                                   In The

                             Court of Appeals

                  Ninth District of Texas at Beaumont

                           _________________

                            NO. 09-13-00400-CR
                           ___________________

                    THE STATE OF TEXAS, Appellant

                                     V.

                 ESTER ABOYTES ANDERSON, Appellee

__________________________________________________________________

                 On Appeal from the 9th District Court
                     Montgomery County, Texas
                   Trial Cause No. 12-10-11067-CR
__________________________________________________________________

                                 OPINION

     Ester Aboytes Anderson, appellee, was charged by indictment with injury to

a child and driving while intoxicated with a child passenger under the age of

fifteen. See Tex. Penal Code Ann. §§ 22.04, 49.04 (West Supp. 2014), § 49.045

(West 2011).

     The indictment arose out of a one-car traffic accident that occurred on

October 16, 2012. Anderson was the driver of the vehicle. Her passenger was a

                                      1
two-year-old child. Both Anderson and the child were injured in the accident.

Anderson was taken from the scene of the accident directly to a hospital where a

Texas Department of Public Safety (DPS) Trooper interviewed her, placed her

under arrest for driving while intoxicated, and obtained a warrantless non-

consensual blood draw to determine her blood alcohol content. Anderson filed a

motion to suppress the evidence obtained from the blood draw. After conducting a

hearing, the trial court entered an order granting the motion and suppressing the

evidence. The State filed this appeal. See Tex. Code Crim. Proc. Ann. art.

44.01(a)(5), (e) (West Supp. 2014). We affirm the trial court’s ruling.

                               MOTION TO SUPPRESS

      In her motion to suppress, Anderson asserted that the blood specimen

evidence was seized in violation of her Fourth Amendment right to be free from an

unreasonable search and seizure. The State argued that the blood draw was done

pursuant to section 724.012 of the Texas Transportation Code, and that there were

exigent circumstances. See Tex. Transp. Code Ann. § 724.012 (West 2011).

Anderson argued that, absent exigent circumstances, an officer cannot obtain a

blood draw from a defendant without a warrant or without that person’s consent,

and further that, pursuant to Missouri v. McNeely, 133 S.Ct. 1552 (2013), the




                                          2
implied consent provision of section 724.012 is unconstitutional, and that there

were no exigent circumstances.1

                              SUPPRESSION HEARING

       At the suppression hearing, the State presented evidence from four

witnesses. DPS Trooper Chapman, DPS Sergeant Barnhill, and an Assistant

District Attorney (ADA), testified live at trial.2 DPS Trooper Martinez testified by

affidavit.

       Trooper Chapman was the first trooper to arrive at the scene of the accident.

He arrived at approximately 4:40 to 4:45 p.m., and he described the scene as

“chaotic.” When he arrived, firemen, a paramedic, and two constables were already

at the scene. Chapman testified that Anderson’s vehicle appeared to have crashed

into a tree located in the median of the road. The driver of the vehicle was not at

the scene when he arrived; she had already been transported to the hospital. The

child passenger had been taken to another hospital. During the search of

Anderson’s vehicle, the DPS officers recovered a receipt from inside of the

vehicle, which “showed the purchase of the alcohol that [the officers] believed was

       1
        The State’s brief conflates sections 724.011 and 724.012(b). See Tex.
Transp. Code Ann. §§ 724.011, 724.012 (West 2011). However, the statutes are
distinct in content.
       2
       Two assistant district attorneys met Trooper Chapman at the scene but only
one testified at the hearing.
                                         3
on the floorboard.” Trooper Chapman explained that they found beer inside the

vehicle. And, one can of beer was open.

      According to the ADA, they also had someone else on standby to assist in

locating and notifying a judge to remain available, in the event a warrant might

have been required. The ADA testified that he assisted in the preparation of the

search warrant affidavit for the vehicle’s data recording device (“black box” or

“CDR”), and they sent the affidavit to the district attorney’s office for presentment

to the judge. The record indicates that at 6:01 p.m. an attorney at the district

attorney’s office faxed the “Application for a Court Order” for the black box to the

judge. At 6:02 p.m., the judge faxed the court order back to the district attorney’s

office, thereby allowing the State to download and retrieve data from the black

box. By 6:02 p.m., Trooper Chapman received the court order for the black box.

Troopers completed the download of the data from the black box. The ADA also

testified that “at some point we could have gotten” a search warrant for a blood

draw, “[b]ut by the time we had--by the time we had all of the information that we

would need, we were approaching a point where the relevance or the validity of

that evidence would be questioned.”

       The State’s “Application for a Court Order” regarding the black box

contained details about the accident, the driver, and the passenger, as well as

                                          4
investigative details obtained by law enforcement. As reflected in the application,

the information from the scene of the accident indicated that the passenger in the

vehicle was a two-year-old child, that the driver was suspected of driving under the

influence of alcohol, and that the child had been injured. The black box application

also contained the following details (gathered by Trooper Martinez) relating to his

interview and observation of Anderson at the hospital: a “strong odor of an

alcoholic beverage on [Anderson’s] breath,” “red-bloodshot eyes,” “confused

demeanor,” Anderson’s admission of consumption of a six-pack of beer before the

crash, and Trooper Martinez’s arrest of Anderson for DWI.

      Sergeant Barnhill testified he was dispatched to the accident scene, which he

was told involved a possible child fatality. The initial information Barnhill

received at the scene was that alcohol was possibly a factor in the crash. He

testified that by the time he arrived at the scene, the driver (Anderson) “had already

been transported by EMS” to the hospital. Sergeant Barnhill sent Trooper Martinez

to the hospital to interview Anderson and investigate the possibility of intoxication.

In explaining the Montgomery County search warrant process, Sergeant Barnhill

indicated that the county has an attorney in the district attorney’s office on call

“24/7” and that the district attorney has a vehicle crime unit that also responds to




                                          5
and assists the officers in obtaining search warrants. He testified that he did not

make any attempt to obtain a search warrant for the blood draw.

      Trooper Martinez testified by affidavit. Martinez was dispatched to the

hospital where Anderson had been taken, and he arrived at the hospital at 4:54 p.m.

He was told to speak with Anderson to “see if she was intoxicated and also find out

what happened.” Anderson told Martinez that she was on her way back to Conroe

and she did not remember where she was coming from. Martinez noted that she

appeared intoxicated, and that when he first spoke with her, she had “blood shot

eyes” and a “strong odor of an alcoholic beverage coming from her breath[.]” She

admitted to Martinez that she had purchased alcohol and had been drinking alcohol

before the crash. In the application for the black box, the State described an alleged

admission by Anderson that she drank a six-pack of beer from noon until just

before the time of the wreck. Martinez indicated in his affidavit that he was only

able to perform one field sobriety test, the Horizontal Gaze Nystagmus (HGN) test,

on her “due to possible injuries” from the accident. Martinez noted the HGN test

yielded clues that Anderson was intoxicated, and the hospital staff advised him that

Anderson “seemed to have been drinking.” “Based on all the facts of the crash and

signs of possible [i]ntoxication,” Martinez determined that Anderson was

intoxicated.

                                          6
       At 5:31 p.m., Trooper Martinez read Anderson the statutory DWI warning,

as reflected in the DIC-24 form, 3 and requested that she provide a specimen of her

blood. Anderson refused to consent to the blood draw. The trooper explained to

Anderson that because a child was injured in the accident, a mandatory blood draw

was required. A registered nurse drew Anderson’s blood at approximately 5:35

p.m.

       As a further explanation of why he did not seek to obtain a warrant for the

blood draw, Trooper Martinez stated in his affidavit that he “was worried about the

rapid dissipation of alcohol from the defendant’s blood and [he] also believed that

she would be taken by the doctor[]s for medical testing and that [he], therefore,

would lose that evidence.” Martinez stated that “[t]he scene was hectic and no one

was present at the hospital to assist [him] in drafting a warrant, locating a judge,

and presenting that warrant to the judge.”

                                 ISSUES ON APPEAL

       The State contends as follows: “[T]he trial court erred when it granted the

defense’s motion to suppress blood evidence because it improperly interpreted

       3
       The DIC-24 is a standard form used to request breath or blood specimens
from suspected intoxicated drivers. See Martin v. Dep’t of Pub. Safety, 964 S.W.2d
772, 773 (Tex. App.—Austin 1998, no pet.). The form contains language
consistent with the provisions outlined in section 724.015 of the Transportation
Code. See Tex. Transp. Code Ann. § 724.015 (West Supp. 2014).

                                         7
Missouri v. McNeely, 133 S.Ct. 1552 (2013), erred in concluding that no exigent

circumstances existed, and erred in concluding that Texas Transportation Code §

724.012 (West 2011) is unconstitutional.” (footnote omitted). The State also argues

that the good faith exception to the exclusionary rule applies in this case, and the

officers were entitled to rely on the law in existence at the time of the offense. We

hold that the trial court did not err in granting the motion to suppress, or in

concluding there were no exigent circumstances, and the good faith exception does

not apply to the facts in this case.

                                STANDARD OF REVIEW

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

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

2013). We review the trial court’s factual findings for an abuse of discretion. 4 Id.

We give almost total deference to the trial court’s determination of historical facts,

particularly when the trial court’s fact findings are based on an evaluation of

credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App.

2010). The same deference is afforded the trial court with respect to its rulings on

the application of the law to questions of fact and to mixed questions of law and

      4
       In the State’s brief, the State indicates that this Court is not required to defer
to every factual finding made by the trial court, but the State does not challenge
any specific finding of fact.

                                           8
fact, if resolution of those questions depends on an evaluation of credibility and

demeanor. Id. For mixed questions of law and fact that do not fall within that

category, a reviewing court conducts a de novo review. 5 Id.

      At a suppression hearing, the trial court is the exclusive trier of fact and

judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002). A trial court may choose to believe or to disbelieve all or

any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000). We must view the evidence in the light that is most favorable to the

trial court’s ruling, and we are obligated to uphold the trial court’s ruling on a

motion to suppress if that ruling is supported by the record and if it is correct under

any applicable theory of law. State v. Castleberry, 332 S.W.3d 460, 465 (Tex.

Crim. App. 2011); Ross, 32 S.W.3d at 855-56.




      5
          The trial court made the following conclusions of law:
               1. There were no exigent or extenuating circumstances in this
               case that justified the warrantless blood draw.
               2. Missouri v. McNeely, 133 S.Ct. 1552 (2013) invalidates the
               Texas implied consent statute, Texas Transportation Code
               § 724.012.
               3. The blood specimen in this case was taken without [a]
               warrant.
               4. The blood specimen in this case was an invalid, warrantless
               search and seizure.

                                          9
                                    DISCUSSION

      The Fourth Amendment to the U.S. Constitution provides:

         The right of the people to be secure in their persons, houses,
         papers, and effects, against unreasonable searches and seizures,
         shall not be violated, and no Warrants shall issue, but upon
         probable cause, supported by Oath or affirmation, and particularly
         describing the place to be searched, and the persons or things to be
         seized.

U.S. Const. amend. IV. “In the absence of a warrant, a search is reasonable only if

it falls within a specific exception to the warrant requirement.” Riley v. California,

134 S.Ct. 2473, 2482 (2014) (citing Kentucky v. King, 131 S.Ct. 1849, 1856-57

(2011)). “The exceptions to the rule that a search must rest upon a search warrant

have been jealously and carefully drawn . . . .” Jones v. United States, 357 U.S.

493, 499 (1958). “Even if a warrant is not required, a search is not beyond Fourth

Amendment scrutiny; for it must be reasonable in its scope and manner of

execution.” Maryland v. King, 133 S.Ct. 1958, 1970 (2013).

      The Court of Criminal Appeals has stated that the exceptions to the

requirement of a search warrant include “voluntary consent to search, search under

exigent circumstances, and search incident to arrest.” McGee v. State, 105 S.W.3d

609, 615 (Tex. Crim. App. 2003). Once the accused establishes that the search was

conducted without a warrant, it is the State’s burden to show that the warrantless

search falls within one of these exceptions. State v. Woodard, 341 S.W.3d 404, 412
                                         10
(Tex. Crim. App. 2011). Because there was no search warrant for the blood draw

performed on Anderson, the State had the burden of proof to establish an exception

to justify the warrantless search and seizure of Anderson’s blood. Id. To justify the

blood draw from Anderson, the State relies on the implied consent and mandatory

blood draw provisions in the Texas Transportation Code, on a claim of exigent

circumstances, and on what the State describes as a good faith exception to the

exclusionary rule.

                      UNITED STATES SUPREME COURT CASES

      In Schmerber v. California, 384 U.S. 757 (1966), the United States Supreme

Court examined Fourth Amendment challenges to a warrantless blood draw taken

from a driver suspected of driving under the influence of alcohol. Schmerber was

injured in the accident and taken to the hospital. Id. at 758-59. While he was at the

hospital receiving treatment, the police arrested him for driving under the influence

of alcohol. Id. at 758. The police had the hospital take a blood sample. Id. Over

Schmerber’s objection, the blood-draw results were admitted into evidence. Id. at

759. The Supreme Court concluded that the officer “might reasonably have

believed that he was confronted with an emergency, in which the delay necessary

to obtain a warrant, under the circumstances, threatened ‘the destruction of




                                         11
evidence[.]’” Id. at 770 (quoting Preston v. United States, 376 U.S. 364, 367

(1964)).

      In Missouri v. McNeely, the United States Supreme Court examined the

analysis in Schmerber and concluded, without overruling Schmerber, that the

“natural metabolization of alcohol in the bloodstream” does not present a per se

exigency that “justifies an exception to the Fourth Amendment’s warrant

requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely,

133 S.Ct. at 1556. The Court noted that a “variety of circumstances may give rise

to an exigency sufficient to justify a warrantless search” when “‘there is

compelling need for official action and no time to secure a warrant.’” Id. at 1558-

59 (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)). Some examples of

exigency include hot pursuit, entering a building to put out a fire, entering a home

to aid an occupant, or, in some contexts, preventing destruction of evidence. Id. To

determine whether exigent circumstances justify a warrantless search, courts must

examine the “totality of the circumstances” and must analyze the facts on a case-

by-case basis. Id. at 1556, 1563, 1566.

       In reaching its conclusion, the Court recognized that advances in technology

and procedure now allow officers--often coordinating directly with prosecutors and

the court--to obtain warrants in an expedited fashion. Id. at 1561-62. Moreover,

                                          12
circumstances may indicate that “an officer can take steps to secure a warrant

while the suspect is being transported[.]” Id. at 1561. “In such a circumstance,

there would be no plausible justification for an exception to the warrant

requirement.” Id. Notably, the Court emphasized that the officer in question made

no attempt to secure a warrant or to outline other factors as to why he faced exigent

circumstances. Id. at 1556-67. He admitted that he knew there was a prosecuting

attorney on call if assistance was needed to obtain a warrant. Id. at 1567. However,

the officer decided not to seek a warrant because he felt it was not “legally

necessary.” Id.

      In McNeely, the State sought a “per se rule for blood[-]testing in drunk-

driving cases.” Id. at 1560. The Court rejected the State’s argument and stated that

“it does not follow that we should depart from careful case-by-case assessment of

exigency and adopt the categorical rule proposed by the State and its amici.” Id. at

1561. “In 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.

      In Maryland v. King, decided a few months after McNeely, the United States

Supreme Court considered the application of the Fourth Amendment to a DNA

                                         13
buccal swab procedure conducted at a police station, after the accused was arrested

(with probable cause) for a dangerous offense. 133 S.Ct. at 1967-70, 1978. In King,

the Court considered the buccal swab procedure in the context of a search incident

to an arrest during the “‘routine administrative procedure[s] at a police station

house incident to booking and jailing the suspect[.]’” Id. at 1971 (quoting Illinois

v. Lafayette, 103 S.Ct. 2605 (1983)). The Court contrasted the buccal swab with

the venipuncture to draw blood, noting that the former “involves but a light touch

on the inside of the cheek[,]” while the latter requires a puncture of the skin. Id. at

1969, 1979.

      Continuing further, the Court stated the fact that “an intrusion is negligible is

of central relevance to determining reasonableness, although it is still a search as

the law defines that term.” Id. at 1969. The Court noted that the background of the

Maryland DNA Collection Act and the action of collecting DNA through the use

of a buccal swab “is not subject to the judgment of officers whose perspective

might be ‘colored by their primary involvement in ‘the often competitive enterprise

of ferreting out crime.’’” Id. at 1970 (quoting Terry v. Ohio, 392 U.S. 1, 12 (1968)

(quoting Johnson v. United States, 333 U.S. 10, 14 (1948)). The application of

traditional reasonableness standards requires the court to weigh the “‘promotion of

legitimate governmental interests’” against the “‘degree to which [the search]

                                          14
intrudes upon an individual’s privacy.’” Id. (quoting Wyoming v. Houghton, 526

U.S. 295, 300 (1999)). The governmental interest in identification of the suspect is

substantial, and the intrusion of a cheek swab to obtain a DNA sample is a minimal

intrusion. Id. at 1977, 1980. “When officers make an arrest supported by probable

cause to hold for a serious offense and they bring the suspect to the station to be

detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is,

like fingerprinting and photographing, a legitimate police booking procedure that is

reasonable under the Fourth Amendment.” Id. at 1980.

      According to the Court, the factual context and nature of the buccal cheek

swab in King is “a far more gentle process than a venipuncture to draw blood . . .

although it can be deemed a search within the body of the arrestee, it requires no

‘surgical intrusions beneath the skin.’[citation omitted]” The fact that an intrusion

is negligible is of central relevance to determining reasonableness, even though the

intrusion may be a search as defined by law. See id. at 1969. In contrast to the

buccal swab procedure in King, taking blood to determine the level of intoxication

or the influence of drugs is not part of a routine administrative or identification

procedure at a police station, and it includes necessary protocols and potential

health issues associated with extracting blood that may not exist with the use of a

buccal swab for DNA collection.

                                         15
      More recently, in Riley v. California, the Court issued its opinion which

involved a warrantless search of cell phones. 134 S.Ct. 2473 (2014). Each search

was incident to a lawful arrest and the State of California argued that the search of

the cell phones fell within the “search incident to arrest” doctrine, a recognized

exception to the warrant requirement. Id. at 2480-82. The Court examined the

scope of the “search incident to arrest[,]” and determined how it “applies to

modern cell phones, which are now such a pervasive and insistent part of daily life

that the proverbial visitor from Mars might conclude they were an important

feature of human anatomy.” Id. at 2484. The Court analyzed the basis for the

“search incident to arrest” doctrine under a trilogy of related precedents that set

forth the rules governing such searches: Chimel v. California, 395 U.S. 752 (1969)

(search incident to arrest limited to the area within the suspect’s immediate control

and justified by the interests of an officer in his own safety and prevention of

destruction of evidence), United States v. Robinson, 414 U.S. 218 (1973) (search

incident to arrest applied to a custodial arrest and a cigarette pack taken from

suspect), and Arizona v. Gant, 556 U.S. 332 (2009) (search incident to arrest

applies to search of automobile compartment within reach of suspect allowed when

the suspect is unsecured, or it is reasonable to believe evidence of the crime for

which the arrest was made might be found in the car). See Riley, 134 S.Ct. at 2483-

                                         16
84. The Court concluded that the search of the cell phones did not fit within the

parameters of the “search incident to arrest” doctrine as outlined in Chimel,

Robinson, and Gant, and it held that a “warrant is generally required before such a

search, even when a cell phone is seized incident to arrest.” Id. at 2493. “A warrant

ensures that the inferences to support a search are ‘drawn by a neutral and detached

magistrate instead of being judged by the officer engaged in the often competitive

enterprise of ferreting out crime.’” Id. at 2482 (quoting Johnson v. United States,

333 U.S. 10, 14 (1948)). Chief Justice Roberts delivered the opinion of the Court,

in which Justices Scalia, Kennedy, Thomas, Ginsberg, Breyer, Sotomayor, and

Kagan, joined. Id. at 2480. Justice Alito filed an opinion concurring in part. Id. at

2495. As noted by the Court,

      [a]bsent more precise guidance from the founding era, we generally
      determine whether to exempt a given type of search from the warrant
      requirement “by assessing, on the one hand, the degree to which it
      intrudes upon an individual’s privacy and, on the other, the degree to
      which it is needed for the promotion of legitimate governmental
      interests.” Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297,
      143 L.Ed.2d 408 (1999). Such a balancing of interests supported the
      search incident to arrest exception in Robinson, and a mechanical
      application of Robinson might well support the warrantless searches at
      issue here.

      But while Robinson’s categorical rule strikes the appropriate balance
      in the context of physical objects, neither of its rationales has much
      force with respect to digital content on cell phones. On the
      government interest side, Robinson concluded that the two risks
      identified in Chimel—harm to officers and destruction of evidence—
                                         17
      are present in all custodial arrests. There are no comparable risks
      when the search is of digital data. In addition, Robinson regarded any
      privacy interests retained by an individual after arrest as significantly
      diminished by the fact of the arrest itself. Cell phones, however, place
      vast quantities of personal information literally in the hands of
      individuals. A search of the information on a cell phone bears little
      resemblance to the type of brief physical search considered in
      Robinson.

      We therefore decline to extend Robinson to searches of data on cell
      phones, and hold instead that officers must generally secure a warrant
      before conducting such a search.

Id. at 2484-85.6

      Schmerber, McNeely, and Riley remind us that we should carefully guard

against the use of per se exceptions to the Fourth Amendment. And, the

overarching test we must apply is one that examines the “totality of the

circumstances” in each case to determine the reasonableness of the search.

          TEXAS IMPLIED CONSENT AND MANDATORY BLOOD DRAW PROVISIONS

      In the case now before us, the State argues that the trial court erred in

granting Anderson’s motion to suppress because no warrant was required pursuant

      6
        The defendants in Riley conceded that the “officers could have seized and
secured their cell phones to prevent destruction of evidence while seeking a
warrant.” Riley v. California, 134 S.Ct. 2473, 2486 (2014). The Court noted that
there were several ways the police could still have prevented the remote swiping or
destruction of evidence by turning the cell phone off or taking out the battery. Id. at
2487; cf. State v. Granville, 423 S.W.3d 399, 417 (Tex. Crim. App. 2014) (“[A]
citizen does not lose his reasonable expectation of privacy in the contents of his
cell phone merely because that cell phone is being stored in a jail property room.”).
                                          18
to the implied consent and mandatory blood draw provisions contained in the

Texas Transportation Code. While section 724.011 deals with “implied consent,”

Anderson expressly refused to consent and the officer explained to her that he was

going to take her blood because she was driving while intoxicated and there was an

injury to a child. See Tex. Transp. Code Ann. § 724.012(b)(2). We examine the

State’s reliance upon the statutory provisions in question in light of the overriding

importance of the rights outlined in the Fourth Amendment and McNeely.

      Texas Transportation Code Section 724.011, the implied consent statute,

provides in part as follows:

      § 724.011. Consent to Taking of Specimen
         (a) 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(a) (West 2011). The implied consent referenced

in section 724.011 may be withdrawn by the accused driver but may have

consequences as outlined in section 724.035 of the Texas Transportation Code. See

Tex. Transp. Code Ann. § 724.035 (West 2011). Section 724.035 expressly states


                                          19
that a person retains the right, subject to automatic suspension of his or her license,

to refuse to provide a specimen. Id.

      In comparison to Section 724.011, Section 724.012, which is entitled

“Taking of Specimen,” provides that “[o]ne or more specimens of a person’s

breath or blood may be taken if the person is arrested and at the request of a peace

officer having reasonable grounds to believe the person: . . . while intoxicated was

operating a motor vehicle in a public place. . . .” Tex. Transp. Code Ann. §

724.012(a) (emphasis added). Under subsection 724.012(b), the officer, under

certain specified circumstances, “shall require the taking of a specimen of the

person’s breath or blood” if the person refuses the officer’s request for the blood

draw. See id. § 724.012(b) (emphasis added). We set out section 724.012(b) below:

        (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:
       (1) the person was the operator of a motor vehicle . . . involved in an
      accident that the officer reasonably believes occurred as a result of the
      offense and, at the time of the arrest, the officer reasonably believes
      that as a direct result of the accident:
             (A) any individual has died or will die;
             (B) an individual other than the person has suffered serious
      bodily injury; or



                                          20
              (C) an individual other than the person has suffered bodily injury
      and been transported to a hospital or other medical facility for medical
      treatment;
        (2) the offense for which the officer arrests the person is an offense
      under Section 49.045, Penal Code [DWI with a child passenger]; or
        (3) at the time of the arrest, the officer possesses or receives reliable
      information from a credible source that the person:

             (A) has been previously convicted of or placed on community
      supervision for an offense under Section 49.045, 49.07, or 49.08,
      Penal Code, or an offense under the laws of another state containing
      elements substantially similar to the elements of an offense under
      those sections[.]
             ....

Id. The indictment in this case alleges that Anderson was operating a motor vehicle

in a public place, while intoxicated, and caused bodily injury to a passenger

younger than fifteen. If true, these allegations satisfy at least one or more of the

provisions contained in section 724.012(b). Once the officer formed a reasonable

belief of facts established in one or more of the subparts in section 724.012(b), the

officer “shall require the taking of a specimen of the person’s breath or blood[.]”

Id.

      Simply because the statute requires the taking of a specimen of the person’s

breath or blood, however, does not end our inquiry. “Where a search is undertaken

by law enforcement officials to discover evidence of criminal wrong doing . . .

reasonableness generally requires the obtaining of a judicial warrant[.]” Vernonia

Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995). “In the absence of a warrant,
                                          21
a search is reasonable only if it falls within a specific [recognized] exception to the

warrant requirement.” Riley, 189 L.Ed.2d at 439. There is no language in section

724.012(b) that authorizes a police officer to take the specimen without a warrant.

See McGruder v. State, No. 10-13-00109-CR, 2014 Tex. App. LEXIS 9022, at *7

(Tex. App.—Waco Aug. 14, 2014, no pet. h.) (mem. op.). Furthermore, there is no

indication in the plain language of the statute that the circumstances outlined in

section 724.012(b) would constitute “exigent circumstances” or any other

recognized exception. See id. at **7-8; State v. Villarreal, No. 13-13-00253-CR,

2014 Tex. App. LEXIS 645, at *35 (Tex. App.—Corpus Christi Jan. 23, 2014, pet.

granted) (mem. op.).

      In its brief on appeal, the State also argues that Beeman v. State, 86 S.W.3d

613, 615-16 (Tex. Crim. App. 2002), a pre-McNeely case, supports the State’s

position. We disagree. Beeman is inapposite to the matter now before us because,

when the defendant in Beeman refused a breath test, the officer had already

obtained a search warrant. Beeman, 86 S.W.3d at 614. Beeman did not fall under

any of the prescribed circumstances set out in section 724.012(b). Id. at 614-15.

Rather, Beeman argued he could not be required to submit to a blood draw even

with a search warrant. Id. The Court of Criminal Appeals concluded that his blood

could be drawn under the authority of a search warrant. Id. at 615-17. Thereafter,

                                          22
in what appears to be dicta, the Court stated that “[t]he implied consent law

expands on the State’s search capabilities by providing a framework for drawing

DWI suspects’ blood in the absence of a search warrant.” Id. at 616. “It gives

officers an additional weapon in their investigative arsenal, enabling them to draw

blood in certain limited circumstances even without a search warrant.” Id. In light

of the holding in McNeely, and the inapposite facts now before us, we find the

dicta in Beeman is not controlling. See McGruder, 2014 Tex. App. LEXIS 9022, at

**7-8; Forsyth v. State, No. 11-12-00198-CR, 2014 Tex. App. LEXIS 8381, at *13

(Tex. App.—Eastland July 31, 2014, no pet. h.) (mem. op.).

      The State argues that, because consent is implied under section 724.011, a

warrantless blood draw is justified. We disagree with this premise because the fact

that consent is implied under section 724.011 is not dispositive to our analysis of

section 724.012(b) which is premised upon a refusal to consent. See Reeder v.

State, 428 S.W.3d 924, 929-30 (Tex. App.—Texarkana 2014, pet. filed) (citing

Villarreal, 2014 Tex. App. LEXIS 645, at **32-41) (mem. op.); Weems v. State,

434 S.W.3d 655, 660-65 (Tex. App.—San Antonio 2014, pet. granted).

      The State also relies in part on a section of the plurality opinion in Part III of

McNeely to support the State’s position that section 724.012 permits the blood

draw conducted on Anderson. See McNeely, 133 S.Ct. at 1564-1567 (plurality

                                          23
opinion). More specifically, the State argues that language in the plurality implies

that the Supreme Court has approved of the Texas implied consent provision and

“thereby plainly rejected” the trial court’s interpretation of McNeely in the instant

case. We disagree with the State’s argument. The plurality states that such 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.” Id. at 1566 (plurality opinion) (emphasis added). The implication of Part

III is not inconsistent with nor does it “plainly reject” the trial court’s interpretation

of McNeely.7

      In addition to the foregoing, as 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. As our sister courts have stated, “[t]he mandatory blood draw statute

[section 724.012(b)] cannot—and does not purport to—alter the Fourth

Amendment warrant requirement or its recognized exceptions.” Douds v. State,
      7
       Other courts have also rejected the reliance upon the plurality opinion and
characterize the statements as part of a rejoinder to a point made in Justice
Roberts’ opinion, concurring in part and dissenting in part. Weems v. State, 434
S.W.3d 655, 659 n.2 (Tex. App.—San Antonio 2014, pet. granted).
                                           24
No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, at *46 (Tex. App.—Houston

[14th Dist.] June 5, 2014, pet. filed) (mem. op.); Weems, 434 S.W.3d at 663-66;

Sutherland v. State, No. 07-12-00289-CR, 2014 Tex. App. LEXIS 3694, at **23-

31 (Tex. App.—Amarillo Apr. 7, 2014, pet. filed) (mem. op.); Villarreal, 2014

Tex. App. LEXIS 645, at **32-41.

      Similarly, we conclude that section 724.012(b) does not constitute an

exception to the Fourth Amendment’s warrant requirement. Furthermore, we find

nothing in the plain wording of the statute to indicate that the Texas legislature

considered or intended the factual circumstances contained in 724.012(b) to create

“exigent circumstances.” The State is in essence asking this court to categorically

find that the statutory provision in subsection 724.012(b) is a per se exception to

the Fourth Amendment warrant requirement, which is something we cannot do

because we conclude it is completely inconsistent with the holding in McNeely. See

McGruder, 2014 Tex. App. LEXIS 9022, at *8; Forsyth, 2014 Tex. App. LEXIS

8381, at *17; Weems, 434 S.W.3d at 660.

      The State also contends that the trial court erred in finding that the

Transportation Code’s implied consent provision 724.011 is “unconstitutional.”

However, the trial court did not find section 724.011 to be unconstitutional. Rather,

the trial court’s conclusion of law states that McNeely serves to “invalidate”

                                         25
section 724.012. Additionally, the State argues that the implied consent statute

should be upheld because doing so would show proper deference to the

Legislature’s determination that, at least with respect to the highly-regulated

activity of driving an automobile on public roadways in Texas, consent to the

taking of a specimen is non-revocable.

      The State argues that it has an important interest in regulating its highways

and in passing laws that punish individuals who choose to drive or operate a motor

vehicle while they are intoxicated, but we are not persuaded that such interest

outweighs the Fourth Amendment right to be free from unreasonable searches. In

McNeely, the State of Missouri made a similar argument which the Court found to

be unpersuasive.

          “No one can seriously dispute the magnitude of the drunken
      driving problem or the States’ interest in eradicating it.” Michigan
      Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S. Ct. 2481, 110
      L. Ed. 2d 412 (1990). Certainly we do not. While some progress has
      been made, drunk driving continues to exact a terrible toll on our
      society. See NHTSA, Traffic Safety Facts, 2011 Data 1 (No. 811700,
      Dec. 2012) (reporting that 9,878 people were killed in alcohol-
      impaired driving crashes in 2011, an average of one fatality every 53
      minutes).
          But the general importance of the government's interest in this area
      does not justify departing from the warrant requirement without
      showing exigent circumstances that make securing a warrant
      impractical in a particular case. To the extent that the State and its
      amici contend that applying the traditional Fourth Amendment
      totality-of-the-circumstances analysis to determine whether an
      exigency justified a warrantless search will undermine the
                                         26
      governmental interest in preventing and prosecuting drunk-driving
      offenses, we are not convinced.

McNeely, 133 S.Ct. at 1565-66. In similar fashion, the State has failed to persuade

us that its interest in this area overrides the application of a traditional Fourth

Amendment totality of the circumstances analysis to the facts surrounding

Anderson’s blood draw. See McGruder, 2014 Tex. App. LEXIS 9022, at *7;

Weems, 434 S.W.3d at 660. McNeely reminds us that each case must be examined

on a “case-by-case” basis, under a “totality of the circumstances” standard.

McNeely, 133 S.Ct. at 1559. “In 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.

      Nevertheless, we find it unnecessary to rule upon the facial constitutionality

of the statutory subsection at issue, because “‘[w]e 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.’”

McGruder, 2014 Tex. App. LEXIS 9022, at *3 (quoting Douds, 2014 Tex. App.

LEXIS 6152 at **48-49). 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


                                         27
nature of the blood draw provision, that the trial court determined violates the

Fourth Amendment. Id.

                            EXIGENT CIRCUMSTANCES

      The State also argues that exigent circumstances justified the warrantless

search and seizure of Anderson’s blood. To determine whether the officer faced an

emergency or whether “exigent circumstances” existed that justified acting without

a warrant, we look to the totality of the circumstances. McNeely, 133 S.Ct. at 1558-

59. In the absence of a warrant, “‘the fact-specific nature of the reasonableness

inquiry,’ . . . demands that we evaluate each case of alleged exigency based ‘on its

own facts and circumstances.’” Id. at 1559 (quoting Ohio v. Robinette, 519 U.S.

33, 39 (1996) and Go-Bart Importing Co. v. United States, 282 U.S. 344, 357

(1931)).

       As we have noted above, there are various scenarios that may give rise to

circumstances sufficiently exigent to justify a warrantless search. In Schmerber and

McNeely, the officers argued that the warrantless search was necessary to preserve

or prevent the destruction of evidence. The Court of Criminal Appeals has

recognized that the need to prevent the “destruction of evidence” may indeed

justify a warrantless, nonconsensual search. See Gutierrez v. State, 221 S.W.3d

680, 685 (Tex. Crim. App. 2007). We must examine the record before us to

                                        28
determine whether or not the trial court erred in finding that no exigent

circumstances existed to justify the warrantless blood draw from Anderson.

      In his affidavit, Trooper Martinez offered the following reasons why he did

not seek a warrant for the blood draw: he “was worried about the rapid dissipation

of alcohol from the defendant’s blood[;]” he “believed that [Anderson] would be

taken by the doctor[]s for medical testing and that [he], therefore, would lose that

evidence[;]” and he had no one at the hospital “to assist [him] in drafting a warrant,

locating a judge, and presenting that warrant to the judge.” We apply an objective

standard of reasonableness to determine whether a warrantless search was justified,

and we take into account the facts and circumstances known to the police at the

time of the warrantless search. Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim.

App. 1998).

       With respect to its claim that there were exigent circumstances, the State

argues that the trial court focused only on the officers’ ability to obtain a search

warrant for the black box and the officers’ decision not to seek a warrant for the

blood draw. The State suggests that more information would have been required

for the blood draw warrant, and that obtaining the search warrant for the blood

draw would have required combining all the knowledge of the officers at the

hospital and at the accident scene.

                                         29
       The record in this case fails to establish that the combination of the

knowledge from all of the officers would have caused any further delay in getting a

search warrant for the blood than what it took to obtain the warrant for the black

box. Furthermore, the evidence in the record does not provide that there was any

further specific factual detail necessary for obtaining a search warrant for the blood

that the officers did not already know and include in the application for the warrant

they obtained for the black box. Notably, in the application for the warrant for the

black box the State included the following details:

      On October 16, 2012 at approximately 4:10 PM, Corporal II Michael
      Chapman was notified of a motor vehicle crash on Carriage Hills and
      White Oak in Montgomery County, Texas. When Corporal Chapman
      arrived on the scene he observed a vehicle that had struck a tree and
      had several Precinct 3 Deputy Constables on scene. Deputy Robert
      Moody advised me that the driver had a beer in her lap and her 2
      year old child in her lap in the driver seat un-restrained. The 2 year
      old child was identified as [L.A.]. The driver was transported to
      Memorial Hermann The Woodlands. The driver was identified as
      Esther Aboytes Anderson by her Texas Driver’s License. The 2 year
      old child was transported to Memorial Hermann – Texas Medical
      Center due to the severity of the injuries to the child. Trooper
      Martinez went to Memorial Hermann The Woodlands to speak with
      Anderson. Upon making contact with Anderson, he was confronted
      with several signs of intoxication, including a strong odor of an
      alcoholic beverage on her breath, red-bloodshot eyes, and she had a
      confused demeanor. Anderson told Trooper Martinez that she drank
      a six-pack of Busch Light. She told Martinez that she started
      drinking around noon and stopped drinking just before the crash.
      When Martinez first started talking to Anderson, Anderson did not
      know what happened and did not appear to know that her child was
      in the car. Trooper Martinez determined that Anderson had lost the
                                         30
      normal use of her physical and/or mental faculties. Trooper Martinez
      placed Anderson under arrested [sic] for Driving While Intoxicated
      with a Child Passenger and read the DIC-24 to Anderson. Trooper
      Martinez requested a specimen of blood from Anderson. Anderson
      refused to consent to the taking of a blood specimen. Trooper
      Martinez had the hospital staff take a mandatory blood sample from
      Anderson.

      Based upon the testimony and evidence submitted at the suppression

hearing, the trial court could have reasonably concluded that there was no factual

support for the State’s argument about further delay that would have threatened the

destruction of evidence beyond the time it needed to obtain a search warrant for the

black box. See generally McNeely, 133 S.Ct. at 1561, 1563. Indeed, the evidence at

the suppression hearing indicates that there was a judge available and on stand-by,

that there were other law enforcement officers and two assistant district attorneys

on the scene, as well as attorneys and staff at the courthouse who were available.

The trial court could have reasonably concluded based on the record that the same

procedure used to obtain the search warrant for the black box could have been used

to obtain a search warrant for Anderson’s blood. Even though Trooper Martinez

was at the hospital with Anderson, one or more of the other officers at the scene of

the accident, with the assistance of the assistant district attorneys, could have taken

steps to secure a warrant for the blood draw either simultaneously with or separate

from the application for the warrant for the black box. See id. at 1561 (noting no

                                          31
warrant exception applies when, “between the time of the arrest or accident and the

time of the test,” an officer other than the one handling the suspect “can take steps

to secure a warrant”). Considering the totality of the circumstances and viewing the

evidence in a light most favorable to the trial court’s ruling on the motion to

suppress, we conclude that the trial court did not abuse its discretion in

determining there were no exigent circumstances that justified a warrantless blood

draw from Anderson.

                                 GOOD FAITH RELIANCE

      In its final issue, the State argues that the “good faith” exception to the

“exclusionary rule” should apply to this case. The State contends that Trooper

Martinez acted in “good faith reliance” on section 724.012(b) which he believed

authorized him to obtain the warrantless blood draw. The Texas exclusionary rule

is found in article 38.23 of the Code of Criminal Procedure. Tex. Code Crim. Proc.

Ann. art. 38.23 (West 2005). The statute provides that evidence may not be used or

admitted in the criminal trial against the defendant if the evidence is obtained by

“an officer or other person in violation of any provisions of the Constitution or

laws of the State of Texas, or of the Constitution or laws of the United States of

America[.]” Id. art. 38.23(a).




                                         32
      Unlike the Texas statutory exclusionary rule, the federal exclusionary rule is

judicially created and it has at least three good faith exceptions. See Davis v.

United States, 131 S.Ct. 2419, 2427-28 (2011); Douds, 2014 Tex. App. LEXIS

6152, at *51. For example, under the federal exclusionary rule, when a law

enforcement officer relies in good faith on a statute authorizing a warrantless

search, and the statute is later found to be unconstitutional, the exclusionary rule

does not bar the government from using the evidence it obtained. See Illinois v.

Krull, 480 U.S. 340, 342 (1987); Weems, 434 S.W.3d at 666. Additionally, when

the search was conducted in good faith reliance upon binding appellate precedent

which is later overturned, the federal courts may apply the good faith exception to

limit the exclusionary rule. See Davis, 131 S.Ct. at 2427-28. Finally, when the

search was conducted in good faith reliance upon a warrant which is later

determined to be improperly issued, the federal courts have applied the good faith

exception. See Krull, 480 U.S. at 342.

      In contrast to the federal application of the judicially created good faith

exceptions to the exclusionary rule, the Texas legislature expressly adopted a

statute that specifies only one legislative good faith exception to the exclusion of

such evidence. The only exception stated in the Texas statutory exclusionary rule is




                                         33
when the officer relies in good faith upon a warrant issued by a neutral magistrate

based on probable cause. See Tex. Code Crim. Proc. Ann. art. 38.23(b).

       “The Court of Criminal Appeals has held that exceptions to the federal

exclusionary rule only apply to the Texas statutory exclusionary rule if they are

consistent with the plain language of the statute.” Douds, 2014 Tex. App. LEXIS

6152, at *52 (comparing Wehrenberg v. State, 416 S.W.3d 458, 473 (Tex. Crim.

App. 2013) to State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996)).

And, “[t]he Court of Criminal Appeals has previously rejected an effort to broaden

the good-faith exception using federal precedent, and it has refused to adopt federal

exceptions inconsistent with the text of our statutory exclusionary rule.” Douds,

2014 Tex. App. LEXIS 6152, at *52 (citing Howard v. State, 617 SW.2d 191, 198

(Tex. Crim. App. 1979) (op. on reh’g)). The stated exception in article 38.23(b)

expressly applies only when a warrant has been issued by a neutral magistrate and

the officer relied upon the warrant. Because there was no warrant issued in this

case, the statutory exception in article 38.23(b) does not apply. Accordingly, we

overrule this issue.

                                   CONCLUSION

      In conclusion, neither the implied consent provision in section 724.011, nor

the mandatory blood draw described in section 724.012 required that the officer

                                         34
take Anderson’s blood without a warrant. The implied consent and mandatory

blood draw provisions are not per se exceptions to the Fourth Amendment’s

warrant requirements. Furthermore, considering the totality of the circumstances

and viewing the evidence in a light most favorable to the trial court’s ruling on the

motion to suppress, we conclude that the trial court did not abuse its discretion in

determining there were no exigent circumstances that justified a warrantless blood

draw from Anderson. 8 We therefore affirm the trial court’s order granting the

motion to suppress.

      AFFIRMED.
                                              ________________________
                                                   LEANNE JOHNSON
                                                       Justice

Submitted on May 22, 2014
Opinion Delivered October 8, 2014
Publish

Before McKeithen, C.J., Kreger, and Johnson, JJ.




      8
      Our holding herein applies solely to a blood specimen. See Tex. Transp.
Code Ann. § 724.012(b).
                                         35
