Reversed and Remanded and Majority and Dissenting Opinions filed
November 13, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00208-CR

                   JONATHAN ALBERT LEAL, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 122nd District Court
                          Galveston County, Texas
                      Trial Court Cause No. 12CR0947

                     MAJORITY OPINION


      Appellant Jonathan Albert Leal was stopped for failing to yield the right of
way. Appellant was arrested on suspicion of driving while intoxicated (DWI) and,
over his explicit refusal, compelled by the arresting officer to submit to a
warrantless intrusion into his veins. Appellant was convicted of felony DWI. See
Tex. Penal Code Ann. §§ 49.04, 49.09(b) (West 2011 & Supp. 2014).
       Appellant presents this court with two issues for review. The first issue is
whether the traffic stop was supported by reasonable suspicion. The second issue is
whether, under Missouri v. McNeely, — U.S. —, 133 S. Ct. 1552 (2013), and
based solely on the arresting officer’s application of the repeat-offender provision
of the implied-consent statute, see Tex. Transp. Code Ann. § 724.012(b)(3)(B)
(West 2011), the State was justified in obtaining a blood sample from appellant’s
veins without a warrant.

       With regard to appellant’s first issue, we hold that the officer in this case had
sufficient evidence to justify the warrantless temporary detention of appellant.
With regard to appellant’s second issue, we hold that the intrusion into appellant’s
veins was an unreasonable warrantless search in violation of the Fourth
Amendment. We therefore reverse the trial court’s judgment and remand to the
trial court for a new trial consistent with this opinion.

                   I.      FACTS AND PROCEDURAL BACKGROUND

       Early in the morning of April 2, 2012, Jacob Hodges 1 was on patrol driving
east in the right lane of West Main Street in League City, Galveston County,
Texas. Hodges observed appellant approaching West Main Street from an
apartment complex parking lot. Appellant was driving a white sport utility vehicle
(SUV) approaching from the south at a high rate of speed. Immediately prior to
turning onto West Main Street, appellant applied his brakes. This caused the SUV
to visibly rock forward, compressing the front suspension. The front end of
appellant’s SUV entered West Main Street. Hodges had to slam on his brakes in
order to avoid a collision.


       1
        At the time of the events at issue, Hodges was a police officer with the League City
Police Department. At the time of trial, Hodges was a special agent with the Drug Enforcement
Administration.

                                             2
       As a result of this near collision, Hodges initiated a traffic stop. During the
course of the traffic stop, Hodges saw a bottle of rum behind the passenger’s seat
of appellant’s SUV. Hodges noticed that appellant’s eyes were red and watery. He
also noticed the faint odor of alcohol on appellant’s breath. In response to
Hodges’s questioning, appellant admitted to drinking three mixed drinks. Hodges
administered a battery of standardized field sobriety tests. Based on appellant’s
performance on the sobriety tests and Hodges’s personal observations, Hodges
concluded that appellant was under the influence of alcohol. Hodges arrested
appellant and transported him to the League City jail.

       At the jail, Hodges gave appellant the requisite statutory warning regarding
the implied-consent statute and the consequences of refusing to submit to the
taking of a blood or breath specimen. See Tex. Transp. Code Ann. § 724.015 (West
Supp. 2014). The warning was given orally and in writing. After receiving the
statutory warning, appellant refused to submit to the taking of both a blood and a
breath specimen.2 Hodges then reviewed appellant’s criminal history and
discovered that appellant had two prior DWI convictions. Per the implied-consent
statute, Hodges was required to obtain a specimen of appellant’s blood. See Tex.
Transp. Code Ann. § 724.012(b)(3)(B). Hodges transported appellant to Clear
Lake Regional Hospital where a nurse drew appellant’s blood. According to
Hodges’s offense report, appellant was “very uncooperative” at the hospital; three
people had to hold appellant down while the nurse took his blood. Hodges did not
obtain a search warrant to draw appellant’s blood.

       Appellant was indicted for operating a motor vehicle in a public place while
intoxicated. See Tex. Penal Code Ann. § 49.04(a). The indictment alleged two
       2
          While the written refusal in the record denotes only a refusal to submit a breath
specimen, the testimony at trial in response to the State’s questioning clearly demonstrates that
appellant refused to submit samples of both breath and blood.

                                               3
prior DWI convictions. Appellant stipulated to the validity of the two prior
convictions. Appellant filed a motion to suppress challenging the legality of the
traffic stop. After conducting a hearing, the trial court denied the motion to
suppress.

      The case was tried before a jury. Appellant’s blood alcohol content, which
was nearly three times the legal limit, was admitted into evidence. The jury found
appellant guilty of the charged offense, and the trial court assessed punishment at
eight years’ confinement. The sentence was suspended and appellant was placed
on community supervision.

      The trial court’s judgment was signed on February 15, 2013. Appellant filed
his notice of appeal on the same day. On March 8, 2013, appellant filed a motion
for new trial, asserting various grounds not pertinent to this appeal. On April 22,
2013, five days after the Supreme Court decided McNeely, appellant filed a
supplemental motion for new trial in which he challenged the validity of the
warrantless blood draw under McNeely. The trial court held a hearing on
appellant’s motion for new trial and ultimately denied the motion. On appeal,
appellant challenges (1) the legality of the traffic stop and (2) the legality of the
warrantless blood draw.

                           II.   STANDARD OF REVIEW

      A trial court’s denial of a motion to suppress and a trial court’s denial of a
motion for new trial are both reviewed under the abuse of discretion standard.
Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013); Ex parte Moore,
395 S.W.3d 152, 158 (Tex. Crim. App. 2013). A trial court abuses its discretion if
no reasonable view of the record could support its ruling. Okonkwo, 398 S.W.3d at
694. We view the evidence in the light most favorable to the trial court’s ruling.
Id.; Moore, 395 S.W.3d at 158. At a hearing on the motion, the trial court is the
                                         4
sole judge of witness credibility and the weight given to witness testimony.
Okonkwo, 398 S.W.3d at 694; Moore, 395 S.W.3d at 158. We must afford almost
total deference to the trial court’s findings of historical facts as well as mixed
questions of law and fact that turn on an evaluation of credibility and demeanor.
Okonkwo, 398 S.W.3d at 694; Abney v. State, 394 S.W.3d 542, 547 (Tex. Crim.
App. 2013). When the trial court does not make explicit findings of fact, we
assume the trial court made implicit findings of fact supported by the record.
Okonkwo, 398 S.W.3d at 694; Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim.
App. 2005).

      We review de novo (1) questions of law based on undisputed facts and (2)
mixed questions of law and fact that do not turn on an evaluation of credibility and
demeanor. Jones v. State, 437 S.W.3d 536, 538 (Tex. App.—Texarkana 2014, pet.
filed); see Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Additionally, we review de novo
the trial court’s application of the law of search and seizure to the trial court’s
express or implied determination of historical facts. Shepherd v. State, 273 S.W.3d
681, 684 (Tex. Crim. App. 2008). Finally, we review de novo indisputable
evidence contained in a video recording. State v. Duran, 396 S.W.3d 563, 570–71
(Tex. Crim. App. 2013); see Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim.
App. 2000).

                                III.   DISCUSSION

      We begin our discussion with a general overview of the Fourth Amendment.
We then analyze whether Hodges had reasonable suspicion that appellant
committed the traffic violation of failing to yield the right of way. Finally, we
analyze whether the warrantless intrusion into appellant’s veins was justified under
an exception to the Fourth Amendment’s warrant requirement.

                                         5
A.    The Fourth Amendment
      The Fourth Amendment 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. The
ultimate touchstone of the Fourth Amendment is reasonableness. Riley v.
California, — U.S. —, —, 134 S. Ct. 2473, 2482 (2014). Reasonableness generally
requires the obtaining of a judicial warrant. Id. A warrantless search is reasonable
only if it falls within a specific exception to the Fourth Amendment’s warrant
requirement. Id.

      A defendant who alleges a search or seizure in violation of the Fourth
Amendment must produce some evidence that rebuts the presumption of proper
police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). To
satisfy this burden, the defendant must establish that the search or seizure occurred
without a warrant. Id. Once the defendant makes this showing, the State must
prove that the search or seizure was conducted pursuant to a warrant or was
reasonable. Id. Here, the State seized and searched appellant without a warrant.
Therefore, we must determine whether the warrantless temporary detention of
appellant was reasonable and, if so, whether the warrantless intrusion into
appellant’s veins was reasonable.

B.    The traffic stop was reasonable.
      The warrantless temporary detention of appellant was reasonable. A
warrantless temporary detention, such as the traffic stop in this case, is lawful
when the officer has reasonable suspicion to believe that an individual is violating
the law. Ford, 158 S.W.3d at 492. Reasonable suspicion exists if the officer has

                                         6
specific articulable facts that, when combined with rational inferences from those
facts, would lead him to reasonably suspect that a person has engaged, is engaging,
or soon will be engaging in criminal activity. Abney, 394 S.W.3d at 548. This
objective standard disregards the officer’s subjective intent and looks solely at
whether an objective basis for the detention exists. Ford, 158 S.W.3d at 492. A
reasonable-suspicion determination is made by considering the totality of the
circumstances at the time of the detention and must be based on commonsense
judgments and inferences about human behavior. Illinois v. Wardlow, 528 U.S.
119, 125 (2000); State v. Woodard, 341 S.W.3d 404, 412 (Tex. Crim. App. 2011).

      In this case, Hodges testified that he stopped appellant for failing to yield the
right of way. In order to satisfy its burden, the State was required to show that
Hodges had a reasonable suspicion that appellant violated section 545.155 of the
Texas Transportation Code by failing to yield the right of way. See Abney, 394
S.W.3d at 548.

      Section 545.155 provides that “[a]n operator about to enter or cross a
highway from an alley, building, or private road or driveway shall yield the right-
of-way to a vehicle approaching on the highway to be entered.” Tex. Transp. Code
Ann. § 545.155 (West 2011). The undisputed evidence showed the following:

   • Hodges was driving eastbound in the right lane of West Main Street.
   • Appellant was driving through a parking lot at a high rate of speed.
   • Appellant’s trajectory was perpendicular to that of Hodges.
   • Appellant was approaching West Main Street from the south.
   • Appellant’s SUV stopped suddenly, causing its weight to visibly shift
     forward and its front suspension to compress.
   • The front end of appellant’s SUV entered Hodges’s lane.
   • Hodges had to slam on his brakes in order to avoid colliding with the SUV.
      Based on the totality of these circumstances, we conclude that Hodges had
                                          7
reasonable suspicion that appellant committed the traffic violation of failing to
yield the right of way. The record indicates that appellant did not yield the right of
way to Hodges. Specifically, appellant allowed the front end of his SUV to enter
the highway from the apartment complex’s driveway when Hodges was
approaching on the highway to be entered, namely West Main Street. See id.; see,
e.g., Thomas v. State, 336 S.W.3d 703, 708–09 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d) (traffic stop for failing to yield right of way was justified when
defendant’s abrupt turn forced officer to apply brakes in order to avoid a collision).

       The trial court did not err in denying appellant’s motion to suppress.
Appellant’s first issue is overruled.

C.     The State’s drawing of appellant’s blood without a warrant was not
       reasonable because the State failed to establish a recognized exception
       to the Fourth Amendment’s warrant requirement.
       The State’s drawing of appellant’s blood without a warrant was not
reasonable. The State failed to establish a recognized exception to the Fourth
Amendment’s warrant requirement. 3 A blood draw conducted at the direction of
the police is a search subject to the reasonableness requirement of the Fourth
Amendment. Schmerber v. California, 384 U.S. 757, 767 (1966). A warrantless
search of the person is unreasonable unless it falls within a recognized exception to
the warrant requirement. McNeely, 133 S. Ct. at 1558. Voluntary consent to search

       3
          To the extent appellant asks us to decide the constitutionality of the implied-consent
statute, we decline his invitation. “The constitutionality of a statute is not to be determined in any
case unless such a determination is absolutely necessary to decide the case in which the issue is
raised.” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 909 (Tex. Crim. App. 2011) (quoting Briggs
v. State, 740 S.W.2d 803, 806–07 (Tex. Crim. App. 1987)). Because section 724.012(b)(3)(B) is
not a recognized exception to the Fourth Amendment’s warrant requirement and because the
State did not satisfy its burden to establish a recognized exception to the warrant requirement, we
conclude that appellant’s Fourth Amendment rights were violated. Therefore, it is not
“absolutely necessary” for us to decide whether section 724.012(b)(3)(B) is unconstitutional,
either facially or as applied to appellant.

                                                  8
and exigent circumstances are among the recognized exceptions. McGee v. State,
105 S.W.3d 609, 615 (Tex. Crim. App. 2003). We are persuaded by the reasoning
of our sister courts of appeal and join them in concluding that the repeat-offender
provision of the implied-consent statute, see Tex. Transp. Code Ann. §
724.012(b)(3)(B), is not one of the recognized exceptions to the warrant
requirement. State v. Anderson, — S.W.3d —, —, No. 09-13-00400-CR, 2014 WL
5033262, at *15 (Tex. App.—Beaumont Oct. 8, 2014, no pet. h.); Aviles v. State,
— S.W.3d —, —, No. 04-11-00877-CR, 2014 WL 3843756, at *3 (Tex. App.—
San Antonio Aug. 6, 2014, pet. filed); Forsyth v. State, 438 S.W.3d 216, 223 (Tex.
App.—Eastland 2014, pet. filed); Sutherland v. State, 436 S.W.3d 28, 41 (Tex.
App.—Amarillo 2014, pet. filed); Weems v. State, 434 S.W.3d 655, 665 (Tex.
App.—San Antonio 2014, pet. granted); Reeder v. State, 428 S.W.3d 924, 930
(Tex. App.—Texarkana 2014, pet. granted); State v. Villareal, — S.W.3d —, —,
No. 13-13-00253-CR, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan.
23, 2014, pet. granted).

       Therefore, the State was required to prove that the warrantless intrusion into
appellant’s veins was justified by exigent circumstances or valid consent.4

       1.     The drawing of appellant’s blood without a warrant was not justified
              by exigent circumstances.
       The State has not met its burden to establish the exigent circumstances
exception to the warrant requirement. At the hearing on appellant’s motion for new
trial, the State acknowledged that, under McNeely, “it is not a per se exception to
the general warrant requirement . . . that alcohol naturally dissipates in the blood
stream.” The State argues, however, that exigent circumstances did justify the


       4
         The State has not argued that any other recognized exception to the warrant requirement
applies to this case.

                                               9
warrantless blood draw in this case. The State avers that two hours elapsed from
the time of the traffic stop to the time that appellant’s blood was drawn. The State
contends that the additional time needed to acquire a warrant threatened the
destruction of the evidence of appellant’s blood alcohol content. The State’s
position is untenable because it is not supported by evidence in the record.

      The exigent circumstances exception applies “when the exigencies of the
situation make the needs of law enforcement so compelling that a warrantless
search is objectively reasonable under the Fourth Amendment.” McNeely, 133 S.
Ct. at 1558 (quoting Kentucky v. King, — U.S. —, —, 131 S. Ct. 1849, 1856
(2011)). The State has a compelling need to prevent the imminent destruction of
evidence. Id. A law enforcement officer may conduct a search without a warrant if,
under the circumstances, the delay necessary to obtain a warrant threatens the
destruction of evidence. Schmerber, 384 U.S. at 770.

      We must look to the totality of the circumstances as set forth in the record to
determine whether the officer faced an exigency that justified acting without a
warrant. McNeely, 133 S. Ct. at 1559. However, “in order to establish a plausible
justification for an exigent circumstances exception to the warrant requirement, the
State ha[s] the burden to show facts and circumstances beyond the passage of time
and the resulting dissipation of alcohol in the bloodstream.” Douds v. State, 434
S.W.3d 842, 851 (Tex. App.—Houston [14th Dist.] 2014, pet. granted) (en banc,
op. on reh’g).

      Here, the State has not shown or articulated any facts supporting the
existence of an exigency beyond the passage of time and the resulting dissipation
of alcohol in the bloodstream. The record shows that Hodges initiated the traffic
stop just after 2:00 a.m. on April 2, 2012. Hodges arrested appellant at 2:46 a.m.
The nurse drew appellant’s blood at 4:20 a.m. Although Hodges testified that he

                                         10
was aware that he could obtain a blood-draw warrant, the record contains no
evidence that he attempted to acquire such a warrant. Additionally, the record
contains no evidence regarding what Hodges knew about the time needed to obtain
a warrant. The State presented no evidence that further delay to obtain a warrant
threatened the destruction of evidence. The only evidence of an exigency in this
case is the two hours that elapsed from the time of the traffic stop to the time of the
warrantless blood draw and the resulting dissipation of alcohol in appellant’s blood
stream.

       Even though findings of historical fact supported by the record must be
implied in favor of the trial court’s ruling, whether those facts meet the legal
standard of exigent circumstances is a legal question we review de novo. Douds,
434 S.W.3d at 855. The findings that can be implied on this record do not support
the conclusion that the delay necessary to obtain a warrant threatened the imminent
destruction of the evidence of appellant’s blood alcohol content.

       Nor does the record support the dissent’s position that appellant posed a risk
similar to that of a suspected terrorist in a highly crowded airport. Here, appellant
was in police custody and no longer a threat to anyone on the public roadways.
This is in marked contrast to the would-be “air pirate” in the “zone of danger.” The
warrantless search in this case was for evidence of intoxication, not for weapons or
implements of mass destruction that could still be used. Further, the dissent
advances an argument that was not advanced by the State at trial or on appeal.5


       5
           We also note that courts deciding the validity of searches at airports after the 9/11
terrorist attacks have eschewed the notion that searches at airports are justified by consent. See
United States v. Aukai, 497 F.3d 955, 960–61 (9th Cir. 2007) (en banc) (overruling prior cases
that predicated the reasonableness of airport screening on ongoing consent or irrevocable implied
consent; “[G]iven that consent is not required, it makes little sense to predicate the
reasonableness of an administrative airport screening search on an irrevocable implied consent
theory.”); see also Corbett v. Transp. Sec. Admin., 767 F.3d 1171, 1180 (11th Cir. 2014)
                                               11
       The State has not met its burden to establish that exigent circumstances
justified the warrantless search into appellant’s veins.

       2.      The drawing of appellant’s blood without a warrant was not justified
               by valid consent.
       The State next contends, “It is well settled that one of the established
exceptions to a warrant requirement is a search pursuant to consent.” The State
equates statutory implied consent with the recognized consent exception to the
Fourth Amendment’s warrant requirement. The State’s position is that a suspect
with two prior DWI convictions has irrevocably consented to a mandatory
warrantless blood draw. We disagree and conclude that, under the totality of the
circumstances in the record, the State has not met its burden to establish that the
warrantless search into appellant’s veins was justified by valid consent.6

               a.     Consent under the Fourth Amendment
       Under the Fourth Amendment, a warrantless search authorized by consent is
wholly valid. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). Like searches

(describing airport search as administrative search rather than consent search); George v. Rehiel,
738 F.3d 562, 575 (3d Cir. 2013) (noting that airport screening was permissible under
administrative search doctrine); Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 653 F.3d 1,
10 (D.C. Cir. 2011) (screening passengers at an airport is an administrative search). In fact,
Texas courts have held that travelers who attempt to board a commercial aircraft or check their
baggage lack standing to challenge the search because they do not have a reasonable expectation
of privacy. E.g., Kjolhede v. State, 333 S.W.3d 631, 633–34 (Tex. App.—Dallas 2009, pet.
ref’d); Turner v. State, 132 S.W.3d 504, 507–08 (Tex. App.—Houston [1st Dist.] 2004, pet.
ref’d); see also Florida v. J.L., 529 U.S. 266, 274 (2000) (reasonable expectation of privacy is
diminished at airports). In a post-9/11 world, a person’s submission to administrative airport
screening has little to do with his or her consent, implied or otherwise. The dissent’s effort to
justify a per se rule of irrevocable consent by comparing a warrantless blood draw to an
administrative search at an airport is unconvincing.
       6
           Like the First Court of Appeals in Perez v. State, we do not consider the
constitutionality of the implied-consent statute. See — S.W.3d —, —, No. 01-12-01001-CR,
2014 WL 943126, at *7 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet.); supra note 3.
Rather, we must decide an issue not addressed in Perez—whether such implied consent can be
revoked.

                                               12
justified by consent in other contexts, “consent to a blood test must be free and
voluntary, and it must not be the result of physical or psychological pressures
brought to bear by law enforcement.” Fienen v. State, 390 S.W.3d 328, 333 (Tex.
Crim. App. 2012). A person’s consent is not voluntary if his will was overborne
and his capacity for self-determination was critically impaired. See Schneckloth,
412 U.S. at 225–26; Fienen, 390 S.W.3d at 333.

      Moreover, a person is free to limit the scope of or even revoke the consent
that was given. Florida v. Jimeno, 500 U.S. 248, 252 (1991); Valtierra v. State,
310 S.W.3d 442, 450 (Tex. Crim. App. 2010). If a person withdraws his or her
consent before the search is completed, the police cannot continue searching based
on the prior consent. See, e.g., Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977)
(citizen’s withdrawal of consent and reinvocation of Fourth Amendment rights did
not affect validity of IRS agent’s actions prior to receiving notice of citizen’s
withdrawal of consent). A suspect’s ability to withdraw his or her consent is
particularly important in cases like this one that involve a compelled intrusion into
the human body. See McNeely, 133 S. Ct. at 1565 (“We have never retreated . . .
from our recognition that any compelled intrusion into the human body implicates
significant, constitutionally protected privacy interests.”).

      It is the State’s burden to show valid consent by clear and convincing
evidence. Fienen, 390 S.W.3d at 333. The question of whether a person’s consent
was valid is one of fact to be determined from the totality of the circumstances and
from the point of view of the objectively reasonable person. Id. “The standard for
measuring the scope of a suspect’s consent under the Fourth Amendment is that of
‘objective’ reasonableness—what would the typical reasonable person have
understood by the exchange between the officer and the suspect?” Jimeno, 500
U.S. at 251. One of the factors in determining the validity of a search based on

                                           13
consent is whether the suspect had the option to withdraw his or her consent.
Flores v. State, 172 S.W.3d 742, 749 (Tex. App.—Houston [14th Dist.] 2005, no
pet.).

         An officer’s invocation of section 724.012(b)(3)(B) is not alone sufficient to
establish the existence of valid consent justifying a warrantless blood draw. In
McNeely, the Supreme Court rejected the state’s argument that “whenever an
officer has probable cause to believe an individual has been driving under the
influence of alcohol, exigent circumstances will necessarily exist because [blood
alcohol content] evidence is inherently evanescent.” McNeely, 133 S. Ct. at 1560.
The Court held that the dissipation of alcohol in the blood does not categorically
support a finding of exigency and reiterated that “[w]hether a warrantless blood
test of a drunk-driving suspect is reasonable must be determined case by case
based on the totality of the circumstances.” Id. at 1563. Here, the State’s position is
similar to that of the state in McNeely: whenever a person has been arrested for
DWI and is a repeat offender, consent will necessarily exist because section
724.012(b)(3)(B) says it does. Like the McNeely Court, we reject the State’s
argument in favor of a categorical rule supporting a finding of irrevocable consent
and instead reiterate that whether a warrantless blood test of a drunk-driving
suspect is reasonable under the Fourth Amendment must be determined case by
case based on the totality of the circumstances. Therefore, in this case, we must
look at the facts and circumstances beyond application of section 724.012(b)(3)(B)
to determine whether the search into appellant’s veins was justified by valid
consent.

               b.    Implied Consent
         Generally, implied-consent statutes require motorists, as a condition of
operating a motor vehicle within the state, to consent to blood alcohol content

                                           14
testing if they are arrested or detained on suspicion of drunk driving. McNeely, 133
S. Ct. at 1566. Implied-consent statutes do not generally authorize searches;
instead, they authorize the police to require motorists to choose between giving
actual consent or withdrawing their “implied consent” and suffering the
consequences. State v. Padley, 849 N.W.2d 867, 880 (Wis. Ct. App. 2014); see
McNeely, 133 S. Ct. at 1566. A suspect who consents when presented with the
choice has given actual consent, but a suspect who refuses to consent withdraws
the statutorily “implied consent” and accepts the consequences of that choice.
Padley, 849 N.W.2d at 879. In this respect, choosing to submit a breath or blood
specimen rather than accepting the consequences of refusal is valid consent under
the Fourth Amendment. See McGautha v. California, 402 U.S. 183, 213 (1971)
(“The criminal process . . . is replete with situations requiring ‘the making of
difficult judgments’ as to which course to follow. Although a defendant may have
a right . . . to follow whichever course he chooses, the Constitution does not . . .
always forbid him to choose.” (citations omitted)), vacated on other grounds sub
nom, Crampton v. Ohio, 408 U.S. 941 (1972); Cantu v. State, 738 S.W.2d 249, 256
(Tex. Crim. App. 1987) (“No constitutional violation is presented by the fact of a
difficult decision for a defendant.”).

      The Texas implied-consent statutory scheme is similar to the general model.
In Texas, “implied consent” means that a person arrested for DWI is deemed to
have consented to the taking of one or more specimens of the person’s breath or
blood for analysis to determine alcohol concentration. Tex. Transp. Code Ann. §
724.011 (West 2011). A specimen can only be taken if the person agrees to an
officer’s request for one, unless the provisions of 724.012(b) apply. Id. § 724.013
(West 2011). If a person refuses an officer’s request to submit a specimen, the
Department of Public Safety must immediately suspend the person’s driver’s


                                         15
license. Id. § 724.035 (West 2011). At issue in this case is section
724.012(b)(3)(B) of the Transportation Code, the repeat-offender provision of the
implied-consent statute. This provision requires an officer to take a specimen of a
person’s breath or blood if (1) the officer arrests the person for DWI, (2) the person
refuses the officer’s request to submit a specimen voluntarily, and (3) at the time of
arrest, the officer possesses or receives reliable information from a credible source
that the person has been previously convicted of DWI on two or more prior
occasions. Id. § 724.012(b)(3)(B).

             c.    Analysis
      Applying the Fourth Amendment standards, the applicable provisions of
Texas’s implied-consent statute, and the appropriate standard of review, we
conclude the State has not carried its burden to prove the existence of valid consent
in this case. We acknowledge that the record supports a finding that the statutory
requirements for a mandatory blood draw were met. Appellant was arrested for
DWI and was deemed by the implied-consent statute to have consented to
submitting a specimen of his breath or blood. Because appellant had been
convicted of DWI on two prior occasions and refused to submit a blood specimen
voluntarily, Hodges was required by the mandatory blood draw provision of the
implied-consent statute to obtain a specimen of appellant’s breath or blood.
Furthermore, appellant stipulated to the prior convictions at trial and does not
contest that Hodges complied with the statute by requiring him to submit to the
taking of a blood specimen.

      The record supports a finding that appellant effectively withdrew his implied
consent. Hodges testified that appellant refused consent to the blood draw. After
discovering appellant’s two prior DWI convictions, Hodges took appellant to the
hospital for the mandatory blood draw. At this point, the record indicates that

                                         16
appellant physically resisted to the taking of his blood. Specifically, three people
had to hold appellant down so the nurse could complete the blood-draw procedure.
The explicit refusal coupled with the physical refusal to submit to the taking of a
blood specimen effectively withdrew appellant’s prior implied consent. See
Jimeno, 500 U.S. at 251 (scope of consent is determined by what a reasonable
person would have understood by the exchange between the officer and the
suspect). Despite this withdrawal of consent and without obtaining a warrant,
Hodges forced appellant to submit a blood specimen. Hodges’s only justification
for mandating the warrantless blood draw was his application of section
724.012(b)(3)(B).

      The totality of the circumstances in this case demonstrates that appellant
withdrew his consent prior to the warrantless blood draw. In light of appellant’s
withdrawal of consent and because the State’s only justification for conducting the
warrantless nonconsensual blood draw was the repeat-offender provision of the
implied-consent statute, we conclude the State has not met its burden to establish
the existence of valid consent justifying the warrantless blood draw.

      In reaching this conclusion, we recognize the apparent inconsistency
between deemed consent under the implied-consent statute and a person’s absolute
right to refuse a test. See Fienen, 390 S.W.3d at 332–33. The Court of Criminal
Appeals has explained this inconsistency: “[C]onsent being implied by law, a
driver may not legally refuse. A driver, however, can physically refuse to submit,
and the implied-consent law, recognizing that practical reality, forbids the use of
physical force to compel submission.” Id. at 333 (quoting Forte v. State, 759
S.W.2d 128, 138 (Tex. Crim. App. 1988), overruled on other grounds,
McCambridge v. State, 778 S.W.2d 70 (Tex. Crim. App. 1989) (internal quotations
omitted)). Although the repeat-offender provision of the implied-consent statute

                                         17
was not at issue in the Fienen court’s analysis, see 390 S.W.3d at 333, the Supreme
Court’s recent abolition of categorical rules justifying exceptions to the warrant
requirement persuades us that the use of physical force to compel submission,
particularly in the face of physical resistance, is equally forbidden when the repeat-
offender provision is at issue in the court’s analysis, as it is in this case. See
McNeely, 133 S. Ct. at 1563; see also Aviles v. Texas, — U.S. —, —, 134 S. Ct.
902, 902 (2014) (remanding, for consideration in light of McNeely, factually
similar case involving repeat-offender provision of implied-consent law); Tex.
Dept. of Pub. Safety v. Watson, 945 S.W.2d 262, 266 (Tex. App.—Houston [1st
Dist.] 1997, no pet.) (“[A] person cannot be forced to breathe into a breathalyzer or
have a needle with syringe forcibly poked into his arm.”). Were it otherwise, we
would be creating a per se exception to the warrant requirement for DWI repeat
offenders. As the United States Supreme Court made clear in McNeely, this we
cannot do. 7

       We are not persuaded by the State’s argument that, by citing favorably to

       7
         We acknowledge, as does the dissent, that “the permissibility of a particular practice ‘is
judged by balancing its intrusion on the individual’s Fourth Amendment interests against its
promotion of legitimate governmental interests.’” Skinner v. Ry. Labor Execs. Ass’n, 489 U.S.
602, 619 (1989) (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)). However, in this case,
the balance of the State’s interests in eradicating the drunken driving problem against the
individual’s constitutionally-protected interest in his or her bodily integrity undermines the
dissent’s position in favor of irrevocable consent based solely on the individual’s status as a
repeat offender.
        The drunken driving problem is a national epidemic, and the State has an important
interest in eradicating it. See McNeely, 133 S. Ct. at 1565. The State also has an interest in
protecting law-abiding drivers from drunk drivers. But when balanced against the serious bodily
intrusion necessitated by a warrantless mandatory blood draw, we conclude that the State’s
interests are sufficiently served by the provision in the Transportation Code mandating
immediate suspension of a person’s driver’s license when the person refuses to submit to a blood
draw, or, in the case of a person without a license, issuance of an order denying the issuance of a
license to that person. See Tex. Transp. Code Ann. § 724.035(a) (West 2011). Furthermore, in
this case, appellant was in custody. He no longer posed a threat to public safety. And nothing in
the record suggests that Hodges was prevented from obtaining a warrant.

                                                18
implied-consent statutes throughout the country, the McNeely Court endorsed the
use of implied-consent statutes as a means to justify the warrantless intrusion into a
nonconsenting suspect’s veins. The Court’s statement that implied-consent laws
“impose significant consequences when a motorist withdraws consent”
presupposes that a motorist has the right to withdraw his or her consent. McNeely,
133 S. Ct. at 1566; see Forsyth, 438 S.W.3d at 222 (“The Court’s language does
suggest . . . that an accused can withdraw his or her consent to submit a specimen
for testing in direct contradiction to the State’s argument that implied consent is
irrevocable.”); see also Tex. Transp. Code Ann. § 724.035(a) (West 2011)
(providing for immediate suspension of license upon a person’s refusal to submit
to the taking of a specimen). 8 Furthermore, while “a majority of States either place
significant restrictions on when the police officers may obtain a blood sample
despite a suspect’s refusal (often limiting testing to cases involving an accident
resulting in death or serious bodily injury) or prohibit nonconsensual blood tests
altogether,” McNeely, 133 S. Ct. at 1566, Texas is the only state that purports to
allow police officers to forcibly draw a DWI suspect’s blood without a warrant
based solely on the suspect’s status as a repeat offender. 9 Lastly, the State’s

       8
          Justice Sotomayor’s discussion of implied-consent laws, which the State is using as the
basis for its argument, was not joined by a majority of the Court. See Forsyth, 438 S.W.3d at 222
n.3.
       9
         We do note that Nevada’s and Ohio’s implied-consent schemes seem to allow officers
to use “reasonable force” or “whatever reasonable means are necessary” to obtain samples from
a person who refuses. Like the Texas statute, however, neither the Nevada nor the Ohio statute
precludes an officer from first obtaining a warrant. See, e.g., Ala. Code §§ 32-5-192, 32-5-200
(Westlaw); Alaska Stat. Ann. § 28.35.032 (Westlaw); Ariz. Rev. Stat. Ann. §§ 28-1321, 28-1388
(Westlaw); Ark. Code Ann. §§ 5-65-202, 5-65-205 (Westlaw); Cal. Veh. Code §§ 13353, 23612
(Westlaw); Colo. Rev. Stat. Ann. §§ 42-4-1301, 42-4-1301.1 (Westlaw); Conn. Gen. Stat. Ann.
§§ 14-227b, 14-227c (Westlaw) (amended 2014); Del. Code Ann. tit. 21, §§ 2740, 2741
(Westlaw); Fla. Stat. Ann. § 316.1932 (Westlaw); Ga. Code Ann. § 40-5-67.1 (Westlaw); Haw.
Rev. Stat. §§ 291E-15, 291E-21 (Westlaw); Idaho Code Ann. § 18-8002 (Westlaw); 625 Ill.
Comp. Stat. Ann. 5/11-501.1, 5/11-501.6 (Westlaw); Ind. Code Ann. §§ 9-30-6-1, 9-30-6-3, 9-
30-6-7 (Westlaw); Iowa Code Ann. §§ 321J.6, 321J.9, 321J.10A (Westlaw); Kan. Stat. Ann. §§
                                               19
position fails to acknowledge that an officer who obtains a blood-draw warrant can
still comply with the “shall require” language of section 724.012(b) while at the
same time not running afoul of the Fourth Amendment. See McGruder v. State, —
S.W.3d —, —, No. 10-13-00109-CR, 2014 WL 3973089, at *3 (Tex. App.—Waco
Aug. 14, 2014, pet. filed) (“[S]ection 724.012(b) does not require a blood or breath
specimen be taken contrary to the Fourth Amendment; that is, without a warrant or
without a recognized exception to the warrant requirement.”)

       Nor are we persuaded by the State’s reliance on dictum in Beeman v. State
describing the implied-consent statute as “another method of conducting a
constitutionally valid [warrantless] search.” 86 S.W.3d 613, 615 (Tex. Crim. App.
2002). First, a statute cannot authorize what the Constitution forbids. State v.
Mosely, 348 S.W.3d 435, 442 (Tex. App.—Austin 2011, pet. ref’d).

       Second, the San Antonio Court of Appeals relied on the Beeman dictum in

8-1001, 8-1002 (Westlaw); Ky. Rev. Stat. Ann. §§ 189A.103, 189A.105, 189A.107 (Westlaw);
La. Rev. Stat. Ann. §§ 32:661, 32:666 (Westlaw); Me. Rev. Stat. Ann. tit. 29-A, § 2521
(Westlaw); Md. Code Transp. Ann. § 16-205.1 (Westlaw); Mass. Gen. Laws ch. 90, § 24
(Westlaw); Mich. Comp. Laws. Ann. §§ 257.625c, 257.625d (Westlaw); Minn. Stat. Ann. §§
169A.51, 169A.52 (Westlaw); Miss. Code Ann. §§ 63-11-5, 63-11-8, 63-11-21 (Westlaw); Mo.
Rev. Stat. §§ 577.033, 577.041 (Westlaw) (amended 2014); Mont. Code Ann. § 61-8-402
(Westlaw); Neb. Rev. Stat. Ann. §§ 60-6,197, 60-6,210, 60-498.01 (Westlaw); Nev. Rev. Stat.
Ann. §§ 484C.150, 484C.160 (Westlaw) (permitting use of “reasonable force” under certain
circumstances when a person refuses); N.H. Rev. Stat. Ann. § 265-A:14 (Westlaw); N.J. Stat.
Ann. §§ 39:4-50.2, 39:4-50.4a (Westlaw); N.M. Stat. Ann. § 66-8-111 (Westlaw); N.Y. Veh. &
Traf. Laws § 1194 (Westlaw); N.C. Gen. Stat. Ann. § 20-16.2 (Westlaw); N.D. Cent. Code Ann.
§§ 39:20-01, 39:20-01.1, 39:20-04 (Westlaw); Ohio Rev. Code Ann. § 4511.191 (Westlaw)
(allowing officer to employ “whatever reasonable means are necessary” to ensure submission;
providing officers with criminal and civil immunity); Okla. Stat. Ann. tit. 47, § 753 (Westlaw);
Or. Rev. Stat. Ann. §§ 813.095, 813.100 (Westlaw); 75 Pa. Cons. Stat. Ann. § 1547 (Westlaw);
R.I. Gen. Laws Ann. § 31-27-2.1 (Westlaw) (amended 2014); S.C. Code Ann. §§ 56-5-2950, 56-
5-2951 (Westlaw) (amended by 2014 S.C. Act 158); S.D. Codified Laws §§ 32-23-1, 32-23-10
(Westlaw) (officer can “require” suspect arrested for DWI to submit); Tenn. Code Ann. § 55-10-
406 (Westlaw); Utah Code Ann. §§ 41-6a-520, 41-6a-524 (Westlaw); Vt. Stat. Ann. tit. 23, §
1202 (Westlaw); Va. Code Ann. §§ 18.2-268.2, 18.2-268.3 (Westlaw) (refusal is a separate
crime); Wash. Rev. Code Ann. § 46.20.308 (Westlaw); W. Va. Code Ann. § 17C-5-7 (Westlaw);
Wis. Stat. Ann. § 343.305 (Westlaw); Wyo. Stat. Ann. § 31-6-102 (Westlaw).

                                              20
Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012), vacated, 134 S.
Ct. 902 (2014), a factually similar case involving section 724.012(b)(3)(B). There,
the San Antonio court held that section 724.012(b)(3)(B) permits an officer to take
a blood specimen from a DWI suspect without a warrant if the officer has
information that the suspect has been previously convicted of DWI on at least two
prior occasions. Aviles, 385 S.W.3d at 116. The Supreme Court vacated the San
Antonio court’s judgment and remanded the case for consideration in light of
McNeely. Aviles, 134 S. Ct. at 902. The San Antonio court recently issued a new
opinion in Aviles, rejecting its earlier reliance on the Beeman dictum and holding
that section 724.012(b)(3)(B) is not a permissible exception to the warrant
requirement. 2014 WL 3843756, at *3.10 The Supreme Court’s remand of Aviles
suggests that section 724.012(b)(3)(B) cannot serve as the sole basis for mandating
a warrantless blood draw when the totality of the circumstances surrounding the
blood draw indicate a lack of valid consent.

       Additionally, Beeman is distinguishable. The officer in Beeman arrested the
defendant for DWI and obtained a warrant to draw his blood. 86 S.W.3d at 614.
The defendant, who refused a breath test and objected to the blood draw, argued
that the search was invalid because it violated the implied-consent statute—i.e., he
revoked his consent. Id. at 615. The court held that “once a valid search warrant is


       10
           See also Forsyth, 438 S.W.3d at 221 (declining to rely on Beeman for proposition that
implied consent is a valid exception to the warrant requirement); Sutherland, 436 S.W.3d at 35–
36 (discussing Beeman in the context of the remand of Aviles); Weems, 434 S.W.3d at 660–61
(same); Reeder, 428 S.W.3d at 928 (noting the Supreme Court’s remand of Aviles casts “grave
doubt” on the reasoning of Beeman); Villareal, — S.W.3d at —, 2014 WL 1257150, at *11
(noting the Beeman court recognized that implied-consent laws do not give police officers
anything more than what the Constitution already gives them). But see Perez, 2014 WL 943126,
at *6–*7 (relying solely on Beeman dictum in a section 724.012(b)(3)(B) case to justify
warrantless blood draw; providing no discussion of or citation to cases rejecting Beeman
dictum); Kay v. State, No. 01-13-00595-CR, 2014 WL 3697917, at *2 (Tex. App.—Houston [1st
Dist.] July 24, 2014, no pet.) (mem. op., not designated for publication) (same).

                                              21
obtained[,] . . . consent, implied or explicit, becomes moot.” Id. at 616. Here, in
contrast, Hodges never obtained a warrant and relied solely on the repeat-offender
provision of the implied-consent statute to justify the forced blood draw. The
totality of the circumstances surrounding appellant’s consent, and his effective
withdrawal of consent, is therefore not moot; to the contrary, it is of utmost
importance in assessing the reasonableness of the search under the Fourth
Amendment. For these reasons, we conclude that the State’s reliance on Beeman
for the proposition that section 724.012(b)(3)(B) permits the warrantless blood
draw from a DWI suspect who has effectively withdrawn his implied consent is not
persuasive.

      Finally, the dissent suggests that appellant is similar to the defendant in
United States v. Knights, 534 U.S. 112 (2001). The facts of this case, however, are
distinguishable. In Knights, the defendant was on probation and agreed in writing
to submit his person, property, place of residence, vehicle, and personal effects to
search at any time, with or without a search warrant, warrant of arrest, or
reasonable cause by any probation officer or law enforcement officer. 534 U.S. at
114. Here, in contrast, the record contains no evidence to suggest that appellant
was on probation when the offense occurred, or that he agreed in writing to submit
to a warrantless search by probation officials or anyone else. Appellant was not
searched as a condition of probation. Furthermore, searches such as the one in
Knights are viewed in a different context because probation (and parole) is
considered an extension of incarceration. See id. at 119 (“Inherent in the very
nature of probation is that probationers do not enjoy the absolute liberty to which
every citizen is entitled.” (internal quotations omitted)). Nothing in the record
before us suggests that appellant was subject to some sort of “conditional liberty”
as contemplated in Knights. Nor did the State assert at trial or on appeal that the


                                        22
search of appellant was based on such an exception.

      In sum, appellant withdrew his implied consent when he refused to submit to
the blood draw, and the State, in spite of appellant’s physical resistance, forcibly
poked a syringe into his arm and drew his blood anyway. Given the absence of a
warrant, the absence of exigent circumstances, and the absence of valid consent,
we conclude the State did not establish that the nonconsensual warrantless
intrusion into appellant’s veins was reasonable under the Fourth Amendment or
that a recognized exception to the Fourth Amendment’s warrant requirement
applied to this case. The trial court erred when it overruled appellant’s motion for
new trial.

      3.     The trial court’s error in overruling appellant’s motion for new trial
             was harmful.
      Having concluded that the trial court erred, we next determine whether the
trial court’s error resulted in harm. In the face of constitutional error, we must
reverse the judgment of conviction unless we determine beyond a reasonable doubt
that the error did not contribute to the conviction or punishment. Tex. R. App. P.
44.2(a); Holmes v. State, 323 S.W.3d 163, 173–74 (Tex. Crim. App. 2010) (op. on
reh’g). In this case, the blood evidence seized from appellant was inculpatory and
was used against appellant at trial. Specifically, evidence of appellant’s blood
alcohol content, which exceeded the legal limit by nearly a factor of three, was
presented at trial. We cannot determine beyond a reasonable doubt that the State’s
use of the evidence of appellant’s blood alcohol content did not contribute to
appellant’s conviction. See Holmes, 323 S.W.3d at 174. This indicates that the trial
court’s erroneous ruling was indeed a contributing factor in appellant’s conviction
and punishment. Therefore, the error was harmful.

      Appellant’s second issue is sustained.

                                        23
                                IV.    CONCLUSION

      Because the traffic stop in this case was reasonable, the trial court did not err
when it denied appellant’s motion to suppress. We overrule appellant’s first issue.
With regard to appellant’s second issue, the State did not carry its burden to prove
a recognized exception to the Fourth Amendment’s warrant requirement. We
sustain appellant’s second issue and hold that the drawing of appellant’s blood
without a search warrant violated the Fourth Amendment. The trial court erred in
denying appellant’s motion for new trial. Because the evidence of appellant’s
blood alcohol content was inculpatory, we conclude it contributed to his guilt. See
id. We therefore reverse the trial court’s judgment and remand to the trial court for
a new trial consistent with this opinion.


                                        /s/      Marc W. Brown
                                                 Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown. (Frost, C.J.,
dissenting).
Publish — TEX. R. APP. P. 47.2(b).




                                            24
