Opinion issued November 13, 2014.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00608-CR
                           ———————————
               LOREDANA BERTOLOTTI GORE, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 405th District Court
                         Galveston County, Texas
                      Trial Court Case No. 12CR1811



                                 OPINION

      After the trial court denied her motion to suppress, appellant, Loredana

Bertolotti Gore, pleaded nolo contendre to driving while intoxicated with a child
passenger.1 The trial court, pursuant to a plea bargain, assessed punishment at two

years’ confinement, suspended the sentence, and placed appellant on community

supervision for two years. In her sole issue on appeal, appellant contends the trial

court erred in denying her motion to suppress evidence of her blood alcohol

content because her blood was drawn in violation of her Fourth Amendment rights

as articulated in Missouri v. McNeely, ___U.S.___, 133 S. Ct. 1552 (2013). We

reverse and remand.

                               I. BACKGROUND

      On the evening of July 4, 2012, appellant was involved in a minor car

accident in Friendswood, Texas.      The passenger side of appellant’s car was

scratched and the mirror of the other car involved was damaged. No one was

injured.

      Officer O. McIntyre of the Friendswood Police Department was dispatched

to the scene of the accident. When he arrived, McIntyre first spoke to Officer

Haunschild of the League City Police Department, who was already on the scene.

At 11:45 p.m., McIntyre then took over the investigation because the accident had

occurred in the Friendswood. McIntyre spoke with appellant and the other person

involved. When he discovered that there were two children in appellant’s car,

McIntyre called a family member of appellant’s choosing to come pick up the


1
      See TEX. PENAL CODE ANN. § 49.045 (Vernon 2011).
                                         2
children. It took 10 to 15 minutes for the family member to arrive and another 5 to

10 minutes to load the children into the car.

      McIntyre then performed field sobriety tests on appellant, and, based on her

performance of those tests, arrested appellant for driving while intoxicated with

minor children in the car. He then read appellant the statutory warnings associated

with a blood draw. Appellant agreed to give a breath sample, but refused a blood

draw. Nevertheless, McIntyre transported appellant to a nearby hospital, where her

blood was drawn at approximately 12:34 a.m., approximately 49 minutes after

McIntyre began his investigation of the accident.

      Regarding his decision to arrest appellant and take a sample of her blood

without a warrant and over her objection, McIntyre testified as follows:

      Q: Now, you talked about child passengers.           Were there child
      passengers on the scene?

      A: Yes, sir. There was two child—two children inside appellant’s
      vehicle.

      Q. Were there any other adults inside the defendant’s vehicle when
      you arrived on the scene?

      A. No, sir.

      Q: What did you do with the children?

      A: I contacted a family member of her choosing to come out and take
      care of the kids and give them a safe ride to the house.

      Q: Did you oversee that transfer?

                                          3
      A: Yes, sir.

      Q: And did that take any amount of time?

      A: It took I would guesstimate, ten to 15 minutes for her to come out
      and then probably another five to ten minutes to get the kids out of the
      car, into their car seats, buckled in, so on, so forth.

      Q Now, after the—after you arrested the defendant, did you—did you
      talk to the defendant at all about providing a specimen of breath or
      blood?

      A. Yes, sir. I read her the statutory warning and asked if she would
      provide a blood specimen.

      Q: Did you ask her to provide a breath specimen at all?

      A: No, sir.

      Q: Under Texas statute, are you aware of whether or not you could
      determine what type of blood specimen is requested?

      A: Yes, sir.

      Q: Well, what is that?

      A: We are—it’s our choosing. We can ask for either breath or blood.

      Q: Now, just to be clear, did the defendant agree to provide a breath
      specimen?

      A: Yes, sir, she did.

      Q: But did you request a breath specimen?

      A: No, sir, I did not.

      McIntyre testified that he believed that appellant was “on something” in

addition to alcohol, so he wanted a blood sample because the breath sample would
                                         4
only reveal the presence of alcohol.         When asked about whether appellant

consented to the blood draw, McIntyre testified as follows:

      Q: Now—and I forgot: Did she consent to give the blood specimen?

      A: No, sir.

      Q: So what did you do then?

      A: Then I placed her in handcuffs under arrest. I determined that
      since the mandatory blood statutes at the time dictated that a
      mandatory blood draw was warranted, she was transported from there
      to the hospital [where her blood was drawn at 12:34 a.m.].

When asked why he did not attempt to get a warrant, McIntyre testified as follows:

      Q: Okay, Officer McIntyre, at the time of your arrest, isn’t it true that
      you did not believe that you had to get a search warrant on this kind of
      a case? Is that true?

      A: Yes, sir.

      Q: And you discussed this particular arrest with the assistant district
      attorney; is that correct?

      A: Yes, sir.

      Q: And did you at any time request that a search warrant be issued for
      the drugs?

      A: No, sir.

      Q: All right. And, therefore, you never made any kind of an effort to
      get a search warrant in this particular case; is that correct?

      A: No, sir.

      Q: And isn’t it further true that you did not make any effort to
      determine if a search warrant was needed in this particular case?
                                         5
     A: I just based it off of what the law said at the time.

     Q: All right. There was no other emergencies pending at this
     particular time, was there?

     A: What do you mean by “emergencies”?

     Q: Well, as far as a—was there anybody hurt in that particular
     accident?

     A: No, sir.

     Q: Did anyone need any kind of medical services?

     A: No, sir.

     Q: Are you aware that the natural actions of the body, metabolism of
     the body, as to drug and alcohol dissipates over time?

     A: Yes, sir. It does.

     Q: All right. And you did believe that the law permitted you, the
     transportation code, to get, in this kind of a case, a blood draw; is that
     correct?

     A: Yes, sir.

     Q: All right. And the defendant specifically requested no blood draw
     be taken from her; is that correct?

     A: Yes, sir.

     McIntyre further testified that he had never gotten a warrant to draw

someone’s blood in Galveston County except on a “no-refusal weekends,”2 which


2
     On no-refusal weekends, which this was not, magistrates are on stand-by to sign
     warrants.
                                          6
this particular weekend was not. He testified that, in his experience, it would take

two to four hours to get a warrant in Harris County.

      At the suppression hearing, Bill Reed, the Galveston County Special Crimes

Chief Prosecutor, testified that for the past 13 years he has been the “on-call”

prosecutor for one week each month, and that “we could get search warrants and/or

arrest warrants in the middle of the night.” Reed said that there were 13 judges

available in Galveston County to sign warrants and that it usually takes two to

three hours to get a warrant.

      Finally, Severo Lopez, a section supervisor for the drug and alcohol section

of the Texas Department of Public Safety, testified that the average rate of

elimination of alcohol in the human body is approximately .02 grams per deciliter

per hour.

                           II. MOTION TO SUPPRESS

      In her sole issue on appeal, appellant contends the trial court erred in

denying her motion to suppress, in which she alleged that the seizure of her blood

violated her Fourth Amendment rights because (1) it was done without a warrant,

and (2) without her consent. The State responds that two exceptions to the warrant

requirement are present here—consent and exigent circumstances. Specifically,

the State contends that “consent is satisfied by the mandatory blood draw

provision, and exigent circumstances are demonstrated by the facts of this case.”

                                         7
A. Standard of Review

      We evaluate a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

The trial judge is the sole trier of fact and judge of the weight and credibility of the

evidence and testimony. Weide v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.

2007). Accordingly, we defer to the trial court’s determination of historical facts if

the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial

court’s application of the law to those facts. Id. “[T]he prevailing party is entitled

to ‘the strongest legitimate view of the evidence and all reasonable inferences that

may be drawn from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465

(Tex. Crim. App. 2011) (quoting State v. Garcia–Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008)). A trial court’s ruling will be sustained if it is “reasonably

supported by the record and correct on any theory of law applicable to the case.”

Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (quoting Willover v.

State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).

      On a motion to suppress, the defendant bears the initial burden of producing

some evidence that rebuts the presumption of proper police conduct. Abney v.

State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013); Amador v. State, 275 S.W.3d

872, 878 (Tex. Crim. App. 2009). However, once the defendant establishes the

absence of a warrant, the burden shifts to the State to prove the warrantless search

                                           8
in question was reasonable under the totality of the circumstances. Amador, 221

S.W.3d at 672–73. This burden may be satisfied 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). The Court of Criminal Appeals has held “[t]here is a

strong preference for searches to be administered pursuant to a warrant.” Id.

B. Supreme Court Authority on Blood Draws

      In Schmerber v. California, the United States Supreme Court upheld a

warrantless blood draw in a DUI case under the exigent circumstances exception to

the warrant requirement. 384 U.S. 757, 770, 86 S. Ct. 1826, 1836 (1966). The

driver and his companion had both sustained injuries, and the Court found that

exigent circumstances were present, “[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[,]” and the delay necessary to obtain a warrant threatened the

destruction of evidence because “the percentage of alcohol in the blood begins to

diminish shortly after drinking stops, as the body functions to eliminate it from the

system.” Id. at 770–71.

      Last year, however, the Supreme Court clarified that Schmerber did not

create a per se exigency exempting blood alcohol tests from the warrant

requirement. Missouri v. McNeely, __U.S.__, 133 S. Ct. 1552, 1556 (2013).

Instead, the court concluded that the exigency must be determined based on the

                                         9
totality of the circumstances, and that the metabolization of alcohol was but one of

the factors to be considered in evaluating whether the circumstances were

exigent. Id. at 1559, 1563. The Court held that “[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. at 1561. The Court found it

significant that technological innovations may make it possible to obtain a warrant

without causing significant delay in the drawing of the blood of the accused. Id. at

1561–63.

      The Supreme Court did not specifically address the constitutionality of

mandatory blood draw statutes, either facially or as applied, but, shortly after it

issued McNeely, the Supreme Court vacated and remanded Aviles v. Texas, 385

S.W.3d 110 (Tex. App.—San Antonio 2012, pet. denied), vacated, 134 S. Ct. 902

(2014), “for further consideration in light of Missouri v. McNeely, 569 U.S. __, 133

S. Ct. 1552, 185 L.Ed.2d 696 (2013).” In Aviles, the court of appeals had upheld a

warrantless blood draw, holding that Texas’ implied consent statute,3 coupled with

its mandatory blood draw statute,4 eliminated the necessity for a warrant and the

warrantless blood draw was done “without violating Aviles’s Fourth Amendment

Rights.” 385 S.W.3d at 116. Essentially, the court of appeal in Aviles had held that

3
      See TEX. TRANSP. CODE ANN. § 724.011 (Vernon 2011).
4
      See TEX. TRANSP. CODE ANN. § 724.012(b) (Vernon 2011).
                                        10
compliance with the mandatory blood draw statute was an exception to the Fourth

Amendment’s warrant requirement. See id.

C. Consent

      The issue this Court must consider is the effect that McNeely has on the

State’s implied consent and mandatory blood draw statutes.

      1. The Implied Consent/Mandatory Blood Draw Statutes

The applicable statutes provide as follows:

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

TEX. TRANSP. CODE ANN. § 724.011 (hereinafter, “the implied consent statute”).

      A peace office 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 . . . and the person refuses
      the officer’s request to submit to the taking of a specimen voluntarily:
      ....
             (2) the offense for which the officer arrests the person is an
             offense under Section 49.045, Penal Code[.]5


5
      Section 49.045 of the Penal Code provides that “A person commits an offense if
      (1) the person is intoxicated while operating a motor vehicle in a public place; and
      (2) the vehicle being operated by the person is occupied by a passenger who is
      younger than 15 years of age.” TEX. PENAL CODE ANN. § 49.045(a)(1) (Vernon
      2011). The offense described is a state jail felony. Id. at §49.045(b).
                                           11
TEX. TRANSP. CODE ANN. § 724.012(b)(2) (hereinafter, “the mandatory blood draw

statute”).

       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.

TEX. TRANSP. CODE ANN. § 724.013.

       2. Constitutionality of Implied Consent

             a. Facial Constitutionality

       There are two types of challenges to the constitutionality of a statute: as

applied or facial. See Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App.

2009) (Cochran, J., concurring) (“A facial challenge is based solely upon the face

of the penal statute and the charging instrument, while an applied challenge

depends upon the evidence adduced at a trial or hearing.”). Appellant argues that

the mandatory blood draw statute “creates a per se rule that no warrant is required

to conduct a blood draw in [a] felony DWI case.” This appears to be a challenge to

the facial constitutionality of section 724.012(b).        In a facial challenge to a

statute’s constitutionality, we examine the statute as it is written, rather than how it

is applied in a particular case. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908

(Tex. Crim. App. 2011). To prevail on a facial challenge, a party must establish

that the statute always operates unconstitutionally in all possible circumstances.

State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013).

                                           12
      In McGruder v. State, ___S.W.3d___, No. 10-13-00109-CR, 2014 WL

3973089, at *3 (Tex. App.—Waco Aug. 14, 2014, pet. filed), the defendant argued

that section 724.012 was facially unconstitutional. The court disagreed, stating

      Section 724.012(b) merely requires an officer to take a blood or breath
      specimen in certain circumstances. What makes the statute mandatory
      is that the officer has no discretion in those situations to obtain either
      a blood or a breath specimen. It does not mandate, nor does it purport
      to authorize, a specimen be taken without compliance with the Fourth
      Amendment. And although the Court of Criminal Appeals has said
      that the implied consent law, the body of law in which this particular
      statute is contained, enables officers to draw blood in certain limited
      circumstances, a.k.a. exigent circumstances, even without a search
      warrant, the Court also said that the law did not give officers the
      ability to forcibly obtain blood samples from anyone just because they
      were arrested for DWI. Beeman v. State, 86 S.W.3d 613, 616 (Tex.
      Crim. App. 2002). Further, the Court did not hold in Beeman, and has
      not yet held, that section 724.012(b) is an exception to the Fourth
      Amendment’s warrant requirement such as the consent exception or
      the exigent circumstances exception. (Citation omitted).

      Further, as written, section 724.012(b) does not require a blood or
      breath specimen to be taken contrary to the Fourth Amendment; that
      is, without a warrant or without a recognized exception to the warrant
      requirement. (Citation omitted). We agree with the Houston Court of
      Appeals when it aptly noted, “We have no reason to fault the
      constitutionality of the mandatory blood draw statute in this case
      because it did not require [the officer] to obtain a blood draw without
      first securing a warrant. It is the officer’s failure to obtain a warrant
      and the State’s failure to prove an exception to the warrant
      requirement, not the mandatory nature of the blood draw statute, that
      violate the Fourth Amendment.” Douds v. State, 434 S.W.3d 842, 861
      (Tex. App.—Houston [14th Dist.] 2014, pet. [granted]) (op. on rh’g)
      (publish).

Id. We agree with the McGruder court that section 2014 is not facially

unconstitutional.   While the statute does make a blood draw without consent
                                         13
mandatory in certain circumstances, it does not mandate a blood draw without a

warrant.     Thus, a nonconsensual blood draw, with a warrant, would not be

constitutionally infirm. As such, we overrule appellant’s claim that the statute is

facially unconstitutional; it does not “create[] a per se rule that no warrant is

required to conduct a blood draw in felony DWI case[s].”

               b. “As Applied” Constitutionality

         Appellant also claims that the blood draw statute is unconstitutional when

applied to her because no warrant was obtained and it was done without her

consent. The State responds that “[u]nder certain, narrowly tailored circumstances

involving cases of particular import to the safety of the public, a person who has

chosen to operate a motor vehicle in public while intoxicated impliedly consents to

having the person’s blood drawn by appropriately qualified medical personnel[,]

[a]nd when the situation falls within the provisions of §724.012, the person may

not revoke their consent.” Several Texas appellate courts have grappled with this

issue.

         On remand from the Supreme Court “for further consideration in light of

Missouri v. McNeely,” the San Antonio Court of Appeals reconsidered its previous

holding in Avilas that a warrantless blood draw conducted pursuant to section

724.012 did not violate the defendant’s rights under the Fourth Amendment,

holding instead on remand that “neither the mandatory blood draw statute nor the

                                          14
implied consent statute were exceptions to the Fourth Amendment’s warrant

requirement. Avilas v. State, ___S.W.3d___, No. 04-11-00877-CR, 2014 WL

3843756, at *2 (Tex. App.—San Antonio Aug. 6, 2014, pet. filed). In so holding,

the Avilas court relied on another case from San Antonio, Weems v. State, 434

S.W.3d 655, 665 (Tex. App.—San Antonio 2014, pet. granted). In Weems, the

court of appeals concluded that, as applied to a defendant whose blood was taken

without a warrant or other warrant exception, application of section 724.012

creates a categorical, per se exception to the warrant requirement, and that such per

se exceptions run afoul McNeely, which requires a consideration of the particular

circumstances of each case. Id. at 664. In so holding, the Weems court stated, “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[,]” and that “the implied

consent and mandatory blood draw statutes are not exceptions to the Fourth

Amendment’s warrant requirement.” Id. at 664, 665.

      Indeed, several Texas appellate courts have held that the implied consent

statutes do not create an exception to the warrant requirement.          Weems, 434

S.W.3d at 665 (concluding that the remand of Aviles indicated that the implied

consent statute was not in itself an exception to the warrant requirement); Reeder v.

State, 428 S.W.3d 924, 930 (Tex. App.—Texarkana 2014, pet. granted) (“[I]n the

                                         15
absence of a warrant or exigent circumstances, taking Reeder’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, 38 (Tex. App.—

Amarillo 2014, pet. filed) (“[I]t 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 also State v. Villarreal, ___S .W.3d___, No. 13–13–

00253–CR, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan. 23, 2014,

pet. granted) (accepting the State’s concession that there was no consent and

concluding 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”); see also Gentry v. State, No.

12-13-00168-CR, 2014 WL 4215544, at *4 (Tex. App.—Tyler Aug. 27, 2014, pet.

filed) (holding “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[.]”)

      The Beaumont court of appeals has recently joined the courts mentioned

above in concluding that the implied consent/mandatory blood draw statutes do not

provide a recognized exception to the warrant requirement of the Fourth

Amendment. See State v. Anderson, ___S.W.3d___, No. 09-13-00400-CR, 2014

                                        16
WL 5033262, at *10 (Tex. App.—Beaumont Oct. 8, 2014, no pet. h.). In so

holding, the court stated:

      [A]s applied in this case, the State’s overly broad argument regarding
      the application of section 724.012(b) would extinguish a right granted
      by the United States Constitution. While the Texas Legislature can
      grant greater or more expansive rights than those contained in the
      United States Constitution, it cannot extinguish the protections and
      rights guaranteed by the Constitution.

Id.
      The Eastland court of appeals has specifically addressed an issue raised by

the State in this case, i.e., that once the conditions of section 724.012(b) are met, a

defendant’s implied consent becomes irrevocable. See Forsyth v. State, 438

S.W.3d 216, 222 (Tex. App.—Eastland 2014, pet. ref’d). In Forsyth, the court,

citing Florida v. Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801 (1991), noted that a

defendant may delimit the scope of the search to which she has consented. See

also Mason v. Pulliam, 557 F.2d 426, 428–29 (5th Cir. 1977) (holding that consent

may be limited, qualified, or withdrawn). The court concluded that when, as here,

the defendant specifically refuses to consent to the blood draw, any implied

consent failed to meet Fourth Amendment standards.

      When a person refuses to submit, we can see no way to legitimately
      find that the suspect consented to the mandatory blood draw
      voluntarily. Thus, regardless of whether the Transportation Code
      forecloses a suspect’s ability to legally withdraw implied consent, a
      person cannot be said to have consented for the purpose of satisfying
      the voluntary consent exception to the warrant requirement. (Citation
      omitted).

                                          17
      ****

      For consent to search to be valid as an exception to the warrant
      requirement, the consent must be given voluntarily, without coercion
      by threats or force and not as the result of duress. Schneckloth v.
      Bustamonte, 412 U.S. 218, 219, 224–25, 229, 233, 248, 93 S. Ct.
      2041, 36 L.Ed.2d 854 (1973). Moreover, when the State seeks to rely
      upon consent to justify a warrantless search, the State has the burden
      of proving that the consent was freely and voluntarily given. Bumper
      v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L.Ed.2d 797
      (1968). The State cannot meet this burden when the suspect has
      refused to give a specimen of breath or blood because the suspect has
      clearly not given consent freely and voluntarily. The suspect may very
      well acquiesce to the officer’s authority and allow medical personnel
      to draw his or her blood; however, mere acquiescence to a claim of
      lawful authority does not discharge the burden imposed upon the State
      to show that the suspect freely and voluntarily consented. See id. at
      548–49, 88 S. Ct. 1788. We decline to hold that implied consent under
      the Transportation Code is the equivalent to voluntary consent as a
      recognized exception to the warrant requirement.

Id. at 222–23. Indeed, the high courts of several other States have held that an

implied consent that cannot be revoked fails to meet the standard for consent

required by the Fourth Amendment.       See Byars v. State, ___P.3d___, 2014 WL

530892, at *4, 6 (Nev. Oct. 16, 2014) (holding “a necessary element of consent is

the ability to limit or revoke it,” thus “[Nevada’s implied consent statute] does not

overcome the statute’s infirmity because the statute does not allow a driver to

withdraw consent, thus a driver’s so-called consent cannot be considered

voluntary.”); State v. Wells, 2014 WL 49777356, at *13 (Tenn. Crim. App. Oct. 6,

2014) (holding that implied consent law is consent to testing or to accept

consequences of refusal, i.e., loss of license, not consent for forcible blood draw);
                                         18
State v. Fierro, 853 N.W.2d 235, 241 (S.D. 2014) (holding that irrevocable consent

pursuant to implied consent statute did not meet consent requirements of Fourth

Amendment).

      The State also argues that “[a]ccording to the plurality [in McNeely],

warrantless, nonconsensual blood draws remain permissible.” This argument is a

reference to a plurality portion of the McNeely opinion in which Justice Sotomayor

mentioned implied consent statutes. Justice Sotomayor, joined by Justices Scalia,

Ginsburg, and Kagan, Justice Sotomayor, noted that states have “a broad range of

legal tools to enforce their drunk-driving laws and to secure BAC [blood alcohol

content] without undertaking warrantless nonconsensual blood draws.” Id. at 1566.

As an example, the plurality recognized 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 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 prosecution.” Id.

      A few courts have discussed the import of Justice Sotomayor’s comments on

the necessity for warrants in states with implied consent laws. In Anderson, the

                                        19
Beaumont court of appeals addressed an argument identical to that made by the

State here, i.e., that the plurality’s mention of implied consent laws as a “legal

tool[] to enforce their drunk-driving laws and to secure BAC” means that implied

consent laws provide a lawful method for a warrantless blood draw. The Anderson

court points out that the McNeely plurality actually states that implied consent

statutes provide “a broad range of legal tools to enforce [a State’s] drunk driving

laws and to secure BAC evidence without undertaking warrantless nonconsensual

blood draws.” 2014 WL 5033262, at *10 (quoting McNeeley, 133 S. Ct. at 1566

(plurality opinion) (emphasis added)). And, the Tennessee Court of Criminal

Appeals has noted that Justice Sotomayor’s plurality points out that implied

consent laws “impose significant consequences when a motorist withdraws

consent; typically the motorist’s driver’s license is immediately suspended or

revoked, and most States allow the motorist refusal to take a BAC to be used as

evidence against him in a subsequent criminal prosecution.” Wells, 2014 WL

4977356, at *13 (quoting McNeely, 133 S. Ct. at 1566 (plurality opinion)

(emphasis added)).

      We agree with the Anderson and Wells courts and conclude that Justice

Sotomayor’s plurality opinion does not provide support for the State’s position.

The plurality opinion points out that implied consent laws are another tool for

obtaining BAC evidence; it does not, however, hold that such laws authorize

                                        20
warrantless nonconsensual blood draws. Instead, it points out that defendants may

consent to avoid the penalties of noncompliance such as the loss of a driver’s

licence. Similarly, the plurality opinion supports the position that consent provided

under these statutes can be withdrawn.

      The State in this case argues that “[t]he acceptance of a driver’s license is

conditioned upon the implied consent for providing a blood sample or a waiver of

the warrant requirement in certain circumstances.” Essentially, the State argues

that in order to obtain the privilege of driving in Texas, one must give up one’s

Fourth Amendment right to be free from warrantless searches in certain

circumstances.

      The Supreme Court considered this issue in another context. In Frost v.

Railroad Comm’n of Ca., 271 U.S. 583, 593, 46 S. Ct. 605, 607 (1926), the

Supreme Court considered a statute that required a private carrier, in order to have

the privilege of using California highways, to submit to regulations applicable to

common carriers. The Supreme Court had already held that private carriers could

not be converted to common carriers against their will, and in Frost, further held

that legislation conditioned on the waiver of that constitutional right could not

stand. Id. In so holding, the Court stated:

      [A]s a general rule, the state, having power to deny a privilege
      altogether, may grant it upon such conditions as it sees fit to impose.
      But the power of the state in that respect is not unlimited, and one of
      the limitations is that it may not impose conditions which require the
                                         21
      relinquishment of constitutional rights. If the state may compel the
      surrender of one constitutional right as a condition of its favor, it may,
      in like manner, compel a surrender of all. It is inconceivable that
      guaranties embedded in the Constitution of the United States may thus
      be manipulated out of existence.

Id. The same reasoning is applicable in this case. While the State certainly has the

ability to condition the right to drive on consent to a blood draw, it cannot require

the waiver of a constitutional right in return. One may be asked to relinquish the

privilege of driving as a result of the failure to consent, but one may not be asked

to relinquish other constitutionally guaranteed rights. See also So. Pac. Co. v.

Denton, 146 U.S. 202, 207, 13 S. Ct. 44, 46 (1892) (“But that statute requiring the

corporation, as a condition precedent to obtaining a permit to do business within

the State, to surrender a right and privilege secured to it by the constitution and

laws of the United States, was unconstitutional and void[.]”).

      3. Conclusions Regarding Consent

      From our review of the above-references cases we reach the following

conclusions about consent to blood draws after McNeeley. First, the Texas implied

consent/mandatory blood draw statutes are not facially unconstitutional because,

while they do mandate the drawing of blood under certain circumstances, they do

not require that the blood be drawn without a warrant. Second, application of the

statutes may be unconstitutional, as applied to a defendant whose blood is drawn

without a warrant or another exception to the warrant requirement, because (1)

                                         22
McNeeley forbids categorical, per se exceptions to the warrant requirement, and

that application of section 724.012 creates such a categorical, per se exception to

the warrant requirement as applied; (2) implied consent that cannot be withdrawn

does not meet the requirements for voluntary consent under the Fourth

Amendment; and (3) the State cannot condition the exercise of a privilege granted

by the State upon the waiver of constitutional rights.

      In this case, it is undisputed that appellant withdrew any implied consent that

she may have given at the time she obtained her driver’s license and affirmatively

refused to give consent for the warrantless blood draw. For the reasons given

above, the State’s warrantless search may not be premised on the consent

exception to the warrant requirement. Thus, the State must come forth with some

other recognized exception to the warrant requirement.

D. Exigency

      The State also argues that the exigency exception to the warrant requirement

justifies the warrantless blood draw because “there wasn’t enough time to get a

warrant.”

      1. Schmerber & McNeely

      The Supreme Court first considered the exigency exception to the warrant

requirement for DWI cases in Schmerber, 384 U.S. at 758, 86 S. Ct. at 1829, a case

in which a defendant was arrested at the hospital while receiving treatment for

                                         23
injuries sustained in an accident. The defendant was arrested within two hours of

the accident. Id. at 769, 86 S. Ct. at 1835. The Supreme Court acknowledged

“[t]he importance of informed, detached and deliberate determinations of the issue

of whether or not to invade another’s body in search of evidence of guilt is

indisputable and great[,]” but nonetheless found the warrantless blood draw in

Schmerber to be constitutional, stating:

      The officer in the present case, however, 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.” Preston v. United States,
      376 U.S. 364, 367, 84 S. Ct. 881, 883, 11 L.Ed.2d 777 (1964). We are
      told that the percentage of alcohol in the blood begins to diminish
      shortly after drinking stops, as the body functions to eliminate it from
      the system. Particularly 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. Given these special facts, we conclude that the attempt to
      secure evidence of blood-alcohol content in this case was an
      appropriate incident to petitioner’s arrest.

384 U.S. at 770–71, 86 S. Ct. 1835–36.

      The McNeely court did not overrule Schmerber; it merely held that exigency

must be determined on a case-by-case basis, and that the metabolization of alcohol

did not create a per se situation of exigency. The Court did, however, provide

some indication of other factors that might also be considered. The Court noted

that “a significant delay in testing will negatively affect the probative value of the

results” and that, in Schmerber, “further delay in order to secure a warrant after the

                                           24
time spent investigating the scene of the accident and transporting the injured

suspect to the hospital would have threatened the destruction of evidence.” 133 S.

Ct. at 1561 (citing Schmerber, 384 U.S. at 770–71, 86 S. Ct. 1835–36.) “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, the court noted that

blood testing situations did not present a true “now or never” case of evidence

destruction because blood alcohol “dissipates over time in a gradual and relatively

predictable manner.” Id. The Court agreed that “exigent circumstances justifying

a warrantless blood samples may arise in the regular course of law enforcement

due to delays from the warrant application process[,]” id. at 1563, but also noted

that “some delay between the time of the arrest or accident at the time of the test is

inevitable regardless of whether police officers are required to obtain a warrant.”

Id. at 1561. The court noted that the presence of multiple officers at the scene

could be one situation in which circumstances would not warrant a finding of

exigency.

      Consider, for example, a situation in which the warrant process will
      not significantly increase the delay before the blood test in conducted
      because an officer can take steps to secure a warrant while the suspect
      is being transported to a medical facility by another officer. In such
      circumstance, there would be no plausible justification for an
      exception to the warrant requirement.



                                         25
Id.   The Court also noted that, since Schmerber, technological advances have

streamlined the process of obtaining warrants, and, as such “are relevant to an

assessment of exigency.” Id. at 1562–63.

      2. Texas Exigency Cases Since McNeely

      Several Texas courts of appeals have considered the exigency exception in

the context of DWI’s since McNeely.        In Sutherland, 436 S.W.3d at 31, the

defendant was stopped by police at 11:30 p.m. after he changed lanes without

signaling. The police officer performed field sobriety tests, arrested the defendant

at 11:54 p.m. based on his performance of tests, and asked the defendant to take a

breath test, which the defendant refused. Id. The officer then received information

that the defendant had two previous DWI convictions, so, in reliance on section

724.012(b) of the Transporation Code, the officer took the defendant to the jail,

where his blood was drawn without his consent at 12:48 a.m. Id. At the hearing

on appellant’s motion to suppress, the officer admitted that there was no accident,

no medical emergency and no need for medical treatment by any person. Id. at 32.

There was also evidence that a magistrate and phlebotomist were both available

24-hours-a-day at the booking facility, but that the State never sought a warrant in

the case. Id. The court concluded that the State had not shown exigency because

the arresting officer “did not describe any factors that would suggest he was

confronted with an emergency or any unusual delay in securing a warrant[,]” and

                                        26
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.”

Id. at 40. The court noted that “procedures in place at the Travis County central

booking facility have been implemented to streamline the warrant application

process[,]” and that “the arresting officer was not faced with exigent circumstances

such that the natural dissipation of alcohol from appellant’s bloodsteam would

support a warrantless seizure of appellant’s blood.” Id. at 40, 41.

      In Weems, the defendant was discovered near the scene of a car crash hiding

underneath a car. 434 S.W.3d at 658. He was arrested and refused to provide a

breath or blood specimen, so he was taken to a hospital, where blood was drawn

without his consent. Id. The officer “testified that a mandatory blood draw was

taken because Weems was driving a car involved in a crash and the passenger was

injured.” Id. Two to three hours passed between the time of the crash and the time

the specimen was taken. Id. Even though there had been an accident, the passenger

had been injured, and the defendant had been transported to the hospital, the court

found that no exigency was shown by the State. The court noted that the officer

had made no effort to obtain a warrant. Id. at 666. The court also noted that the

record contained no “other factors that would be relevant under 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 with a

                                         27
timeframe that still preserves the opportunity to obtain reliable evidence.’” Id.

(citing McNeely, 133 S. Ct. at 1568).

      In Forsyth, the police stopped the defendant for failing to signal a turn. 438

S.W.3d at 218. After the defendant failed her field sobriety tests, she was arrested

and a criminal history check revealed two prior DWI convictions. Id. at 219.

After the defendant refused to submit a breath or blood sample, she was transferred

to a hospital ten minutes away for a mandatory blood draw, which was taken

approximately 30 to 45 minutes after arriving at the hospital. Id. The officer

testified that “[o]n average, from the time of the stop to the time blood is drawn, it

takes two hours to get a blood draw with a warrant[,] and that “it is always faster to

get a blood draw without a warrant than it is with a warrant.” Id. The court found

no exigent circumstances, stating:

      In this case, the trial court found that there were no exigent
      circumstances beyond the natural dissipation of alcohol in Appellant’s
      bloodstream. Although Sergeant Kreger testified that in certain
      situations an officer may have to wait over one and one-half hours for
      a warrant, there was no evidence presented by the State in this
      particular case of how long Officer McDaniel would have had to wait
      on a warrant. Because the State failed to present evidence of any
      other exigent circumstances beyond the natural dissipation of alcohol
      in Appellant’s bloodstream, we cannot uphold the trial court’s ruling
      on the ground that exigent circumstances existed.

Id. at 220.

      Most recently, the Fourteenth Court of Appeals has considered the exigency

exception in an en banc opinion. See Douds v. State, 434 S.W.3d 842 (Tex.
                                         28
App.—Houston [14th Dist.] 2014, pet. granted). In Douds, Officer Tran responded

to a two-car accident at 2:33 a.m. Id. at 845. Another officer and EMS were

already at the scene. Id. Officer Tran believed that appellant’s wife needed to be

“checked out,” and her friends in the second car stated, “we’re taking her.” Id.

After failing field sobriety tests, appellant was arrested at 3:19 a.m. and taken to

the police department, arriving at 3:33 a.m. Id. After appellant refused to provide

a breath sample and believing that appellant’s wife had been injured, Officer Tran

took appellant to a medical center for a mandatory blood draw; which was

accomplished at 4:45 a.m. Id. On appeal, the State argued that “under Schmerber,

the time an officer takes to conduct an accident investigation in a suspected DWI

case will provide exigent circumstances authorizing a blood draw without a

warrant.” Id. at 851. The court noted that “courts must focus on whether the State

showed that police could not reasonably obtain a warrant, id. at 853, and that “[t]he

relevant inquiry is whether, given the facts and circumstances known to police at

the time, it would be objectively reasonable for an officer to conclude that taking

the time necessary to obtain a warrant before drawing a blood sample would

significantly undermine the efficacy of a blood alcohol test.” Id. at 854. As such,

the court concluded that an accident investigation, without more, would not

support a warrantless blood draw based on exigent circumstances. Id. The court,

after examining the record in favor of the trial court’s ruling, found no exigent

                                         29
circumstances because (1) nothing in the record mentioned what the officer knew

about the time needed to obtain a warrant; (2) there was no evidence addressing

whether another officer could have begun the process of obtaining a warrant; (3) an

unexplained delay between the arrest and the blood draw negated any inference

that time was of the essence in obtaining a blood sample; and (4) the officer did not

testify that, in his judgment, the time he spent investigating the warrant would have

threatened the destruction of appellant’s blood alcohol concentration. Id. at 855–

56.

      3. Analysis

      With these cases in mind, we consider the relevant facts in this case. There

was a minor accident, but it involved no injuries—only scratches to appellant’s

passenger door and the other car’s mirror. Two children were in appellant’s car,

but, according to Officer McIntyre, it took at most 25 minutes to get them

transferred to a relative’s custody. There was at least one officer from a different

police department already on the scene when Officer McIntyre arrived. Even

though Officer McIntyre discussed the arrest with an assistant district attorney, he

never made any attempt to get a search warrant, believing that section 724.012(b)

authorized the warrantless blood draw.

      Q: Okay. Officer McIntyre, at the time of your arrest, isn’t it true that
      you did not believe that you had to get a search warrant on this kind of
      a case? Is that true?

                                         30
      A: Yes, sir.

      Q: And you discussed this particular arrest with the assistant district
      attorney; is that correct?

      A: Yes, sir.

      Q: And did you at any time request that a search warrant be issued for
      the drugs?

      A: No, sir.

      Q: All right. And, therefore, you never made any kind of effort to get
      a search warrant in this particular case; is that correct?

      A: No, sir.

      Q: And, isn’t it further true that you did not make any effort to
      determine if a search warrant was needed in this particular case?

      A: I just based it off of what the law said at that time.

Officer McIntyre had never gotten a search warrant in Galveston County except on

no-refusal weekends. In his experience usually took two to four hours to get a

search warrant in Harris County.

      Bill Reed, an assistant district attorney in Galveston County testified about

his experience in getting a warrant at night when it was not a no-refusal weekend.

      Q: Now, that whole process of getting the warrant approved by the
      D.A.’s office and then finding a judge, waking up a judge, and getting
      a judge to go sign the warrant—how long does that generally take?

      A: I would say—from the time of arrest, I would say it would take
      two to three hours.



                                          31
 Reed did not testify that he was the assistant district attorney that McIntyre had

talked to on the night of the arrest or that they had discussed how difficult it would

be to get a warrant in that particular case. Reed also testified that there were at

least 13 magistrates who could sign warrants in Galveston County.

      McIntyre began his investigation at 11:45 p.m. and appellant’s blood was

involuntarily drawn 49 minutes later at 12:34. There were at least two officers on

the scene, and, at most a 25-minute delay while facilitating the transfer of custody

of the children. There is no explanation of why both officers were affected by the

delay. There is no discussion of why Officer McIntyre felt he did not have time to

get a warrant; instead the record makes clear that he did not believe he needed a

warrant. Although McIntyre discussed the arrest with an assistant district attorney,

the two did not discuss a warrant. Having discussed the case with McIntyre, it

would seem that the assistant district attorney could have begun the process of

obtaining a warrant while McIntyre continued with his investigation and arrest.

Other that Mr. Reed’s testimony that in his experience it would take two to three

hours to “wake up a judge” and get a warrant, there is no evidence of whether that

would have been true in this particular case or that it had been difficult to find one

of the 13 judges available in the county that night. To accept Reed’s testimony

that it usually takes two to three hours to get a warrant as sufficient evidence of

exigency in every DWI case would be to create a per se exigency rule, which

                                         32
McNeely expressly prohibits. Nothing else in the record explains why Officer

McIntyre did not have time to get a warrant before the evidence was destroyed,

especially, when, as noted by the McNeely court, “BAC evidence from a drunk-

driving suspect naturally dissipates over time in a gradual and relatively

predictable manner.” 133 S. Ct. at 1561 (emphasis added). Even if McIntyre had to

wait the maximum estimated three hours for a warrant, it is likely that the BAC

evidence would have nonetheless been available in light of its “predictable

manner” of dissipation.6 After implying all finding of historical facts in favor of

the trial court’s ruling, we conclude that these facts do not support an objectively

reasonable conclusion that obtaining a warrant was impractical. See Douds, 434

S.W.3d at 861. For this reason, the State’s warrantless search may not be premised

on the exigency exception to the warrant requirement.

                                III. CONCLUSION

      A warrantless blood draw, unless performed with consent, exigency, or some

other recognized warrant exception, violates a defendant’s Fourth Amendment

rights. Because the State did not carry its burden to show that its warrantless search

was authorized by either the consent or exigency exceptions to the warrant

requirement, the trial court erred in denying appellant’s motion to suppress. We

6
      In this case, Severo Lopez, section supervisor for the drug and alcohol section of
      the Texas Department of Public Safety Crime Laboratory testified that in the case
      of a three hour delay, the average metabolized alcohol would be around 0.06
      grams per deciliter.
                                          33
further conclude that the erroneous denial of the motion to suppress contributed to

appellant’s guilty plea. See Holmes v. State, 323 S.W.3d 163, 173–74 (Tex. Crim.

App. 2009); Kraft v. State, 762 S.W.2d 612, 614–15 (Tex. Crim. App. 1988).

Accordingly, we reverse the trial court’s judgment and remand for further

proceedings.




                                             Sherry Radack
                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




                                        34
