                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-13-00764-CR

                                        Dorothy MARTINEZ,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 226th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2013CR2599
                               Honorable Sid L. Harle, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: November 12, 2014

REVERSED AND REMANDED

           After the trial court denied Dorothy Martinez’s motion to suppress, she entered into a plea

agreement with the State. Martinez pled no contest to one count of operating a motor vehicle while

intoxicated with a child passenger, and the trial court imposed sentence pursuant to the plea

agreement. On appeal, Martinez argues the trial court erred in denying her motion to suppress

evidence obtained from a warrantless blood draw. We agree with Martinez and therefore reverse

the judgment and remand the case for a new trial.
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                                                   BACKGROUND

           San Antonio Police Officer Carlos Ortiz testified at the hearing on the motion to suppress

that he was on patrol the evening of December 1, 2012. At around 7:20 p.m., he saw Martinez

commit several traffic violations and he initiated a traffic stop. Officer Ortiz immediately saw that

there were three unbelted young children in the back seat and an open beer container in the center

console of the car. Officer Ortiz testified Martinez was slow to respond, had a slight smell of

intoxicants on her breath, and her eyes were glassy. Officer Ortiz called his partner Officer

Humberto Rios for assistance in conducting a DWI examination.

           Officer Rios asked Martinez to get out of the car. He testified that Martinez told him she

had consumed five beers and admitted the open can of beer in the car belonged to her. She told

him she had started drinking several hours earlier and stopped drinking when Officer Ortiz pulled

her over. He testified he performed the standard field sobriety tests on Martinez and concluded

that she was impaired. At that time he decided to arrest her for driving while intoxicated with

passengers under the age of fifteen. 1

           When Officer Rios and Martinez arrived at the magistrate’s office, Officer Rios asked if

she would voluntarily provide a specimen of her breath or blood and she refused. Officer Rios

told Martinez he was going to take a blood specimen regardless of her consent, and testified he

was authorized to do so by section 724.012 of the Transportation Code. On cross-examination,

Officer Rios testified that when a person arrested for driving while intoxicated refuses to provide

a breath or blood specimen, department policy is for the officer to prepare a warrant affidavit, take

it to an assistant district attorney, and then present it to the magistrate, who issues a warrant.

Officer Rios testified this is something he does on a regular basis and the procedures are set up so



1
    The children were released to another adult who had been in the car with Martinez.

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that a warrant may be obtained fairly quickly. He testified he has obtained more than one hundred

such warrants and, depending on how busy it is, it generally takes between thirty minutes and one

hour. Officer Rios testified that in none of those cases has the arrestee “become unintoxicated”

during the time it took to obtain a warrant. Officer Rios testified that he could have obtained a

warrant in this case, but did not do so because, due to the offense Martinez was being charged

with, “it’s automatically a blood draw.” Officer Rios testified there were no circumstances in this

case that caused him to fear that obtaining a warrant would take too long and might result in the

specimen not accurately showing the alcohol in Martinez’s system.

       At the conclusion of the hearing, the State argued that the following facts showed exigent

circumstances justifying the warrantless blood draw: that there were three young children in the

car; that one hour and twenty-five minutes elapsed between the stop and the time Martinez’s blood

was drawn; and that it would have taken thirty minutes to an hour more for Officer Rios to obtain

a warrant. The State argued alternatively that the warrantless blood draw is authorized by section

724.012(b)(2) of the Transportation Code and that Officer Rios acted in good faith in reliance on

the statute. The trial court denied the motion to suppress.

                                           DISCUSSION

       Section 724.012(b)(2) of the Transportation Code provides that a peace officer “shall

require the taking of a specimen of the person’s breath or blood” if the officer arrests the person

for an offense under section 49.045 of the Penal Code and the person refuses to voluntarily submit

to the taking of a specimen. TEX. TRANSP. CODE ANN. § 724.012(b)(2) (West 2011). Section

49.045 of the Penal Code provides it is a state jail felony offense to operate a vehicle in a public

place while intoxicated with a passenger who is younger than fifteen. TEX. PENAL CODE ANN.

§ 49.045 (West 2011).



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       Martinez contends that obtaining a specimen of her blood without a warrant violated her

rights under the Fourth Amendment to the United States Constitution. She argues the court erred

in denying her motion to suppress because she did not consent to the draw, there were not exigent

circumstances or any other valid exception to the warrant requirement present, and section

724.012(b)(2) of the Transportation Code is not a constitutional exception to the Fourth

Amendment warrant requirement. The State’s brief does not discuss any of the facts of this case

and does not argue that any well-recognized exception to the warrant requirement applies in this

case. The State’s brief is identical to the brief it filed in this court on remand in Aviles v. State,

No. 04-11-00877-CR, 2014 WL 3843756 (Tex. App.—San Antonio Aug. 6, 2014, pet. filed), and

argues that a warrantless, nonconsensual blood draw taken solely on the authority of section

724.012(b)(2) is constitutional, even in the absence of exigent circumstances.

       In Weems v. State, 434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted), we held

Texas’s implied consent and mandatory blood draw statutes fail to consider the totality of the

circumstances present in each case and create categorical or per se exceptions to the Fourth

Amendment warrant requirement that the United States Supreme Court rejected in Missouri v.

McNeely, 133 S.Ct. 1552 (2013). Weems, 434 S.W.3d at 665-66; see TEX. TRANSP. CODE ANN.

§§ 724.011(a), 724.012(b)(2), 724.013 (2011). We concluded that section 724.012(b) is not a valid

exception to the Fourth Amendment’s warrant requirement, and that a warrantless blood draw must

be based on a well-recognized exception to the Fourth Amendment. Weems, 434 S.W.3d at 665.

For the reasons we expressed in Weems and Aviles, we hold section 724.012(b)(2) is not a valid

exception to the Fourth Amendment warrant requirement, and results of a nonconsensual blood

draw obtained without a warrant may not be admitted based solely on the statute or on the officer’s

“good faith” reliance on the statute. See Aviles, 2014 WL 3843756, at *2-3; Weems, 434 S.W.3d

at 665-67. We hold the State did not establish exigent circumstances or any other valid exception
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to the warrant requirement, and conclude the blood draw violated Martinez’s rights under the

Fourth Amendment. The trial court therefore erred in denying her motion to suppress.

       Because the erroneous denial of the motion to suppress “contributed in some measure to

the State’s leverage in the plea bargaining process,” we cannot say beyond a reasonable doubt that

the trial court’s error in denying the motion to suppress did not contribute to Martinez’s decision

to plead no contest and to her conviction. See McKenna v. State, 780 S.W.2d 797, 800 (Tex. Crim.

App. 1989); TEX. R. APP. P. 44.2(a).

       We therefore reverse the trial court’s judgment and remand the case to the trial court for a

new trial.


                                                 Luz Elena D. Chapa, Justice

Do not publish




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