                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-12-00289-CR


                        JESSE THOMAS SUTHERLAND, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 427th District Court
                                     Travis County, Texas
             Trial Court No. D-1-DC-11-200590, Honorable Jim Coronado, Presiding

                                            April 7, 2014

                                             OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


        Appellant, Jesse Thomas Sutherland, appeals his conviction for felony driving

while intoxicated1 and the resulting imposition of a negotiated five-year term of

community supervision.          Following the trial court’s denial of a motion to suppress

evidence of his intoxication, appellant pleaded guilty to the charges but reserved his

right to appeal the trial court’s ruling on his motion to suppress evidence. He challenges

the constitutionality of the procedure and authority under which a sample of his blood
        1
         Appellant was charged with driving while intoxicated, his third or more such offense and a third-
degree felony. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2013).
was taken without his consent. On that basis, he contends the trial court erred by

denying his motion to suppress the results of the testing done on the sample of his

blood taken in such a manner. We will sustain his point of error, reverse the trial court’s

order denying appellant’s motion to suppress, and remand the cause to the trial court

for further proceedings.


                             Factual and Procedural History


Traffic Stop and Arrest


       Late on the night of February 2, 2011, Austin Police Department Officer Shane

Housmans initiated a traffic stop of a vehicle traveling southbound on South Congress

Street after that vehicle changed lanes without using a turn signal and then changed

back to its original lane, again without signaling intent to do so. After the vehicle had

pulled over, Housmans approached the driver, appellant, and, after speaking with

appellant for “a bit,” Housmans asked him to step out of the vehicle.          Housmans

administered field sobriety tests on appellant, arrested appellant based on his

performance of the field sobriety tests and on the resulting suspicion that he was driving

while intoxicated, and asked that appellant provide a specimen of his breath. Appellant

refused. Dispatch provided Housmans with Texas Department of Public Safety records

based on appellant’s license number indicating that he had two or more previous

convictions for driving while intoxicated. Housmans transported appellant to the Travis

County jail where, ultimately, a blood sample was taken without appellant’s consent and

without a warrant.




                                             2
       Housmans testified that, as justification for the warrantless blood draw, he relied

solely on the provision in the Texas Transportation Code that requires him to obtain a

sample of a suspect’s blood whenever he learns that the individual has been convicted

two or more times of driving while intoxicated.      The provision to which Housmans

referred provides, in pertinent part, as follows:


       (b) A peace officer shall require the taking of a specimen of the person’s
       breath or blood under any of the following circumstances if the officer
       arrests the person for an offense under Chapter 49, Penal Code, involving
       the operation of a motor vehicle or a watercraft and the person refuses the
       officer’s request to submit to the taking of a specimen voluntarily:
       ...


       (3) at the time of the arrest, the officer possesses or receives reliable
       information from a credible source that the person:
       ...


              (B) on two or more occasions, has been previously convicted of or
              placed on community supervision for an offense under Section
              49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under
              the laws of another state containing elements substantially similar
              to the elements of an offense under those sections.




TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011). Appellant maintains that,

regardless of Section 724.012(b)(3)(B)’s mandatory language, constitutional protections

against unreasonable searches and seizures require that a warrantless search be

supported by an established exception to the Fourth Amendment’s warrant requirement,

in this case, the exigent circumstances exception.      Further, appellant contends no

established exception—exigent circumstances or otherwise—applied here.




                                              3
The Warrant Process in Travis County


       Erik Carey, a nighttime magistrate for the City of Austin Municipal Court, testified

that a magistrate is available twenty-four hours a day at the central booking facility for

Travis County, which is located in the basement of the Travis County jail.          Carey

estimated that it would take between five and seven minutes for him to review an

affidavit presented to him in support of a search warrant seeking a blood sample in a

DWI case. Conveniently, a phlebotomist is located approximately 100 feet down the

hall from the magistrate’s office. Though Carey was uncertain when Travis County

instituted around-the-clock phlebotomist service, we confirm later in the record that such

service was indeed available the night appellant was arrested. We learn, too, that

Carey was the magistrate on duty the night appellant was arrested. Carey added that

his general policy is that, even if he is busy with other matters, he permits an officer to

interrupt the proceedings to present an affidavit in support of a warrant application in a

DWI case because of the urgency and time-sensitive nature of a blood draw in such a

case. Of course, we do not know if that is the policy of all the magistrates, but we know

that it is Carey’s policy and that he was the nighttime magistrate on duty the night

appellant was arrested.


       The arresting officer, Housmans, conceded that there was no collision, no

medical emergency, and no need to take appellant or any other person to the hospital

for medical treatment the night in question. Housmans explained that appellant refused

both breath and blood test requests. He also testified that it is approximately 2.6 miles

from the location at which appellant was stopped and ultimately arrested to the Travis

County jail. Housmans added that it would take approximately nine minutes to drive the

                                             4
2.6 miles as a general rule, varying with traffic volume and other driving conditions.

Housmans conceded, too, that he did not seek out a magistrate the night appellant was

arrested; it was Housmans’s understanding of Section 724.012 that he was not required

to do so. In fact, Housmans testified that he understood Section 724.012 as placing

upon him a duty to take appellant for a mandatory blood draw under the circumstances

presented to him the night appellant was arrested: “I have no discretion. The statute

says I shall.” To fail to do so, he testified, would mean that he “would be violating the

law.” Housmans took appellant to the phlebotomist’s office down the hall from the

magistrate’s office, and there a sample of appellant’s blood was taken without his

consent.


       As to the relevant time frames involved here, Housmans stopped appellant’s

vehicle at 11:30 p.m. on the night of February 2, 2011. Housmans took appellant into

custody at 11:54 p.m. Appellant was noted as arriving in Travis County central booking

at 12:22 a.m. on February 3, and his blood was drawn at 12:48 a.m. So, from the time

that Housmans stopped appellant to the time that appellant’s blood was drawn, one

hour and eighteen minutes had passed.


       Housmans also testified about the FASTER system that the Austin Police

Department uses to facilitate quicker document assembly with information entered. He

explained that he begins to enter the relevant information at the scene of the traffic stop

and that information is stored electronically and used in the assembly of relevant

documents later as needed.        That means, according to Housmans, the relevant

information needed to complete an application for a search warrant in this type of

situation is readily available to him, can be quickly and easily assembled into the

                                             5
application form, and need only be submitted to his supervisor prior to being presented

to the magistrate. Housmans testified that it would have taken him five to ten minutes in

terms of preparation of the documents for the magistrate’s review. Housmans testified

that the time to obtain a warrant in such a situation “wouldn’t take long.”


       Glen Kreger, a sergeant with the Austin Police Department, testified about the

warrant process in DWI cases, as well. He testified that, whenever the APD DWI Units

are on duty, phlebotomists are available at central booking. Phlebotomists are also on

call on the days during which the DWI Units are not on duty. Kreger, too, explained that

he understood Section 724.012(b)(3)(B) to speak in mandatory terms and, in doing so,

required officers to take a blood sample under the circumstances outlined in that

section. Kreger testified that the warrant process in Travis County took longer than

Housmans’s estimations.      Kreger noted that the “largest factor” in determining the

amount of time that the warrant process would take is whether the suspect is at the jail

or in the hospital. The warrant process in cases in which the suspect is at the hospital

is particularly time-consuming, he explained. Kreger also noted the limited availability of

the magistrate while he or she is performing other duties.         He testified that, if the

magistrate is performing other duties, Kreger is “taking backseat” to those other

proceedings. He has had the warrant process take as little as thirty-six minutes and as

long as an hour and forty minutes, with the average being just over an hour, he testified.


Issue Raised on Appeal


       Appellant reserved his right to appeal the trial court’s denial of his motion to

suppress evidence and brings to this Court the following issue:



                                             6
       In the absence of exigent circumstances or consent[,] does Section
       724.012(b)(3)(B) of the Texas Transportation Code violate the Texas and
       United States constitutional prohibitions against unreasonable searches
       and seizures where the statute requires law enforcement officers to seize
       a specimen of a DWI arrestee’s blood without a search warrant in all
       cases where the officer believes the arrestee has been previously
       convicted of DWI two or more times.
To address this issue, we outline the standard of review, general principles of the Fourth

Amendment, cases applying those principles to similar situations, and recent

developments in this area of the law.


                                   Standard of Review


       We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

We review the trial court’s factual findings for an abuse of discretion but review the trial

court’s application of the law to the facts de novo. Id. In reviewing the trial court’s

decision, we do not engage in our own factual review; rather, the trial judge is the sole

trier of fact and judge of the credibility of the witnesses and the weight to be given their

testimony.   St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).

Therefore, we give almost total deference to the trial court’s rulings on (1) questions of

historical fact, especially when based on an evaluation of credibility and demeanor, and

(2) application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor. See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Appellate

courts review de novo “mixed questions of law and fact” that do not depend upon

credibility and demeanor. Id. If the trial court’s decision is correct under any theory of

law applicable to the case, it will be sustained. Armendariz v. State, 123 S.W.3d 401,

404 (Tex. Crim. App. 2003) (en banc). Additionally, the legal question whether the

                                             7
totality of circumstances justified the officer’s actions is reviewed de novo. Hudson v.

State, 247 S.W.3d 780, 784 (Tex. App.—Amarillo 2008, no pet.).


                                     Applicable Law


General Fourth Amendment Principles


       The Fourth Amendment provides, in relevant part, 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; see Missouri v. McNeely, ___ U.S. ___, 133 S. Ct.

1552, 1558, 185 L. Ed. 2d 696 (2013). Cases have held that a warrantless search of

the person is reasonable only if it falls within a recognized exception. See, e.g., United

States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); see also

McNeely, 133 S. Ct. at 1558. Those principles apply to the type of search at issue in

this case, “which involved a compelled physical intrusion beneath [the defendant]’s skin

and into his veins to obtain a sample of his blood for use as evidence in a criminal

investigation.”   McNeely, 133 S. Ct. at 1558.     Such an invasion of bodily integrity

implicates an individual’s “most personal and deep-rooted expectations of privacy.” Id.

(quoting Winston v. Lee, 470 U.S. 753, 760, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985),

and citing Skinner v. Ry. Labor Exec. Assn., 489 U.S. 602, 616, 109 S. Ct. 1402, 103 L.

Ed. 2d 639 (1989)).


       One well-established exception to the Fourth Amendment’s warrant requirement

is the “exigent circumstances” exception and “applies when the exigencies of the

situation make the needs of law enforcement so compelling that a warrantless search is


                                            8
objectively reasonable under the Fourth Amendment.” Kentucky v. King, 563 U.S. ___,

131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865 (2011) (internal quotations omitted). A variety

of scenarios may give rise to circumstances sufficiently exigent to justify a warrantless

search, the one most relevant to the instant case being the prevention of the imminent

destruction of evidence. See McNeely, 133 S. Ct. at 1558–59 (citing Cupp v. Murphy,

412 U.S. 291, 296, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973), and Ker v. California, 374

U.S. 23, 40–41, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963) (plurality opinion)).


       To determine whether a law enforcement officer faced an emergency that

justified acting without a warrant, we look to the totality of circumstances. See id. at

1559. We apply this “finely tuned approach” to Fourth Amendment reasonableness in

this context because the police action at issue lacks “the traditional justification that . . .

a warrant . . . provides.” See id. (quoting Atwater v. City of Lago Vista, 532 U.S. 318,

347 n.16, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001)). In the absence of a warrant, “the

fact-specific nature of the reasonableness inquiry” demands that we evaluate each case

of alleged exigency based “on its own facts and circumstances.” Id. (quoting Ohio v.

Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996), and Go-Bart Imp.

Co. v. United States, 282 U.S. 344, 357, 51 S. Ct. 153, 75 L. Ed. 374 (1931)).


Schmerber v. California


       The United States Supreme Court first considered the Fourth Amendment

restriction on nonconsensual blood draws in Schmerber v. California, 384 U.S. 757, 86

S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Schmerber, as driver, suffered injuries in a

vehicle collision and was taken to the hospital for treatment. See Schmerber, 384 U.S.



                                              9
at 758. While he was at the hospital, he was arrested for driving while intoxicated, and

a sample of his blood was taken without his consent while he was unconscious. See id.

at 758–59.


       The Schmerber Court upheld the warrantless blood draw because, on the facts

of that case, the arresting officer “might reasonably have believed that he was

confronted with an emergency, in which the delay necessary to obtain a warrant, under

the circumstances, threatened the destruction of evidence.” See id. at 770 (internal

quotations omitted). The Court emphasized that, indeed, “[t]he importance of informed,

detached[,] and deliberate determinations” by a “‘neutral and detached magistrate’”

before allowing a law enforcement officer to “invade another’s body in search of

evidence of guilt is indisputable and great.” Id. Nonetheless, on the “special facts”

presented in Schmerber, the Court observed that the record supported the conclusion

that exigent circumstances justified the warrantless blood draw. Id. at 770–71.


       In arriving at that conclusion, the Schmerber Court recognized the natural

dissipation of alcohol shortly after a person stops drinking. Id. at 770. It added that

“[p]articularly in a case such as this, where time had to be taken to bring the accused to

a hospital and to investigate the scene of the accident, there was no time to seek out a

magistrate and secure a warrant.” Id. at 770–71. In light of those “special facts,” the

United States Supreme Court deemed it appropriate for the officer to have acted without

a warrant.   Id. at 771.   Finally, the Schmerber Court went on to expressly limit its

conclusion to “the facts of the present record.” Id. at 772.




                                             10
Aviles v. State


       The San Antonio Court was confronted with a factual situation very similar to that

presented to this Court in the instant case. See Aviles v. State, 385 S.W.3d 110 (Tex.

App.—San Antonio 2012, pet. ref’d), vacated, 187 L. Ed. 2d 767, 2014 U.S. LEXIS 563

(Jan. 13, 2014). In that case, Aviles had been stopped and arrested for DWI. Id. at

112. The officer had learned that Aviles had two prior DWI convictions, then read the

DWI statutory warnings, and requested a sample from Aviles of his breath or blood. Id.

Aviles refused.   Id.   The officer, acting without a warrant and relying on Section

724.012(b)(3)(B), as did Housmans, took Aviles to a nurse and filled out forms

authorizing a mandatory nonconsensual blood draw. Id. at 112–13.


       Aviles argued that the trial court erred by admitting over his motion to suppress

the results of testing done on his blood specimen because the specimen was taken

without consent and without a warrant. See id. at 112. In rejecting his contention, the

San Antonio Court relied on the implied-consent provision of the Texas Transportation

Code and the following excerpt from the Texas Court of Criminal Appeals:


       The implied consent law expands on the State’s search capablities 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. at 115 (quoting Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002) (en

banc)); see TEX. TRANSP. CODE ANN. § 724.011 (West 2011); Aviles, 385 S.W.3d at 115.

The Aviles court noted that the officer requested but was refused a specimen and read

the statutory warnings to Aviles, whom the officer knew to have been already twice

convicted of DWI. Aviles, 385 S.W.3d at 112. Under those circumstances, Section

                                           11
724.012(b)(3)(B) required that the officer seize a specimen of blood. See id. at 116.

That situation, according to the court’s reasoning, was one of the “circumstances”

referred to in Beeman in which the Texas Court of Criminal Appeals has held that blood

may be drawn without a warrant. See id. (citing Beeman, 86 S.W.3d at 616). That the

officer could have gotten a warrant before authorizing the blood draw was “immaterial

given the mandate of [S]ection 724.012(b)(3)(B).” Id. Ultimately, the San Antonio Court

concluded that “the warrantless seizure of Aviles’s blood was conducted according to

the prescriptions of the [Texas] Transportation Code, and without violating Aviles’s

Fourth Amendment rights.”     Id.   The court affirmed the trial court’s order denying

Aviles’s motion to suppress. Id.


McNeely v. Missouri


      As Aviles was being considered and decided, a case out of Missouri was making

its way to the United States Supreme Court. See State v. McNeely, 358 S.W.3d 65

(Mo. 2012) (en banc) (per curiam), aff’d, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

Faced with facts similar to those before us and the State’s position that the natural

dissipation of alcohol from the bloodstream was per se exigent circumstances, the

Missouri Supreme Court held as follows:


      The patrolman here, however, was not faced with the “special facts” of
      Schmerber. Because there was no accident to investigate and there was
      no need to arrange for the medical treatment of any occupants, there was
      no delay that would threaten the destruction of evidence before a warrant
      could be obtained. Additionally, there was no evidence here that the
      patrolman would have been unable to obtain a warrant had he attempted
      to do so. The sole special fact present in this case, that blood-alcohol
      levels dissipate after drinking ceases, is not a per se exigency pursuant to
      Schmerber justifying an officer to order a blood test without obtaining a
      warrant from a neutral judge.

                                           12
McNeely, 358 S.W.3d at 67.2 The United States Supreme Court granted certiorari to

consider the constitutional viability of the per se exigency urged by the State of

Missouri. Missouri v. McNeely, 133 S. Ct. 98, 183 L. Ed. 2d 737 (2012).


       In McNeely, the high court did reiterate its recognition that exigent circumstances

may, in some instances, justify a warrantless blood draw. See McNeely, 133 S. Ct. at

1556 (citing the general holding of Schmerber, 384 U.S. at 770–71). The State of

Missouri sought a per se rule that, in cases in which a person is suspected of driving

while intoxicated, exigent circumstances will necessarily exist because blood alcohol

content is inherently evanescent. Id. at 1560. The McNeely Court accepted as true the

inherent evanescence of blood alcohol content but rejected such a per se rule; it

concluded unequivocally that the natural dissipation of alcohol in a person’s blood as

the body metabolizes the alcohol was, standing alone, insufficient to constitute exigent

circumstances that would support a warrantless blood draw.                   See id. at 1561–63.

Instead, we must look at the totality of the circumstances surrounding the arrest and

blood draw to determine the reasonableness of that blood draw. See id. at 1563. The

totality of the circumstances must reveal exigent circumstances in addition to the natural

dissipation of alcohol from the human body. See id. at 1556, 1560–61.


       The factual background at issue in McNeely is not unlike the facts presented in

the instant case. McNeely was stopped after an officer observed him exceeding the

posted speed limit and repeatedly crossing the centerline. Id. at 1556. The officer

noted several signs of intoxication when he approached McNeely: slurred speech,


       2
         The case was transferred from the intermediate appellate court to the Missouri Supreme Court.
See State v. McNeely, No. ED96402, 2011 Mo. App. LEXIS 858, at *1 (Mo. App. E.D. June 21, 2011).

                                                 13
blood-shot eyes, and the odor of alcohol. Id. McNeely acknowledged having had “a

couple of beers.” Id. McNeely performed poorly on the field sobriety tests and declined

the officer’s invitation to take a breath test at the scene. Id. at 1556–57. When en route

to the police station, McNeely voiced his intent to refuse to take a breath test there as

well. See id. at 1557. In light of that development, the officer took McNeely to a nearby

hospital where McNeely also refused to take a blood test; at the officer’s direction, a

sample of McNeely’s blood was taken nonetheless. See id.


      Though not directly confronted with the issue whether exigent circumstances

were otherwise presented by that case, the Court did lend some insight into the factors

that might be considered when analyzing the totality of the circumstances for the

presence of exigent circumstances. McNeely first looked back to Schmerber for the

types of “special facts” to consider when determining whether exigent circumstances

were at hand. See id. at 1559–60. That is, we should consider whether additional

delay related to accident investigation and medical treatment made the time required to

secure a warrant more burdensome and more likely to result in the destruction of

evidence. See id. at 1560 (citing Schmerber, 384 U.S. at 770–71).


      McNeely also noted that a per se rule as urged by the State of Missouri failed to

account for advances in the processing of warrant applications that have made the

process more expeditious and “other ways to streamline the warrant process.” See id.

at 1561–62. From this observation, we take that technological or logistical advances

that are designed to streamline the process through which a warrant may be obtained

are other factors to consider when examining the totality of the circumstances to



                                           14
determine whether those circumstances were exigent such that the warrant requirement

may be dispensed with in a given situation. See id.


      Again, McNeely, like Schmerber, does recognize the reality that the body

metabolizes alcohol and thereby rids it from the blood. See id. at 1560. But that reality

alone is not enough to always justify a warrantless blood draw. See id. at 1561. “We

do 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.”     Id.   However, “[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,” regardless, it seems, of Section

724.012(b)(3)(B)’s mandatory language directing an officer to obtain a blood sample.

See id.


      It remains clear from McNeely that the dissipation of alcohol alone will not

necessarily be exigent circumstances, that some other “special facts” must lend

themselves to the exigency of the situation.      See id.   “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. at 1563.   “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.




                                           15
Recent Developments Involving McNeely and Aviles


      A few intermediate appellate courts in Texas 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).

That reliance ended in large part on January 13, 2014, when the United States

Supreme Court vacated and remanded the San Antonio Court’s judgment in Aviles for

“further consideration” in light of McNeely. See Aviles v. Texas, No. 13-6353, 187 L.

Ed. 2d 767, 2014 U.S. LEXIS 563 (Jan. 13, 2014). From this, we take that the Aviles

position—distinguishing    cases    involving    blood   draws    pursuant    to   Section

724.012(b)(3)(B), as dealing with implied consent, from cases implicating any exigent

circumstances analysis—as a no longer viable position. By 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. Similarly, it would

seem that the position advanced in Aviles that the Texas Transportation Code’s implied-

consent provision applies to justify the warrantless mandatory blood draw of Section

724.012(b)(3)(B) is also constitutionally infirm. See State v. Villarreal, No. 13-13-00253-

CR, 2014 Tex. App. LEXIS 645, at *29 (Tex. App.—Corpus Christi Jan. 23, 2014, pet.

filed Mar. 11, 2014) (noting that the mandates of Section 724.012(b)(3)(B) come into

play strictly when consent had been refused and, therefore, to say that it is based on

implied consent is incongruent). In other words, 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. And, as


                                            16
we learned from McNeely, the natural dissipation of alcohol by way of the body’s

metabolic processes, alone, is insufficient to constitute exigent circumstances; there

must be more.


      Indeed, since the Aviles remand, a sister court has since taken a similar position.

See Villarreal, 2014 Tex. App. LEXIS 645, at *12–13, *33. In Villarreal, on facts very

similar to the instant case, the State conceded that there were no exigent

circumstances, no consent, and no warrant. Id. at *2, *28. The State relied solely on

the appellant’s refusal and the criteria for the mandatory blood draw having been

satisfied. See id. at *5 (citing TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B)). The trial

court had granted Villarreal’s motion to suppress the results of the testing on the blood

drawn. Id. at *1. The State appealed the trial court’s ruling, contending that the trial

court erred by granting the motion to suppress because the police officer’s compliance

with the “repeat offender” provision of the mandatory blood draw law precluded the

involuntary, warrantless blood draw in this case from violating the Fourth Amendment.

See id. at *5; see also U.S. CONST. amend. IV; TEX. TRANSP. CODE ANN. §

724.012(b)(3)(B).


      As we have noted, the court observed that Section 724.012(b)(3)(B) is premised

on the refusal of consent rather than consent. See id. at *29. Further, Villarreal added

that no court has recognized Section 724.012(b)(3)(B) as a new and distinct exception

to the Fourth Amendment’s warrant requirement, and, therefore, its constitutionality

must be based on the previously recognized exceptions to the Fourth Amendment’s

warrant requirement. See id. at *35. In Villarreal, given the absence of a warrant,

exigent circumstances, and consent, the court agreed with the trial court’s conclusion

                                           17
that the State failed to demonstrate that the involuntary blood draw was reasonable

under the Fourth Amendment or that an exception to the warrant requirement applied to

that case. Id. at *41.


        Even more recently, the Houston First Court seems to have taken a contrary

position in this context, a position more in keeping with that espoused in Aviles: that the

implied consent of the Texas Transportation Code’s statutory scheme provided the

necessary exception to the Fourth Amendment’s warrant requirement. See Perez v.

State, No. 01-12-01001-CR, 2014 Tex. App. LEXIS 2681, at *16–20 (Tex. App.—

Houston [1st Dist.] Mar. 11, 2014, no pet. h.). In Perez, the court seems to have

returned somewhat to the reasoning of Aviles with respect to Section 724.012(b)(3)(B)’s

evolving relationship with the Fourth Amendment. See id. at *17–19.3


        In consideration of the United States Supreme Court’s remand of Aviles for

consideration in light of its opinion in McNeely, we see ourselves obligated to undertake

an analysis of the totality of the circumstances presented in the instant case to




        3
          Perez and Villarreal seem to represent a developing conflict between sister courts, and the
Texas Court of Criminal Appeals may have the opportunity to resolve that split or provide valuable
guidance if the issue is properly framed and the court grants the State’s recently filed petition for
discretionary review in Villarreal. See No. PD-0306-14. Additional guidance in this developing area of
the law may also come from the Texas Court of Criminal Appeals’s review of the Tyler Court’s opinion in
State v. Baker, No. 12-12-00092-CR, 2013 Tex. App. LEXIS 12818, at *3, *23–26 (Tex. App.—Tyler Oct.
16, 2013, pet. granted) (mem. op., not designated for publication), in which the intermediate court upheld
the suppression of evidence gathered as a result of a mandatory blood draw. The Texas Court of
Criminal Appeals granted the State’s petition for discretionary review on January 29, 2014. See State v.
Baker, No. PD-1592-13, 2014 Tex. Crim. App. LEXIS 133 (Tex. Crim. App. Jan. 29, 2014). One of the
issues on which the Texas Court of Criminal Appeals granted review in Baker is as follows: “Did the
appeals court err by failing to hold that the draw of Appellee’s blood was lawful under the implied consent
mandatory blood-draw provision, which establishes advance voluntary and irrevocable consent under
narrowly tailored circumstances?” The second issue on which review was granted explores the totality of
the circumstances dealing with exigent circumstances.


                                                    18
determine whether the warrantless blood draw was reasonable.4 See Villarreal, 2014

Tex. App. LEXIS 645, at *12–13; see also Pearson v. State, No. 13-11-00137-CR, 2014

Tex. App. LEXIS 2514, at *7–11 (Tex. App.—Corpus Christi Mar. 6, 2014, no pet. h.)

(mem. op., not designated for publication).


                                                 Analysis


        Per McNeely, we look to the facts of the instant case to evaluate the exigency of

the circumstances to determine whether the warrantless blood draw was reasonable in

this case.


        Metabolization of alcohol in the bloodstream and the resulting loss of evidence

are among the factors that we consider when determining whether a warrant was

required. See McNeely, 133 S. Ct. at 1568. We, of course, have such a case here that

the metabolization of alcohol was a consideration. That will, of course, frequently be

true in a DWI case.            Apart from the natural dissipation of alcohol by metabolic

processes, however, this case, as the Missouri Supreme Court characterized the case

in McNeely, was “unquestionably a routine DWI case.” See McNeely, 358 S.W.3d at

74. The arresting officer, Housmans, did not describe any factors that would suggest he

was confronted with an emergency or any unusual delay in securing a warrant. He

        4
          This case was transferred from Austin, but that court has not yet spoken on this particular
matter. In the one case that appears to have presented the issue on appeal, the Austin Court concluded
that the appellant failed to preserve his complaint in the trial court and that, therefore, the issue was not
properly before it. See Sherry v. State, No. 03-13-00126-CR, 2013 Tex. App. LEXIS 10354, at *3–5 (Tex.
App.—Austin Aug. 16, 2013, pet. ref’d) (mem. op., not designated for publication). That said, we have no
clear and direct precedent on this precise issue. See TEX. R. APP. P. 41.3. We do note the Austin Court’s
more general position that Chapter 724 of the Texas Transportation Code does not authorize what the
Constitution forbids and, therefore, cannot authorize an involuntary draw when the Constitution forbids it.
See State v. Mosely, 348 S.W.3d 435, 442 (Tex. App.—Austin 2011, pet. ref’d). We add, too, that the
Texas Court of Criminal Appeals has expressed a limitation associated with the implied-consent
framework of the Texas Transportation Code: “[It] does not give officers the ability to forcibly obtain blood
samples from anyone arrested for DWI.” Beeman, 86 S.W.3d at 616.

                                                     19
testified that he made no effort to obtain a warrant because he believed that the law

required that he obtain a blood sample under the circumstances presented to him.


       The record is clear that appellant was not transported to the hospital for medical

care and, therefore, no extra delay in that process could be said to lend to the exigency

beyond the regular dissipation of alcohol. The scene of the traffic stop was not very far

from the booking facility, and transportation time was not a factor that could be said to

lend to the exigency of the situation.


       Procedures and obstacles in place for obtaining a warrant or the (un)availability

of a magistrate may affect whether the police can obtain a warrant in an expeditious

manner and may, therefore, lend themselves to an exigency that justifies a warrantless

blood draw. See McNeely, 133 S. Ct. at 1568. But it would seem that such obstacles

were not at all present in the instant case. To the contrary, it would appear that the

procedures in place at the Travis County central booking facility have been

implemented to streamline the warrant application process. See id. A magistrate is

available twenty-four hours a day, every day. The magistrate who was on duty the night

of appellant’s arrest testified that he permits an officer seeking a search warrant for a

blood draw in a DWI case to interrupt court proceedings due to the dissipating nature of

the evidence and sensitive time frame at issue. The record is not clear whether all the

available magistrates have such a policy. Likewise, a phlebotomist is always available,

either mere feet down the hall from the magistrate on at least five days of the week or

on call at any other time. The record contains a variety of estimates regarding the time

involved in obtaining a warrant by way of this streamlined process. But it does appear

that the time to complete the warrant application process is not overly burdensome.

                                           20
       On the record before us, the arresting officer was not faced with exigent

circumstances such that the natural dissipation of alcohol from appellant’s bloodstream

would support a warrantless seizure of a specimen of appellant’s blood. We sustain

appellant’s point of error and conclude that the trial court erred by denying appellant’s

motion to suppress. To the extent that Section 724.012(b)(3)(B) can be read to permit,

nonetheless, a warrantless seizure of a suspect’s blood in the absence of such exigent

circumstances or the suspect’s consent, it runs afoul of the Fourth Amendment’s

warrant requirement.


                                        Conclusion


       Having sustained appellant’s sole point of error, we reverse the trial court’s order

denying appellant’s motion to suppress evidence and remand the cause to the trial court

for further proceeding consistent with this opinion.




                                                 Mackey K. Hancock
                                                     Justice


Publish.




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