                          NUMBER 13-13-00507-CR

                             COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                     Appellant,

                                            v.

JOSE RUIZ,                                                              Appellee.


                     On appeal from the 25th District Court
                         of Gonzales County, Texas.


                             DISSENTING OPINION
   Before Chief Justice Valdez and Justices Benavides, and Perkes
                Dissenting Opinion by Justice Perkes
       I dissent from the majority’s opinion for two reasons. First, I believe Sergeant

McBride obtained the blood sample with appellee Jose Ruiz’s implied consent. Second,

I believe the totality of the circumstances in this case permit the taking of a blood sample

without the necessity of a warrant.
                                  I.     BACKGROUND

       Sergeant Bethany McBride, with the Gonzales Police Department, was dispatched

to a two vehicle accident around midnight on September 9, 2012.         When Sergeant

McBride arrived at the scene, she observed a tan Lincoln Navigator that had collided with

a tan Pontiac. The driver of the tan Pontiac remained at the scene but the driver of the

Lincoln Navigator had fled. As Sergeant McBride investigated the scene, two witnesses

approached and gave her a description of the Lincoln’s driver and stated that the driver

had run behind a nearby car wash. Sergeant McBride looked in the Lincoln Navigator to

determine the identity of the driver, and located insurance paperwork that belonged to

Ruiz. While inside the vehicle, Sergeant McBride observed several Bud Light cans in

the front seat area. While searching the area where the witnesses said Ruiz had fled,

the police officers located Ruiz in a field behind the car wash. Ruiz was unresponsive

and it took several officers to carry him to the patrol unit. Sergeant McBride noticed a

very strong odor of alcoholic beverages coming from Ruiz and determined that he was

unresponsive due to the amount of alcohol in his system.

       Sergeant McBride drove Ruiz to the hospital, where she placed him under arrest

for driving while intoxicated. When Sergeant McBride ran Ruiz’s criminal history, she

learned that Ruiz had four prior convictions for driving while intoxicated.    Sergeant

McBride prepared the necessary hospital paperwork to obtain a blood sample, and a

qualified hospital lab technician drew Ruiz’s blood. Ruiz remained unresponsive the

entire time.   Ruiz was indicted for DWI—third or more offense, a third-degree felony

enhanced to a habitual felony offender. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2)

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(West, Westlaw through Ch. 46 2015 R.S.). Following his indictment, Ruiz filed a motion

to suppress the blood evidence.

      During the hearing on Ruiz's motion to suppress, Sergeant McBride explained that

she was one of only two officers on duty for the Gonzales Police Department at the time,

and that it would have been impracticable to remove one officer from duty to secure the

warrant. Sergeant McBride testified that there were no procedures in place to obtain a

search warrant for blood draws and that it would have been difficult to locate a judge at

midnight on a Saturday night. Sergeant McBride further testified that if she were able to

get a warrant, it would have taken two or three hours. Sergeant McBride stated that the

circumstances of the investigation—the accident, driver identification, Ruiz’s fleeing and

unresponsiveness—prolonged the case beyond a normal DWI investigation.

      The State’s argument at the hearing was twofold. First, it argued that because

Ruiz was incapable of refusing the blood test, he was deemed to have consented under

implied consent. Second, it argued that the circumstances of the investigation and arrest

demonstrated exigency sufficient to dispense of the warrant requirement.

      The trial court granted Ruiz’s motion to suppress the blood evidence.           In its

comprehensive findings of fact and conclusions of law, the trial court concluded that Ruiz

did not revoke his consent to the blood draw under section 724.011 of the Texas

Transportation Code. The trial court further concluded that it was bound by Missouri v.

McNeely, 133 S.Ct. 1552 (2013) and that no exigent circumstances existed.

                                  II.    BLOOD EVIDENCE

      By its sole issue, the State asserts that the trial court erred when it granted Ruiz’s


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motion to suppress. Specifically, the State argues Ruiz was unconscious at the time of

the blood draw and thus incapable of withdrawing his consent to the blood draw under

the Texas Transportation Code.              Alternatively, the State argues there were sufficient

exigent circumstances present which justified the warrantless taking of Ruiz’s blood

sample. I agree with both of the State’s arguments.

A.    Implied Consent

      Warrantless searches may be premised on consent.                          See TEX. TRANSP. CODE

ANN. §§ 724.011, 724.012(b) (West, Westlaw through Ch. 46 2015 R.S.); Schneckloth v.

Bustamante, 412 U.S. 218, 219 (1973).

      The Texas Transportation Code provides that:

      (a) If a person is arrested for an offense arising out of acts alleged to have
      been committed while the person was operating a motor vehicle in a public
      place, or a watercraft, while intoxicated, or an offense under Section
      106.041, Alcoholic Beverage Code, the person is deemed to have
      consented, subject to this chapter, to submit to the taking of one or more
      specimens of the person's breath or blood for analysis to determine the
      alcohol concentration or the presence in the person's body of a controlled
      substance, drug, dangerous drug, or other substance.

See TEX. TRANSP. CODE ANN. § 724.011(a).1

      Additionally, section 724.014 states that:

      (a) A person who is dead, unconscious, or otherwise incapable of refusal is
          considered not to have withdrawn the consent provided by Section
          724.011.

      ....

      (c) If the person is alive but is incapable of refusal, a specimen may be taken
          by a person authorized under Section 724.016 or 724.017.2

      1
          The trial court specifically found that Ruiz was under arrest prior to the taking of the blood sample.

      2   These sections involve the procedures for taking a sample and qualifications of the person taking
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See TEX. TRANSP. CODE ANN. §§ 724.014(a), (c) (West, Westlaw through Ch. 46 2015

R.S.). The presumption of consent is so strong that a person who is dead, unconscious,

or otherwise incapable of refusal is considered not to have withdrawn the consent

provided by Section 724.011. State v. Amaya, 221 S.W.3d 797, 800 (Tex. App.—Fort

Worth 2007, pet. ref’d).

       The uncontroverted evidence shows that Ruiz was unconscious throughout the

entire encounter with law enforcement, including the blood draw at the hospital. The

testimony supports the trial court’s finding that Ruiz never affirmatively revoked his

consent under section 724.011.          Ruiz was precisely the type of person—a person

incapable of refusal—contemplated by section 724.014.                 See Miller v. State, 387

S.W.3d 873, 880–81 (Tex. App.—Amarillo 2012, no pet.) (holding that because defendant

was incapacitated, he was considered not to have withdrawn consent provided by section

724.011); Amaya, 221 S.W.3d at 802. This factual scenario is the type of situation where

implied consent makes perfect sense. To hold otherwise would render ineffective the

entire implied consent statutory scheme.

       The majority states that it refuses to read the implied consent statute “expansively”,

but then requires the State, contrary to the plain language of the statute, to prove that the

consent was freely and voluntarily given. Such a reading encumbers the State with the

impossible task of obtaining consent freely and voluntarily from an unconscious person.

While the majority correctly states that consent must be freely and voluntarily given, the

cases it relies on are factually distinguishable. See Bumper v. North Carolina, 391 U.S.


the sample. See TEX. TRANSP. CODE ANN. §§ 724.016, 017 (West, Westlaw through Ch. 45 2015 R.S.)
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543, 546 (1968) (examining consent in the context of police coercion); Miller v. State, 393

S.W.3d 255, 266 (Tex. Crim. App. 2012) (explaining defendant revoked consent for

officers to enter apartment after domestic violence investigation was complete); Valtierra

v. State, 310 S.W.3d 442, 452 (Tex. Crim. App. 2010) (holding that in context of drug

possession case, “[o]nce permitted into a residence, a police officer may take action only

in accordance with the purpose for which he was invited or allowed into the residence.”);

Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012) (holding that trial court did

not abuse its discretion in finding that defendant gave consent for breath sample when

defendant vacillated between granting and withdrawing consent in conversation with

officer); Forsyth v. State, 438 S.W.3d 216, 222 (Tex. App.—Eastland 2014, pet. ref’d)

(holding that circumstances required search warrant to collect blood evidence where

defendant explicitly refused to provide blood sample during DWI investigation).

      Ruiz’s blood sample was taken pursuant to implied consent as provided by the

transportation code. See TEX. TRANS. CODE ANN. §§ 724.011, 724.014. Because the

implied consent laws in this instance do not offend the Fourth Amendment, I would

conclude that the blood sample was obtained legally. See Miller, 387 S.W.3d at 880–

81; see also Anderson v. State, No. 03–09–00041–CR, 2010 WL 3370054, at *3 (Tex.

App.—Austin Aug. 26, 2010, pet. ref’d) (mem. op.) (not designated for publication).

B.    Exigency

      Missouri v. McNeely, relied on by the trial court, answered the narrow question

regarding whether the natural metabolization of alcohol in the bloodstream presents a per

se exigency that justifies an exception to the Fourth Amendment's search warrant


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requirement for nonconsensual blood testing in drunk-driving cases.          See 133 S.Ct.

1552, 1568 (2013). McNeely, however, further recognizes and affirms the totality of

circumstances approach in deciding whether a warrant is required. See id. at 1559

(citing Schmerber v. California, 384 U.S. 757 (1966)). McNeely contemplates situations

where “circumstances will make obtaining a warrant impractical such that the dissipation

of alcohol from the bloodstream will support an exigency justifying a properly conducted

warrantless blood test.” Id. at 1561.

       McNeely supports a finding of exigency sufficient to justify the warrantless blood

test in this case. After arriving at the scene of an accident in the middle of the night,

Sergeant McBride was required to not only investigate the scene of the accident but also

required to find Ruiz and identify him as a driver involved in the accident. Additionally,

when Sergeant McBride was finally able to locate Ruiz, he was unconscious and in need

of medical attention. Sergeant McBride testified that no magistrate was on duty, and that

it would have taken time to find one, drive the warrant to their residence to have it signed,

and then return to the hospital to serve the warrant. She estimated that obtaining a

warrant would have taken two or three hours and that it was impractical to remove one of

the only two officers on duty that night in order to prepare a search warrant affidavit.

Under these circumstances, it was reasonable for Sergeant McBride to believe that she

was facing the imminent destruction of evidence. See Schmerber, 384 U.S., at 771

(holding that warrantless search was legal when “there was no time to seek out a

magistrate and secure a warrant”).

       Because the blood evidence was taken with implied consent, and, alternatively,


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under exigent circumstances, I would sustain the State’s issue.

                                   III.   CONCLUSION

       I would reverse the order of the trial court and remand for further proceedings.



                                                GREGORY T. PERKES
                                                Justice
Publish.
TEX. R. APP. P. 47.2(b)

Delivered and filed the
27th day of August, 2015.




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