            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0176-18



                                THE STATE OF TEXAS,

                                             v.

                                  JOSE RUIZ, Appellee

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE THIRTEENTH COURT OF APPEALS
                          GONZALES COUNTY

             K EEL, J., delivered the opinion of the Court in which K EASLER,
H ERVEY, R ICHARDSON, N EWELL, and W ALKER, JJ., joined. K ELLER, P.J., filed a
concurring and dissenting opinion in which S LAUGHTER, J., joined. Y EARY, J., did
not participate.

                                      OPINION

     Appellee was charged with felony driving while intoxicated after the State took a

blood sample from him without a warrant and while he was unconscious. The trial court

granted his motion to suppress his blood test results, and the court of appeals affirmed.

The State sought discretionary review to determine whether (1) implied consent to a

blood draw from an unconscious driver is reasonable under the Fourth Amendment, and
                                                                                     Ruiz, J.-Page 2

(2) exigent circumstances justified the warrantless blood draw. We granted review of the

first ground, and we hold that implied consent is not a valid basis for a blood draw in the

circumstances presented here. We now grant review of the second ground concerning

exigent circumstances, vacate the lower court’s holding on that issue, and remand the

case to the court of appeals for reconsideration of it in light of Mitchell v. Wisconsin,

2019 U.S. LEXIS 4400, 139 S.Ct. 2525 (2019).

I. Background

        A. Relevant Facts

        Appellee fled the scene of a car wreck under circumstances demonstrating that he

had been driving while intoxicated. Officers found him unresponsive in a nearby field

and carried him to a patrol car. Emergency medical responders tried to revive him, but he

remained unresponsive, and they took him to the hospital. Sergeant Bethany McBride

arrested Appellee at the hospital and, although Appellee was unconscious, she read the

DWI statutory warnings to him and then ordered a warrantless blood draw pursuant to

Texas Transportation Code Sections 724.011 and 724.014.1

        B. Issue Granted

        We granted review to decide whether implied consent under Section 724.014 is

equivalent to voluntary consent as a recognized exception to the warrant requirement. Is

it unreasonable under the Fourth Amendment for an officer to rely on an unconscious

        1
            Throughout the remainder of this opinion “Section” refers to the Texas Transportation
Code,
                                                                                Ruiz, J.-Page 3

driver’s implied consent for a blood draw when the unconsciousness prevents the officer

from seeking actual consent? We hold that irrevocable implied consent is not free and

voluntary and does not satisfy the consent exception to the warrant requirement of the

Fourth Amendment. Consequently, we affirm the judgment of the court of appeals on

this point.

         C. Standard of Review

         We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review; fact findings are reviewed for an abuse of discretion, and applications

of law are reviewed de novo. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). We will sustain the trial court’s application of the law if it is correct on any

applicable theory of law, and the record reasonably supports the ruling. Valtierra v. State,

310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010). The trial court’s findings in this case

are undisputed, and we are presented only with a legal issue.

II. Discussion

         A. Transportation Code

         The State argues that the warrantless blood draw was reasonable in this case

because it was authorized by the Transportation Code. Section 724.011 states that a

drunk-driving suspect who uses the public roadways has consented to having his blood

drawn:

         (a) If a person is arrested for an offense arising out of acts alleged to have been
         committed while the person was operating a motor vehicle in a public place, or a
                                                                             Ruiz, J.-Page 4

       watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic
       Beverage Code, the person is deemed to have consented, subject to this chapter, to
       submit to the taking of one or more specimens of the person’s breath or blood for
       analysis to determine the alcohol concentration or the presence in the person’s
       body of a controlled substance, drug, dangerous drug, or other substance.

T EX. T RANSP. C ODE § 724.011. Section 724.014 provides that an unconscious DWI

suspect is considered not to have withdrawn his implied consent:

       (a) A person who is dead, unconscious, or otherwise incapable of refusal is
       considered not to have withdrawn the consent provided by Section 724.011.
       (b) If the person is dead, a specimen may be taken by:
               (1) the county medical examiner or the examiner’s designated agent; or
               (2) a licensed mortician or a person authorized under Section
               724.016 or 724.017 if there is not a county medical examiner for the county.
       (c) If the person is alive but is incapable of refusal, a specimen may be taken by a
       person authorized under Section 724.016 or 724.017.

T EX. T RANSP. C ODE § 724.014.

       The State argues that Appellee gave his implied consent to alcohol testing when he

drove on Texas roadways, and because that consent was never limited, withdrawn, or

revoked, his consent remained in full effect at the time of the blood draw. We disagree

for the reasons given below.

       B. Fourth Amendment and Consent

       Under the Fourth Amendment a search of a person pursuant to a criminal

investigation “requires a search warrant or a recognized exception to the warrant

requirement.” State v. Villarreal, 475 S.W.3d 784, 795 (Tex. Crim. App. 2014). The

totality of the circumstances dictates whether a warrantless search is reasonable. Missouri

v. McNeely, 569 U.S. 141, 149 (2013). A warrantless search may be reasonable “if the
                                                                              Ruiz, J.-Page 5

police obtain consent.” Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002).

When the State relies on consent to justify a search, it must prove that the consent was

freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968).

Voluntariness depends on the totality of the circumstances. Schneckloth v. Bustamonte,

412 U.S. 218, 233 (1973). It means more than a knowing choice. Id. at 224. “The

ultimate question is whether the person’s will has been overborne and his capacity for

self-determination critically impaired, such that his consent to search must have been

involuntary.” Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011) (internal

quotation marks omitted) (quoting United States v. Watson, 423 U.S. 411, 424 (1976)

(quoting Schneckloth, 412 U.S. at 225)).

       Relevant considerations include the subject’s sophistication in the law, mental

acuity, and ability to exercise a free choice when facing arrest, and whether he was

advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), or advised that the

results of the search could be used against him. Watson, 423 U.S. at 424-25 (footnote

omitted). A defendant may limit the scope of his consent, Florida v. Jimeno, 500 U.S.

248, 252 (1991), or revoke it altogether. Miller v. State, 393 S.W.3d 255, 266 (Tex.

Crim. App. 2012); Valtierra, 310 S.W.3d at 450. The ability to limit or revoke is a

“necessary element of valid consent[.]” Villarreal, 475 S.W.3d at 799.

       The State argues that Appellee consented to blood-alcohol testing by driving on

public roadways, and his consent lasted forever because he never revoked or limited it.
                                                                                Ruiz, J.-Page 6

State’s brief, pg. 7. In support of this argument the State cites Valtierra for the

proposition that consent to search for a particular item implies consent to search anywhere

that the item may be found unless the consent is expressly limited. 310 S.W.3d at 449-52.

Valtierra, however, limited the scope of consent by the reasonable person standard in

light of the totality of the circumstances. Id. at 451. It did not hold that consent is of

boundless scope unless expressly limited.

       The State suggests that since it did not cause Appellee’s condition, his

unconsciousness should not be held against the prosecution in assessing the voluntariness

of his consent. It quotes Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012),

for the proposition that consent “must not be the result of physical or psychological

pressures brought to bear by law enforcement” and emphasizes the last phrase, i.e.,

“brought to bear by law enforcement.” Fienen, however, relied on Schneckloth which

turned to cases assessing the voluntariness of confessions and described the totality of the

circumstances as including “both the characteristics of the accused and the details of the

interrogation.” Schneckloth, 412 U.S. at 226. See also Meekins, 340 S.W.3d at 460

(quoting United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998) (specifying that “the

physical and mental condition and capacity of the defendant” are within the totality of the

circumstances when determining voluntariness of consent)). Physical or psychological

pressures brought to bear by law enforcement fall into the category of details of the

interrogation; the characteristics of the accused still must be taken into consideration as
                                                                             Ruiz, J.-Page 7

part of the totality of circumstances.

       In this case Appellee was unconscious throughout his encounter with law

enforcement and had no capacity for self-determination; he could not make a choice; he

could not hear Sgt. McBride read warnings to him; and he could not limit or revoke his

consent. Under these circumstances drawing his blood was an unreasonable application

of the consent exception to the Fourth Amendment warrant requirement.

III. Conclusion

       We affirm the judgment of the court of appeals on the consent issue. We also

grant the State’s second ground for review asking whether exigent circumstances justified

the blood draw in this case. We vacate the lower court’s opinion on that issue and

remand the case to the court of appeals for reconsideration in light of Mitchell, 2019 U.S.

LEXIS 4400, 139 S.Ct. 2525.


Delivered: September 11, 2019
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