            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-0306-14



                                 THE STATE OF TEXAS

                                              v.

                            DAVID VILLARREAL, Appellee

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE THIRTEENTH COURT OF APPEALS
                            NUECES COUNTY

              M EYERS, J., filed a dissenting opinion.

                                       OPINION

       While it is well settled that the Fourth Amendment will ordinarily require a warrant

for a search or seizure conducted by the State, it is also well settled that there are multiple

exceptions to this warrant requirement. See, e.g., Carroll v. United States, 267 U.S. 132

(1925); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989). Here, the majority

has concluded that the mandatory blood draw outlined in Section 724.012(b)(3)(B) of the

Texas Transportation Code does not fall within any of the current recognized exceptions to
                                                                       Villarreal dissent - Page 2

the warrant requirement. I do not disagree with this conclusion. I do, however, believe that

the Legislature intended to create a new exception to the warrant requirement with this

statute, and that this exception is constitutional.

       Section 724.012(b)(3)(B) states that an officer “shall require the taking of a specimen

of the person’s breath or blood” if the officer has an individual under arrest for an

intoxication offense and some other circumstance exists, such as the individual having two

prior convictions for driving while intoxicated. The majority holds that when this type of

search of the blood occurs nonconsensually and without a warrant, as in this case, it is not

constitutional. However, even outside the circumstances listed in this provision, officers who

obtain a warrant are allowed to take blood or breath samples from any individual arrested for

driving while intoxicated. If this is permitted in any case, then the existence of this provision

would have no purpose unless it is meant to allow for unwarranted searches in the specific

instances listed. The majority’s conclusion renders this provision unnecessary. Further, if a

warrant is required, the wording of the statute stating that the officer “shall” get a specimen

would place an officer in violation of the law if the magistrate refuses to sign the officer’s

warrant, since the officer would be prevented from obtaining a specimen.

       This provision should be upheld as an exception to the warrant requirement because

the search is not an unreasonable one and because individuals are put on clear notice that

they can expect some police intrusion under these specific circumstances.1 This statute is far

       1
        The specific circumstances we refer to occur when an individual with at least two prior
intoxication offense convictions has already been arrested on suspicion of a third intoxication
                                                                      Villarreal dissent - Page 3

clearer than the judicially created exceptions to the warrant requirement, such as exigent

circumstances, which is not objectively defined in a written statute. This provision was

created legislatively and is codified in the Texas Transportation Code. Therefore, drivers are

deemed to have knowledge of it and have notice that such a search is required under these

specific circumstances. Although this is not exactly the same as a term of probation where

the defendant is required to breathe into a device that measures blood alcohol content before

starting his car, if the Legislature passed a statute requiring defendants to continue to use

such a device after their probationary period expired, I would certainly think that would pass

constitutional muster. The current situation is the same thing as requiring sex offenders to

continue to register with the State long after their punishment or probation has expired. Here,

we are essentially telling defendants that after their second conviction of driving while

intoxicated, they must submit to a search, even without a warrant, if arrested for such an

offense again.

       Further, Section 724.012(b)(3)(B) is limited in scope, applying only to individuals

with two prior convictions (not mere arrests) of driving while intoxicated. It is not an

overreaching statute that is applicable to the average driver as it affects only the individuals

who are repeat offenders and are well aware of the legal consequences of driving while

intoxicated, but have been arrested for yet another intoxication offense. The State has a

special interest in prosecuting these dangerous individuals in order to protect the public by



offense.
                                                                     Villarreal dissent - Page 4

keeping repeat offenders off the roads, and the Legislature enacted this provision to provide

an exception to the warrant requirement in these instances where such a special danger is

present.

       Because I believe that it is clear that the Legislature wanted to create an exception to

the requirement that a warrant be obtained before taking a specimen from an individual under

arrest for driving while intoxicated in specific, limited circumstances, I disagree with the

majority’s conclusion. I would hold that Section 724.012(b)(3)(B) contains a constitutional

exception to the warrant requirement and would overturn the decision of the court of appeals.

Therefore, I respectfully dissent.

                                                                 Meyers, J.

Filed: November 26, 2014

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