Reversed and Remanded and Majority and Dissenting Opinions filed
November 13, 2014.




                                              In The

                         Fourteenth Court of Appeals

                                     NO. 14-13-00208-CR

                        JONATHAN ALBERT LEAL, Appellant
                                                 V.

                            THE STATE OF TEXAS, Appellee

                        On Appeal from the 122nd District Court
                               Galveston County, Texas
                           Trial Court Cause No. 12CR0947


                      DISSENTING OPINION
      The Fourth Amendment to the United States Constitution provides that
“[t]he right of the people to be secure in their persons … against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue” unless the
warrants meet certain requirements. 1 The Supreme Court of the United States has


      1
          U.S. Const. amend. IV; see also Tex. Const. art. I, § 9.
determined that, where a search is undertaken by law-enforcement officials to
discover evidence of criminal wrongdoing, the Fourth Amendment generally
requires the obtaining of a judicial warrant. 2 In the absence of a warrant, a search
is reasonable under the Fourth Amendment only if it falls within a specific
exception to this general warrant requirement. 3 One such exception is a search
conducted pursuant to consent.4

          Today, this court faces as issues of first impression (1) whether section
724.012(b)(3)(B) of Texas’s implied-consent statute falls within the consent
exception to the warrant requirement and (2) whether consent under this particular
provision is revocable. More specifically, we must decide whether this subsection
of the statute provides a basis for concluding that appellant Jonathan Albert Leal
irrevocably consented to the blood draw. If the trial court’s ruling is supported by
the record, we are to affirm that ruling if there is any valid theory of law that
supports the ruling, even if the theory was not presented to the trial court and even
if the theory is not advanced by the prevailing party on appeal. 5

          The ultimate touchstone of the Fourth Amendment is reasonableness. 6 We
are to examine the totality of the circumstances to determine whether a search is
reasonable.7 The Fourth Amendment’s protection against unreasonable searches
and seizures requires courts reviewing searches to balance opposing interests and

          2
              See Riley v. California, —U.S.—, —, 134 S. Ct. 2473, 2482, 189 L.Ed.2d 430 (2014).
          3
              See id.
          4
        See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043–44, 36 L.Ed.2d
854 (1973).
          5
        Alford v. State, 400 S.W.3d 924, 928 n.2 (Tex. Crim. App. 2013); Miller v. State, 393
S.W.3d 255, 263 (Tex. Crim. App. 2012).
          6
              Riley, —U.S. at —, 134 S. Ct. at 2482.
          7
              Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 2197, 165 L.Ed.2d 250
(2006).

                                                       2
determine the reasonableness of a particular search in a particular context.8
Whether a search is reasonable depends upon the degree to which it intrudes upon
an individual’s privacy and the degree to which it is needed to promote legitimate
government interests. 9 Thus, context is crucial in assessing reasonableness.

       Validity of Implied Consent to Blood Draw by DWI Repeat Offenders

        In assessing the validity of the implied consent in today’s case, the issue is
whether police reasonably could assume that appellant, who twice before had been
convicted of driving while intoxicated (DWI), irrevocably consented to a blood
draw10 through his conduct in operating a motor vehicle on Texas’s public
roadways.       Texas Transportation Code sections 724.012(b)(3)(B) and 724.011
effectively advise individuals with two or more prior DWI convictions (“DWI
Repeat Offenders”) that police will interpret a DWI Repeat Offender’s conduct in
operating a motor vehicle as giving consent to a blood draw in the event of a new
DWI arrest. 11

       Implied consent, if otherwise valid, is sufficient to support the consent
exception.12 The majority, however, rejects implied consent and suggests that
despite the statute’s plain statement of the consequences flowing from a DWI
arrest for a DWI Repeat Offender, a police officer cannot interpret a DWI Repeat
Offender’s conduct in operating a motor vehicle as consent to a blood draw
because such an interpretation would establish a categorical rule and categorical

       8
           See Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 1778, 167 L.Ed.2d 686 (2007).
       9
           Samson, 547 U.S. at848, 126 S.Ct. at 2197.
       10
          Transportation Code Section 724.012 provides that a police officer “shall require the
taking of a specimen of breath or blood.” Tex. Transp. Code Ann. § 724.012(b) (West 2014).
Under this statute, an officer may take a breath sample rather than a blood sample.
       11
            Tex. Transp. Code Ann. §§ 724.011, 724.012(b)(3)(B) (West 2014).
       12
            McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).

                                                 3
rules are prohibited by the Supreme Court’s opinion in Missouri v. McNeely.13 The
majority says that “whenever a person has been arrested for DWI and is a repeat
offender, consent will necessarily exist because section 724.012(b)(3)(B) says it
          14
does.”          This oversimplification of how this provision of the implied-consent
statute operates skews the                 focus away from the important contextual
considerations that should drive the court’s analysis. Analyzing consent in context
leads to the opposite conclusion.

         Consent exists because individuals are deemed to know the law. 15 This is
especially true for recidivists. By nature, they are reoffenders who, after being
convicted, break the same law again. In crafting many of our state’s statutory
schemes, Texas lawmakers recognize the distinct risk posed by recidivists and
identify specific consequences for reoffenders. 16               Section 724.012(b)(3)(B)
provides that, for a particular class of DWI reoffenders, taking the action of driving
on public roadways is consent to a blood draw. 17 Accordingly, police reasonably
can assume that a DWI Repeat Offender who uses public roadways and is charged
with knowledge of laws governing such use, consents to a blood draw in the event
a police officer has reasonable grounds to believe that the DWI Repeat Offender is
driving while intoxicated. Just as it is reasonable for police officers to assume that
the category of individuals who speak the words, “Yes, I give you consent to
search,” in fact, have consented, a police officer reasonably can interpret the
         13
          See maj. op. at ___; Missouri v. McNeely, —U.S.—, —, 133 S.Ct. 1552, 1561, 185
L.Ed.2d 698 (2013).
         14
              Maj. op. at ____.
         15
          See Tex. Penal Code Ann. § 8.03 (West 2014); Johnson v. State, 423 S.W.3d 385, 388
n.2 (Tex. Crim. App. 2014).
         16
              See, e.g. Tex. Penal Code § 12.42 (West 2014).
         17
          Tex. Transp. Code Ann. § 7.012(b)(3)(B). This opinion does not address whether an
individual who drives on a public street has consented to a search based of any other section of
Texas Transportation Code Section 7.012.

                                                   4
conduct of a DWI Repeat Offender in driving a vehicle on the public street as
giving consent for the blood draw. 18
                                   Irrevocability of Consent
       The majority suggests that, in any event, appellant effectively revoked any
consent for the blood draw. But, under Texas’s statutory scheme, consent by a
DWI Repeat Offender cannot be revoked. 19 The majority states that there is a
categorical rule that an individual’s consent to a search is limited in scope and that
such consent is always subject to the right of withdrawal.20 The Supreme Court
has found otherwise. Revocation is not always an option. In various contexts, the
                                                                                  21
“right of withdrawal” has been found unreasonable and unavailable.                     Drawing
from this body of jurisprudence and the intent and purpose of the Texas Legislature
in creating this particular provision of the implied-consent statute, it makes more
sense to conclude that revocation of implied consent is not an option for a DWI
Repeat Offender.
       Consent affects the balance of interests between an individual and the
government. 22 The balance can tip for or against revocation of consent, depending
on the circumstances. For example, in the context of searches of probationers’
homes, the Supreme Court, in United States v. Knights, relied on a probationer’s

       18
          As the majority acknowledges, the reality that a driver must make a tough choice,
between driving and knowing that his conduct in driving will be interpreted as consent, does not
render the consent invalid.
       19
            See Tex. Transp. Code Ann. § 724.011, et seq.
       20
            See Mason v. Pulliam, 557 F.2d 426, 428 (5th Cir. 1977).
       21
          See U.S. v. Spriggs, 30 F.3d 132, 132 (4th Cir. 1994), cert. denied, 513 U.S. 1159, 115
S.Ct. 1120, 130 L.Ed.2d 1083 (1995) (holding that visitor to prison could not revoke consent to
search); U.S. v. Knights, 534 U.S. 112, 116, 122 S.Ct. 587, 590, 151 L.Ed.2d 497 (2001) (holding
that probationers may not revoke consent to searches); U.S. v. Herzbrun, 723 F.2d 773, 775 (11th
Cir. 1984) (holding that airline passengers may not revoke consent to search); U.S. v. Haynie,
637 F.2d 227, 230 (4th Cir. 1980) (same).
       22
            See U.S. v. Knights, 534 U.S. at 116, 122 S.Ct. at 590.

                                                  5
signed form23 to enforce the probationer’s agreement to “submit to a search ‘by
any probation officer or law enforcement officer.’” 24              In concluding that the
probationer’s motion to suppress evidence from such a search should be denied,
the Supreme Court reasoned that:

       The judge who sentenced Knights to probation determined that it was
       necessary to condition the probation on Knights’ acceptance of the
       search provision. It was reasonable to conclude that the search
       condition would further the two primary goals of probation—
       rehabilitation and protecting society from future criminal violations.
       The probation order clearly expressed the search condition and
       Knights was unambiguously informed of it. The probation condition
       thus significantly diminished Knights’ reasonable expectation of
       privacy. 534 U.S. at 119–20, 122 S.Ct. at 591–92.
In weighing the government’s interest in Knights, the high court, recognizing the
context, noted that the probationer is more likely than the ordinary citizen to
violate the law.25 In light of this reality, the Supreme Court essentially determined
that the State, to further its goal of protecting the public from past offenders, may
condition the granting of a privilege upon the past offender’s irrevocable consent
to a search.26        And, in the context of parolees, the Supreme Court found it

       23
           The Supreme Court of the United States also has upheld searches of parolees based on
statutory scheme as opposed to the parolee’s signature on a form. See Samson v. California, 547
U.S. 843, 857 (2006).
       24
          Knights, 534 U.S. at 116, 122 S.Ct. at 590. The Court of Criminal Appeals of Texas
has held that consent given by a probationer in accepting a probation condition is invalid under
the Fourth Amendment and Article 1, Section 9 of the Texas Constitution. See Tamez v. State,
534 S.W.2d 686, 690–92 (Tex. Crim. App. 1976). U.S. v. Knights overruled Tamez with respect
to the Fourth Amendment. See Townes v. State, 293 S.W.3d 227, 230–31 (Tex. App.—San
Antonio 2009, no pet.). The Court of Criminal Appeals has held that Article 1, Section 9 of the
Texas Constitution does not provide any greater right than the Fourth Amendment. See Hulit v.
State, 982 S.W.2d 431, 437 (Tex. Crim. App. 1998). Even if the Texas Constitution did provide
a greater right, the DWI search is based upon probable cause unlike the search probation
condition determined to be too broad in Tamez. See Tamez, 534 S.W.2d at 692.
       25
            See id.
       26
            See id.

                                               6
significant that “in most cases, the State is willing to extend parole only because it
is able to condition it upon compliance with certain requirements.27”28
Significantly, the high court reasoned that the State is not required to “ignore the
reality of recidivism or suppress its interests in ‘protecting potential victims of
criminal enterprise’ for fear of running afoul of the Fourth Amendment.”29
       The Supreme Court’s consideration of the “reality of recidivism” as key to
the government’s interest in protecting potential victims of crime has obvious
application in the context of the DWI Repeat Offender, who poses a grave risk to
public safety on roadways. Courts have observed that “an automobile in the hands
of a drunk driver can be just as lethal a weapon as a gun” 30 and have “repeatedly
lamented” the “increasing slaughter on our highways. . . now reach[ing] the
astounding figures only heard of on the battlefield.” 31                  The high court’s
determination that the State is not required to suppress its interests in protecting
potential victims of crime out of concern of stepping on the Fourth Amendment is
particularly relevant and compelling in the repeat-offender drunk-driving context.
       Similar public-safety concerns have prompted courts to fashion special
exceptions to the warrant requirement and to disallow revocation of implied
consent given in exchange for a privilege. For example, in considering consent
given in exchange for the benefit of air travel, courts have disallowed revocation,
holding that officials are not required to ignore the attendant dangers of air piracy.
       27
          Similarly, for DWI Repeat Offenders the State of Texas has conditioned the privilege
of driving upon implied consent to a blood draw. See Tex. Transp. Code Ann. §§ 724.011,
724.012(b)(3)(B).
       28
            See Samson, 547 U.S. at 850, 126 S.Ct. at 2198.
       29
            Id. at 849, 2198.
       30
            U.S. v. Tristan-Madrigal, 601 F.3d 629, 633–34 (6th Cir. 2010) (internal quotations
omitted).
       31
         Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2486, 110
L.Ed.2d 412 (1990) (internal quotations omitted).

                                                 7
The Eleventh Circuit concluded, even before the increased concern following the
infamous terrorist attacks on America on September 11, 2001, that to keep the
airways safe from “the intense danger of air piracy,” airports are “critical zones” in
which special Fourth Amendment considerations apply. 32 Courts have determined
that an individual who begins the process of airport screening may not avoid the
search by asking to leave.33 Noting that air travel is a privilege, the Fourth Circuit
has reasoned that it may be conditioned upon irrevocable consent to a search. 34 In
balancing the government’s interest in disallowing revocation of consent, courts
have placed special focus on the statutory scheme and purpose, noting that
allowing an individual to leave after the individual has reached the point of
embarkation “greatly damages the prophylactic purpose of the search procedure.” 35
Importantly, “the very fact that a safe exit is available … would, by diminishing
the risks, encourage attempts.”36            Courts have recognized the necessity for
restricting the right to revoke consent after this crucial point, noting that the
problem with allowing a “safe exit” is that “established search procedures are
perhaps more valuable by what they discourage than what they discover.”37
       The majority notes that since the events of September 11, federal circuit
courts have overruled prior cases that predicated the reasonableness of airport
screening on irrevocable implied consent and determined that the Fourth



       32
            See Herzbrun, 723 F.2d at 775.
       33
            See id.
       34
            Haynie, 637 F.2d at 230.
       35
          See U.S. v. Skipworth, 482 F.2d 1272, 1277, 1281 (5th Cir. 1973) (Aldrich, dissenting)
(the majority agreed with this part of the dissenting opinion, holding Skipworth’s “right-to-
leave” argument lacked merit).
       36
            Id.
       37
            See id.

                                               8
Amendment requires even less protection of the individual in dangerous contexts. 38
Indeed, the majority cites cases holding that today airport searches are
administrative and no consent is needed at all.39 The majority argues that it is
unpersuasive to attempt to justify a rule of irrevocable consent by comparing a
warrantless blood draw to an administrative search. But, the danger factor that has
driven courts to conclude administrative searches are reasonable in the context of
perilous and high-risk circumstances only further supports the position that
preventing a DWI Repeat Offender from revoking consent to a blood draw is also
reasonable under the Fourth Amendment. Though administrative searches have no
requirement of consent or individualized suspicion, section 724.012(b)(3)(B)
requires an officer to have made a valid arrest of a DWI Repeat Offender before
the officer obtains a blood draw.            If administrative searches at airports are
reasonable under the Fourth Amendment, then it is also reasonable to enforce this
particular provision of the implied-consent statute in the narrow context of DWI
Repeat Offenders exercising the privilege of driving on public roadways.
       Today’s case is similar to the special cases involving criminal recidivism
and zones of danger. Yet, it presents a unique circumstance requiring review of a
search in the multi-faceted context of (1) a recidivist (2) who has engaged in
dangerous conduct on the roadways, (3) consented to a narrow search (blood draw
or breath specimen in the event of another DWI arrest) in exchange for the
privilege of being allowed to drive in spite of that past dangerous conduct, (4)
accepted the benefits of the conditioned privilege by driving on a public roadway,
and (5) is arrested for engaging in the same highly dangerous conduct again.


       38
            See maj. op. at ___.
       39
         See George v. Rehiel, 738 F.3d 562, 575 (3d Cir. 2013); Elec. Privacy Info. Ctr. v. U.S.
Dep’t of Homeland Sec., 653 F.3d 1, 10 (D.C. Cir. 2011); United States v. Aukai, 497 F.3d 955,
960-61 (9th Cir. 2007) (en banc).

                                               9
Confronted with this extraordinary public endangerment and the critical need to
deter the fatal activity, the Texas Legislature enacted a series of laws, 40 specifically
focusing its efforts on the severe threat posed by recidivists who fail to observe the
prohibition against drunk driving even after being convicted of the offense at least
twice before. Because this class of offenders represents a particular, known, and
heightened threat to public safety, the Texas Legislature sought to deter DWI
Repeat Offenders from getting behind the wheel and again endangering the public
by driving in an impaired state.             The legislative solution to the recidivist threat
was to provide a framework that conditioned the driving privilege on consent to
police officers obtaining blood or breath samples from DWI Repeat Offenders who
are suspected of driving while intoxicated and to obtain the samples in the absence
of a search warrant. 41 This provision of the statute is narrowly tailored, specific to
the search, and is limited in scope, effectively serving the purpose and meeting the
requirements of a warrant. 42

          Section 724.012(b)(3)(B) of Texas’s implied-consent law creates a compact
that is akin to the compact enforced against probationers and parolees. The
majority argues that, unlike probationers and parolees, DWI Repeat Offenders do
not have conditional liberty interests. But, driving is a privilege, not a right.43 Just
as it is reasonable to enforce the agreements of parolees and probationers that
diminish their liberty interests, it is reasonable to enforce agreements of DWI
Repeat Offenders to consent to blood draws on condition of exercising driving
privileges.
          40
               See Tex. Transp. Code Section 724.001, et seq. (West 2014).
          41
               See Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002).
          42
               See New York v. Burger, 482 U.S. 691, 703, 107 S.Ct. 2639, 2644, 96 L.Ed.2d 601
(1987).
          43
               See Tex. Transp. Code Ann. § 724.035 (West 2014).

                                                   10
      In exchange for the privilege of driving on public roads in Texas, the DWI
Repeat Offender irrevocably consents to have blood drawn in the event that the
DWI Repeat Offender is arrested yet again for driving while intoxicated.44 Under
this compact, the DWI Repeat Offender faces a difficult choice:45 forego driving a
motor vehicle on Texas roadways or consent to a blood draw in the event of
another DWI arrest. 46            The latter choice does not include the option of
revocation. 47                     It is significant that the Texas Legislature did not
outright deny the driving privilege to DWI Repeat Offenders, but instead gave
these individuals the option of enjoying the privilege subject to the condition.
Appellant’s acceptance of the benefits of this conditioned privilege supports the
irrevocability of his consent. Once appellant, a DWI Repeat Offender, elected the
condition attached to the driving privilege by turning the key to start the vehicle’s
ignition, it was too late to revoke consent.            At that point, as a DWI Repeat
Offender, appellant had accepted the risk of a blood draw should he be arrested for
driving while intoxicated.

      If a police officer suspects a DWI Repeat Offender of driving while
intoxicated, the officer shall arrange for a statutory blood draw or the collection of
a breath specimen. Were the DWI Repeat Offender entitled to revoke consent at
that point, then the prophylactic purpose of the search procedure prescribed by the
Texas statute would be frustrated.48 Likewise, the deterrent effect of the statutory
scheme would be thwarted as the DWI Repeat Offender would be able to revoke
consent for the blood draw even after accepting the conditioned privilege of

      44
           See Tex. Transp. Code Ann. §§ 724.011; 724.012.
      45
           See McGautha v. California, 402 U.S. 183, 213 (1971).
      46
           Tex. Transp. Code § 724.011.
      47
           See generally, id. at § 724.011, et seq.
      48
           See Skipworth, 482 F.2d at 1281.

                                                  11
driving. The State of Texas is not required to ignore either the grave public danger
of drunk driving or the reality of recidivism in DWI Repeat Offenders.

      The majority concludes that the DWI Repeat Offender can revoke consent
after being arrested for another DWI offense.         According to the majority,
reasonableness requires the State to allow the DWI Repeat Offender’s revocation.
Rather than examine the search in the context of the State’s keen interest in
curbing fatal recidivist activity and regulating that activity within a recognized
danger zone for the purpose of protecting the public from threat of death or injury,
the majority relies on cases in home-search contexts that have little application to
the circumstances presented by today’s case. 49

      In the context of drunk driving and DWI Repeat Offenders, reasonableness
does not dictate that revocation of consent is always an option, as the majority
concludes. It is not an option in the context of air piracy, where the State has an
interest in thwarting and deterring activity that endangers the public. Is drunk
driving by DWI Repeat Offenders any less risky or dangerous to human life? Does
a DWI Repeat Offender on a public roadway create any less of a “zone of danger”
than one suspected of air piracy?

      Just as the need to protect the public in the airways makes it reasonable to
prevent individuals from revoking their consent to a search before boarding a
plane, the need to protect the public on roadways makes it reasonable to prevent
DWI Repeat Offenders from revoking consent to a search after being arrested for a
new DWI offense. Allowing a DWI Repeat Offender who embarks on a public
roadway to revoke consent to a search once arrested for DWI provides the “safe
exit” the Supreme Court condemned in the air piracy context. 50 Just as allowing

      49
           See maj. op. at ___.
      50
           See Skipworth, 482 F.2d at 1281.

                                              12
revocation in the airways context would frustrate the federal scheme, the “safe
exit” the majority creates today undermines Texas’s ability to prosecute DWI
Repeat Offenders who choose to drive drunk again.

       The Texas Legislature has recognized the serious and pervasive threat posed
by recidivists and has taken focused action to address it in our state by imposing
conditions on DWI Repeat Offenders who, despite their prior DWI convictions, are
granted and accept the privilege of driving on Texas roadways.                    Both this
deterrence interest and the reality of recidivism among DWI Repeat Offenders are
important factors in determining whether a search is reasonable under the Fourth
Amendment. 51

       In holding that the State may not rely upon the DWI Repeat Offender’s
statutory consent or enforce section 724.012(b)(3)(B) of the implied-consent
statute, the majority does not properly account for the crucial public-safety interest
at stake in deterring DWI Repeat Offenders from drunk driving as a means of
thwarting the extraordinary threat resulting from this deadly recidivist activity.
These interests make it reasonable to prevent a DWI Repeat Offender from
withdrawing consent to a blood draw upon arrest for another DWI offense.

                                           Conclusion

       Today’s case presents a combination of factors, compelling interests as well
as limiting principles, that make the irrevocability of consent to a blood draw under
section 724.012(b)(3)(B) reasonable in the context of a DWI Repeat Offender’s
arrest for a new DWI offense.           Though the state’s public- safety interest is
compelling, even that does not provide the government with a free pass to conduct

       51
         See Knights, 534 U.S. at 116, 122 S.Ct. at 590, Samson, 547 U.S. at 850, 126 S.Ct. at
2198; See Skipworth, 482 F.2d at 1277, 1281.



                                             13
indiscriminate blood draws. There must be limiting principles for the irrevocable
statutory consent to be reasonable and thus pass muster under the Fourth
Amendment. The rationale for the rule of irrevocability in this limited
circumstance is grounded on built-in statutory boundaries and restrictions that
operate as a check on police power and a strong safeguard against unwarranted
government intrusion. Summarized below, these boundaries, sewn into the fabric
of the statute, provide the necessary measure of protection that makes the
irrevocability of consent under subsection (b)(3)(B) reasonable in this narrow
context.

            • The search is authorized only after police have made a valid arrest
              based on probable cause of a repeat offender in the danger zone.
            • The statutory provision implying consent and authorizing the search
              effectively functions like a warrant, tightly restricting the scope of the
              search by naming the single place to be searched and specifically
              identifying the single thing to be seized.52
            • The irrevocability of consent is based upon the DWI Repeat
              Offender’s voluntary choice to exercise, and accept the benefits of, a
              privilege (driving) granted by the State on condition of consent to the
              search.


These limiting principles, coupled with the government’s compelling interests in
protecting the public from the heightened risk of death or injury from recidivist
drunk drivers, make it reasonable to prevent a DWI Repeat Offender arrested for
drunk driving from revoking consent to a statutory blood draw.53

       52
          See Maryland v. King, 133 S.Ct. 1958, 1970, 186 L.Ed.2d 1 (2013) (noting that limits
of police officer’s discretion weigh in favor of constitutionality of search); Skinner v. Railway
Labor Executives Ass’n, 489 U.S. 602, 622–25, 109 S.Ct. 1402, 1416–17 (1989) (noting that
imposing a warrant requirement would add little assurance of certainty and regularity not already
afforded by regulations).
       53
         See Bailey v. U.S., ___ U.S. ____,133 S.Ct. 1031, 1040, 185 L.Ed.2d 19 (2013) (noting
the importance of limiting principles).

                                               14
       Notably, the First Court of Appeals has concluded that “the warrantless
taking of appellant’s blood sample in compliance with Transportation Code section
724.012(b) did not violate [the defendant’s] Fourth Amendment rights by requiring
                                                                       54
him to submit to a warrantless blood test without his consent.”             Though several
other sister courts of appeals have determined that consent under the implied-
consent statute is either invalid or revocable,55 none of them addressed the public
dangers associated with allowing revocation. None of them considered the State’s
strong deterrence interest or the conditional nature of the driving privilege granted
to DWI Repeat Offenders. None of them accounted for the reality of recidivism
among DWI Repeat Offenders. And, none of them considered the built-in statutory
checks and other important limiting principles at work in this special circumstance.

       This court should affirm rather than reverse the trial court’s judgment
denying appellant’s motion to suppress the evidence obtained as a result of the
blood draw. Because it does not, I respectfully dissent.




                                          /s/    Kem Thompson Frost
                                                 Chief Justice

Panel consists of Chief Justice Frost, Justices Donovan and Brown. (Brown, J.,
majority).
Publish—TEX. R. APP. P. 47.2(b)
       54
          Perez v. State, No. —S.W.3d—, 2014 WL 943126, at *7 (Tex. App.—Houston [1st
Dist.] Mar. 11, 2014, no pet.).
       55
           See Weems v. State, 434 S.W.3d 655, 659–64 (Tex. App.—San Antonio 2014 pet.
granted); Reeder v. State, 428 S.W.3d 924, 929 (Tex. App.—Texarkana 2014, pet. granted);
State v. Villarreal, —S.W.3d—, No. 13-13-00253-CR, 2014 WL 1257150, at *10 (Tex. App.—
Corpus Christi Jan. 23, 2014, pet. granted); State v. Sutherland, 436 S.W.3d 28, 39-41 (Tex.
App.—Amarillo 2014, pet. filed); State v. Anderson, —S.W.3d—, No. 09-13-00400-CR, 2014
WL 5033262, at *8-11 (Tex. App.—Beaumont Oct. 8, 2014, no pet. h.).

                                            15
