              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                       NO. PD-0176-18



                                  THE STATE OF TEXAS
                                          v.

                                    JOSE RUIZ, Appellee



              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE THIRTEENTH COURT OF APPEALS
                            GONZALES COUNTY

            K ELLER, P.J., filed a concurring and dissenting opinion in which
S LAUGHTER., J., joined.

       The Court addresses whether statutorily-imposed implied consent to a blood draw is a valid

waiver of a suspect’s Fourth Amendment rights when the suspect is unconscious and unable to refuse

consent. The Court answers that question “no.” The Court then remands this case to the court of

appeals for consideration of whether exigent circumstances existed in light of the Supreme Court’s

recent opinion in Mitchell v. Wisconsin.1



       1
           Mitchell v. Wisconsin, 2019 WL 2619471 (2019).
                                                           RUIZ CONCURRENCE/DISSENT — 2

                                                 I.

       In Mitchell, a plurality of the Supreme Court concluded that, when a driver is unconscious

and unable to take a breath test, the exigent circumstances rule “almost always permits a blood test

without a warrant.”2 Providing the fifth vote, Justice Thomas concurred because he would apply

a per se rule that exigent circumstances exist in a police encounter with a person suspected of drunk

driving, regardless of whether the driver is conscious.3

       Because the court of appeals has not had the benefit of Mitchell, and resolution of the case

in light of Mitchell might make consideration of the implied-consent issue unnecessary, I would not

address implied consent at this time.       I would instead remand to the court of appeals for

reconsideration in light of Mitchell.

                                                 II.

       There is another reason to eschew an analysis of implied consent. The Court acknowledges

that Appellee gave his implied consent to a blood draw when he drove on the Texas roadways. By

statute, “A person who is dead, unconscious, or otherwise incapable of refusal is considered not to

have withdrawn [implied consent].”4 Appellee was unconscious at the time his blood was drawn.

By the terms of § 724.014, therefore, he is not considered to have withdrawn his consent. The

Court’s holding that the Fourth Amendment was violated by the blood draw in this case seems to

necessarily mean that § 724.014 is itself unconstitutional.       I would avoid getting into the




       2
           Id. at *3 (plurality op.).
       3
           Id. at *9 (Thomas, J., concurring).
       4
           TEX . TRANSP . CODE § 724.014.
                                                        RUIZ CONCURRENCE/DISSENT — 3

constitutionality of the statute by refraining from addressing implied consent.5

       The Court says that the ability to limit or revoke consent is a necessary element of a valid

consent. But I think that that may be true only when the type of consent at issue is unilateral and

non-contractual, where the defendant has no obligation to consent and where no consequences attach

to the withdrawal of consent, for example, when a person consents to police searching his car. The

Supreme Court cases that the Court cites regarding a defendant’s capacity for self-determination

involve that sort of consent.

       The implied consent at issue in this case is different: it is contractual. In exchange for the

privilege of driving on Texas roads, a driver impliedly consents to a blood draw under certain

circumstances. That consent can be withdrawn, but there are consequences to a withdrawal: the

suspension of the person’s driver’s license for 180 days.6 This type of consent is not subject to an

unqualified right to revoke; the right to revoke is qualified by this consequence. A person agrees to

certain limits on his self-determination when he contractually consents by driving on Texas roads.

By statute, one of those limits is that withdrawing consent results in a driver’s license suspension.

Another limit, by statute, is that consent is not withdrawn when the person is unconscious and

incapable of volitionally withdrawing consent. If we say that implied consent is not valid for an

unconscious person, that person would avoid carrying out his end of his bargain with the State, i.e.,

having his driver’s license suspended. That is one reason I would say that the unconscious person


       5
           See Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006) (explaining that the
Supreme Court and state courts have recognized “the desirability of avoiding the adjudication of
constitutional issues when at all possible”).
       6
          TEX . TRANSP . CODE § 724.035(a)(1). Other consequences attach if the person did not have
a driver’s license or has had two or more alcohol-related or drug-related enforcement contacts within
the past ten years. See id. §724.035(a)(2), (b).
                                                        RUIZ CONCURRENCE/DISSENT — 4

does not withdraw consent. Arguably, that gives effect to the last volitional choice the person did

make—impliedly consenting by choosing to drive on Texas roads. The Court’s opinion, however,

would give the unconscious person an arguably unwarranted advantage that the conscious person

does not have—the withdrawal of consent without consequences.

       I concur in the Court’s decision to remand for further proceedings in light of Mitchell but

dissent to the Court’s resolution of the implied-consent issue.



Filed: September 11, 2019

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