                                Fourth Court of Appeals
                                       San Antonio, Texas
                                                OPINION
                                           No. 04-13-00366-CR

                                          Daniel James WEEMS,
                                                 Appellant

                                                  v.
                                             The STATE of
                                          The STATE of Texas,
                                                Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR6570
                              Honorable Sid L. Harle, Judge Presiding 1

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 14, 2014

REVERSED AND REMANDED

           At issue in this appeal is whether the warrantless blood draw administered to Daniel James

Weems violated his rights under the Fourth Amendment to the Constitution. Because we hold that

Weems’s rights under the Fourth Amendment were violated, we reverse the judgment of the trial

court and remand for a new trial.




1
  The Honorable Sid Harle signed the trial court’s judgment. The Honorable George Goodwin, sitting as a visiting
judge, presided over the trial.
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                                          BACKGROUND

       Weems was charged with the felony offense of driving while intoxicated with a “repeat

felony offender” enhancement allegation. At trial, the arresting officer, Jimmy Bustamante of the

Bexar County Sheriff’s Office, testified that on June 4, 2011, around midnight, he was dispatched

for a major automobile crash. A vehicle had hit a telephone pole and was turned upside down on

its roof. Witnesses reported that the driver, who was wearing a Harley Davidson shirt and tan pants,

ran from the scene. The passenger of the vehicle had been transported to the hospital by ambulance.

       The driver, Weems, was found about a quarter mile east from the crash site hiding

underneath a car. Weems had cuts, scrapes, and bruises consistent with the crash. Officer

Bustamante testified that a strong odor of alcohol emanated from his breath, and Weems had

bloodshot eyes. Weems was unsteady and swaying, and had slurred speech. The officer handcuffed

Weems and read the DIC-24 form requesting a breath or blood specimen. Weems refused to

provide a specimen. According to Officer Bustamante, no field sobriety tests were performed

because Weems had been involved in a car crash and was complaining of back and neck pains.

Because of his medical complaints, Weems was transported to the hospital, and a mandatory blood

draw was taken there, instead of at the San Antonio Magistrate’s Office. No warrant was procured

for the blood draw. Officer Bustamante testified that a mandatory blood draw was taken because

Weems was driving a car involved in a crash and the passenger was injured. According to Officer

Bustamante, two to three hours passed between the time of the crash and the time a specimen of

Weems’s blood was taken.

       The passenger of the car, Scott Noland, also testified. According to Noland, on June 4,

2011, he and Weems had been drinking beer and working on Weems’s car. At around 10:45 p.m.,

they went down the street to a bar. Weems drove. At the bar, they each had two mixed drinks.

They left the bar around 11:30 p.m., intending to go back to Weems’s home. Weems was driving
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the car when “he slowly started to veer off the road” and a “second later we were just tumbling

around and spinning around and the accident happened.” The vehicle “had flipped over on to its

roof” and “the front end of the car was facing towards the road.” Noland got out of the car, and

some people who had been passing by helped him to sit down. Noland testified that Weems also

got out of the car and then he noticed that Weems had left the scene. At the hospital, Noland “had

to get some stiches and staples on the side of [his] head.”

          Veronica Hargrove, who is employed at the Bexar County Medical Examiner’s Office in

the toxicology lab, testified that at 2:30 a.m., Weems’s blood ethanol concentration was 0.18 grams

per deciliter. According to Hargrove, on average, a person eliminates alcohol at about 0.02 grams

per deciliter per hour. So, on average, a person who was at 0.18 at 2:30 a.m. and did not drink any

additional alcohol would have had a blood ethanol concentration of 0.24 at 11:30 p.m. Hargrove

testified that because Weems took his last drink at around 11:30 p.m. and his blood was drawn at

2:30 a.m., if he “only had a couple of drinks at 11:30, it would be unlikely that [he was] below

0.08” at the time of the accident. Hargrove estimated that Weems had consumed about twelve

drinks.

          After hearing the evidence, the jury found Weems guilty of driving while intoxicated.

Weems appeals.

                                              DISCUSSION

          Weems argues the trial court erred in failing to suppress the results of the warrantless blood

draw. Before trial, Weems filed a pretrial motion to suppress, but there was no pretrial hearing and

the trial court did not rule on the pretrial motion. Before Hargrove testified during trial, however,

Weems moved to suppress any evidence related to the blood draw, explaining that the Supreme




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Court had that day issued its opinion in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The trial

court declined to suppress any evidence. 2

    A. Warrantless searches are not reasonable under the Fourth Amendment unless they fall
       within a recognized exception to the warrant requirement.

         The Fourth Amendment provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause.” U.S. CONST. amend. IV. The

Supreme Court has held that a warrantless search of the person is reasonable only if it falls within

a recognized exception. See, e.g., McNeely, 113 S. Ct. at 1558; United States v. Robinson, 414

U.S. 218, 224 (1973). Exigent circumstances is one such well-recognized exception. McNeely, 113

S. Ct. at 1558. The State argues in this case that the statutory scheme found in the Texas

Transportation Code, which implies consent of a driver and mandates blood draws under certain

scenarios, is “a reasonable substitute” for the Fourth Amendment’s warrant requirement. In other

words, it argues that this statutory scheme should be considered an exception to the warrant

requirement. We hold that it is not.

    B. Does Texas’s implied consent and mandatory blood draw statutory scheme constitute an
       exception to the Fourth Amendment’s warrant requirement?

         The implied consent statute, found in section 724.011(a) of the Texas Transportation Code

provides the following:

         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
         watercraft, while intoxicated . . ., 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


2
 On appeal, the State argues Weems did not preserve this issue for appeal. We disagree and hold that Weems preserved
the issue by arguing his suppression motion before Hargrove testified. See Everitt v. State, 407 S.W.3d 259, 263 (Tex.
Crim. App. 2013) (criticizing the court of appeals’s “parsing of appellant’s objections” as “the kind of hyper-technical
analysis that we have repeatedly rejected”).

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       in the person’s body of a controlled substance, drug, dangerous drug, or other
       substance.

TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011). Section 724.013, in turn, states that “[e]xcept

as provided by section 724.012(b), a specimen may not be taken if a person refuses to submit to

the taking of a specimen designated by a peace officer.” Id. § 724.013. Section 724.012(b) requires

a peace officer to take a specimen of a person’s breath or blood, even if the person refuses, if the

person is arrested for an intoxication offense under chapter 49 of the Penal Code involving the

operation of a motor vehicle or watercraft and

       (1) the person was the operator of a motor vehicle or a watercraft involved in an accident
           that the officer reasonably believes occurred as a result of the offense and, at the time
           of the arrest, the officer reasonably believes that as a direct result of the accident: (A)
           an individual has died or will die; (B) an individual other than the person has suffered
           serious bodily injury; or (C) an individual other than the person has suffered bodily
           injury and been transported to a hospital or other medical facility for medical treatment;

       (2) the offense for which the officer arrests the person is [driving while intoxicated with a
           child passenger]; or

       (3) at the time of the arrest, the officer possesses or receives reliable information from a
           credible source that the person (A) has been previously convicted of or placed on
           community supervision for [driving while intoxicated with a child passenger,
           intoxication assault, or intoxication manslaughter]; or (B) has been on two or more
           occasions previously convicted of or placed on community supervision for [driving
           while intoxicated, flying while intoxicated, boating while intoxicated, or assembling or
           operating an amusement ride while intoxicated].

Id. § 724.012(b). In this case, Officer Bustamante testified that the blood draw was administered

because a person other than Weems suffered bodily injury and was transported to a hospital for

medical attention. The State also points out that the THP-51 form, which was admitted in evidence,

indicates that the blood draw was also ordered because Weems had two prior DWI convictions.

       In support of its argument that the warrantless blood draw was reasonable pursuant to the

implied consent and mandatory blood draw statutes, the State relies on the following dicta from

Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002):

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       The implied consent law does just that–it implies a suspect’s consent to a search in
       certain instances. This is important when there is no search warrant, since it is
       another method of conducting a constitutionally valid search. On the other hand, if
       the State has a valid search warrant, it has no need to obtain the suspect’s consent.

       The implied consent law expands on the State’s search capabilities by providing a
       framework for drawing DWI suspects’ blood in the absence of a search warrant. It
       gives officers an additional weapon in their investigative arsenal, enabling them to
       draw blood in certain limited circumstances even without a search warrant.

Id. (emphasis added). Although this language is dicta, the Texas Court of Criminal Appeals did

recognize in Beeman that the implied consent statute expanded the State’s authority to draw a DWI

suspect’s blood in the absence of a warrant.

       We relied on this dicta in Beeman in Aviles v. State, 385 S.W.3d 110, 116 (Tex. App.—

San Antonio 2012), vacated, 134 S. Ct. 902 (2014), where we held that a warrantless blood draw

of a DWI suspect that was conducted according to the prescriptions of the Transportation Code

did not violate the suspect’s rights under the Fourth Amendment. In so holding, we first quoted

the dicta in Beeman for the proposition that the implied consent law allows officers to draw blood

“in certain limited circumstances even without a search warrant.” Id. at 115. We reasoned that

“[t]his situation, as outlined in section 724.012, is one of the ‘circumstances’ the Texas Court of

Criminal Appeals has held where blood may be drawn without a search warrant.” Id. at 116 (citing

Beeman, 86 S.W.3d at 616). We concluded that whether the officer could have obtained a warrant

before authorizing the blood draw was “immaterial given the mandate of section

724.012(b)(3)(B).” Id. at 116. Thus, we held that “the warrantless seizure of Aviles’s blood was

conducted according to the prescriptions of the Transportation Code, and without violating

Aviles’s Fourth Amendment rights.” Id. The Texas Court of Criminal Appeals denied Aviles’s

petition for discretionary review. However, on January 13, 2014, the Supreme Court granted




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certiorari and vacated our judgment. Aviles v. State, 134 S. Ct. 902 (2014). It then remanded the

case to this court “for further consideration in light of Missouri v. McNeely.” Id.

    C. The Supreme Court’s decision in McNeely prohibits per se rules that justify an exception
       to the Fourth Amendment’s warrant requirement.

         In McNeely, 133 S. Ct. at 1556, the Supreme Court addressed “whether the natural

metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception

to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-

driving cases.” The Court concluded that it did not and rejected the State’s suggested per se rule.

Id. Instead, the Court held that “consistent with general Fourth Amendment principles,” “exigency

in this context must be determined case by case based on the totality of the circumstances.” 3 Id.

         McNeely dealt with a typical DWI traffic stop where the driver, McNeely, failed field-

sobriety tests and refused to use a portable breath-test device to measure his blood-alcohol

concentration (BAC). Id. at 1557. After McNeely was placed under arrest for DWI, he was taken

to a nearby hospital for blood testing. No warrant was obtained. Id. Less than thirty minutes after

McNeely was first stopped by the officer, his blood was taken without his consent by a hospital

lab technician. Id. The results of the blood test measured McNeely’s BAC at 0.154. Id.



3
  Justice Sotomayor was the author of McNeely. Parts I, II-A, II-B, and IV of the opinion were joined by Justices
Scalia, Kennedy, Ginsburg, and Kagan and thus constitute the majority opinion of the Court. Parts II-C and III were
joined only by Justices Scalia, Ginsburg, and Kagan and thus constitute a plurality opinion. Justice Kennedy wrote a
separate concurrence. Chief Justice Roberts wrote an opinion concurring in part and dissenting in part, which was
joined by Justices Breyer and Alito. Justice Thomas wrote a dissenting opinion. The plurality portions of McNeely are
directed toward Chief Justice Robert’s opinion that he would adopt a per se rule, just a different one from the State.
In Part III of McNeely, the plurality notes that the general importance of the government’s interest in eradicating DWI
“does not justify departing from the warrant requirement without showing exigent circumstances that make securing
a warrant impractical in a particular case.” McNeely, 133 S. Ct. at 1565. The plurality notes that states have a “broad
range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless
nonconsensual blood draws.” Id. at 1566. As an example, the plurality notes that all fifty states “have adopted implied
consent laws that require motorists, as a condition of operating a motor vehicle within the [s]tate, to consent to BAC
testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.” Id. “Such laws impose
significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately
suspended or revoked, and most [s]tates allow the motorist’s refusal to take a BAC test to be used as evidence against
him in a subsequent criminal prosecution.” Id. Thus, the states have tools to combat drunk driving without having to
resort to nonconsensual blood draws. See id.

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        McNeely moved to suppress the blood test results, arguing the warrantless blood draw

violated his rights under the Fourth Amendment. Id. The State argued the exigency exception to

the warrant requirement applied. Id. The Supreme Court “granted certiorari to resolve a split of

authority on the question 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.” Id. at 1558.

        The Court first emphasized that in Schmerber v. California, 384 U.S. 757 (1966), it had

concluded (1) the warrant requirement applied generally to searches that intrude into the human

body, and (2) absent an exception to the warrant requirement, a compelled blood draw was

unconstitutional. See McNeely, 133 S. Ct. at 1558-59 (discussing Schmerber). The McNeely Court

stressed that in holding the exigency exception to the warrant requirement authorized the

warrantless compelled blood draw, the Court in Schmerber looked at the totality of circumstances.

Id. at 1559. Thus, the McNeely Court emphasized that its analysis in Schmerber fit “comfortably

within [its] case law applying the exigent circumstances exception.” Id. at 1560. The Court

explained that “[i]n finding the warrantless blood test reasonable in Schmerber, [it had] considered

all of the facts and circumstances of the particular case and carefully based [its] holding on those

specific facts.” Id.

        After reaffirming its holding in Schmerber, which it emphasized was based on the totality

of the circumstances presented in that case, the McNeely Court then criticized the State for

proposing a per se rule: “The State contends that whenever an officer has probable cause to believe

an individual has been driving under the influence of alcohol, exigent circumstances will

necessarily exist because BAC evidence is inherently evanescent.” Id. “As a result, the State claims

that so long as the officer has probable cause and the blood test is conducted in a reasonable

manner, it is categorically reasonable for law enforcement to obtain the blood sample without a
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warrant.” Id. (emphasis added). The Court recognized that “as a result of the human body’s natural

metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is

fully absorbed and continues to decline until the alcohol is eliminated.” Id. Thus, “because an

individual’s alcohol level gradually declines soon after he stops drinking, a significant delay in

testing will negatively affect the probative value of the results.” Id. at 1561. The Court emphasized

that this “fact was essential” to its holding in Schmerber, as it had recognized in Schmerber “that,

under the circumstances, further delay in order to secure a warrant after the time spent investigating

the scene of the accident and transporting the injured suspect to the hospital to receive treatment

would have threatened the destruction of evidence.” Id. But, the Court concluded that it did not

follow that it “should depart from careful case-by-case assessment of exigency and adopt the

categorical rule proposed by the State and its amici.” Id. (emphasis added). According to the

Court, “[i]n those drunk-driving investigations where police officers can reasonably obtain a

warrant before a blood sample can be drawn without significantly undermining the efficacy of the

search, the Fourth Amendment mandates that they do so.” Id. While the Court did “not doubt that

some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol

from the bloodstream will support an exigency justifying a properly conducted warrantless blood

test,” such circumstances are reasons “to decide each case on its facts,” “not to accept the

considerable overgeneralization that a per se rule would reflect.” Id. (citations omitted).

       The Court stressed that unlike “circumstances in which the suspect has control over easily

disposable evidence,” “BAC evidence from a drunk-driving suspect naturally dissipates over time

in a gradual and relatively predictable manner.” Id. “Moreover, because a police officer must

typically transport a drunk-driving suspect to a medical facility and obtain the assistance of

someone with appropriate medical training before conducting a blood test, some delay between



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the time of the arrest or accident and the time of the test is inevitable regardless of whether police

officers are required to obtain a warrant.” Id.

       The Court further emphasized that the State’s proposed per se rule “fails to account for

advances in the 47 years since Schmerber was decided that allow for the more expeditious

processing of warrant applications, particularly in contexts like drunk-driving investigations where

the evidence offered to establish probable cause is simple.” Id. at 1561-62. “Well over a majority

of [s]tates allow police officers or prosecutors to apply for search warrants remotely through

various means, including telephonic or radio communication, electronic communication such as

e-mail, and video conferencing.” Id. at 1562. “And in addition to technology-based developments,

jurisdictions have found other ways to streamline the warrant process, such as by using standard-

form warrant applications for drunk-driving investigations.” Id. The Court explained that it was

“by no means” claiming that “telecommunications innovations have, will, or should eliminate all

delay from the warrant-application process.” Id. “Warrants inevitably take some time for police

officers or prosecutors to complete and for magistrate judges to review.” Id. “But technological

developments that enable police officers to secure warrants more quickly, and do so without

undermining the neutral magistrate judge’s essential role as a check on police discretion, are

relevant to an assessment of exigency.” Id. at 1562-63. “That is particularly so in this context,

where BAC evidence is lost gradually and relatively predictably.” Id. at 1563. The Court concluded

with the following: “In short, while the natural dissipation of alcohol in the blood may support a

finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically.” Id.

(emphasis added). “Whether a warrantless blood test of a drunk-driving suspect is reasonable must

be determined case by case based on the totality of the circumstances.” Id. (emphasis added).

       In considering the totality of circumstances in its case, the McNeely Court noted that the

State had relied on a per se, categorical approach and had not created a record supporting exigency
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in this particular case. “In his testimony before the trial court, the arresting officer did not identify

any other factors that would suggest he faced an emergency or unusual delay in securing a

warrant.” Id. at 1567. “He testified that he made no effort to obtain a search warrant before

conducting the blood draw even though he was ‘sure’ a prosecuting attorney was on call and even

though he had no reason to believe that a magistrate judge would have been unavailable.” Id. “The

officer also acknowledged that he had obtained search warrants before taking blood samples in the

past without difficulty.” Id. “He explained that he elected to forgo a warrant application in this

case only because he believed it was not legally necessary to obtain a warrant.” Id. The Court noted

that factors present “such as the procedures in place for obtaining a warrant or the availability of a

magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and

therefore may establish an exigency that permits a warrantless search.” Id. at 1568. “The relevant

factors in determining whether a warrantless search is reasonable, including the practical problems

of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable

evidence, will no doubt vary depending upon the circumstances in the case.” Id.

        The Court reasoned that “[b]ecause this case was argued on the broad proposition that

drunk-driving cases present a per se exigency, the arguments and the record do not provide the

Court with an adequate analytic framework for a detailed discussion of all the relevant factors that

can be taken into account in determining the reasonableness of acting without a warrant.” Id. The

Court concluded with its holding that “in drunk-driving investigations, the natural dissipation of

alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify

conducting a blood test without a warrant.” Id.




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        C. In light of McNeely, Texas’s implied consent and mandatory blood draw statutory
           scheme cannot be considered an exception to the Fourth Amendment’s warrant
           requirement.

        We must now consider the effect the Supreme Court’s decision to remand Aviles in light

of McNeely has on our holding in Aviles that a warrantless blood draw of a DWI suspect, which

was conducted according to the prescriptions of the Transportation Code, does not violate the

suspect’s rights under the Fourth Amendment. This determination necessarily affects the result in

this case.

        The State urges that the facts of McNeely differ from those presented in Aviles. Indeed,

there are factual distinctions to be made between Aviles and McNeely. Aviles concerned Texas’s

implied consent and mandatory blood draw statutes while McNeely concerned the exigency

exception to the warrant requirement. And, before Aviles was vacated and remanded in light of

McNeely, many courts of appeal had made such a factual distinction, holding that because McNeely

concerned the exigency exception, it was not applicable to the implied consent and mandatory

blood draw statutes. See Reeder v. State, No. 06-13-00126-CR, 2014 WL 60162 (Tex. App.—

Texarkana Jan. 8, 2014, reh’g granted) (reasoning that McNeely did not apply to mandatory blood

draw statute because McNeely dealt with the exigent circumstances exception to the warrant

requirement); Smith v. State, No. 13-11-00694-CR, 2013 WL 5970400 (Tex. App.—Corpus

Christi Oct. 13, 2013, op. withdrawn & appeal resubmitted) (reasoning McNeely did not invalidate

Texas’s implied consent statute but merely clarified the exigency exception). Once Aviles was

remanded in light of McNeely, these courts decided to reconsider their previous opinions. See

Reeder, 2014 WL 60162 (motion for rehearing granted); Smith, 2013 WL 5970400 (opinion

withdrawn and appeal resubmitted). We conclude that McNeely’s prohibition on per se,

categorical exceptions to the Fourth Amendment’s warrant requirement did not solely apply to the

exigency exception, but also applies to the facts presented in Aviles.
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       One of our sister courts has recently come to the same conclusion. In Sutherland v. State,

No. 07-12-00289-CR, 2014 WL 1370118, at *1-2 (Tex. App.—Amarillo Apr. 7, 2014, no pet. h.),

the appellant was arrested for DWI and taken for a warrantless blood draw pursuant to section

724.012(b)(3)(B) of the mandatory blood draw statute. The appellant argued that regardless of

section 724.012(b)(3)(B)’s mandatory language, the Fourth Amendment requires that a

warrantless search be supported by an established exception to the warrant requirement. Id. at *2.

The Amarillo Court of Appeals noted that some courts of appeal “had relied on the implied-consent

principles in Aviles to distinguish the exigent-circumstances principles of McNeely from those

cases at bar examining mandatory blood draws under section 724.012(b)(3)(B).” Id. at *8. It

emphasized that such reliance on Aviles ended when it was vacated and remanded for further

consideration in light of McNeely. Id. From the Supreme Court’s action, the Amarillo Court of

Appeals concluded that distinguishing McNeely based on the fact that it involved exigent

circumstances and not a mandatory blood draw statute was no longer a viable position. Id. The

court of appeals reasoned that “[b]y vacating and remanding Aviles, it would seem that the United

States Supreme Court has rejected any position that would treat section 724.012(b)(3)(B) as an

exception to the Fourth Amendment, separate and apart from the traditional, well-established

exceptions.” Id. The court concluded that “regardless of the mandatory tone of section

724.012(b)(3)(B)’s directive to officers, it appears there must still be exigent circumstances that

would justify a warrantless search of the suspect’s blood.” Id.

       Similarly, the Corpus Christi Court of Appeals held in State v. Villarreal, No. 13-13-00253-

CR, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan. 23, 2014, no pet. h.), that while

the mandatory blood draw statute “required the officer to obtain a breath or blood sample, it did

not require the officer to do so without first obtaining a warrant.” The court noted that the

mandatory blood draw statute “does not address or purport to dispense with the Fourth
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Amendment’s warrant requirement for blood draws.” Id. The court further stressed that neither the

Supreme Court nor the Texas Court of Criminal Appeals had “recognized the repeat offender

provision of the mandatory blood draw law . . . as a new exception to the Fourth Amendment’s

warrant requirement separate and apart from the consent exception and the exception for exigent

circumstances.” Id. Thus, the court concluded “that the constitutionality of the repeat offender

provision of the mandatory blood draw law must be based on the previously recognized exceptions

to the Fourth Amendment’s warrant requirement.” Id.

       We agree with both the Amarillo and the Corpus Christi Court of Appeals that the implied

consent and mandatory blood draw statutes are not exceptions to the Fourth Amendment’s warrant

requirement. The State urges that we balance the public and private interests that are implicated in

serious DWI cases and find that Texas’s mandatory blood draw statute, section 724.012(b), is a

reasonable substitute for the Fourth Amendment’s warrant requirement. McNeely, however,

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 the circumstances presented in each case. See McNeely, 133 S. Ct. at 1560-63. Texas’s

implied consent and mandatory blood draw statutes clearly create such categories or per se rules

that the Supreme Court proscribed in McNeely. See TEX. TRANSP. CODE ANN. §§ 724.011(a),

724.012(b). These statutes do not take into account the totality of the circumstances present in each

case, but only consider certain facts. See id. Thus, we hold that the implied consent and mandatory

blood draw statutory scheme found in the Transportation Code are not exceptions to the warrant

requirement under the Fourth Amendment. To be authorized, the State’s warrantless blood draw

of Weems must be based on a well-recognized exception to the Fourth Amendment.




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       D. Did exigent circumstances justify the warrantless blood draw?

       As an alternative argument, the State also argues that exigent circumstances existed in this

case to support the warrantless blood draw under the totality of the circumstances. We disagree.

As in McNeely, this record does not support exigent circumstances, as this record was based on

the officer relying on the mandatory blood draw and implied consent statutes to authorize the blood

draw. See McNeely, 133 S. Ct. at 1567 (explaining because the State had relied on a per se

approach, “the arresting officer did not identify any other factors that would suggest he faced an

emergency or unusual delay in securing a warrant”). The State argues that because this case

involved an accident, these facts are like those found permissible in Schmerber. However, as noted

in McNeely, much technological advancement has occurred since Schmerber was decided in 1966.

See McNeely, 133 S. Ct. at 1561-62. In this case, the arresting officer testified that (1) he made no

effort to obtain a warrant; (2) there were other officers present at the scene; (3) there was an

accident, (4) the passenger was injured and taken to the hospital, and (5) the driver also complained

of being injured and was taken to the hospital. The officer testified that because the hospital was

busy with accident victims that night, it took three hours for blood to be drawn from Weems. The

record also reflects that Weems was arrested in San Antonio, a large city. The record, however,

does not reflect other factors that would be relevant under the totality of the circumstances,

including “procedures in place for obtaining a warrant or the availability of a magistrate judge”

and “the practical problems of obtaining a warrant within a timeframe that still preserves the

opportunity to obtain reliable evidence.” McNeely, 133 S. Ct. at 1568. Therefore, this record does

not show that under the totality of the circumstances, the warrantless blood draw was justified by

the exigency circumstances exception to the Fourth Amendment’s warrant requirement.




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        E. Good Faith of Officer

        Finally, the State argues that the evidence should not be excluded pursuant to the federal

exclusionary rule or pursuant to article 38.23 of the Texas Code of Criminal Procedure because

the arresting officer relied on the implied consent statute and mandatory blood draw statute in good

faith. Under the federal exclusionary rule, if a law enforcement officer relies in good faith on a

statute authorizing his warrantless search and the statute is later determined to be unconstitutional,

the exclusionary rule does not apply. Illinois v. Krull, 480 U.S. 340, 342, 355 (1987). However,

constraints do apply to the exception to the exclusionary rule. “A statute cannot support objectively

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

enact constitutional laws.” Id. at 355. “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.

        First, we note that the implied consent and mandatory blood draw statutes do not explicitly

provide for a warrantless search. See Villarreal, 2014 WL 1257150, at * 11 (explaining that the

mandatory blood draw statute “does not address or purport to dispense with the Fourth

Amendment’s warrant requirement for blood draws”). Second, we note 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. 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). It says nothing about

an officer’s reliance in good faith on a statute. Therefore, we hold that the exclusionary rule applies

in this case.




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       F. Harm

       Because the warrantless mandatory blood draw violated Weems’s rights under the Fourth

Amendment, we must reverse the judgment unless we determine beyond a reasonable doubt that

the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a). The jury was

instructed the following in this case:

       “Intoxicated” means not having the normal use of mental or physical faculties by
       reason of the introduction of alcohol, a controlled substance, a drug, a dangerous
       drug, a combination of two or more of those substances, or any other substance into
       the body; or having an alcohol concentration of 0.08 or more.

(emphasis added). Veronica Hargrove of the Bexar County Medical Examiner’s Office testified

that Weems’s blood ethanol concentration was 0.18 grams per deciliter at 2:30 a.m. According to

Hargrove, on average, a person who was at 0.18 at 2:30 a.m. and did not drink any more alcohol

would have a blood ethanol concentration of 0.24 at 11:30 p.m. Hargrove testified that because

Weems took his last drink at around 11:30 p.m. and his blood was drawn at 2:30 a.m., if he “only

had a couple of drinks at 11:30 p.m., it would be unlikely that [he was] below 0.08” at the time of

the accident. Given this testimony and the jury’s instruction, we cannot determine beyond a

reasonable doubt that the error did not contribute to Weems’s conviction.

                                          CONCLUSION

       Because the warrantless blood draw violated Weems’s rights under the Fourth Amendment

and because we cannot determine beyond a reasonable doubt that the erroneous admission of the

results of the blood draw did not contribute to his conviction, we reverse the judgment of the trial

court and remand the cause for a new trial.


                                                  Karen Angelini, Justice

PUBLISH


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