                             NUMBER 13-13-00507-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                           Appellant,

                                            v.

JOSE RUIZ,                                                                      Appellee.


                     On appeal from the 25th District Court
                         of Gonzales County, Texas.


                                   OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
                    Opinion by Justice Benavides

       In this appeal, the State challenges the trial court’s granting of appellee, Jose

Ruiz’s, motion to suppress blood alcohol test results that police seized following his arrest

for driving while intoxicated. We affirm.
                                  I.     BACKGROUND

       On September 9, 2012, Gonzales Police Sergeant Bethany McBride arrived on the

scene of an accident shortly after midnight in Gonzales County to discover a collision

between a Lincoln Navigator and a Pontiac.       Witnesses at the scene told Sergeant

McBride that the driver of the Navigator, later identified as Ruiz, had fled the scene and

had run behind a car wash.

       Sergeant McBride looked into the Navigator and found insurance paperwork in

Ruiz’s name, as well as “several Bud Light . . . cans, that [had] exploded in the [front]

seat.” Other officers later located Ruiz in a field behind the car wash that witnesses had

described earlier. Sergeant McBride described Ruiz as “unresponsive” that night and

further observed that he “couldn’t open his eyes.”      Additionally, his body emitted a

“strong odor of [alcohol].” According to Sergeant McBride, Ruiz did not appear to be

injured, but was “just unresponsive due to the amount of alcohol in his system.”

       Emergency medical personnel eventually arrived, and also attempted to elicit

responses from Ruiz by performing several sternum rubs, but such tests were

unsuccessful.    As a result, Ruiz was taken by ambulance to Gonzales Memorial

Hospital. At the hospital, Ruiz remained unresponsive.    Sergeant McBride testified that

she had enough probable cause to place Ruiz under arrest for driving while intoxicated

and completed paperwork at the hospital for lab technicians to administer a blood draw.

Sergeant McBride also discovered that Ruiz had four prior convictions for driving while

intoxicated.   Once Ruiz’s blood was drawn, Sergeant McBride took custody of Ruiz’s

blood evidence and returned to the Gonzales Police Station.



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       On cross examination, Sergeant McBride testified that it would have been

unreasonable to obtain a search warrant of Ruiz’s blood for a number of reasons, namely:

(1) it was difficult to find a magistrate or judge to sign a search warrant that late at night,

and she was required to drive to the judge’s house to retrieve the warrant; and (2) only

two officers were on duty that night, and Sergeant McBride did not want to take one of

the officers off duty to work on the warrant.         According to Sergeant McBride, she

estimated that it would have taken her “about two or three hours” to obtain a search

warrant that night.   Sergeant McBride also admitted that at the time, no procedures were

in place to obtain search warrants for blood draws.    The record also shows that Ruiz was

admitted to the hospital overnight due to his sustained unconsciousness and did not

appear to be a flight risk.

       At the suppression hearing, the State stipulated that it had conducted a warrantless

blood draw, but argued that the blood draw was nevertheless valid because: (1) section

724.014 of the transportation code provides implied consent of an accused who is

unconscious, and (2) exigent circumstances existed.          The trial court granted Ruiz’s

motion to suppress, and issued the following relevant findings of fact and conclusions of

law:

                                  Findings of Fact

       1.     [Ruiz] was involved in an accident late at night to early morning on
              September 9, 2013. Gonzales Police Department Sgt. Bethany
              McBride responded.

       ....

       4.     Following [Ruiz’s] arrest by McBride the attending physicians
              indicated they wanted to keep [Ruiz] overnight.


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      5.     There was no concern that [Ruiz] would flee from the hospital.

      6.     A warrant could have been obtained within 2 to 3 hours.

      ....

      8.     McBride performed a criminal history check on [Ruiz] and found four
             previous convictions for DWI. Relying on Texas Penal Code
             724.012 and 724.014 McBride ordered the blood draw from [Ruiz].

      9.     [Ruiz] remained in custodial arrest during the time the blood was
             drawn.

      10.    The court finds Officer McBride’s testimony to be credible in all
             respects.

                                    Conclusions of Law

      1.     The court takes judicial notice of all statutes promulgated under [the]
             Texas Transportation Code and in effect during all times relevant to
             this case.

      2.     The court finds that it is bound by Missouri v. McNeely, 133 S.Ct.
             1552, 1558, 185 L. Ed. 2d 696 (2013).

      3.     [Ruiz] did not revoke his consent to a blood draw under section
             724.011 of the Texas Transportation Code.

      4.     No exigent circumstances existed in this case.

      5.     Believing itself to be bound by McNeely, the court granted the motion
             to suppress.

      6.     If exigent circumstances existed the court believes McNeely would
             not apply and the motion to suppress would be denied.

This appeal followed.

                              II.     MOTION TO SUPPRESS

      By its sole issue, the State contends that the trial court erred by granting Ruiz’s

motion to suppress because he impliedly consented to the blood draw, and even if he did

not consent, there were sufficient exigent circumstances to justify the warrantless blood

                                            4
draw.

A.      Applicable Law and Standard of Review

        To suppress evidence on an alleged Fourth Amendment violation, the defendant

bears the initial burden of producing evidence that rebuts the presumption of proper police

conduct.     Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).          This initial

burden is satisfied by establishing that a search occurred without a warrant.     Id.   Once

a defendant makes this showing, the burden of proof shifts to the State where it is required

to establish that the search was conducted pursuant to a warrant or under a reasonable

exception.    Id. (citing Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002)).

        In reviewing a trial court’s ruling on a motion to suppress, we must view the

evidence in the light most favorable to the trial court’s ruling.    Johnson v. State, 414

S.W.3d 184, 192 (Tex. Crim. App. 2013); State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008). When the trial court does not make explicit findings of fact, we

infer the necessary factual findings that support the trial court’s ruling if the record

evidence (viewed in light most favorable to the ruling) supports these implied facts.

Johnson, 414 S.W.3d at 192.

        Motions to suppress are reviewed pursuant to a bifurcated standard under which

the trial judge’s determinations of historical facts and mixed questions of law and fact that

rely on credibility are granted almost total deference when supported by the record. But

when mixed questions of law and fact do not depend on the evaluation of credibility and

demeanor, we review the trial judge’s ruling de novo.      Id. (citing State v. Kerwick, 393

S.W.3d 270, 273 (Tex. 2013); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997)).

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B.    Discussion

      In this case, the State stipulated that Ruiz’s blood was drawn without a warrant.

Therefore, the burden shifted to the State to establish that the search was reasonable.

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.           Missouri v.

McNeely, 133 S.Ct. 1552, 1563 (2013).

      To meet its burden that the warrantless search in this case was reasonable, the

State asserts that Texas’s implied consent law, see TEX. TRANSP. CODE ANN. §§ 724.011;

724.014 (West, Westlaw through Ch. 46 2015 R.S.), established Ruiz’s consent to the

blood draw; and in the alternative, exigent circumstances existed to justify the taking of

Ruiz’s blood. We will analyze each argument below.

      1. Implied Consent

      Section 724.011(a) of the transportation code implies consent for an individual who

has been arrested for driving while intoxicated.    See id. § 724.011(a); see State v.

Villarreal, No. 13–13–00253–CR, __ S.W.3d __, __, 2014 WL 1257150, at *11 (Tex.

App.—Corpus Christi Jan. 23, 2014) aff’d, No. PD–0306–14, 2014 WL 6734178 at *21

(Tex. Crim. App. Nov. 26, 2014) reh’g granted, (Feb. 25, 2015). This implied consent,

however, may be revoked, absent certain exceptions. See id. § 724.013 (“Except 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.”).    Thus, if a drunk-

driving suspect refuses to submit to the taking of a specimen, police are prohibited from

doing so without a warrant.      Id.   However, if a drunk-driving suspect is “dead,

unconscious, or otherwise incapable of refusal,” implied consent is considered “not to

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have [been withdrawn] as provided by section 724.011.” See id. § 724.014(a). This

implied-consent law framework, however “does not give officers the ability to forcibly

obtain blood samples from anyone arrested for [driving while intoxicated],” but instead

“gives officers the ability to present an affidavit to a magistrate in every DWI case, just

like every other criminal offense.”   See Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim.

App. 2002).

       In this case, the State relies upon these implied-consent statutes to establish that

Ruiz effectively consented to the warrantless blood draw, which is a recognized exception

to the warrant requirement.      We disagree with the State’s position.     The record is

undisputed that Ruiz was unconscious and hospitalized during the course of Sergeant

McBride’s investigation on September 9, 2012.         Regardless of this fact, the State

appears to rely upon section 724.014(a) as a key to unlock the recognized consent

exception to the warrant requirement. We do not read the implied consent statutes as

expansively as the State advances on appeal.

       When the State seeks to rely upon consent to justify the lawfulness of a search, it

must prove that the consent was, in fact, freely and voluntarily given.   Bumper v. North

Carolina, 391 U.S. 543, 546 (1968). Additionally, a person who consents to a search

may also specifically limit or revoke such consent.   See Miller v. State, 393 S.W.3d 255,

266 (Tex. Crim. App. 2012); Valtierra v. State, 310 S.W.3d 442, 450 (Tex. Crim. App.

2010). The question of whether a consent was valid is a question of fact that the State

must prove by clear and convincing evidence.       Fienen v. State, 390 S.W.3d 328, 333

(Tex. Crim. App. 2012).    The fact finder must consider the totality of the circumstances

in determining whether consent was given voluntarily.    Id. Thus, the State cannot meet

                                              7
its burden to establish that one consented if such consent was not given freely and

voluntarily.   See Bumper, 391 U.S. at 546. Here, the trial court found that Ruiz was

unconscious and did not respond to Sergeant McBride.      It is clear that based upon these

facts, Ruiz was unable to give his consent freely and voluntarily, or have the opportunity

to revoke such consent.    See id.; see also Florida v. Jimeno, 500 U.S. 248, 252 (1991)

(holding that a suspect may delimit the scope of a search for which he has consented);

Miller v. State, 393 S.W.3d 255, 266 (Tex. Crim. App. 2012) (“[I]t is undisputed that . . .

consent may be limited or revoked.”).      Therefore, we decline to hold that sections

724.011(a) and 724.014(a) of the transportation code is the equivalent to voluntary

consent as a recognized exception to the warrant requirement.       See Forsyth v. State,

438 S.W.3d 216, 222 (Tex. App.—Eastland 2014, pet. ref’d) (holding that implied consent

under the Transportation Code is not the equivalent to voluntary consent as a recognized

exception to the warrant requirement).

       Additionally, the implied consent statutes at issue in this case do not address or

purport to dispense with the Fourth Amendment’s warrant requirements for blood draws.

See Villarreal, 2014 WL 1257150 at *11 (holding the same as it relates to section

724.012(b)(3)(B)).     These statutes do not take into account the totality of the

circumstances present in each case, as mandated by McNeely, and only consider certain

facts—that is: (1) was the person arrested for driving while intoxicated; and (2) was

implied consent revoked?    As a result, we hold that the implied consent statutes involved

in this case are not recognized exceptions to the warrant requirement under the Fourth

Amendment, and the State’s reliance on these statutes in this case to establish that the

warrantless search was reasonable is constitutionally infirm.   See id.; see also Perez v.

                                            8
State, No. 01-12-01001-CR, 2015 WL 1245469, at *9 (Tex. App.—Houston [1st Dist.]

Mar. 17, 2015, pet. filed) (“the warrantless taking of appellant's blood sample pursuant to

the implied consent/mandatory blood draw statutory scheme did not satisfy the

requirements of the Fourth Amendment without a showing that some established

exception to the warrant requirement applied”); State v. Anderson, 445 S.W.3d 895, 912

(Tex. App.—Beaumont 2014, no pet.) (holding that nothing in section 724.011 nor section

724.012 require police to take blood without a warrant); Gentry v. State, No. 12-13-00168-

CR, 2014 WL 4215544, at *4 (Tex. App.—Tyler Aug. 27, 2014, pet. filed) (mem. op., not

designated for publication) (“the implied consent and mandatory blood draw statutory

schemes found in the transportation code are not exceptions to the warrant requirement

under the Fourth Amendment”); Aviles v. State, 443 S.W.3d 291, 294 (Tex. App.—San

Antonio 2014, pet. filed) (holding that the transportation code’s implied consent statutes

were not permissible exceptions to the Fourth Amendment’s warrant requirement);

Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.—Texarkana 2014, pet. granted)

(holding that in the absence of a warrant or exigent circumstances, taking defendant’s

blood pursuant to Section 724.012(b)(3)(B) of the Texas Transportation Code violated his

Fourth Amendment rights); Sutherland v. State, 436 S.W.3d 28, 41 (Tex. App.—Amarillo

2014, pet. filed) (“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.”).

      Furthermore, we respectfully disagree with the dissent’s implied consent analysis

in two respects.   First, the dissent asserts that we are requiring the State “contrary to the

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plain language of the statute, to prove that the consent was freely and voluntarily given.”

However, this requirement is not a novel imposition by the majority, but rather one

required by the Fourth Amendment.         See Bumper, 391 U.S. at 548 (holding that to rely

on consent to justify the lawfulness of a search, the State must show that consent was

“freely and voluntarily given.”); see also Beeman, 86 S.W.3d at 616 (implied consent law

gives “police officers nothing more than the Constitution already gives them—the ability

to apply for a search warrant, and if the magistrate finds probable cause to issue that

warrant, the ability to effectuate it. This does not give officers the ability to forcibly obtain

blood samples from anyone arrested for DWI). To give the State carte blanche authority,

as advanced by the State and adopted by the dissent, to draw a suspected unconscious

drunk driver’s blood without a warrant evokes more questions than it does answers.           For

example, under what authority may the State supply consent for individuals, who have

not yet freely and voluntarily consented? In what other respects and situations, other than

drunk driving investigations, may the State statutorily imply consent to search persons,

houses, papers, and effects without a warrant?       Such a position by the State is untenable

and flies in the face of common sense and into the abyss of absurdity.           See Griffith v.

State, 116 S.W.3d 782, 785 (Tex. Crim. App. 2003) (“If one reasonable interpretation

yields absurd results while the other interpretation yields no such absurdities, the latter

interpretation is preferred.”).

       Second, we do not believe that our holding today renders the entire implied

consent statutory scheme ineffective as the dissent states.              The implied consent

statutory scheme is premised on consent. See Villarreal, 2014 WL 1257150 at *9 (citing

TEX. TRANSP. CODE ANN. § 724.011(a); Beeman, 86 S.W.3d at 615)). Further, section

                                               10
724.014 is likewise premised on consent. See TEX. TRANSP. CODE ANN. § 724.014(a) (“A

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

have withdrawn the consent provided by Section 724.011.”) (emphasis added). Based

on the facts of this case and the totality of the circumstances, Ruiz never consented to

trigger the applicable provisions of Chapter 724 of the transportation code.

       In summary, we conclude that the State did not meet its burden to establish the

reasonableness of drawing Ruiz’s blood without a warrant pursuant to sections

724.011(a) and 724.014(a) of the transportation code.1 See Ford, 158 S.W.3d at 492.

       2. Exigency

       In the alternative, the State asserts that exigent circumstances justified the taking

Ruiz’s blood without a warrant.

       Exigency is a “well-recognized exception” to the warrant requirement, when “the

exigencies of the situation make the needs of law enforcement so compelling that a

warrantless search is objectively reasonable under the Fourth Amendment.”                  Kentucky

v. King, 131 S.Ct. 1849, 1856 (2011) (internal quotation marks and brackets omitted).

Exigent circumstances that have been recognized by the United States Supreme Court

include: entering a home to provide emergency assistance to an occupant; engaging in

a hot pursuit of a fleeing suspect, entering a burning building to put out a fire and

investigate its cause, and preventing the imminent destruction of evidence.                      See

McNeely, 133 S.Ct. at 1558–559 (internal citations omitted).




       1  We do not hold that sections 724.011(a) and 724.014(a) of the transportation code are
unconstitutional. Instead, we hold that these provisions do not create per se exceptions to the Fourth
Amendment’s warrant requirement.

                                                 11
       To validate a warrantless search based on exigent circumstances, the State must

satisfy a two-step process.     Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.

2007). First, probable cause must exist to search—that is, reasonable, trustworthy facts

and circumstances within the knowledge of the officer on the scene would lead an officer

of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will

be found.”    See id. at 685.      Second, an exigent circumstance exists to justify a

warrantless search. See id. To determine whether a law enforcement officer faced an

emergency that justified acting without a warrant, we look to the totality of circumstances.

McNeely, 133 S.Ct. at 1559.          Without establishing probable cause and exigent

circumstances, a warrantless search will not stand.    Gutierrez, 221 S.W.3d at 685–86.

       In this case, we agree with the State that it had probable cause to arrest Ruiz for

driving while intoxicated.    The record shows that Ruiz was involved in an accident, in

which he fled the scene.     Upon arrival, Sergeant McBride discovered several beer cans

thrown about Ruiz’s vehicle.    Furthermore, Ruiz’s unconscious body was found in a field

behind a car wash, and according to Sergeant McBride, Ruiz “couldn’t open his eyes”

and his body emitted a “strong odor of [alcohol].” We conclude that sufficient probable

cause existed to arrest Ruiz for driving while intoxicated.   See id. at 685.

       Next, the State asserts that several issues prevented Sergeant McBride from

obtaining a search warrant to draw Ruiz’s blood thereby creating exigency.      Specifically,

the State argues that Sergeant McBride “was required to not only investigate the scene

of the accident,” but also was required to identify and locate Ruiz, who had fled the scene

of the collision.   Sergeant McBride also testified that it would have taken her “three

hours” to obtain a warrant to draw Ruiz’s blood.    However, Sergeant McBride opted not

                                            12
to obtain a warrant because only two officers were on duty that night and to take one off

duty to apply for a warrant was not feasible. Furthermore, although Sergeant McBride’s

testified that no procedures were in place by the Gonzales Police Department to obtain

search warrants for blood in driving while intoxicated cases, the crux of her argument for

not obtaining a warrant related more to the amount of time that it would take to obtain the

warrant rather than an inability to apply for a warrant.   Additionally, Sergeant McBride

agreed with the State’s prosecutor that it would have been “difficult to find a judge” at

midnight on a Saturday night and that she would have had to drive to the magistrate’s

house to obtain the warrant, while the alcohol in Ruiz’s blood stream dissipated.    Finally,

the trial court found that: (1) Ruiz was unconscious throughout Sergeant McBride’s

investigation, (2) physicians admitted Ruiz into the hospital overnight, and (3) Ruiz

presented no risk of flight.

       The context of blood testing is different in critical respects from other destruction-

of-evidence cases in which the police are truly confronted with a “now or never” situation.

McNeely, 133 S.Ct. at 1561. The McNeely court noted that blood alcohol evidence from

a drunk-driving suspect “naturally dissipates over time in a gradual and relatively

predictable manner, rather than in circumstances in which the suspect has control over

easily disposable evidence.” Id.     Additionally, the time expended by a police officer to

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

someone with appropriate medical training before conducting a blood test creates an

inevitable delay between the time of the arrest or accident and the time of the test,

regardless of whether the police officers are required to obtain a warrant.               Id.

Additionally, the McNeely court noted that technological developments enable police

                                             13
officers to secure warrants more quickly, and do so without undermining the neutral

magistrate judge’s essential role as a check on police discretion.             Id. at 1562–563 (citing

various state statutes that allow police to use technology-based developments to

“streamline the warrant process”); see also Clay v. State, 391 S.W.3d 94, 103–04 (Tex.

Crim. App. 2013) (holding that “no compelling reasoning” contemplated in the search

warrant statute requires that the oath always be administered in the corporal presence of

the magistrate, so long as sufficient care is taken in the individual case to preserve the

same or equivalent solemnizing function to that which corporal presence accomplishes).2

        In this case, the State’s exigency argument relates to Sergeant McBride’s timing

concerns of obtaining the warrant. While we recognize that factors such as procedures

in place for obtaining a warrant, or the availability of a magistrate judge, as well as

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

opportunity to obtain reliable evidence may establish exigency to permit a warrantless

search, we must still look to the particular facts and circumstances of each case.                   See

McNeely, 133 S.Ct. at 1568.            Here, the State produced no evidence to show that

destruction of Ruiz’s blood alcohol was imminent, how it was deprived of an opportunity

to obtain reliable evidence within a timeframe, or how a more expeditious process was

not available to locate a magistrate and obtain a warrant from the magistrate through

alternative means such as via telephone rather than physically driving to the magistrate’s



        2 The dissent’s reliance on Schmerber to support the conclusion that Sergeant McBride believed
that she was facing the imminent destruction of evidence was sufficient to support an exigent circumstance
to conduct a warrantless blood draw is misplaced because it does not take into account the factors
discussed in McNeely regarding technological developments in the law to obtain a search warrant without
having to physically visit a magistrate. See McNeely v. Missouri, 133 S.Ct. 1552, 1562–563 (2013); see
also Clay v. State, 391 S.W.3d 94, 103–04 (Tex. Crim. App. 2013).

                                                   14
home. Therefore, under the totality of the circumstances of this case, we agree with the

trial court and hold that the State did not meet its burden to show that Ruiz’s warrantless

blood draw was justified by exigent circumstances. The State’s sole issue on appeal is

overruled.

                                   III.   CONCLUSION

       We affirm the trial court’s granting of Ruiz’s motion to suppress.




                                                        GINA M. BENAVIDES,
                                                        Justice

Dissenting Opinion by
Justice Gregory T. Perkes.

Publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
27th day of August, 2015.




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