                              Fourth Court of Appeals
                                     San Antonio, Texas
                                              OPINION
                                        No. 04-11-00877-CR

                                          Antonio AVILES,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011CR7244
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 6, 2014

REVERSED AND REMANDED

           On original submission, this court held the trial court did not err in denying appellant

Antonio Aviles’s motion to suppress the blood specimen drawn pursuant to section

724.012(b)(3)(B) of the Texas Transportation Code. Aviles v. State, 385 S.W.3d 110, 116 (Tex.

App.—San Antonio 2012), vacated, 134 S.Ct. 902 (2014). Relying upon Beeman v. State, 86

S.W.3d 613, 616 (Tex. Crim. App. 2002), we held section 724.012(b)(3)(B) permits a police

officer to take a blood specimen from DWI suspect without a warrant if the officer has credible
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information that the suspect has been previously convicted on at least two prior occasions of DWI.

Id.

        Aviles sought review in the Texas Court of Criminal Appeals, but that court refused his

petition. Thereafter, Aviles filed a petition for writ of certiorari in the United States Supreme

Court. The Supreme Court granted the petition, vacated our judgment, and remanded the matter

to us for further consideration in light of the Court’s opinion in Missouri v. McNeely, 133 S.Ct.

1552 (2013). Aviles v. Texas, 134 S.Ct. 902, 902 (2014). After reviewing the denial of the motion

to suppress in light of McNeely, we reverse the trial court’s judgment and remand the matter to the

trial court for a new trial.

                                           BACKGROUND

        Aviles was arrested for DWI. Prior to trial, Aviles filed a motion to suppress the blood

specimen taken without a warrant. At the hearing on the motion, the State presented one witness,

the arresting officer, Joe Rios.

        At the hearing, Officer Rios testified that on the night of the arrest, he saw a pickup truck

veer across several lane markers. As he neared the truck, it again crossed the lane markers, veering

into his lane. Because of the driver’s erratic handling of the truck, Officer Rios suspected the

driver was intoxicated. Accordingly, the officer stopped the vehicle.

        After he pulled the vehicle over and made contact with the driver, later identified as Aviles,

Officer Rios noticed Aviles had bloodshot eyes, slurred speech, and was unsteady on his feet when

he exited the truck. The officer asked Aviles to perform three standardized field sobriety tests —

the horizontal gaze nystagmus (“HGN”), the walk-and-turn, and the one-leg-stand.               Aviles

complied and Officer Rios testified Aviles exhibited signs of intoxication on each test. Based on

his erratic driving, appearance, and performance on the three field sobriety tests, Officer Rios

arrested Aviles for DWI.
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       After the arrest, the officer used his mobile laptop to determine if Aviles had prior offenses.

He discovered Aviles had two prior DWI convictions. Officer Rios asked Aviles if he would

voluntarily give a breath or blood sample. When Aviles declined, Officer Rios, relying on section

724.012 of the Texas Transportation Code, took Aviles to a nurse assigned to the City of San

Antonio magistrate’s office and required him to give a blood sample. Section 724.012(b)(3)(B)

states: “[a] peace officer shall require the taking of a specimen of the person’s breath or blood

under any of the following circumstances . . . [for example, if] at the time of the arrest, the officer

possesses or receives reliable information from a credible source that the person[,] on two or more

occasions, has been previously convicted of or placed on community supervision for an offense

under Section 49.04 [DWI] . . . Penal Code.” TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West

2011). The blood specimen showed Aviles was legally intoxicated.

       After hearing the evidence, the trial court denied Aviles’s motion to suppress. Thereafter,

Aviles pled nolo contendere to the charge of DWI and was sentenced to two years’ confinement.

Aviles appealed, contending the trial court erred in denying his motion to suppress.

       As noted above, in the original appeal to this court, we affirmed the trial court’s judgment,

holding the mandatory blood draw, taken without a warrant, was proper under section

724.012(b)(3)(B) of the Transportation Code. Aviles, 385 S.W.3d at 116. The Texas Court of

Criminal Appeals refused Aviles’s petition, but the Supreme Court granted the petition and vacated

our judgment, remanding the matter back to us for reconsideration in light of the Court’s decision

in McNeely. Aviles, 134 S.Ct. at 902.

                                              ANALYSIS

       We permitted the parties to file amended briefs on remand. In his amended brief, Aviles

contends that based on the Court’s decision in McNeely, the trial court erred in denying his motion

to suppress because per se exceptions to the Fourth Amendment’s warrant requirement are
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impermissible. The State counters, arguing McNeely does not require a reversal in this case

because it was a very narrow decision that merely held the natural dissipation of alcohol does not

create a per se exigency in all DWI cases. Based on our prior decision in Weems v. State, No. 04-

13-00366-CR, 2014 WL 2532299 (Tex. App.—San Antonio May 14, 2014, pet. filed), we agree

with Aviles.

                                        Standard of Review

       Appellate courts review trial court rulings on motions to suppress under a bifurcated

standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). With regard

to a determination of historical facts, we afford great deference to a trial court’s determination. Id.

This is because trial judges are uniquely situated to observe the demeanor and appearance of any

witnesses. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). As the sole fact finder at

a suppression hearing, a trial court may believe or disbelieve any portion of a witness’s testimony

and make reasonable inferences from the evidence presented. Amador v. State, 275 S.W.3d 872,

878 (Tex. Crim. App. 2009). However, whether a specific search or seizure is reasonable or

supported by probable cause is a question of law subject to de novo review. Dixon v. State, 206

S.W.3d 613, 616 (Tex. Crim. App. 2006).

                                             Application

       After the Supreme Court vacated our prior decision and remanded the matter back to this

court, this court decided Weems. In Weems, we specifically considered the effect the Supreme

Court’s decision to remand Aviles in light of McNeely had on our holding in Aviles that a

warrantless blood draw of a DWI suspect, which was conducted pursuant to the provisions of

section 724.012(b)(3)(B), did not violate the defendant’s rights under the Fourth Amendment.

2014 WL 2532299, at *7. After reviewing numerous Texas cases considering McNeely’s effect

on section 724.012(b)(3)(B) — the mandatory blood draw statute — and the similar implied
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consent statute found in section 724.011 of the Transportation Code, 1 we held that neither the

mandatory blood draw statute nor the implied consent statute were exceptions to the Fourth

Amendment’s warrant requirement. 2 Id. at *8. We considered the State’s suggestion that we

should balance the public and private interests implicated in serious DWI cases and hold the

mandatory blood draw statute is a reasonable substitution for the warrant requirement. Id. We

declined the State’s suggestion, holding 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 the circumstances presented in

each case.” Id. (citing McNeely, 133 S.Ct. at 1560–63).

         Looking at the mandatory blood draw statute and the implied consent statute, we held in

Weems these statutes clearly create categorical or per se rules the McNeely court held were not

permissible exceptions to the Fourth Amendment’s warrant requirement. Weems, 2014 WL

2532299, at *8; see TEX. TRANSP. CODE ANN. §§ 724.011(a), 724.012(b)(3)(B). We concluded

that because the statutes “do not take into account the totality of the circumstances present in each

case, but only consider certain facts,” an approach rejected in McNeely, the statutes were not

substitutes for a warrant or legal exceptions to the Fourth Amendment warrant requirement. Id.

         In this case, as in Weems, the State urges us to adopt a balancing test — balancing the

public interests (public safety on roads and DWI enforcement) and the defendant’s “minimal”

privacy interests — in DWI cases wherein the defendant has been convicted of two or more prior

DWIs. This is the same approach we specifically rejected in Weems. See 2014 WL 2532299, at



1
  Section 724.011(a) states that 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 while intoxicated, the person is deemed to have
impliedly consented to the taking of a breath or blood specimen. TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011).
2
  This court did not hold in Weems, and does not now hold, that sections 724.011(a) and 724.012(b)(3)(B) are
unconstitutional. Rather, we merely held that under McNeely, these provisions did not create per se exceptions to the
Fourth Amendment’s warrant requirement. The statutes may, in fact, be used for other purposes.

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*8. The State also suggests that statutes such as the implied consent and mandatory blood draw

statutes are permissible exceptions to the warrant requirement because they are searches pursuant

to reasonable statutes or regulations. We hold this flies in the face of McNeely’s repeated mandate

that courts must consider the totality of the circumstances of each case. 133 S.Ct. 1560–63. Thus,

we reject the State’s suggested balancing and regulatory approach.

       It is undisputed that Officer Rios did not obtain a warrant prior to requiring Aviles to submit

to a blood draw. Once Aviles established the absence of a warrant, it was incumbent upon the

State to prove the warrantless blood draw was reasonable under the totality of the circumstances.

See Amador, 221 S.W.3d at 666, 672–73.           The State may satisfy this burden by proving the

existence of an exception to the warrant requirement. See Gutierrez v. State, 221 S.W.3d 680, 685

(Tex. Crim. App. 2007). Here the only exception to the warrant requirement proposed by the State

was section 724.012(b)(3)(B), the mandatory blood draw statute. Because this is not a permissible

exception to the warrant requirement, and the State has not argued or established a proper

exception to the Fourth Amendment’s warrant requirement, we hold the blood draw violated

Aviles’s rights under the Fourth Amendment, i.e., the blood draw was an unconstitutional search

and seizure.

                                           CONCLUSION

       Based on the foregoing, we hold the warrantless blood draw violated Aviles’s rights under

the Fourth Amendment. Therefore, the trial court erred in denying his motion to suppress. We

sustain Aviles’s complaint and reverse the trial court’s judgment and remand this matter for a new

trial in accordance with this court’s opinion.


                                                   Marialyn Barnard, Justice

Publish


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