subject to the same

restrictions placed on prisoners, parolees or probationers. There is no supervisory or

custodial relationship between the State and a person with prior convictions. See also

Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 654 (1995) (noting the legal and

supervisory relationship between the student at the State and comparing it to that of

probationers before explaining the student’s diminished expectation of privacy). As such,

they have the same privacy interest in their bodily integrity as any other person. Notably, the


        8
          Labeling such drivers “incorrigible” seems to make this point clear. By definition, incorrigible means
“Incapable of being corrected, reformed, amended, or improved.” B LACK ’S L AW D IC TIO N ARY (6 th ed. 1991).
                                                           Villarreal Concurring Opinion – 11

Supreme Court appears to agree given that it has not considered a defendant’s status as a

repeat offender (as opposed to the nature and circumstances of the offense) when

determining the extent of his privacy rights under a Fourth Amendment balancing test. See

e.g., McNeely, 133 S. Ct. at 1557, n. 1; Welsh v. Wisconsin, 466 U.S. 740, 746, n. 6 (1984);

Riley v. California, 134 S. Ct. 2473, 2482 (2014).

       The concern over recidivism is also no justification for a holding that a minimum

number of prior offenses is sufficient, on its own, to justify a warrantless blood draw.

Although I acknowledge the recidivism rate of repeat offenders such as Villarreal and others

like him, nothing in our jurisprudence allows for the likelihood of one’s relapse into a life

of criminal activity to dictate whether they are subject to the protections of the Fourth

Amendment. Instead, this consideration has its proper place, if anywhere, in the totality of

the circumstances analysis. Knights, 534 U.S. at 118, 120 (When considering the “totality of

the circumstances” to decide whether the warrantless search of a probationer's apartment

violated the Constitution, the Supreme Court, among other things, took into account the high

recidivism rate of probationers.).

       Accepting the notion that recidivism justifies per se warrantless searches would have

far-reaching effects as well as unintended consequences. For example, it is reasonable to

believe that repeat offenders of sexual assaults are at high risk of re-offending. Does this

recidivist threat justify conducting a warrantless search of an offender’s home whenever an
                                                                            Villarreal Concurring Opinion – 12

officer feels he has probable cause that a crime has been committed? 9 Does the passage of

time help the recidivist regain his or her expectation of privacy? Moreover, I do not see how

this recidivism theory is limited to a showing of two prior DWI convictions when it rests

upon statistics regarding the likelihood that a person who belongs to a particular class would

commit a crime in the future. If the legislature can designate one class of person as deserving

of less privacy based upon a statistical likelihood to commit a crime, what is to stop them

from designating other classes of individuals worthy of a warrantless search based upon a

statistical propensity for violence? In my view, it is more prudent to interpret the holdings

in Knights and Samson consistently with the rationales that justified the searches at issue in

those cases in light of these considerations.

         Even though the Supreme Court has recognized the seriousness of an offense as an

exigent circumstance worthy of consideration under a totality-of-the-circumstances analysis,

it has refused to convert that exigent circumstance into a per se rule justifying a warrantless

search. In Welsh v. Wisconsin, the Supreme Court considered the nature of the underlying

offense to be “an important factor to be considered.” 466 U.S. 740, 751 (1984). It did so,

however, in the context of the “exigent-circumstances calculus.” Id. And then, even in that

context, the Court made clear that “no exigency is created simply because there is probable


         9
            Certainly, probable cause could be used to obtain a warrant but merely the existence of prior convictions
would not, on its own, support a warrantless search under one of the exceptions to the warrant requirement. See
Parker v. State, 206 S.W .3d 593, 597 (Tex. Crim. App. 2006) (noting that there are two hurdles an officer must pass
to justify warrantless entry into the home. “Probable cause...is the first hurdle...[t]he second hurdle is that exigent
circumstances...must also exist. If either probable cause or exigent circumstances are not established, a warrantless
entry [into the home] will not pass muster under the Fourth Amendment.”).
                                                                              Villarreal Concurring Opinion – 13

cause to believe that a serious crime has been committed.” Id. at 753. Nothing in Welsh

suggests or even implies that a more “serious” offense validates a per se exception to the

warrant requirement. To the contrary, the Court made clear that its skepticism regarding

whether a “minor offense” would ever be a factor in the exigent-circumstances calculus

should not be construed as an endorsement a per se exigency rule where a “serious crime”

is involved. Rather than imply a new exception to a warrantless search, the Court limited

Welsh to a traditional, exigent-circumstances analysis. And reading Welsh as elevating the

gravity of the offense to a singularly determinative factor would be inconsistent with

subsequent opinions by the Supreme Court admonishing lower courts for reading Welsh “far

too broadly” and restating that its opinion went to a much more limited point that

“warrantless entry to arrest a misdemeanant...should be rare.” Stanton v. Sims, 134 S. Ct. 3,

6-7 (2013) (citing Welsh, 466 U.S. at 753); see also Illinois v. McArthur, 531 U.S. 326, 336

(2001) (refusing to consider the underlying offense as an important factor given that the case

involved temporary restriction outside the home, rather than warrantless entry into the home

like in Welsh).

         Furthermore, Maryland v. King does not support the claim that the defendant lacks

a sufficient expectation of privacy in his body because of his arrest for a “serious” offense.10


         10
            The Supreme Court does note in King that the arrestee subject to the buccal swab search is necessarily in
valid police custody “for a serious offense supported by probable cause.” Maryland v. King, 133 S.Ct. 1958, 1970
(2013). However, the Court also makes clear that its concern with the severity of the offense derives from the nature
of the crime itself, not the status of the offender. Id. at 1973 (noting that the determination of bail is contingent upon
“the nature and the circumstances of the offense charged”). And the Court provides links to studies that identify
“preventable” felony offenses, none of which identify felony DW I as the type of “serious” offense preventable by the
type of search at issue. Id. (citing to several studies that identify murder, rape, aggravated robbery, burglary,
                                                                           Villarreal Concurring Opinion – 14

In King, the Court considered the buccal swab procedure in the context of a search incident

to an arrest during the “routine administrative procedure[s] at a police station house incident

to booking and jailing the suspect.” Maryland v. King, 133 S. Ct. 1958, 1971 (2013).

According to the Court, taking and analyzing a cheek swab of the arrestee’s DNA was a

legitimate police booking procedure that is reasonable under the Fourth Amendment. Id. at

1980. But the Court took care to note that “[a] buccal swab is a far more gentle process than

a venipuncture to draw blood” was of “central relevance to determining reasonableness.” Id.

at 1969. The Court made a conscious effort to create a wall between its analysis of the facts

in King and how it had determined the reasonableness of the warrantless blood draw in

McNeely only two months earlier.

         This becomes even more clear when considering the government interest at play in

King, which the Court described as the “need for law enforcement officers in a safe and

accurate way to process and identify the persons and possessions they must take into

custody,” rather than the gathering of evidence for future prosecution. Id. at 1970. The

purpose of the buccal swab was not investigation; the government simply needed to ensure

a “more accurate form of identifying arrestees” that allowed officers to know who they had

in their jails. Id. at 1976; see also id. at 1980 (J. Scalia, dissenting) (“Whenever this Court

has allowed a suspicionless search, it has insisted upon a justifying motive apart from the



aggravated kidnapping, felony assault, robbery, and sexual assault as the serious offenses that could be prevented
through the use of buccal swab identification procedures). I remain unpersuaded that the reference to a “serious
offense” in King includes felony DW I.
                                                                          Villarreal Concurring Opinion – 15

investigation of crime.”).11 This interest, compared with the minimal invasion of individual

privacy rights at issue in King, led to the conclusion that a buccal swab during the booking

process was a reasonable search. Id. at 1980.

        But seizure of the felony DWI defendant’s blood serves no interest in identification

or officer safety. Instead, the purpose of the blood draw is to engage in further investigation

for the most accurate evidence of intoxication possible.                      Given the Supreme Court’s

deliberate avoidance of using investigation as a justification for even the most minimal of

bodily searches in King, we should not read King to justify a warrantless blood draw for

purely investigative purposes. Like the majority in our original opinion, I can find no

rationale for extending King beyond the facts of that case and certainly not to the extent that

it supports a warrantless blood draw based solely on the driver’s criminal record.

                      The State’s Interest in Blood Alcohol Concentration
                       Amounts to a General Interest in Crime Control

        The government’s interest in protecting the public from the dangers of drunk driving

is compelling, and I do not question the legitimacy of this interest. In Michigan Department

of State Police v. Sitz, 496 U.S. 444, 451 (1990), the Supreme Court noted this compelling

state interest when upholding the constitutionality of DWI checkpoints. And the Court also

based its decision in Sitz upon the existence of both objective standards and a showing that

the checkpoints themselves effectively made the roads safer because they resulted in DWI


        11
           It is also worth noting that the majority in King recognized to potential for prompt DNA testing to
exonerate the wrongfully imprisoned and speed up the apprehension of criminals before they commit additional
crimes. 133 S.Ct. at 1974. The warrantless blood-draw in a DW I case does not carry a similar potential.
                                                            Villarreal Concurring Opinion – 16

arrests. Id. at 454-55.

       But the Supreme Court relied upon a governmental interest apart from the

investigation of crime in Sitz. That is why the Court later refused to expand Sitz to include

drug-interdiction checkpoints because the primary purpose of those checkpoints was a

“general interest in crime control.” City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000).

Notably, the Court recognized that the State’s interest in stopping the trafficking of illegal

narcotics was great, but it nevertheless did not find the type of close connection between the

State’s need to detect and prevent crime and use of the checkpoint to do so as it did in Sitz.

Id. at 44-45.

       The Court took this analysis a step further in Ferguson v. City of Charleston, 532 U.S.

67 (2001). There, the Medical University of South Carolina instituted a policy whereby

pregnant mothers would be screened for cocaine use and required any mother who tested

positive to comply with a substance abuse treatment program under threat of arrest. Id. at

72-73. In holding that this program violated the Fourth Amendment, the Court focused upon

the nature of the “special need” asserted as a justification for the warrantless search. Id. at

79. According to the Court, “the ‘special need’ that was advanced as a justification for the

absence of a warrant or individualized suspicion was one divorced from the State’s general

interest in law enforcement.” Id. The Court acknowledged that the ultimate goal of the

program, protecting the health of both mother and child, was a beneficent one, but still held

that the purpose actually served by the search was indistinguishable from a general interest
                                                            Villarreal Concurring Opinion – 17

in crime control. Id. at 81.

       Notably, Justice Kennedy concurred to observe that the “special needs” cases had

always turned upon the “ultimate goal” of the search and seizure at issue rather than the

“immediate purpose” declared by the majority.          Id. at 87 (Kennedy, J. concurring)

(referencing Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989) as one

example of a “special needs” case). Yet, he also acknowledged that in those cases, “[t]he

traditional warrant and probable-cause requirements are waived . . . on the explicit

assumption that the evidence obtained in the search was not intended to be used for law

enforcement purposes.” Id. While Justice Kennedy recognized that the hospital may have

had a legitimate need unrelated to law enforcement, the program had “a penal character with

a far greater connection to law enforcement than other searches sustained under our special

needs rationale.” Id. at 89. I see the same issue with the warrantless collection of blood

alcohol evidence in recidivist DWI cases; there is certainly a connection between blood

alcohol levels and roadway safety, but the State’s interest in blood alcohol evidence, at least

under current Texas law, does not advance the State’s need to detect and prevent crime for

the safety of those on the roadway beyond a general interest in crime control.

       Under Texas law, evidence of blood alcohol concentration is not necessary to arrest

or even convict a DWI driver, even one charged with felony DWI.                Blood alcohol

concentration is one way of proving intoxication, and a higher alcohol concentration

enhances a sentence from a Class B misdemeanor to a Class A misdemeanor. T EX. P ENAL
                                                             Villarreal Concurring Opinion – 18

C ODE A NN. § 49.01(1) (West 2013); T EX. P ENAL C ODE A NN. § 49.04 (West 2013). But the

State can also prove intoxication by showing a particular concentration of alcohol in a

driver’s breath and urine or even without any showing of any particular alcohol concentration

whatsoever. T EX. P ENAL C ODE A NN. § 49.01(2) (West 2013). Police officers can certainly

arrest a suspect without a warrant when they have probable cause to believe that person has

committed the offense of driving while intoxicated, but their ability to do so is not tied to

either a showing of a particular blood alcohol concentration or the driver’s status as a repeat

offender. T EX. C ODE C RIM. P ROC. A NN. art. 14.03 (West 2013); Miles v. State, 241 S.W.3d

28, 41 (Tex. Crim. App. 2007) (noting that driving while intoxicated is an offense against the

public peace).

       The statutory provisions related to license suspension place some reliance upon blood

alcohol concentration (as well as breath-alcohol concentration), but they are also not

dependent upon that evidence to suspend even a recidivist DWI offender’s driver’s license.

A DWI offender, even one who commits a felony DWI, can have his license suspended

regardless of whether he provides or refuses to provide a specimen of blood. T EX. T RANSP.

C ODE A NN. § 524.011 (West 2013) (setting out officer’s duty to take possession of an

arrestee’s driver’s license upon an analysis of either a breath or blood specimen showing an

alcohol concentration over the legal limit); T EX. T RANSP. C ODE A NN. § 724.032 (West 2013)

(setting out officer’s duty to take possession of an arrestee’s driver’s license upon a driver’s

refusal to provide a requested specimen for alcohol concentration testing). Significantly, an
                                                             Villarreal Concurring Opinion – 19

arresting officer must still give a temporary driver’s license to the arrested DWI driver, even

a repeat offender, until the Texas Department of Public Safety suspends the driver’s license

after receiving a report from the arresting officer regarding the results of the analysis of the

breath or blood specimen. T EX. T RANSP. C ODE A NN. § 524.012 (West 2013). The same

requirements exist when a person refuses to submit to the taking of a specimen. T EX .

T RANSP. C ODE A NN. § 724.032 (West 2013). While the periods of these suspensions are

increased if the driver has previously had his or her driver’s license suspended, the

suspension periods are not dependent upon a showing of a particular blood alcohol

concentration. T EX. T RANSP. C ODE A NN. § 524.022 (West 2013): T EX. T RANSP. C ODE A NN.

§ 724.035 (West 2013).

       The conditions of pre-trial release and post-conviction probation place are equally

independent of any showing of blood alcohol concentration. A defendant charged with a

Class A misdemeanor DWI or above is required to get an ignition interlock device installed

upon his or her car as a condition of bail regardless of whether there is evidence of a

particular blood alcohol concentration. T EX. C ODE C RIM. P ROC. A NN . art 17.441 (West

2013). After conviction, a defendant placed on community supervision may be required to

have an ignition interlock device installed on his or her vehicle in an ordinary DWI case, but

the installation is mandatory if he or she has been convicted of felony DWI regardless of any

showing of a particular blood alcohol concentration. T EX. C ODE C RIM. P ROC. A NN. art. 42.12

sec. 13(I) (West 2013). A trial court is also required to order installation of an ignition
                                                              Villarreal Concurring Opinion – 20

interlock device if it is shown at trial that the defendant had an alcohol concentration of 0.15

or more, but a showing of blood alcohol concentration is not required. Id. The period of

installation is not extended based upon the defendant’s status or a showing of a particular

blood alcohol concentration. Id. And jail time required as a condition of probation for

felony DWI defendants is not contingent (or extended) upon a showing of a defendant’s

blood alcohol concentration. T EX. C ODE C RIM. P ROC. A NN. art. 42.12 sec. 13(a)(1) (West

2013).

         These provisions reveal a scheme designed to secure useful, even compelling evidence

for trial rather than to detect intoxicated drivers through blood testing in order to prevent

drunk driving accidents. Unlike the sobriety check points in Sitz, the governmental intrusion

at issue in this case–the warrantless seizure of blood–does not further the State’s compelling

interest in getting drunk drivers off the road before they cause an accident beyond a general

interest in law enforcement. Moreover, the seizure of this blood alcohol concentration

evidence has no more impact upon the felony DWI defendant than it does a misdemeanor

DWI defendant.

         The State’s interest in this case must be weighed in the context of the search at issue,

namely the search for blood alcohol concentration evidence. Vernonia School Dist., 515 U.S.

at 661 (explaining that a “compelling state interest” must be considered in light of the

particular search at hand). To be constitutionally valid, the “primary purpose” of the

warrantless search has to serve more than a general interest in crime control. City of Los
                                                            Villarreal Concurring Opinion – 21

Angeles, Calif. v. Patel, 135 S.Ct. 2443, 2452 (2015). And while the State has a compelling

interest in keeping the public safe from drunk drivers, the search for and seizure of blood

alcohol evidence in this case merely furthers the State’s general interest in crime control.

Ferguson, 532 U.S. at 82-84 (“While the ultimate goal of the program may well have been

to get the women in question into substance abuse treatment and off of drugs, the immediate

objective of the searches was to generate evidence for law enforcement purposes in order to

reach that goal.”); see also Edmonds, 531 U.S. at 44. And to the extent that one would argue

that Skinner v. Railway Labor Executives’ Assn. supports the warrantless search in cases like

the one before us, the Supreme Court has made clear that Skinner was justified upon a

rationale beyond the normal need for law enforcement. Skinner, 489 U.S. at 620. Like the

majority in our original opinion in this case, I cannot apply these “special needs” cases to

circumstances that do not serve the underlying rationale that permitted the searches in those

cases.

                      Driving is not a “Closely Regulated Industry”

         For similar reasons, I cannot agree that the search at issue in this case has all the

hallmarks of an administrative search of a closely regulated industry, assuming that such

searches are distinct from “special needs” searches. The Supreme Court has held that

administrative searches by municipal health and safety inspectors require a search warrant

even though the State has an interest in preventing the unintentional development of

conditions which are hazardous to the public health and safety. Camara v. Municipal Court
                                                            Villarreal Concurring Opinion – 22

and City and County of San Francisco, 387 U.S. 523, 535-36 (1967). While the Court

allowed for the need for inspectors to search a residence without a warrant to maintain code

compliance, it nevertheless refused to sanction warrantless inspections unless the State could

demonstrate that the warrant requirement would frustrate the State’s regulatory goals. Id. at

533. According to the Court, in the context of administrative searches, “the question is not

whether the public interest justifies the type of search in question, but whether the authority

to search should be evidenced by a warrant, which in turn depends in part upon whether the

burden of obtaining a warrant is likely to frustrate the governmental purpose behind the

search.” Id. (citing Schmerber, supra, 384 U.S. at 770-71).

       But the Supreme Court has allowed administrative inspections of a closely regulated

industry. New York v. Burger, 482 U.S. 691, 702 (1987). Such searches are premised upon

the theory that the owner or operator of a commercial premises in a “closely regulated”

industry has a reduced expectation of privacy. Id. Moreover, such searches must meet three

criteria: (1) a showing of a substantial governmental interest that informs the regulatory

scheme pursuant to which the inspection is made; (2) the warrantless inspection must be

necessary to further the regulatory scheme; and (3) the certain and regular application of the

inspection must provide a constitutionally adequate substitute for a warrant. Id. at 702-03.

       Here, the felony DWI defendant is not a part of a “closely regulated industry” by

driving. So far, the Court has only recognized four industries that have such a history of

government oversight that no reasonable expectation of privacy could exist for a proprietor
                                                            Villarreal Concurring Opinion – 23

over the stock of such an enterprise. Patel, 135 S.Ct. at 2454 (observing that liquor sales,

firearms dealing, mining, and running a junkyard are the only industries recognized by the

Court as “closely regulated”). Driving is not one of them. And as discussed above, the

felony DWI defendant does not have a lessened expectation of privacy by virtue of his status,

so any analogy between a citizen driver to a private business owner of a closely regulated

industry necessarily fails at the outset.

       Even assuming that the analogy is viable, the search at issue in this case is not

necessary to further the regulatory scheme. As discussed above, none of the regulations

attendant to multiple DWI convictions are tied to the blood test results themselves. And, as

with the “special needs” cases, the search at issue only furthers the State’s general interest

in crime control rather than some interest in licensing drivers. Suggesting that the search in

this case has all the hallmarks of an administrative search is like saying an elephant seal has

all the hallmarks of an elephant.

                          Like McNeely, This Opinion is Narrow

       Despite all the gnashing of teeth and rending of garments that may follow this Court’s

adherence to its original majority opinion, it is important to note the limited nature of the

holding. We did not hold that police could never obtain blood alcohol evidence from DWI

defendants, even the most incorrigible ones. Neither did we hold that police must always

secure a search warrant to do so. We simply held that the status of a driver suspected of

driving while intoxicated coupled with the natural dissipation of alcohol from his blood does
                                                            Villarreal Concurring Opinion – 24

not, by itself, justify a warrantless search and seizure. Like the Supreme Court in McNeely,

we did not foreclose the possibility that a warrantless search and seizure of a felony DWI

driver’s blood could be justified upon a showing of exigent circumstances, or another

exception to the warrant requirement. But the State has not made such a showing in this

case. It simply pointed to the statute, just as the State did in McNeely.

       I join the majority’s order dismissing the State’s motion for rehearing as

improvidently granted. And I agree with the original majority opinion because I cannot

support a holding that a felony DWI defendant has a greater expectation of privacy in the

contents of his cell phone than his own blood. With these thoughts, I concur.




Filed: December 16, 2015

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