                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


MICHAEL WAYNE PARSONS,                           §
                                                                   No. 08-13-00340-CR
                              Appellant,         §
                                                                      Appeal from the
v.                                               §
                                                                  Criminal District Court
                                                                      Number Two
                                                 §
THE STATE OF TEXAS,                                              Of Tarrant County, Texas
                                                 §
                               Appellee.                             (TC# 1278599D)
                                                 §

                                           OPINION

       This DWI case raises the question of whether the State, consistent with the Fourth

Amendment to the U.S. Constitution, can take an involuntary blood sample based only on the

Texas implied consent statute. TEX.TRANSP.CODE ANN. § 724.012(b)(West 2011). Assuming

reliance on the blood draw statute is not sufficient by itself, we are alternatively asked whether

the record supports the exigent circumstance exception to the Fourth Amendment, here based on

the destruction of evidence through the dissipation of alcohol from Appellant’s blood. For the

reasons noted below, and based on State v. Villarreal, 475 S.W.3d 784 (Tex.Crim.App. 2014),

we reverse the conviction below.

                                           Background

       The pertinent facts of this case are uncontested. Appellant was indicted for felony DWI
having had two prior convictions. The indictment arose out of Appellant’s arrest on April 14,

2012. Officer Doug Kerr of the Haltom Police Department was dispatched to the scene of an

accident around 12:30 a.m. in the morning.1 Upon arrival at the scene, Officer Kerr saw that

Appellant’s vehicle had run into the back of a parked trailer. Appellant’s car had sustained

heavy front end damage and the air bags had deployed. Nonetheless, there were apparently no

injuries associated with the accident as there was no need for EMS.

        According to Officer Kerr, Appellant smelled of alcohol. Appellant admitted at the scene

that he had had five beers over a five hour period. His first drink was at approximately 6:20 p.m.

and his last at approximately 11:30 p.m. Officer Kerr performed a field sobriety test. Appellant

gave six of six positive clues for intoxication on the horizontal gaze nystagmus test; four of eight

clues on the walk and turn test; and three of seven clues on the standing on one leg test.

        Officer Kerr placed Appellant under arrest at the scene. Based on the timing of the

Miranda warnings, the arrest would have been made at about 1:00 a.m. A criminal history check

turned up at least two prior driving while intoxicated convictions. After receiving the statutory

warnings, Appellant refused to give a voluntary specimen. Officer Kerr then decided to require a

mandatory blood draw based on the Texas Transportation Code:

        Q. At that point in time, you decided to pursue a mandatory blood draw?

        A. Correct.

        Q. And it was your understanding that the statute that requires an officer
        to perform a mandatory blood draw, does not give you any type of
        discretion; you must go and complete that blood draw and obtain that
        specimen?

        A. Correct.


1
  This case was transferred from our sister court in Fort Worth pursuant to the Texas Supreme Court’s docket
equalization efforts. See TEX.GOV’T CODE ANN. § 73.001 (West 2013). We follow the precedents of the Fort
Worth Court to the extent they might conflict with our own. See Tex.R.App.P. 41.3.

                                                     2
       Q. And that’s what you did?

       A. Yes, ma’am.

       Q. I understand. The reason you did not [obtain a warrant is] because you
       were relying on this part of the Transportation Code that says you didn’t
       have to?

       A. Well, I was following what our normal and general --

       Q. And what your normal procedure is?

       A. Correct.

       Another officer arrived to clear the accident scene. Officer Kerr had no responsibility to

interview witnesses, examine the damaged vehicles, or otherwise handle the accident scene. The

hospital used for blood draws was some fifteen to twenty minutes away. Once at the hospital’s

emergency department, the officer must locate an available phlebotomist; Officer Kerr could not

recall if the ER was busy that night. Appellant’s blood was drawn at 1:50 a.m. which was about

two hours and twenty minutes after his last drink. Officer Kerr did not recall any particular

lengthy delays that he encountered from the time he got to the scene until the blood draw was

completed. Our record also contains no evidence of how fast alcohol dissipates from the human

body in general, or a person of Appellant’s size in particular.

       Officer Kerr was familiar with the procedures for obtaining a warrant for a blood

specimen. When a warrant is required, the suspect is taken to the North Hills detention facility.

It usually takes fifteen to twenty minutes to process the suspect into the facility. The officer

would then log on to a computer, write a report, and print out a warrant. Depending on the

nature of the case, this warrant paperwork can take from thirty to ninety minutes. The officer

would then contact one of two local judges and either meet with the judge in person or complete

the warrant process by fax. If the warrant is issued, the suspect is then released from the jail

back to the officer’s custody and driven to the hospital for the blood draw. The record does not
                                                 3
reflect how long the process takes from the time the judge is contacted until the suspect is taken

to the hospital.

         Appellant filed a motion to suppress the results of the blood draw based on the absence of

a warrant.     At the hearing, the State argued that the mandatory blood draw statute was

constitutional and properly followed in this case. The State also argued that Officer Kerr was

facing the exigency of losing evidence through dissipation of alcohol from Appellant’s blood.

The trial court overruled the motion to suppress, basing its ruling on the Texas Transportation

Code’s implied consent provision as a valid exception to the warrant requirement of the Fourth

Amendment.

         The case proceeded to a jury trial. Appellant’s blood sample contained 0.17 grams of

ethyl alcohol per 100 milliliters of whole blood. The results of the blood draw were admitted

into evidence and played a significant role in the State’s case. Appellant was found guilty by the

jury and sentenced to five years by the court.

         In a single issue on appeal, Appellant contends that the trial court erred in overruling his

motion to suppress in that his Fourth Amendment rights were violated by a warrantless search.

In our review of this issue, we afford almost total deference to the trial court’s determination of

the historical facts that the record supports. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.

1997).    We also afford the same amount of deference to the trial court’s rulings on the

application of the law to the facts--so called mixed questions of law and fact--if resolution of

those questions turns on an evaluation of credibility and demeanor. Id. at 89. But we review de

novo “mixed questions of law and fact” not falling within this category. Id.

                                             Discussion

         The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct.



                                                  4
1826, 16 L.Ed.2d 908 (1966) held that an involuntary blood draw could pass Fourth Amendment

scrutiny. The Court first acknowledged that taking blood from a person constituted a search and

seizure under the Fourth Amendment. Id. at 767, 86 S.Ct. at 1834. But the involuntary blood

draw was reasonable under the exigent circumstances exception to the Fourth Amendment based

on three facts established by the record in that case. Id. at 770-71, 86 S.Ct. at 1835-36. First, the

Court acknowledged that the percentage of alcohol in the blood begins to drop after a person

stops drinking because the body eliminates it from the system (thus causing the destruction of

evidence). Id. Second, there was already a delay in taking the accused to the hospital because

the officer had to investigate the scene of the injury accident where the accused was found. Id.

Finally, the Court stated that there was no time to seek out a magistrate and secure a warrant. Id.

Noting these “special facts” the Court agreed the involuntary blood draw was appropriate. Id.

       The Court revisited the involuntary blood draw issue in Missouri v. McNeely, 133 S.Ct.

1552, 185 L.Ed.2d 696 (2013), a case where the State of Missouri contended that the singular

fact that alcohol dissipates from the body was sufficient by itself to create an exigent

circumstance justifying a warrantless seizure of a defendant’s blood. 133 S.Ct. at 1560. A

plurality of the Court disagreed. It rejected a per se rule, instead reaffirming that whether the

exigent circumstances exception is met must be judged on the totality of circumstances on a case

by case basis. Id. at 1561. The plurality explicitly states that a warrantless blood draw must fall

under one of the recognized exceptions to the Fourth Amendment. Id. at 1558. Another

recognized exception to the warrant requirement--consent--was not expressly at issue in McNeely

but has become the focus of subsequent Texas appeals in this area.

       Missouri had in effect a statute which provided that each driver was deemed to have

given implied consent to give a blood sample under certain circumstances, such as when they are



                                                 5
involved in a serious injury accident. MO. ANN. STAT. §§ 577.020.1, 577.041 (West 2015). The

Texas Transportation Code similarly mandates the taking of a blood sample when an officer

arrests a person for DWI and the person is either involved in an accident involving serious injury

or death, or that person has two or more prior convictions for DWI. TEX.TRANSP.CODE ANN.

§ 724.012(b)2 The Texas statute also provides that one operating a motor vehicle in a public

place gives implied consent for the blood sample. Id. at § 724.011(a). Whether McNeely also

invalidates the implied consent under the Texas Transportation Code spawned considerable

debate. Several court of appeals decisions have held that the implied consent provision of the

Texas statute does not by itself justify a non-consensual blood draw. Gore v. State, 451 S.W.3d

182, 193 (Tex.App.--Houston [1st Dist.] 2014, pet. ref’d); State v. Anderson, 445 S.W.3d 895,

908 (Tex.App.--Beaumont 2014, no pet.); Aviles v. State, 443 S.W.3d 291, 294 (Tex.App.--San

Antonio, 2014, pet. ref’d); Sutherland v. State, 436 S.W.3d 28, 41 (Tex.App.--Amarillo 2014,

pet. ref’d); Holidy v. State, No. 06–13–00261–CR, 2014 WL 1722171, at *1 (Tex.App.--

Texarkana April 30, 2014, pet. granted)(mem. op.).3 Some of these cases have also rejected the

State’s arguments attempting to distinguish McNeely or apply other exceptions to work around it.

Anderson, 445 S.W.3d at 912 (good faith exception); Douds v. State, 434 S.W.3d 842, 860


2
    Germane to this case, Section 724.012(b) provides:

           (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 . . . 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 [misdemeanor DWI] . . . .
3
  We note that the trial court heard the motion to suppress on May 13, 2013, which was a little less than a month
after McNeely was handed down; the trial court did not have the benefit of any of the recent cases construing
McNeely and the Transportation Code.

                                                            6
(Tex.App.--Houston [14th Dist.] 2014), rev’d on other grounds, 472 S.W.3d 670

(Tex.Crim.App. 2015), cert. denied, 136 S.Ct. 1461 (2016)(good faith exception).

        The Texas Court of Criminal Appeals has now resolved most of the mandatory blood

draw issues in State v. Villarreal. In Villarreal, an officer made a traffic stop and in questioning

the driver, found him to have slurred speech, red watery eyes, and the strong smell of alcohol.

475 S.W.3d at 788. When a background check showed the driver had several prior DWI

convictions, the arresting officer took the driver to a hospital for a blood draw, despite the

driver’s non-consent. Id. The officer viewed the Texas Transportation Code as mandating the

blood draw, and while he “could have” obtained a warrant, he believed that the statute made a

warrant unnecessary. Id. at 789. We view these facts as indistinguishable from Appellant’s

situation.

        The trial court in Villarreal held the blood draw improper. Id. at 789. The court of

appeals affirmed and the Texas Court of Criminal Appeals squarely confronted the State’s

implied consent argument under the Texas Transportation Code. Id. at 791. It also addressed

several alternative arguments by the State raising other possible exceptions to the Fourth

Amendment: the automobile exception, search incident to arrest exception, and the special needs

exceptions. Id. at 805-07. Lastly the court addressed the State’s claim that a general Fourth

Amendment balancing test could justify the involuntary blood draw. Id. at 808.

        With regards to implied consent, the opinion questions whether the consent was freely

and voluntarily given. Id. at 799. As happened here, the defendant in Villarreal had expressly

refused to give consent for the blood sample. Id. at 800 (“In other words, implied consent that

has been withdrawn or revoked by a suspect cannot serve as a substitute for the free and

voluntary consent that the Fourth Amendment requires.”). Likewise, the decision rejects implied



                                                 7
consent analogies urged by the State from other contexts, such as that given by parolees,

probationers, public school students, and some federal contractors. Villarreal, 475 S.W.3d at

804-05.

        The court then rejected each of the State’s proffered justifications for the blood draw,

concluding:

        We hold that the provisions in the Transportation Code do not, taken by
        themselves, form a constitutionally valid alternative to the Fourth Amendment
        warrant requirement. We thus reject the State’s assertion that a warrantless,
        nonconsensual blood draw conducted pursuant to those provisions can fall under
        one of the established exceptions to the warrant requirement described above, and
        we further reject the State’s suggestion that such a search may be upheld under a
        general Fourth Amendment balancing test.

Id. at 813.    As is evident, the decision rejects each of the additional Fourth Amendment

exceptions urged by the State. Id. at 805-08. Only the exigent circumstances exception was not

at issue in Villarreal. Id. at 789.

        The State’s motion for rehearing in Villarreal was originally granted but more recently

was denied as having been improvidently granted. 475 S.W.3d at 817. We therefore hold that

the trial court could not have justified the warrantless blood draw based on the Texas

Transportation Code’s implied consent provision for the same reasons as set forth in the latest

decision in Villarreal v. State.

        We also note that following Villarreal, the Fort Worth Court of Appeals decided Burks v.

State, 454 S.W.3d 705 (Tex.App.--Fort Worth 2015, pet. ref’d) which overturned a trial court’s

denial of a motion to suppress. The defendant in that case was pulled over for a traffic violation,

found to have overt signs of intoxication, and was taken for an involuntary blood draw because

he had two or more prior convictions for DWI. Id. at 706-07. The officer believed the implied

consent provisions of the Texas Transportation Code permitted the blood draw. Id. at 707-08.

Based on Villarreal, the Fort Worth Court reversed the trial court order denying the motion to
                                                8
suppress. 454 S.W.3d at 709; see also Chidyausiku v. State, 457 S.W.3d 627 (Tex.App.--Fort

Worth 2015, pet. filed)(officers at the scene of a fatal impact collision could not rely on implied

consent statute for mandatory blood draw). Burks and Chidyausiku are particularly instructive to

us because in this transferred case, we are bound to follow the precedents of the transferring

court of appeals. See TEX.R.APP.P. 41.3.

                          Exigent circumstances--the potential loss of evidence

       The State also argues that whether the application of the mandatory blood draw statute is

constitutionally infirm or not, Officer Kerr had sufficient cause in this case to get a blood sample

because the alcohol in Appellant’s system was rapidly dissipating. The record contains some

evidence of the time of the first drink (6:20 p.m.), the last drink (11:30 p.m.), and the time of

arrest (1:00 a.m.). The record also contains some evidence for some, but not all, of the steps

necessary to obtain a warrant. Based on the lost time that it would take to get a warrant, the State

reasons Officer Kerr’s actions fell under a recognized exigent circumstance to forego the

warrant--the destruction of evidence.

       We find a few flaws in this argument. First, the State did not develop below a complete

record of how long it would actually take to secure a warrant. It presented some testimony that it

might take anywhere from 45 minutes to 110 minutes for an officer to get the paperwork ready

for the judge, but there was no testimony of how long the process takes after that, or where

Appellant’s case might have fit in that time span. The State did not put on any evidence

responding to the alternative suggested in McNeely of having one officer transport the suspect to

the hospital while another processes the warrant paperwork. 133 S.Ct. at 1561. Nor did the

State present any evidence of how quickly alcohol dissipates from the blood stream for a person

in general, or a person of Appellant’s size in particular. The record in McNeely contained some



                                                 9
general evidence of dissipation rates (.015 to .02 per hour), but more accurate rates depend on a

suspect’s particular characteristics, such as sex and weight. Id. at 1560. Our record is simply

devoid of any such information.

        We agree that Schmerber can provide a valid existing exception to the Fourth

Amendment based on a proper set of facts. But unlike the situation in Schmerber where the

officer encountered the delay of investigating an injury accident, Officer Kerr had no delays

occasioned by the investigation of the accident scene. Unlike Schmerber where there was a

claim that the officer could not have timely secured a warrant, there is no evidence that a warrant

could not have been timely secured in this situation. Officer Kerr agreed that there were no

unusual delays in the processing procedures for Appellant. There was simply nothing unusual

about this case that puts it into an exigent circumstance.4 See Gore, 451 S.W.3d at 197 (finding

lack of exigent circumstance in 25 minute delay from removing children from scene of minor

accident); Forsyth v. State, 438 S.W.3d 216, 222 (Tex.App.--Eastland 2014, pet. ref’d)(State

failed to prove exigent circumstance where there was no evidence of how long officer would

have had to wait to get warrant); Sutherland, 436 S.W.3d at 40 (State failed to prove exigent

circumstances as officer did not testify to any unusual delay in getting warrant or that he was

confronted with emergency); Douds, 434 S.W.3d at 855-56 (failure of officer to testify that

obtaining warrant would threaten destruction of evidence).

        In Villarreal the Court of Criminal Appeals reviewed the trial court’s ruling de novo

because none of the underlying facts were disputed. 475 S.W.3d at 798. In this case, there are

also no disputed facts, at least none that would implicate any of the Fourth Amendment

exceptions raised by the State. Each of the exceptions to the Fourth Amendment that the State

4
  We also note that the trial court when explaining its ruling relied only on the implied consent statute and never
suggested its decision was based on the exigent circumstance or any other exception to the Fourth Amendment.


                                                        10
urges in this case have been expressly rejected by Villarreal.5 Only the exigent circumstances

exception was not at issue in Villarreal. 475 S.W.3d at 797. But the facts in this record do not

support the kind of exigent circumstances that the U.S. Supreme Court found sufficient in

Schmerber.

        We accordingly sustain Appellant’s single issue and reverse the trial court’s order

denying Appellant’s motion to suppress and the trial court’s judgment of conviction, and remand

the case to the trial court for further proceedings consistent with this opinion.



June 8, 2016
                                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




5
  One exception urged here, the “cumulative, non-dualistic approach to exceptions and reasonableness” appears to us
to be the same “general Forth Amendment balancing test” rejected by the Court of Criminal Appeals in Villarreal.
All of the other exceptions advanced by the State are identically worded to those expressly rejected in Villarreal.

                                                        11
