Opinion filed July 31, 2014




                                         In The


        Eleventh Court of Appeals
                                       __________

                                  No. 11-13-00224-CR
                                       __________

                     THE STATE OF TEXAS, Appellant
                                           V.
                     GARY MARK BALLARD, Appellee


                      On Appeal from the 441st District Court
                                 Midland County, Texas
                              Trial Court Cause No. CR41355



                      MEMORANDUM OPINION
       The grand jury indicted Gary Mark Ballard for the felony offense of driving
while intoxicated. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp.
2013). Appellee moved to suppress the results of his blood draw and argued that
the officer illegally seized his blood.      The trial court granted his motion to
suppress. The State appeals the trial court’s ruling. We affirm.
      In a single issue, the State contends that implied consent is a valid exception
to the warrant requirement and, thus, because Appellee gave implied consent to a
blood draw under Chapter 724 of the Texas Transportation Code, the trial court
erred when it granted Appellee’s motion to suppress. Section 724.012 of the Texas
Transportation Code provides that an officer “shall require the taking of a
specimen of the person’s breath or blood . . . if the officer arrests the person for
[DWI] and the person refuses the officer’s request to submit to the taking of a
specimen voluntarily” and one of three circumstances are met. TEX. TRANSP.
CODE ANN. § 724.012(b) (West 2011). The circumstance that is at issue in this
case is that, “at the time of the arrest, the officer possesses or receives reliable
information from a credible source that the person” has been twice convicted of
DWI. See id. § 724.012(b)(3)(B). Section 724.011 provides that, if a person is
arrested for DWI, the person is deemed to have consented to the submission of a
specimen of breath or blood for analysis in order to determine the alcohol
concentration in the person’s body. Id. § 724.011.
      We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000). We give great deference to the trial court’s findings of historical facts as
long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87
(Tex. Crim. App. 1997). Because the trial court is the exclusive factfinder, the
appellate court reviews evidence adduced at the suppression hearing in the light
most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at 327. We also
give deference to the trial court’s rulings on mixed questions of law and fact when
those rulings turn on an evaluation of credibility and demeanor. Guzman, 955
S.W.2d at 87. Where such rulings do not turn on an evaluation of credibility and
demeanor, we review the trial court’s actions de novo. Id.


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      In this case, the parties agreed to the underlying facts and further agreed that
there was no additional exigency arising out of the underlying facts. The dispute
between the parties was whether the United States Supreme Court’s ruling in
Missouri v. McNeely, 133 S.Ct. 1552 (2013), affected the constitutionality of
mandatory blood draws under Chapter 724 of the Texas Transportation Code.
      The agreed findings of fact show that Appellee was driving in Midland when
his pickup hydroplaned and left the roadway. Appellee’s pickup came to a stop
after it hit a barbed wire fence. No one was injured in the accident. Officers came
to the scene and noticed a strong odor of alcohol on Appellee’s breath. One of the
officers administered several field sobriety tests.          Based on Appellee’s
performance, the officer concluded that Appellee should be placed under arrest for
DWI. The officer determined that Appellee had been previously convicted of a
“DWI second” and asked Appellee if he would consent to a blood draw. Appellee
refused, and the officer transported him to the Midland County Detention Center
where a medical technician drew his blood. The results of the blood draw showed
that Appellee had a blood alcohol level of 0.246.
      In addition to the agreed findings of fact, the trial court also found that the
officer did not attempt to secure a warrant or make an effort to determine if a
magistrate was available. The trial court further found that the blood draw was
done without the presence of exigent circumstances and that the State did not
present any circumstances that suggested the officer faced an emergency in which
she could not practically obtain a warrant. The trial court stated in its supplemental
conclusions of law that mandatory blood draws taken pursuant to Chapter 724 of
the Texas Transportation Code are affected by the United States Supreme Court’s
ruling in McNeely and that McNeely requires an officer to articulate exigent
circumstances beyond the natural dissipation of alcohol in order to negate the
warrant requirement. The trial court further stated that, although McNeely did not
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abrogate the applicable section of the Texas Transportation Code, the opinion also
did not address whether blood taken pursuant to the statute was constitutional. The
trial court concluded that warrantless blood specimens taken pursuant to Section
724.011 are in violation of the Fourth Amendment and are therefore
unconstitutional and are properly excludable from evidence.           The trial court
concluded that the blood draw was an unreasonable search in violation of the
Fourth Amendment and granted Appellee’s motion to suppress the evidence.
      On appeal, the State argues that an accused’s implied consent, under the
Texas mandatory blood draw statute, is a valid exception to the “warrant
preference.” The State contends that an accused does not have the right to refuse
to provide a specimen when an officer has probable cause to believe that the
accused has committed a DWI and has already been twice convicted of DWI.
Thus, the State asserts that implied consent is irrevocable in such situations.
      Appellee argues that voluntary consent is a recognized exception to the
warrant requirement, but that implied consent has not been recognized as a valid
exception. Therefore, because Appellee refused to submit to a blood draw and
because the State presented no exigent circumstances beyond the normal
dissipation of alcohol, the State failed to show that the search was valid under the
exigent circumstances or consent exceptions to the warrant requirement.
      We agree with Appellee that implied consent is not a recognized exception
to the warrant requirement and that the State cannot rely on implied consent alone
to justify a warrantless blood draw under the Texas Transportation Code. In
Forsyth v. State, No. 11-12-00198-CR (Tex. App.—Eastland July 31, 2014, no
pet. h.), an opinion we are also handing down today, we held that implied consent
is not a recognized exception to the warrant requirement, and we discussed in great
detail our reasoning behind our holding. See also Weems v. State, No. 04-13-
00366-CR, 2014 WL 2532299 (Tex. App.—San Antonio May 14, 2014, pet. filed)
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(holding that the implied consent and mandatory blood draw statutory scheme
found in the Transportation Code is not an exception to the Fourth Amendment’s
warrant requirement; warrantless blood draw must be based on a well-recognized
exception to the Fourth Amendment); Holidy v. State, No. 06-13-00261-CR, 2014
WL 1722171 (Tex. App.—Texarkana Apr. 30, 2014, pet. filed) (mem. op., not
designated for publication) (holding that officer violated defendant’s Fourth
Amendment rights when he took defendant’s blood pursuant to Section
724.012(b)(3)(B) without a warrant or exigent circumstances); Reeder v. State, 428
S.W.3d 924 (Tex. App.—Texarkana 2014, pet. filed) (op. on reh’g) (holding
warrantless blood draw pursuant to repeat offender provision of implied consent
statute violated the Fourth Amendment in absence of warrant or exigent
circumstances); Sutherland v. State, No. 07-12-00289-CR, 2014 WL 1370118
(Tex. App.—Amarillo Apr. 7, 2014, pet. filed) (holding warrantless blood draw
pursuant to repeat offender provision of implied consent statute violated Fourth
Amendment’s warrant requirement in the absence of warrant or exigent
circumstances or the suspect’s consent); State v. Villarreal, No. 13-13-00253-CR,
2014 WL 1257150 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted)
(holding repeat offender provision of the mandatory blood draw law did not
constitute an exception to the Fourth Amendment’s warrant requirement).
      Therefore, based on our reasoning and holding in Forsyth that implied
consent is not a valid exception to the warrant requirement and because the State
failed to show that there were exigent circumstances beyond the normal dissipation
of alcohol, that Appellee voluntarily consented to the blood draw, or that any other
valid exception to the warrant requirement applied in this case, we hold that the
trial court did not err when it granted Appellee’s motion to suppress. We overrule
the State’s sole issue on appeal.


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      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


July 31, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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