                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-13-00662-CR

                                   James Fuller FITZGERALD,
                                            Appellant

                                               v.
                                          The STATE of
                                       The STATE of Texas,
                                             Appellee

                    From the 216th Judicial District Court, Bandera County, Texas
                                     Trial Court No. CR-12-112
                         The Honorable N. Keith Williams, Judge Presiding

Opinion by:      Karen Angelini, Justice

Sitting:         Karen Angelini, Justice
                 Sandee Bryan Marion, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: July 30, 2014

REVERSED AND REMANDED

           James Fuller Fitzgerald argues that the trial court erroneously denied his Motion to

Suppress Evidence of Blood Testing Analysis by concluding that section 724.012(b)(3)(B) of the

Texas Transportation Code authorized a warrantless blood draw and Fitzgerald’s rights were thus

not violated under the Fourth Amendment to the Constitution. Because we hold that Fitzgerald’s

rights under the Fourth Amendment were violated by the warrantless blood draw, we reverse the

judgment of the trial court and remand for a new trial.
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                                           BACKGROUND

       At about 12:30 a.m. on August 12, 2012, Fitzgerald was stopped for a traffic violation in

Bandera, Texas. The officer observed two open containers of beer in the center console of

Fitzgerald’s pickup truck. Smelling an odor of alcohol emitting from Fitzgerald, the officer asked

Fitzgerald to submit to a series of field sobriety tests. Fitzgerald agreed to the sobriety tests, and

the officer determined Fitzgerald was impaired and arrested him for DWI. The officer asked

Fitzgerald to provide a breath specimen, but Fitzgerald refused. The officer then looked up

Fitzgerald’s criminal history and determined Fitzgerald had three previous convictions for DWI.

Concluding that a blood draw was mandatory pursuant to section 724.012(b)(3)(B) of the Texas

Transportation Code, the officer completed a THP-51 Statutory Authorization–Mandatory Blood

Specimen form. A nurse then took a specimen of Fitzgerald’s blood without his consent.

       Fitzgerald filed a motion to suppress the evidence, arguing that his rights under the Fourth

Amendment were violated by the warrantless blood draw. At the suppression hearing, the State

stipulated that (1) there was no warrant for the blood draw; (2) Fitzgerald did not provide consent

for the blood draw; and (3) there were no exigent circumstances justifying the warrantless blood

draw. The State argued that the warrantless blood draw was authorized pursuant to section

724.012(b)(3)(B) of the Texas Transportation Code, and in the alternative, the officer relied in

good faith on section 724.012(b)(3)(B) as authorization for the warrantless blood draw. The trial

court agreed and denied Fitzgerald’s motion to suppress. Pursuant to a plea agreement with the

State, Fitzgerald pled guilty to the Class A misdemeanor offense of DWI-2nd. He was sentenced

to one year confinement in county jail, probated for two years, a $500 fine, and suspension of his

driver’s license for one year. Pursuant to the terms of the plea agreement, Fitzgerald reserved his

right to appeal the denial of his pre-trial motion to suppress. He now appeals.



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                                      MOTION TO SUPPRESS

       Fitzgerald argues that the trial court erred in denying his motion to suppress because (1) he

did not consent to the blood draw, and (2) the blood draw was employed without the benefit of a

valid search warrant or a valid exception to the Fourth Amendment’s warrant requirement. In

particular, Fitzgerald relies on Missouri v. McNeely, 133 S. Ct. 1552 (2013), and argues that section

724.012(b)(3)(B) does not constitute a valid exception to the warrant requirement. We agree with

Fitzgerald.

       Recently, in Weems v. State, No. 04-13-00366-CR, 2014 WL 2532299, at *8 (Tex. App.—

San Antonio May 14, 2014, pet. filed), we addressed this argument and held that section

724.012(b) is not a valid exception to the Fourth Amendment’s warrant requirement. We explained

that McNeely “clearly proscribed what it labeled categorical or per se rules for warrantless blood

testing, emphasizing over and over again that the reasonableness of a search must be judged based

on the totality of circumstances presented in each case.” Weems, 2014 WL 2532299, at *8

(emphasis in original). “Texas’s implied consent and mandatory blood draw statutes clearly create

such categories or per se rules that the Supreme Court proscribed in McNeely.” Weems, 2014 WL

2532299, at *8 (citing TEX. TRANSP. CODE ANN. §§ 724.011(a), 724.012(b)). We emphasized that

“[t]hese statutes do not take into account the totality of the circumstances present in each case, but

only consider certain facts.” Weems, 2014 WL 2532299, at *8. Thus, to be authorized, a State’s

warrantless blood draw cannot rely on section 724.012(b) as an exception to the Fourth

Amendment’s warrant requirement, but must instead be based on a well-recognized exception to

the warrant requirement. See id.

       In this case, the State does not point to a well-recognized exception to the warrant

requirement. It only argues that section 724.012(b) authorized the warrantless blood draw. And, in



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reviewing the record, there is no evidence showing a valid exception to the Fourth Amendment’s

warrant requirement.

       Alternatively, the State argues the exclusionary rule should not apply because the officer

relied in good faith on section 724.012(b) as authorization for the warrantless blood draw. We also

rejected this argument in Weems. In Weems, we recognized that the federal exclusionary rule does

not require suppression if an officer relies in good faith on a statute that is later determined to be

unconstitutional. Weems, 2014 WL 2532299, at *9. However, we noted that constraints do apply

to this exception to the federal exclusionary rule. Id. Thus, a “statute cannot support objectively

reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to

enact constitutional laws.” Id. (quoting Illinois v. Krull, 480 U.S. 340, 355 (1987)). “Nor can a law

enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are

such that a reasonable officer should have known that the statute was unconstitutional.” Id.

(quoting Krull, 480 U.S. at 355). We first noted that section 724.012(b) does not explicitly provide

for a warrantless search. Id. We then stated that “there is no such good faith exception found in

Texas’s exclusionary rule—and Texas can provide more protection to a suspect than federal law.”

Id. Article 38.23 provides for an exception to the exclusionary rule only when an officer relies in

good faith upon a warrant issued by a neutral magistrate based on probable cause. See TEX. CODE

CRIM. PROC. ANN. art. 38.23(b) (West 2005). We explained that article 38.23(b) “says nothing

about an officer’s reliance in good faith on a statute.” Id. Thus, we held that the exclusionary rule

applied. Id. For the same reasons, the exclusionary rule also applies in this case.

       Having determined that the trial court erred in denying Fitzgerald’s pre-trial motion to

suppress that resulted in him entering a plea of guilty pursuant to a plea-bargain agreement, we do

not believe we need to conduct a traditional harm analysis. See McKenna v. State, 780 S.W.2d

797, 800 (Tex. Crim. App. 1989); Badgett v. State, 79 S.W.3d 581, 586 (Tex. App.—Houston
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[14th Dist.] 2001, pet. ref’d). However, if such an analysis should be conducted, we note that

pursuant to Texas Rule of Appellate Procedure 44.2(a), we cannot determine beyond a reasonable

doubt that the trial court’s error in denying the motion to suppress did not contribute in some

measure to the State’s leverage in the plea-bargaining process and thus to Fitzgerald’s conviction.

See TEX. R. APP. P. 44.2(a); McKenna, 780 S.W.2d at 800.

       Because the warrantless blood draw violated Fitzgerald’s rights under the Fourth

Amendment, the trial court erred in denying his motion to suppress. We thus reverse the judgment

of the trial court and remand for a new trial.


                                                  Karen Angelini, Justice

Do not publish




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