                                                                                   PD-0097-15
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                Transmitted 3/2/2015 10:52:18 AM
                                                                   Accepted 3/2/2015 2:19:11 PM
                                                                                    ABEL ACOSTA
                                   No. PD-0097-15                                           CLERK

                               IN THE
                     COURT OF CRIMINAL APPEALS
                             OF TEXAS

                       NICHOLAS STEPHEN LLOYD,
                               Appellant

                                          v.
March 2, 2015
                           THE STATE OF TEXAS,
                                 Appellee

                     FROM THE COURT OF APPEALS FOR THE
                      FIFTH JUDICIAL DISTRICT AT DALLAS

                        Cause number 05-13-01004-CR
       _____________________________________________________________

                STATE’S PETITION FOR DISCRETIONARY REVIEW
       _____________________________________________________________

       APPEAL FROM THE 401ST JUDIDICAL DISTRICT COURT OF COLLIN
       COUNTY, THE HONORABLE MARK RUSCH, JUDGE PRESIDING


      GREG WILLIS                              JOHN R. ROLATER, JR.
      Criminal District Attorney               Asst. Criminal District Attorney
      Collin County, Texas                     Chief of the Appellate Division

      ZEKE FORTENBERRY                         ANDREA L. WESTERFELD
      GEETA SINGLETARY                         Asst. Criminal District Attorney
      CALLI BAILEY                             2100 Bloomdale Rd., Ste. 200
      Asst. Criminal District Attorneys        McKinney, Texas 75071
                                               State Bar No. 24042143
                                               (972) 548-4323
                                               FAX (214) 491-4860
                                               awesterfeld@co.collin.tx.us
                                     TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................ i

IDENTITY OF PARTIES AND COUNSEL ....................................................... iii

INDEX OF AUTHORITIES .................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT........................................... vi

STATEMENT OF THE CASE ............................................................................ vii

STATEMENT OF PROCEDURAL HISTORY .................................................. vii

STATEMENT OF FACTS .................................................................................. vii

QUESTIONS PRESENTED FOR REVIEW .........................................................1

REASONS FOR REVIEW .....................................................................................1

ARGUMENT ..........................................................................................................2

   1. Is a warrantless, mandatory blood draw conducted pursuant to
   Section 724.012(b)(3)(B) with the implied consent of the subject
   reasonable under the Fourth Amendment? .........................................................2
      Consent is a long-recognized exception to the Fourth Amendment
      requirement to obtain a warrant before conducting a search. Section
      724.012(b) of the Texas Transportation Code implies a subject’s
      consent under certain circumstances. This Court should reconsider its
      recent opinion in State v. Villarreal and conclude that this implied
      consent is sufficient to dispense with the warrant requirement.
   2. Did the court of appeals err in failing to address one of the State’s
   arguments that would justify the warrantless blood draw? .................................4
   3. Did the court of appeals err in finding there were not exigent
   circumstances sufficient to justify a warrantless blood draw? ...........................4
      An appellate court is required to address every issue necessary to the
      resolution of the appeal. The Fifth Court of Appeals failed to address
      the State’s argument that exigent circumstances justified the


                                                                                                                   i
      warrantless blood draw in the instant case. Further, even if its opinion
      can be considered to have addressed the issue, it erred in concluding
      that exigent circumstances did not exist. The length of time in
      investigating a major accident, the late hour of the investigation, and
      Appellant’s attempts to impede the investigation all amounted to
      exigent circumstances that justified a warrantless blood draw.
PRAYER FOR RELIEF..........................................................................................8

CERTIFICATE OF SERVICE ...............................................................................9

CERTIFICATE OF COMPLIANCE ......................................................................9

APPENDIX




                                                                                                          ii
                 IDENTITY OF PARTIES AND COUNSEL


Trial Court                        HONORABLE MARK RUSCH
                                   401st Judicial District Court
                                   2100 Bloomdale Road
                                   McKinney, Texas 75071

Appellant/Respondent               NICHOLAS STEPHEN LLOYD
                                   STEPHANIE HUDSON
                                   Counsel for Appellant
                                   1333 W. McDermott Dr.
                                   Suite 200
                                   Allen, Texas 75013
                                   smdhudson@gmail.com

Appellee/Petitioner                COLLIN COUNTY CRIMINAL
                                   DISTRICT ATTORNEY’S OFFICE
                                   GREG WILLIS
                                   Criminal District Attorney

                                   JOHN R. ROLATER, JR.
                                   Assistant Criminal District Attorney
                                   Chief of the Appellate Division

                                   ZEKE FORTENBERRY
                                   GEETA SINGLETARY
                                   CALI BAILEY
                                   Assistant Criminal District Attorneys

                                   ANDREA L. WESTERFELD
                                   Assistant Criminal District Attorney
                                   Attorney of Record
                                   2100 Bloomdale Road, Suite 200
                                   McKinney, Texas 75071
                                   awesterfeld@co.collin.tx.us




                                                                      iii
                                      INDEX OF AUTHORITIES

Statutes, Codes, and Rules

TEX. R. APP. P. 47.1 ...................................................................................................5

TEX. R. APP. P. 66.3(c) ..............................................................................................1

TEX. R. APP. P. 66.3(f) ...............................................................................................1

TEX. R. APP. P. 68.2(c) ............................................................................................. vi

TEX. TRANSP. CODE § 724.012........................................................... vi, vii, 2, 3, 4, 5

TEX. TRANSP. CODE § 724.012(b)(3)(B) ................................................................1, 2

Cases

Cheek v. United States,
 498 U.S. 192 (1991) ................................................................................................3
Douds v. State, No. PD-0857-14
 (granted Sep. 17, 2014) ........................................................................................... 3

Flores v. State, No. PD-0071-15
 (filed Feb. 17, 2015) ................................................................................................ 3

Holidy v. State, No. PD-0622-14
 (granted Aug. 20, 2014; argued and submitted Jan. 14, 2015) ............................... 3

Keehn v. State,
 233 S.W.3d 348 (Tex. Crim. App. 2007)................................................................5

Kentucky v. King,
 131 S.Ct. 1849 (2011) .............................................................................................5




                                                                                                                      iv
Lloyd v. State,
  No. 05-13-01004-CR, 2014 WL 7249747
  (Tex. App.—Dallas Dec. 22, 2014)
  (not designated for publication) ...................................................... vi, vii, 2, 4, 5, 6

McNeil v. State, No. PD-1171-14
 (filed Sep. 2, 2014)..................................................................................................3
Missouri v. McNeely,
 133 S.Ct. 1552 (2013) .................................................................................... 5, 6, 7
Reeder v. State, No. PD-0601-14
 (granted Aug. 20, 2014; argued and submitted Jan. 15, 2015) ............................... 3
Reeves v. State, No. PD-1048-14
 (filed Aug. 20, 2014) ............................................................................................... 3

Schneckloth v. Bustamonte,
 412 U.S. 218 (1973) ................................................................................................2

Schmerber v. California,
  384 U.S. 757 (1966) ............................................................................................5, 6

State v. Villarreal,
  No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014)................2

United States v. Biswell,
 406 U.S. 311 (1972) ................................................................................................2

Zap v. United States,
 328 U.S. 624 (1946) ................................................................................................2

Other Authorities

Texas Driver’s Handbook,
 p.60 (rev. July 2012) ............................................................................................... 3




                                                                                                                      v
                                 No. PD-0097-15

                                IN THE
                      COURT OF CRIMINAL APPEALS
                              OF TEXAS

                       NICHOLAS STEPHEN LLOYD,
                               Appellant

                                        v.

                         THE STATE OF TEXAS,
                                Appellee
             ___________________________________________________

               STATE’S PETITION FOR DISCRETIONARY REVIEW
             ___________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now, the State of Texas, by and through its Criminal District

Attorney, Greg Willis, and respectfully urges this Court to grant discretionary

review of the above-named cause.

              STATEMENT REGARDING ORAL ARGUMENT

       The State requests oral argument. The constitutionality of the mandatory

blood draw statute in light of Missouri v. McNeely is a complex issue, and oral

argument will help develop the issue more fully before this Court.




                                                                             vi
                         STATEMENT OF THE CASE

      Nicholas Lloyd was charged by indictment with Driving While Intoxicated,

third or more, a third-degree felony. CR 10. Following the denial of his motion to

suppress, he pleaded not guilty before a jury. 2 RR 226. The jury convicted him

and sentenced him to 8 years in prison and a $2,000 fine. CR 72, 78.

                 STATEMENT OF PROCEDURAL HISTORY

      The Fifth District Court of Appeals in Dallas held that the trial court should

have granted Lloyd’s motion to suppress and reversed the judgment. Lloyd v.

State, No. 05-13-01004-CR, 2014 WL 7249747, at *1 (Tex. App.—Dallas Dec. 22,

2014) (not designated for publication). The State timely filed a motion for

extension of time to file a petition for discretionary review on January 23, 2015.

Tex. R. App. P. 68.2(c). The State’s petition for discretionary review is timely,

being filed within the time granted by this Court.

                            STATEMENT OF FACTS

      The court of appeals summarized the facts as follows:

      Around 1:00 a.m. on April 27, 2012, Officer Jon Conduti of the Frisco
      Police Department responded to a call about a “major vehicle
      accident” at a residence. When he arrived, he saw appellant’s red
      Mercedes sitting in the yard, where it had crashed into the corner of
      the house. Conduti spoke with appellant, who had “a strong odor of
      alcoholic beverage on his breath” and bloodshot eyes. Appellant said
      something about making a mistake but then declined to talk further.
      Appellant also refused to perform any standardized field sobriety tests
      without an attorney present. Conduti arrested appellant for driving


                                                                                 vii
     while intoxicated and took him to the Frisco jail for a DWI interview.
     At the jail, appellant refused to give a blood sample. Conduti began
     completing paperwork for a search warrant for a blood draw;
     however, when he discovered appellant had been convicted two
     previous times for driving while intoxicated, he stopped processing
     the search warrant and took appellant to the hospital for a mandatory
     blood draw under the authority of section 724.012 of the Texas
     Transportation Code. Appellant’s blood was drawn around 3:00 a.m.,
     and he was charged with felony DWI third offense.

     Before trial, appellant filed a motion to suppress, alleging the
     warrantless, nonconsensual blood draw was a violation of his Fourth
     Amendment rights. The State conceded the officer had no warrant but
     argued (1) implied consent and (2) appellant had a reduced
     expectation of privacy because driving is a highly regulated activity
     and, under the totality of the circumstances, the search was
     reasonable. After the hearing, the trial court denied appellant’s motion
     to suppress and admitted the evidence at trial.

Lloyd, 2014 WL 7249747, at *1.




                                                                                viii
                  QUESTIONS PRESENTED FOR REVIEW

1. Is a warrantless, mandatory blood draw conducted pursuant to Section
   724.012(b)(3)(B)—the repeat offender provision—reasonable under the Fourth
   Amendment?

2. Did the court of appeals err in failing to address one of the State’s arguments
   that would justify the warrantless blood draw?


3. Did the court of appeals err in finding there were not exigent circumstances
   sufficient to justify a warrantless blood draw?



                           REASONS FOR REVIEW

1. The Fifth Court of Appeals has decided an important question of federal law in
   a way that conflicts with the applicable decisions of the Supreme Court of the
   United States. See Tex. R. App. P. 66.3(c).

2. The Fifth Court of Appeals has decided an important question of state law in a
   way that conflicts with the applicable decisions of this Court. See Tex. R. App.
   P. 66.3(c).

3. The Fifth Court of Appeals has so far departed from the accepted and usual
   course of judicial proceedings as to call for an exercise of the Court of Criminal
   Appeals’ power of supervision. See Tex. R. App. P. 66.3(f).




                                                                                   1
                                  ARGUMENT

   1. Is a warrantless, mandatory blood draw conducted pursuant to Section
      724.012(b)(3)(B)—the repeat offender provision—reasonable under the
      Fourth Amendment?

      The   warrantless   blood   draw    in   this   case   pursuant   to   Section

724.012(b)(3)(B) of the Texas Transportation Code was reasonable under Fourth

Amendment jurisprudence and should not have been suppressed. The Fifth Court

of Appeals relied on this Court’s ruling in State v. Villarreal, No. PD-0306-14,

2014 WL 6734178, at *1 (Tex. Crim. App. Nov. 26, 2014), in holding that a

mandatory blood draw violated the Fourth Amendment because the implied

consent statute does not provide a valid waiver of Fourth Amendment rights.

Lloyd, 2014 WL 7249747, at *2-3. But this Court should reconsider its holding in

Villarreal and hold that a Section 724.012 mandatory blood draw is constitutional.

      Although this Court noted in Villarreal that the consent exception had not

previously been applied in these precise circumstances, consent itself has long

been a “well recognized exception” to the warrant requirement. See, e.g.,

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). And the Supreme Court has

recognized that a person may consent via participation in a highly regulated

activity without the ability to revoke that consent. United States v. Biswell, 406

U.S. 311, 316 (1972); Zap v. United States, 328 U.S. 624, 626-27 (1946). Driving

on public roads is such a highly regulated activity, and the courts have long



                                                                                  2
recognized the government’s ability to impose certain restrictions in return for the

privilege of driving. And while Villarreal relied heavily on the fact that it was not

shown that the defendant was personally aware of the implied consent requirement,

a person is presumed to have knowledge of the law. Cheek v. United States, 498

U.S. 192, 199 (1991) (holding every person is presumed to know the law).

Additionally, the Texas Driver’s Handbook expressly informs both present and

prospective drivers of the implied consent law. See Texas Driver’s Handbook, p.60

(rev. July 2012). Because the consent implied under Section 724.012 provides a

valid exception to the warrant requirement, Lloyd’s motion to suppress was

properly denied.

      Review should be granted in this case because the same issue is pending

before this Court in numerous other cases. The State’s motion for rehearing in

Villarreal remains pending. Additionally, this Court has already granted review on

similar issues in Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued

and submitted Jan. 14, 2015); Reeder v. State, No. PD-0601-14 (granted Aug. 20,

2014; argued and submitted Jan. 15, 2015); and Douds v. State, No. PD-0857-14

(granted Sep. 17, 2014). Petitions for discretionary review are pending before this

Court in other cases, including Flores v. State, No. PD-0071-15 (filed Feb. 17,

2015); McNeil v. State, No. PD-1171-14 (filed Sep. 2, 2014); and Reeves v. State,




                                                                                   3
No. PD-1048-14 (filed Aug. 20, 2014). Lloyd’s conviction here should not be

reversed while the law at issue remains under consideration by this Court.

   2. Did the court of appeals err in failing to address one of the State’s
      arguments that would justify the warrantless blood draw?
   3. Did the court of appeals err in finding there were not exigent
      circumstances sufficient to justify a warrantless blood draw?

      The court of appeals also erred in rejecting the State’s argument that exigent

circumstances justified the blood draw even without regard to Section 724.012. In

its opinion, the court of appeals discussed the arguments raised in Section III of the

State’s brief, which argued that “sufficient aggravating factors” such as Lloyd’s

prior convictions and refusal to consent to field sobriety tests or a breath test

justified the blood draw. Lloyd, 2014 WL 7249747, at *3-4. But that section was

an extension of the State’s argument that the Section 724.012 mandatory blood

draw was constitutional. The State also, however, raised an independent exigent

circumstances argument in Section IV of its brief. State’s Brief at 23-28. The

exigent circumstances raised included the length of time the officer was required to

investigate a “major vehicle accident” before transporting Lloyd to the hospital, the

difficulty in obtaining a warrant in the early morning hours, and the additional time

involved in obtaining a warrant. The court of appeals never addressed the State’s

arguments on this matter and accordingly never determined whether the facts

raised in this case amounted to exigent circumstances. An appellate court is



                                                                                    4
required to address “every issue raised and necessary to final disposition of the

appeal.” Tex. R. App. P. 47.1; Keehn v. State, 233 S.W.3d 348, 349 (Tex. Crim.

App. 2007). Because the State raised an independent argument that would support

the trial court’s decision regardless of the applicability of Section 724.012, the

appellate court was required to address that ground in its opinion. Because it did

not, this case should be reversed and remanded to the Fifth Court of Appeals for

consideration of that issue.

      Furthermore, to the extent that the court of appeals addressed the exigent

circumstances argument, it erred in finding that no exigent circumstances existed.

Although not addressing the State’s arguments on the issue, the court of appeals

broadly held that “no exigent circumstances existed which would justify a

warrantless search.” Lloyd, 2014 WL 7249747, at * 3. A warrantless search may be

conducted where “the exigencies of the situation make the needs of law

enforcement so compelling that a warrantless search is objectively reasonable

under the Fourth Amendment.” Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013),

quoting Kentucky v. King, 131 S.Ct. 1849, 1856 (2011). One such exigency is to

prevent the imminent destruction of evidence. McNeely, 133 S.Ct. at 1559.

      The natural dissipation of alcohol in the bloodstream is a relevant, though

not dispositive, factor in determining exigent circumstances. In Schmerber v.

California, the Supreme Court held that the dissipation of alcohol in a



                                                                                 5
circumstance where the officer had already been significantly delayed in

investigating the scene of an accident and transporting the defendant to the hospital

was a reasonable exigent circumstance. 384 U.S. 757, 770 (1966). In McNeely, the

Supreme Court concluded that the natural dissipation of alcohol in the bloodstream

was not an exigent circumstance per se. 133 S.Ct. at 1562, 1568. But the McNeely

court nonetheless recognized that other factors, such as the inability to secure a

magistrate to obtain a warrant following a late-night arrest and “time-consuming

formalities” in obtaining a warrant, may still provide exigencies. Id. at 1562-63.

      In the instant case, there were exigent circumstances that justified a

warrantless blood draw. As in Schmerber and unlike McNeely, this case involved a

major accident—Appellant crashed his vehicle into the corner of a house—that

required significant investigation by the officer. Lloyd, 2014 WL 7249747, at *1.

Indeed, the trial court expressly found that the case was not a “typical DWI” and

spoke at length about its distinguishing features. 2 RR 222-27. This case involved a

greater passage of time at the scene than in McNeely. Even acting without a

warrant, Lloyd’s blood was not drawn until more than two hours after the officer

was dispatched. Id. Additionally, the accident occurred in the early morning hours

when a judge would less likely be available. See McNeely, 133 S.Ct. at 1562.

Furthermore, Appellant initially fled the scene following the accident, refused to

participate in field sobriety tests, and refused to provide a blood sample. 2 RR 73,



                                                                                     6
77-78; 3 RR 33, 44, 48. The trial court expressly found that these were “extra

circumstances that [were] thwarting the police investigation” and added to the

exigency of the situation. 2 RR 225. These are precisely the “practical problems of

obtaining a warrant within a timeframe that still preserves the opportunity to obtain

reliable evidence” discussed in McNeely. McNeely, 133 S.Ct. at 1568. The court of

appeals erred in finding there were not exigent circumstances sufficient to support

a warrantless blood draw.




                                                                                    7
                            PRAYER FOR RELIEF

      The State prays that the Court grant the State’s petition and set the case for

submission, reverse the judgment of the Fifth Court of Appeals, and affirm the

judgment of the trial court, or alternatively, remand the case for consideration of

the State’s exigent circumstances argument.

                                          Respectfully submitted,

                                          GREG WILLIS
                                          Criminal District Attorney
                                          Collin County, Texas

                                          JOHN R. ROLATER, JR.
                                          Assistant Criminal District Attorney
                                          Chief of the Appellate Division



                                           /s/ Andrea L. Westerfeld
                                           ANDREA L. WESTERFELD
                                           Assistant Criminal District Attorney
                                           2100 Bloomdale Rd., Ste. 200
                                           McKinney, Texas 75071
                                           State Bar No. 24042143
                                           (972) 548-4323
                                           FAX (214) 491-4860
                                           awesterfeld@co.collin.tx.us




                                                                                  8
                         CERTIFICATE OF SERVICE

      A true copy of the State’s Petition for Discretionary Review has been

electronically served on counsel for Appellant, Stephanie Hudson, and a courtesy

copy emailed to smhudson@gmail.com, and a true copy served on the Honorable

Lisa McMinn, State Prosecuting Attorney, P.O. Box 13046, Capitol Station,

Austin, Texas 78711-3046, Lisa.McMinn@spa.state.tx.us, on this, the 20th day of

February, 2015.



                                             /s/ Andrea L. Westerfeld
                                             Andrea L. Westerfeld




                      CERTIFICATE OF COMPLIANCE


      This brief complies with the word limitations in Texas Rule of Appellate

Procedure 9.4(i)(2). In reliance on the word count of the computer program used to

prepare this brief, the undersigned attorney certifies that this brief contains 1,814

words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).



                                           /s/ Andrea L. Westerfeld
                                           Andrea L. Westerfeld




                                                                                   9
         APPENDIX

Opinion of the Fifth Court of Appeals
REVERSE and REMAND; and Opinion Filed December 22, 2014.




                                                       S
                                        Court of Appeals
                                                             In The


                                 Fifth District of Texas at Dallas
                                                   No. 05-13-01004-CR

                                   NICOLAS STEPHEN LLOYD, Appellant
                                                 V.
                                     THE STATE OF TEXAS, Appellee

                              On Appeal from the 401st Judicial District Court
                                           Collin County, Texas
                                  Trial Court Cause No. 401-81624-2012

                                                        OPINION
                                    Before Justices Francis, Lang, and Stoddart 1
                                            Opinion by Justice Francis
          Nicolas Stephen Lloyd appeals the trial court’s order denying his motion to suppress the

results of a warrantless, nonconsensual blood draw. At trial, appellant stipulated to having been

convicted twice previously of driving while intoxicated, and the evidence of his blood alcohol

concentration was admitted. A jury convicted him of driving while intoxicated third offense,

found he used or exhibited a deadly weapon (a motor vehicle), and assessed punishment at eight

years in prison and a $2000 fine. In a single issue, appellant claims the trial court erred by

denying his motion to suppress because the warrantless, nonconsensual blood draw constituted

an unconstitutional search and seizure and violated his Fourth Amendment rights. We agree




     1
       The Honorable Justice Craig Stoddart succeeded the Honorable Jim Moseley, a member of the original panel. Justice Stoddart has
reviewed the briefs and record before the Court.
with appellant.   We reverse the trial court’s judgment and remand this case for further

proceedings.

       Around 1:00 a.m. on April 27, 2012, Officer Jon Conduti of the Frisco Police Department

responded to a call about a “major vehicle accident” at a residence. When he arrived, he saw

appellant’s red Mercedes sitting in the yard, where it had crashed into the corner of the house.

Conduti spoke with appellant, who had “a strong odor of alcoholic beverage on his breath” and

bloodshot eyes. Appellant said something about making a mistake but then declined to talk

further. Appellant also refused to perform any standardized field sobriety tests without an

attorney present. Conduti arrested appellant for driving while intoxicated and took him to the

Frisco jail for a DWI interview. At the jail, appellant refused to give a blood sample. Conduti

began completing paperwork for a search warrant for a blood draw; however, when he

discovered appellant had been convicted two previous times for driving while intoxicated, he

stopped processing the search warrant and took appellant to the hospital for a mandatory blood

draw under the authority of section 724.012 of the Texas Transportation Code. Appellant’s

blood was drawn around 3:00 a.m., and he was charged with felony DWI third offense.

       Before trial, appellant filed a motion to suppress, alleging the warrantless, nonconsensual

blood draw was a violation of his Fourth Amendment rights. The State conceded the officer had

no warrant but argued (1) implied consent and (2) appellant had a reduced expectation of privacy

because driving is a highly regulated activity and, under the totality of the circumstances, the

search was reasonable. After the hearing, the trial court denied appellant’s motion to suppress

and admitted the evidence at trial. While this appeal was pending, the court of criminal appeals

issued its opinion in State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App.

Nov. 26, 2014), addressing involuntary blood draws taken under the authority of the Texas

Transportation Code.

                                              –2–
       In a single issue, appellant claims the trial court erred by denying his motion to suppress.

He claims that, because he did not consent to the blood draw and the State did not have a warrant

to draw his blood, the search was reasonable only if the State could show exigent circumstances.

Because the State did not do so, appellant claims the search violated his Fourth Amendment

rights, the motion should have been granted, and the blood alcohol concentration evidence

should have been suppressed.

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

standard. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). We grant almost total

deference to the trial court’s determinations of historical facts and mixed questions of law and

fact that rely on credibility when supported by the record. Id. But when mixed questions of law

and fact do not depend on the evaluation of credibility and demeanor, we review the trial court’s

ruling de novo. Id.

       The Texas Court of Criminal Appeals recently addressed whether a warrantless,

nonconsensual testing of a DWI suspect’s blood violates the suspect’s Fourth Amendment rights.

Villarreal, 2014 WL 6734178. In that case, a police officer stopped Villarreal for a traffic

violation. Id. at *1. When Villarreal displayed signs of intoxication, the officer asked him to

perform standardized field sobriety tests, but Villarreal refused. Id. The officer then arrested

Villarreal on suspicion of DWI and gave him written statutory warnings requesting a blood

specimen. Again, Villarreal refused. Id. After a criminal history check revealed Villarreal had

been previously convicted of DWI several times, the officer took Villarreal to a hospital for a

mandatory blood draw under section 724.012 of the transportation code. Id. at *2.

       After he was indicted for felony DWI, Villarreal filed a motion to suppress stating there

was no deemed consent to the taking of a blood specimen. Id. The trial court conducted an

evidentiary hearing; the officer, the sole witness at the hearing, testified he “could have”

                                               –3–
obtained a warrant, but believed he “did not statutorily have to” in light of the mandatory-blood-

draw provision in the code. Id. He said his decision to require the blood draw was based solely

on the statutory authorization and not on any emergency at the scene or the existence of exigent

circumstances. Id. The trial court granted Villarreal’s motion to suppress, and the court of

appeals affirmed. Id. at *1. The State filed a petition for discretionary review, alleging the trial

court and the court of appeals erred by concluding the warrantless search of Villarreal’s blood

violated the Fourth Amendment and that the mandatory blood draw statute does not dispose of

the warrant requirement. Id.

       On petition for discretionary review, the court of criminal appeals noted that, as a general

rule, to comply with the Fourth Amendment, a search of a person in a criminal investigation

(1) requires a search warrant or a recognized exception to the warrant requirement and (2) must

be reasonable under the totality of the circumstances. Id. at *8. The Fourth Amendment is

implicated in DWI cases because the collection of a suspect’s blood invades a substantial privacy

interest, and the exigent circumstances exception to the search-warrant requirement is not

established merely by the natural dissipation of alcohol. Id. The court of criminal appeals then

concluded that, because Villarreal did not consent and the warrantless blood draw under section

724.012 did not fall under any of the proffered exceptions to the warrant requirement, the search

violated his Fourth Amendment rights. Id.

       In reaching this conclusion, the court rejected the State’s argument that, with respect to a

roadside DWI stop, a driver:

       impliedly agrees ahead of time that, in exchange for the privilege of driving on
       our roads, he is willing to waive the right to a warrant in these limited
       circumstances. The deal is sealed when he gets behind the wheel, and it can’t
       later be revoked when he gets caught driving in an impaired condition.

Id. at *11. The court stated that to constitute a valid waiver of Fourth Amendment rights through

consent, a suspect’s consent to search must be freely and voluntarily given; an “additional
                                                –4–
necessary element of valid consent is the ability to limit or revoke it.” Id. Implied consent that

has been withdrawn or revoked is not a substitute for the voluntary consent required by the

Fourth Amendment. Id. The record clearly showed Villarreal refused consent. The court

concluded an “explicit refusal to submit to blood testing overrides the existence of any implied

consent.” Id.

       The court of criminal appeals then considered whether any “other justification for the

search applie[d].” Addressing known exceptions to the warrant requirement, including the

automobile exception and search incident to arrest, the court concluded the blood draw did not

fall under any recognized exception to the warrant requirement. Id. at *12−16. The court also

rejected the State’s argument that the search could be upheld as reasonable under a general

Fourth Amendment balancing test. Id. at *16−19. In sum, the court concluded “the provisions

in the Transportation Code do not, taken by themselves, form a constitutionally valid alternative

to the Fourth Amendment warrant requirement.” Id. at *20. The court of criminal appeals

affirmed the trial court’s granting of Villarreal’s motion to suppress the blood alcohol

concentration evidence. Id. at *21.

       In our case, appellant refused to perform standardized field sobriety tests and refused to

consent to a blood sample. Although Conduti began completing a search warrant affidavit for a

blood draw, he abandoned the search warrant upon discovering appellant had been convicted two

previous times for DWI. The officer estimated it usually took about one and one-half hours to

complete a warrant and get it signed. During that time, they “would have lost some of the

evidence of the alcohol in the Defendant’s body.” Conduti said the only reason he stopped

processing the warrant was because he discovered appellant’s prior convictions and, under the

transportation code, he did not need a warrant. The reasons he thought he could bypass the




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warrant process were because (1) the transportation code allowed him to and (2) “the alcohol

was dissipating.”

       On appeal, the State argues appellant gave “implied consent” which was irrevocable “as a

person twice previously convicted of driving while intoxicated” and sufficient aggravating

factors were present to satisfy the exigent circumstances requirement. With respect to the first

argument, the court of criminal appeals already considered and rejected this precise argument.

See Villarreal, 2014 WL 6734178, at *11 (“To the extent the State suggests that the implied-

consent and mandatory-blood-draw provisions in the Transportation Code categorically

extinguish a DWI suspect’s right to withdraw consent when some aggravating circumstance is

present, that suggestion cannot be squared with the requirement that, to be valid for Fourth

Amendment purposes, consent must be freely and voluntarily given based on the totality of the

circumstances, and must not have been revoked or withdrawn at the time of the search.”). We

reject this portion of the State’s argument.

       Next, the State argues “sufficient aggravating factors,” specifically appellant’s two prior

convictions, his refusal to engage in sobriety tests, and his refusal to consent to a voluntary blood

draw, satisfied the exigent circumstances requirement.            These factors are not exigent

circumstances that provide an exception to the warrant requirement; exigent circumstances are

those “exigencies of the situation” that “make the needs of law enforcement so compelling that

[a] warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v.

Arizona, 437 U.S. 385, 394 (1978). These include, for example, the threat of imminent removal

or destruction of evidence, threat to human life, rendering emergency assistance to injured

occupants, or hot pursuit of a fleeing suspect. See Kentucky v. King, 131 S. Ct. 1849, 1856

(2011). However, as a general rule, the “context of blood testing is different in critical respects

from other destruction-of-evidence cases in which police are truly confronted with a ‘now or

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never’ situation.” Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013). Such cases should be

considered on a case-by-case assessment of exigency, not a categorical rule. Id. In fact, 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. The factors the State relies on are simply

those factors that invoke the mandatory blood draw statute.          See TEX. TRANSP. CODE

ANN. § 724.012 (West 2011). Because no exigent circumstances existed which would justify a

warrantless search, we reject this argument as well.

       Appellant did not consent to the draw and the taking of his blood did not fall under

another recognized exception to the warrant requirement.          We therefore conclude the

warrantless, nonconsensual blood draw violated appellant’s Fourth Amendment rights. See

McNeely, 133 S. Ct at 1561−63; Villarreal, 2014 WL 6734178, at *20. The trial court abused its

discretion by denying appellant’s motion. We reverse the trial court’s judgment and remand this

case for further proceedings consistent with this opinion.




                                                     /Molly Francis/
                                                     MOLLY FRANCIS
                                                     JUSTICE

Publish
TEX. R. APP. P. 47
131004F.P05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

NICOLAS STEPHEN LLOYD, Appellant                   On Appeal from the 401st Judicial District
                                                   Court, Collin County, Texas
No. 05-13-01004-CR        V.                       Trial Court Cause No. 401-81624-2012.
                                                   Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee                       Justices Lang and Stoddart participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.


Judgment entered this 22nd day of December, 2014.




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