State v. Villarreal, David

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
ALCALA , J., delivered the opinion of the Court in which PRICE, WOMACK , JOHNSON ,
and COCHRAN , JJ., joined. KELLER , P.J., filed a dissenting opinion in which HERVEY , J.,
joined. MEYERS, J., filed a dissenting opinion. KEASLER , J., dissented.
OPINION
In this case, we are asked to decide whether the warrantless, nonconsensual drawing of blood
from an individual suspected of driving while intoxicated, conducted pursuant to the implied-consent
and mandatory-blood-draw provisions in the Texas Transportation Code, violates the Fourth
Amendment. See U.S. CONST . amend. IV; TEX . TRANSP . CODE §§ 724.011(a), 724.012(b), 724.013.
This question comes to us in the form of an interlocutory appeal filed by the State challenging the
trial court’s order granting a motion to suppress in favor of David Villarreal, appellee, who was
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arrested for felony DWI and subjected to warrantless blood-specimen collection over his objection
pursuant to the provisions in the Code. In its petition for discretionary review, the State challenges
the trial court’s and the court of appeals’s conclusion that the warrantless search of Villarreal’s blood
under statutory authority providing for implied consent and mandatory blood-specimen collection
violated the Fourth Amendment. See State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150
(Tex. App.—Corpus Christi Jan. 23, 2014). It further challenges two specific aspects of the court
of appeals’s analysis by contending that the court erred in concluding that (1) the State forfeited its
implied-consent argument on appeal by stipulating to the fact that Villarreal did not consent to the
blood draw, and (2) the mandatory-blood-draw statute, by its terms, does not dispense with the
warrant requirement.
In addressing the merits of the State’s challenge to the trial court’s ruling, we conclude that
the warrantless, nonconsensual testing of a DWI suspect’s blood does not categorically fall within
any recognized exception to the Fourth Amendment’s warrant requirement, nor can it be justified
under a general Fourth Amendment balancing test. Accordingly, we hold that the search in this case
violated the Fourth Amendment. With respect to the State’s specific complaints regarding the court
of appeals’s analysis, we conclude that, although the court of appeals erred by determining that the
State forfeited its implied-consent argument on appeal through stipulation, remand is unnecessary
in light of both the court of appeals’s implicit rejection of that argument and our express rejection
of that argument in our analysis today. We further conclude that the court of appeals erred to address
the constitutionality of the mandatory-blood-draw statute and, in light of our holding in this case, we
decline to review the State’s complaint with respect to that matter. We affirm the trial court’s ruling
suppressing the blood-test results.
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I. Background
Applying the law to the undisputed facts, the court of appeals upheld the trial court’s ruling
granting the motion to suppress the results of Villarreal’s blood test.
A. The Facts
One Saturday evening in 2012, Villarreal was stopped for a traffic violation. The officer who
made the stop, Officer Preiss, observed that Villarreal had signs of intoxication, and he contacted
another officer, Officer Williams, to conduct a DWI investigation. Upon arrival at the scene,
Williams observed that Villarreal was exuding a strong odor of alcohol, was swaying back and forth,
and had red, watery eyes and slurred speech. Williams requested that Villarreal perform
standardized field sobriety tests, but he refused. Believing Villarreal was intoxicated, Williams
arrested him on suspicion of DWI. Williams then gave Villarreal a written statutory warning
requesting that he provide a blood specimen and advising him that, if he refused to provide a
specimen, his refusal may be admissible in a subsequent prosecution and would result in the
suspension or denial of his driver’s license for not less than 180 days. Villarreal refused.
After a criminal-history check revealed that Villarreal had been convicted of DWI on several
occasions, Williams transported him to a hospital and requested that a qualified technician draw his
blood over his objection. Williams prepared a written report averring that he had probable cause to
believe that Villarreal had committed the offense of DWI and that, based on reliable information
possessed or received from a credible source, Villarreal had previously been convicted of or placed
on community supervision for DWI on two or more occasions. The report stated that Williams was
“invoking [his] authority under [Texas Transportation Code], Section 724.012(b), to require the
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suspect to submit to the taking of a specimen of the suspect’s blood.” See TEX . TRANSP . CODE §
724.012(b)(3)(B) (statute providing for mandatory-blood-specimen collection for person twice
before convicted of DWI). The qualified technician drew Villarreal’s blood, which, upon testing,
revealed a blood-alcohol concentration of .16 grams of alcohol per hundred milliliters of blood.
B. The Trial Court Proceedings
Given his multiple prior convictions for DWI, Villarreal was indicted for felony DWI.1 He
filed a written motion to suppress the results of his blood test. In his motion, Villarreal averred that
there was no “deemed consent to the taking of a blood specimen.”2 The trial court conducted an
evidentiary hearing, at which Williams was the sole witness. Williams stated that he “could have”
obtained a warrant, but believed he “did not statutorily have to” in light of the mandatory-blood-draw
provision in the Code.3 He further stated that his decision to require the taking of the specimen was
based solely on the statutory authorization and not on any emergency at the scene or the existence
1
See TEX . PENAL CODE §§ 12.42(d), 49.04, 49.09(b). Villarreal’s indictment for driving while
intoxicated alleged that, on or about March 31, 2012, he did operate a motor vehicle in a public place
while intoxicated. The indictment further alleged that he had twice before been convicted of
misdemeanor offenses in 1988 and 1994 “relating to the operating of a motor vehicle while
intoxicated,” and that he had twice before been convicted of felony DWI, once in 2001 and once in
2005, with the 2005 conviction being for an offense that occurred after the 2001 conviction became
final. On the basis of Villarreal’s two prior felony convictions, the State sought to enhance his
punishment range to one carrying a minimum term of imprisonment of twenty-five years up to a
maximum sentence of life imprisonment. See id. § 12.42(d).
2
Villarreal’s written motion also asserted that the blood-test results should be suppressed
because the officers conducted his arrest and search without a valid warrant, reasonable suspicion,
or probable cause; that the officers failed to read him the required statutory warnings under
Transportation Code Section 724.015; that he did not voluntarily consent to the blood test; and that
the statute purportedly authorizing the taking of his blood without a warrant should be held
unconstitutional. These additional claims were abandoned at the suppression hearing.
3
See TEX . TRANSP . CODE § 724.012(b).
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of exigent circumstances. Aside from Williams’s testimony, the parties additionally stipulated that
Villarreal’s “blood was drawn without his consent and without a warrant.”
After the close of evidence, Villarreal’s attorney argued that the Supreme Court’s recent
decision in Missouri v. McNeely held that, in the absence of exigent circumstances, a DWI suspect’s
blood may not be drawn without a warrant, and he further argued that the federal Constitution
overrides the Texas statute that authorizes a mandatory blood draw in certain situations. See
Missouri v. McNeely, 133 S. Ct. 1552 (2013); TEX . TRANSP . CODE § 724.012(b). The State’s
attorney disagreed that McNeely affected the validity of Texas’s mandatory-blood-draw provision
and, based on the fact that a portion of McNeely was a plurality opinion, she asserted that its holding
did not necessarily disapprove of this type of mandatory statutory blood draw conducted pursuant
to implied consent. After the attorneys’ arguments, the trial court granted Villarreal’s motion.
The State filed a motion asking the trial court to reconsider its ruling. In its motion, the State
repeated its arguments interpreting the meaning of the McNeely decision. The State asserted that
McNeely is generally inapplicable to situations involving a mandatory blood draw through implied
consent in that McNeely addressed only exigent circumstances and did not address other Fourth
Amendment exceptions. The State also asserted that McNeely included language signifying that the
Supreme Court remains open to implied-consent laws as an alternative to a warrant. The State
contended that the plurality portion of the McNeely opinion signified that “there appears to be a
differently-constituted-five-vote block [sic] that remains open to a modified rule departing from the
warrant requirement in circumstances other than a per se blood-alcohol exigency.” It suggested that
the Supreme Court’s language contained “positive references” to implied-consent laws and “in no
way disapproved of the States’ carefully tailored implied consent schemes where only specified and
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limited situations authorized compelled blood draws after refusal,” and when such searches are based
upon probable cause.
The State’s motion to reconsider additionally made three specific arguments, which are
discussed more fully below, in support of its broader contention that a warrantless, nonconsensual
search conducted pursuant to the statutory authority in the Transportation Code does not violate the
Fourth Amendment: (1) Courts should uphold such a search under the consent exception to the
warrant requirement, appearing in the form of a waiver obtained through implied consent; (2) courts
should consider whether some other exception to the search-warrant requirement might apply, such
as expansion of the automobile exception into an automobile-driver exception or application of the
special-needs exception; and (3) courts should conduct a balancing of governmental and private
interests and find that a warrantless search of a DWI suspect’s blood is generally reasonable in light
of the minimally intrusive nature of a blood draw and the State’s substantial public interest in
protecting against drunk driving.
In its first argument, the State asserted that “a defendant’s implied consent is valid as an
exception to the warrant preference.” It suggested that a defendant, by driving on Texas roadways,
which is a privilege and not a right, has impliedly consented to have his blood drawn under the
limited situations described in the mandatory-blood-draw provision, and he thus waives any right
to later complain about a warrantless search conducted pursuant to that provision. The State asserted
that, unlike consent in the traditional sense, such a waiver of Fourth Amendment rights applies “in
spite of the suspect’s protest at the time of the search in question.” The State contended that the
“Supreme Court has long recognized a parallel exception [to the consent exception] in the form of
a prior waiver of the Fourth Amendment rights to probable cause and a warrant as a condition for
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some benefit extended to the suspect from the State.” In the case of the mandatory-blood-draw
statute, “which the law presumes the driving public to have read,” the State suggested that “the 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 State’s second argument advocated for the broadening of the automobile exception to
the warrant requirement into an automobile-driver exception, or, alternatively, application of the
special-needs doctrine. The State claimed that, just as society has a lessened expectation of privacy
in automobiles in light of their “ready mobility” and the “pervasive regulation of vehicles,” a driver’s
expectation of privacy in his blood is similarly diminished because he is “just as mobile as his
vehicle, [and] just as subject to pervasive licensure and regulation[.]” It suggested that a driver’s
normal expectation of a warrant yields to common concerns inherent in a “highly regulated activity
in which the driver freely chooses to engage.” Drivers, it asserted, are “on notice of the lessened
degree of privacy protection in matters that concern the safety of the roads on which they drive,” and
they should know that “their blood can be drawn without a warrant” under the conditions specified
by statute. On that basis, it urged the court to “recognize a driver exception to the warrant
requirement coextensive with the vehicle exception.”
The State’s third argument suggested that a Fourth Amendment balancing test should favor
a warrantless blood draw by weighing the minimal intrusion of a blood draw against the substantial
public interest in protecting against drunk driving. The State contended that, even short of a free-
standing exception in the nature of the traditional exceptions to the warrant requirement, “the courts
should allow the States to craft such an exception” to the warrant requirement based on the
“substantial public interest in ridding the road of drunk drivers,” as compared to only a “slight”
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invasion of a privacy interest through a minimal pin prick to the skin. Noting that the Legislature’s
objective for adopting the mandatory-blood-draw law applicable to this case was to “save lives,” the
State’s attorney observed that Texas has the nation’s worst drunk-driving problem and its citizens
“face a uniquely disproportionate risk of being killed or injured by drunk drivers, compared to any
other State.” In contrast to the State’s and society’s substantial interest in curbing drunk driving, the
State’s attorney averred that a DWI suspect has a diminished privacy interest in his blood in light
of the existence of implied consent and the highly regulated nature of driving. As for the nature of
the intrusion itself, the State’s attorney argued that a pin prick to take a person’s blood constitutes
only a slight invasion of an individual’s privacy because these types of tests are considered routine
by most people.
After the State filed its motion asking the trial court to reconsider its ruling, the trial court
made findings of fact and a conclusion of law impliedly denying the State’s motion. In pertinent
part, the trial court’s findings of fact determined that Officer Williams credibly assessed the facts
showing that Villarreal was intoxicated and had twice before been convicted of DWI; that
Villarreal’s blood was drawn without a warrant and without his consent; and that there were no
exigent circumstances preventing the officer from obtaining a warrant.4 The trial court’s single
conclusion of law stated, “The Court concludes that the Defendant’s blood was illegally obtained
without a warrant and in the absence of a recognized exception to the warrant requirement, and that
the statutory blood draw was invalid and unconstitutional without exigent circumstances to support
4
The remainder of the trial court’s findings of fact determined that Villarreal narrowed the
grounds in his motion to include only his claim that “taking a blood draw without a warrant [is] a
violation of the 4th Amendment,” such that he abandoned any claim that he was illegally arrested or
that the statute itself was unconstitutional.
Villarreal - 9
the absence of a warrant.”
C. The Court of Appeals Opinion
After the State filed an interlocutory appeal challenging the trial court’s ruling in favor of
Villarreal, the court of appeals affirmed the ruling suppressing the results of the blood test.
Villarreal, 2014 Tex. App. LEXIS 645, 2014 WL 1257150, at *1, 11. In its sole issue on appeal, the
State contended that the trial court erred by granting Villarreal’s motion to suppress on the basis that
the blood draw was involuntary and conducted without a warrant, and it asserted that the “repeat
offender” provision of the mandatory-blood-draw statute could serve as a valid basis for upholding
the search. See TEX . TRANSP. CODE § 724.012(b)(3). In rejecting the State’s position, the court of
appeals determined that (1) notwithstanding the officer’s compliance with the mandatory-blood-draw
provision, the warrantless blood draw in this case violated the Fourth Amendment, and (2) the
mandatory-blood-draw statute was not unconstitutional. Villarreal, 2014 WL 1257150, at *8-11.
1. Court of Appeals Held that Fourth Amendment Violation Occurred
The court of appeals addressed the arguments that the State had presented to the trial court
in support of its claim that the warrantless search of Villarreal’s blood did not violate the Fourth
Amendment. With respect to the State’s broad claim that the McNeely holding was inapplicable to
this case and included language signifying that the Supreme Court was open to implied-consent laws
as an alternative to a search warrant, the court of appeals disagreed. Id. at *4, 10. It observed that
McNeely, which had disavowed a per se rule of exigency for blood draws in DWI cases, signified
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 circumstances.” Id. at *5. It further cited McNeely for the
proposition that, “‘where police officers can reasonably obtain a warrant before a blood sample can
Villarreal - 10
be drawn without significantly undermining the efficacy of the search, the Fourth Amendment
mandates that they do so.’” Id. at *10 (quoting McNeely, 133 S. Ct. at 1561).
In addressing the State’s first specific argument that a driver has waived his right to a warrant
through implied-consent laws, the court of appeals initially determined that the State had failed to
preserve this argument for appeal, although it then essentially addressed the merits of that argument.
The court determined that, by stipulating that Villarreal’s blood had been drawn without his consent,
the State had forfeited that argument and could not rely on the waiver exception to the warrant
requirement. The court of appeals stated, “[T]o the extent that the State argues that there was valid
‘consent’ under the Fourth Amendment—whether by the mandatory blood draw law or the implied
consent law—it is barred from doing so in this appeal by its stipulation before the trial court that in
this case ‘[t]here was no consent, no warrant.’” Id. at *11.
Although it found that the State had forfeited its argument regarding implied consent, the
court appeared to address that argument indirectly, stating, “[T]here is a distinction between a
consensual blood draw and an involuntary, mandatory blood draw. The implied consent law is
premised on consent. In contrast, the mandatory blood draw law is premised on refusal to consent.”
Id. at *9 (citations omitted) (discussing TEX . TRANSP . CODE §§ 724.011(a), 724.012(b)). It further
observed that, although the State appeared to argue that “Chapter 724 creates a legislative consent
or essentially a statutory waiver of the Fourth Amendment,” that argument was inconsistent with the
requirement that consent be given freely and voluntarily. Id. at *10 (citing Bumper v. North
Carolina, 391 U.S. 543, 548 (1968); Kolb v. State, 532 S.W.2d 87, 89 (Tex. Crim. App. 1976)).
The court of appeals indirectly rejected the State’s second specific argument that, in addition
to consent and exigent circumstances, there are other recognized exceptions to the search-warrant
Villarreal - 11
requirement that could apply to this case. In describing the general law, the court observed that
“special needs” is one of the recognized exceptions to the search-warrant requirement. Id. at *7. The
court implicitly rejected the application of these other exceptions by observing that the “officer’s sole
basis for not getting a warrant was that the repeat offender provision of the mandatory-blood-draw
law required him to take a blood sample without [Villarreal’s] consent and without the necessity of
obtaining a search warrant.” Id. at *11.
The court of appeals also addressed the State’s third specific argument that the minimal
intrusion of a blood draw must be balanced against the substantial public interest in protection
against DWI drivers. It disagreed with the State’s claims that a driver arrested on suspicion of DWI
has a lessened expectation of privacy in his blood. The court of appeals quoted the language from
McNeely explaining that “an invasion of bodily integrity implicates an individual’s most personal
and deep-rooted expectations of privacy.” Id. at *4 (quoting McNeely, 133 S. Ct. at 1558). It also
cited Schmerber v. California, 384 U.S. 757, 771 (1966), for the proposition that, although “the
Constitution does not forbid the State’s minor intrusions into an individual’s body under stringently
limited conditions,” that principle “in no way indicates that it permits more substantial intrusions,
or intrusions under other conditions.” Id. at *5. Although it recognized that the drunk-driving
problem is a national epidemic and that there is a strong governmental interest in curbing DWIs, the
court quoted McNeely’s observation that “the general importance of the government’s interest in this
area does not justify departing from the warrant requirement without showing exigent circumstances
that make securing a warrant impracticable in a particular case.” Id. at *4 (quoting McNeely, 133
S. Ct. at 1565).
2. Court of Appeals Held that Blood-Draw Statute Is Not Unconstitutional
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In addition to agreeing with the trial court’s conclusion that the warrantless search of
Villarreal’s blood constituted a Fourth Amendment violation, the court of appeals considered the
constitutionality of the mandatory-blood-draw statute itself, and it determined that the statute was
not unconstitutional “as applied” to Villarreal. Id. at *8. In resolving this matter, the court observed
that, although the Texas mandatory-blood-draw statute “required the officer to obtain a breath or
blood sample, it did not require the officer to do so without first obtaining a warrant. In fact, the
statute does not address or purport to dispense with the Fourth Amendment’s warrant requirement
for blood draws.” Id. at *11. In light of its determination that the statute itself does not dispense
with the warrant requirement and its conclusion that the Fourth Amendment would require a warrant
under these circumstances, the court upheld the trial court’s ruling suppressing the evidence. Id.
We granted the State’s petition for discretionary review to address its contention that the
court of appeals erred to hold that a warrantless blood draw conducted pursuant to the provisions in
the Transportation Code violates the Fourth Amendment.5
II. Provisions In Transportation Code Do Not Form Constitutionally Valid Alternative to
5
The State’s petition presents three grounds for review:
1. Whether the Thirteenth Court of Appeals erred in refusing to hold that the mandatory blood draw
provisions of the Texas Transportation Code are a constitutionally valid alternative to the warrant
requirement.
2. Whether the Thirteenth Court of Appeals erred in holding that the State’s stipulation that there
was no consent to the blood draw amounted to a waiver of the “implied consent” or “deemed
consent” argument under the Transportation Code.
3. Whether the Thirteenth Court of Appeals erred in concluding that the mandatory blood draw
statute does not allow the arresting officer to draw blood without a search warrant or exigent
circumstances, and specifically whether the court failed to consider the distinction between the
statutory directive for the arresting officer to require or order the draw, and the nature of a warrant
as an order of the issuing magistrate for the draw in question.
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Warrant Requirement
In its first ground for review, the State contends that the court of appeals erred by holding that
the provisions in the Transportation Code do not form a valid alternative to the Fourth Amendment
warrant requirement. To explain why we reject the State’s contention that the implied-consent and
mandatory-blood-draw provisions establish a constitutionally valid basis for conducting a
nonconsensual search in the absence of a search warrant, we review (A) the applicable statutory law
and (B) general Fourth Amendment principles, and we then (C) discuss each of the State’s particular
arguments in turn.
A. Transportation Code’s Implied-Consent and Mandatory-Blood-Draw Provisions
Because the State relies upon the provisions in the Transportation Code as constituting a
valid substitute for a warrant, we begin our analysis with a review of those provisions. The
Transportation Code contains a provision establishing implied consent for all drivers arrested on
suspicion of DWI. See TEX . TRANSP . CODE § 724.011. That provision states,
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 . . . 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.
Id. § 724.011(a).6 Although this provision appears to create a blanket rule of consent for all
individuals arrested for DWI, its terms are further modified by Section 724.013, which establishes
a right to refuse to provide a breath or blood sample in routine DWI cases. See id. § 724.013. That
6
See also TEX . TRANSP . CODE § 724.012(a) (providing that (a) “[o]ne or more specimens of
a person’s breath or blood may be taken if the person is arrested and at the request of a peace officer
having reasonable grounds to believe the person: (1) while intoxicated was operating a motor vehicle
in a public place”).
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provision, entitled, “Prohibition on Taking Specimen if Person Refuses; Exception,” provides that,
“a specimen may not be taken if a person refuses to submit to the taking of a specimen designated
by a peace officer.” Id. But this right of refusal is not absolute. See id. (providing that right of
refusal subject to exceptions “as provided by Section 724.012(b)”). Section 724.012(b), in turn,
establishes that, when certain aggravating factors are present during a DWI stop, a suspect may not
refuse to submit to a specimen and, even if a suspect refuses, an officer is required to obtain a
specimen. Id. § 724.012(b). That statute provides,
(b) A peace officer shall require the taking of a specimen of the person’s breath or
blood under any of the following circumstances if the officer arrests the person for
an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle
. . . and the person refuses the officer’s request to submit to the taking of a specimen
voluntarily:
(1) the person was the operator of a motor vehicle . . . involved in an accident that the
officer reasonably believes occurred as a result of the offense and, at the time of the
arrest, the officer reasonably believes that as a direct result of the accident:
(A) any individual has died or will die;
(B) an individual other than the person has suffered serious bodily injury; or
(C) an individual other than the person has suffered bodily injury and been
transported to a hospital or other medical facility for medical treatment;
(2) the offense for which the officer arrests the person is an offense under Section
49.045, Penal Code [DWI with child passenger]; or
(3) at the time of the arrest, the officer possesses or receives reliable information
from a credible source that the person:
(A) has been previously convicted of or placed on community supervision for an
offense under Section 49.045 [DWI with child passenger], 49.07 [intoxication
assault], or 49.08 [intoxication manslaughter], Penal Code . . . ; or
(B) on two or more occasions, has been previously convicted of or placed on
community supervision for an offense under Section 49.04 [misdemeanor DWI],
49.05 [flying while intoxicated], 49.06 [boating while intoxicated], or 49.065
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[assembling or operating an amusement ride while intoxicated], Penal Code[.]
Id. § 724.012(b). Reading these provisions in conjunction, we observe that they establish a statutory
scheme by which an individual who is arrested for an “ordinary” DWI—that is, one that does not fall
within any of the enumerated circumstances of Section 724.012(b)—has an absolute right to refuse
to provide a specimen, notwithstanding the existence of implied consent. See id. §§ 724.011,
724.013; see also Fienen v. State, 390 S.W.3d 328, 332 (Tex. Crim. App. 2012) (observing that,
notwithstanding existence of implied-consent provision, in ordinary DWI situations, “a person
retains an absolute right . . . to refuse a test”). But, if one of the aggravating circumstances
described in Section 724.012(b) is present, then, as the State observes, the statutory scheme appears
to “extinguish” a suspect’s right to refuse to submit a specimen under those specified circumstances.
See id. § 724.012(b). Stated differently, if one of the aggravating circumstances is present, then,
pursuant to the statute, even if a suspect refuses to comply, an officer has a mandatory duty to require
that the suspect’s blood be drawn. Id.
Because the dispute here centers on whether a warrantless, nonconsensual search of a DWI
suspect’s blood conducted pursuant to Section 724.012(b) complies with the Constitution, we turn
to a review of the relevant Fourth Amendment principles.
B. Fourth Amendment Requirements
In general, to comply with the Fourth Amendment, a search of a person pursuant to 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. Furthermore, of particular relevance
to DWI cases, the Supreme Court has recognized that the Fourth Amendment is implicated in that
(3) the collection of a suspect’s blood invades a substantial privacy interest, and (4) the exigent
Villarreal - 16
circumstances exception to the search-warrant requirement is not established merely by the natural
dissipation of alcohol. We explain each of these requirements in more detail below.
1. A Search of a Person Pursuant to a Criminal Investigation Requires a Search
Warrant or Recognized Exception to a Warrant
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 touchstone of the Fourth Amendment is reasonableness. Riley v.
California, 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403
(2006)). The Supreme Court has held that, “‘[w]here a search is undertaken by law enforcement
officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the
obtaining of a judicial warrant.”’ Id. (quoting Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653
(1995)); see also Arizona v. Gant, 556 U.S. 332, 338 (2009) (describing “basic rule” as being that
“‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are
per se unreasonable under the Fourth Amendment—subject only to a few specifically established and
well-delineated exceptions’”) (citations omitted). The purpose underlying the search-warrant
requirement in the context of a criminal investigation is to “ensure[ ] that the inferences to support
a search are ‘drawn by a neutral and detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out crime.’” Riley, 134 S. Ct. at 2482
(quoting Johnson v. United States, 333 U.S. 10, 14 (1948)).
Specifically, with respect to searches of people undertaken for the purpose of furthering a
criminal investigation, the Supreme Court has determined that, in the absence of a search warrant,
Villarreal - 17
a “search of the person is reasonable only if it falls within a recognized exception” to the warrant
requirement. McNeely, 133 S. Ct. at 1558; see also Riley, 134 S. Ct. at 2482 (“In the absence of a
warrant, a search is reasonable only if it falls within a specific exception to the warrant
requirement.”); Kentucky v. King, 563 U.S. ___, 131 S. Ct. 1849, 1856 (2011) (a warrant “must
generally be secured,” but that requirement is “subject to certain reasonable exceptions”). The
recognized exceptions to the warrant requirement that the State suggests are implicated in the present
case are the consent exception, see Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); the
automobile exception, see California v. Acevedo, 500 U.S. 565, 569 (1991); the search-incident-to-
arrest exception, see Gant, 556 U.S. at 339; and the special-needs doctrine, see Griffin v. Wisconsin,
483 U.S. 868, 873 (1987).
2. Reasonableness is Judged Under the Totality of Circumstances
“Absent more precise guidance from the founding era, we generally determine whether to
exempt a given type of search from the warrant requirement ‘by assessing, on the one hand, the
degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is
needed for the promotion of legitimate governmental interests.”’ Riley, 134 S. Ct. at 2484 (quoting
Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). For the purpose of resolving such questions
arising under the Fourth Amendment, we “examine the totality of the circumstances” to determine
whether a particular search is reasonable. Samson v. California, 547 U.S. 843, 848 (2006); Brigham
City, 547 U.S. at 406. Given this totality-of-the-circumstances approach, for the most part, “per se
rules are inappropriate in the Fourth Amendment context.” United States v. Drayton, 536 U.S. 194,
201 (2002) (citing Florida v. Bostick, 501 U.S. 429, 439 (1991)). As we explain more fully below,
in examining the totality of the circumstances applicable to particular cases, the Supreme Court has
Villarreal - 18
approved of warrantless searches that fit within a recognized exception to the search-warrant
requirement, or in limited situations involving “special law enforcement needs, diminished
expectations of privacy, minimal intrusions, or the like.” Illinois v. McArthur, 531 U.S. 326, 330
(2001).
3. Collection of Suspect’s Blood Invades a Substantial Privacy Interest –
Schmerber v. California
In Schmerber, the Supreme Court considered for the first time whether a law-enforcement
officer may lawfully compel an individual suspected of driving while intoxicated to submit to blood
testing. 384 U.S. at 767-69. The Court held that such an intrusion “plainly involves the broadly
conceived reach of a search and seizure under the Fourth Amendment.” Id. at 767. In describing the
privacy interest at stake, the Court took note of “the interest in human dignity and privacy which the
Fourth Amendment protects.” Id. at 770. It further observed that, in light of the fact that search
warrants are “ordinarily required for searches of dwellings . . . absent an emergency, no less could
be required where intrusions into the human body are concerned.” Id. The Court stated that the need
to secure a warrant from a “neutral and detached magistrate” before permitting a law-enforcement
officer to “invade another’s body in search of evidence of guilt is indisputable and great.” Id.
The Court in Schmerber nevertheless upheld the warrantless, compelled search of
Schmerber’s blood as constitutionally permissible on the basis of exigent circumstances. Id. at 770-
72. Schmerber had been in a car accident and was taken to the hospital. The Court explained that,
in light of those factors, the officer “might reasonably have believed that he was confronted with an
emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened
the destruction of evidence.” Id. at 770. It further explained that evidence of Schmerber’s crime
Villarreal - 19
could have been lost if the officer had been required to seek a warrant to draw Schmerber’s blood
because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as
the body functions to eliminate it from the system.” Id. It added that “[p]articularly in a case such
as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of
the accident, there was no time to seek out a magistrate and secure a warrant.” Id. at 771. The Court
further noted that the blood test “involve[d] virtually no risk, trauma, or pain,” and was conducted
in a reasonable fashion “by a physician in a hospital environment according to accepted medical
practices.” Id. at 771-72. Thus, after acknowledging the substantial nature of the privacy interest
at stake, the Court nevertheless upheld the warrantless search of Schmerber’s blood on the basis of
the exigent-circumstances exception to the warrant requirement. Id.
4. Exigent Circumstances Not Established By Mere Natural Dissipation of Alcohol –
Missouri v. McNeely
In McNeely, the Supreme Court addressed the question whether the natural metabolization
of alcohol in the bloodstream presented a per se exigency that, taken on its own, would suffice to
justify an exception to the warrant requirement for nonconsensual blood testing in all drunk-driving
cases. 133 S. Ct. at 1556. McNeely involved an individual who was arrested for DWI and whose
blood was drawn over his objection and without a search warrant. Concluding that the natural
dissipation of alcohol does not constitute a per se exigency, the Court held that, “consistent with
general Fourth Amendment principles, [ ] exigency in this context must be determined case by case
based on the totality of the circumstances.” Id. at 1557; see also id. at 1561 (acknowledging that “a
significant delay in testing will negatively affect the probative value of the [blood-test] results,” but
rejecting that fact as basis for departing from the “careful case-by-case assessment of exigency”).
Although McNeely dealt primarily with exigent circumstances, an exception to the warrant
Villarreal - 20
requirement not at issue in the present case, the opinion nevertheless contains general principles of
Fourth Amendment law that apply specifically to the matter of nonconsensual blood draws in the
context of a DWI investigation. Of great importance to our resolution of this appeal is the Court’s
broad recognition that such a warrantless search of a person for the purpose of gathering evidence
in a criminal investigation can be justified “only if it falls within a recognized exception” to the
warrant requirement, and that “that principle applies to” compulsory blood-specimen collection
during a DWI investigation. Id. at 1558. The Court further reaffirmed the principle, first established
in Schmerber, that a “compelled intrusion beneath [the] skin and into [the] veins to obtain a sample
of [ ] blood for use in a criminal investigation” constitutes “an invasion of bodily integrity” that
implicates “an individual’s most personal and deep-rooted expectations of privacy.” Id. at 1558
(quoting Winston v. Lee, 470 U.S. 753, 760 (1985)).
Having reviewed the relevant statutory law and Fourth Amendment principles, we now turn
to a review of the State’s arguments as to why it maintains that the statutory provisions in the
Transportation Code rendered the Fourth Amendment warrant requirement inapplicable to this case.
C. Warrantless, Nonconsensual Blood Draw Does Not Fall Within Any of State’s
Proffered Exceptions to Warrant Requirement
The State suggests that a search conducted pursuant to the mandatory-blood-draw
provisions—specifically, in this case, the provision applicable to repeat DWI offenders—should be
upheld as categorically reasonable under (1) the consent exception, applicable in the form of a prior
waiver through implied consent, (2) the automobile exception, (3) the special-needs exception, (4)
the search-incident-to-arrest exception, or, alternatively, (5) by treating a blood draw as a seizure
instead of a search. We consider each of these contentions in turn and, finding them to be without
merit, we hold that none of these established exceptions to the warrant requirement categorically
Villarreal - 21
applies to except the warrantless, nonconsensual testing of a suspect’s blood pursuant to the
provisions in the Transportation Code. We also note briefly here that, because the facts are
undisputed and the questions before us are matters of law, we apply a de novo standard of review.
See Matthews v. State, 431 S.W.3d 596, 607 (Tex. Crim. App. 2014); Arguellez v. State, 409 S.W.3d
657, 663 (Tex. Crim. App. 2013).
(1) Consent in the Form of a Prior Waiver
Before addressing the merits of the State’s argument regarding implied consent, we first
briefly explain why we agree with the State’s contention that the court of appeals erred by
determining that it forfeited its right to rely on implied consent as a valid basis for upholding the
search in this case. We then explain why we disagree with the State as to the merits of its arguments
that this search may be upheld under the consent exception to the warrant requirement on the basis
of a defendant’s irrevocable “prior waiver” of his Fourth Amendment rights.
a. The State Did Not Forfeit Its Right to Rely on Consent in the Form of Waiver
In its second ground in its petition for discretionary review, the State challenges the court of
appeals’s determination that the State’s stipulation that there was “no consent” to the blood draw
amounted to a waiver of its “implied consent” or “deemed consent” argument based on the
provisions in the Transportation Code. See Villarreal, 2014 WL 1257150, at *11. At the hearing
on the motion to suppress, the parties stipulated that Villarreal’s “blood was drawn without his
consent and without a warrant.” It is clear from Villarreal’s motion to suppress and the evidence and
arguments presented at the hearing that the parties’ intent was to stipulate that Villarreal’s blood was
drawn in spite of his refusal to provide a specimen and in the absence of a warrant. The parties thus
stipulated to the factual matter of Villarreal’s refusal, but such a stipulation does not foreclose the
Villarreal - 22
State from raising a particular legal argument on appeal. Furthermore, at all times, the record
indicates that the parties understood the dispute in this case to be narrowly based on the legal
question of whether the State could properly rely on the provisions in the Transportation Code,
including the implied-consent statute, as an alternative to a search warrant. We, therefore, agree with
the State’s assertion that the court of appeals incorrectly determined that the State forfeited its
implied-consent argument on appeal. We, however, need not remand the case to the court of appeals
for further consideration of this argument because, despite initially stating that the State had forfeited
this argument on appeal, the court of appeals then went on to discuss and disapprove of the State’s
contention that implied consent could form a valid basis for upholding the search in this case.
Because the court of appeals reviewed and rejected the State’s argument that implied consent could
serve as a valid basis for upholding the warrantless search in this case, we may properly review the
court’s resolution of that legal question. See TEX . R. APP . P. 66.3 (providing for this Court’s review
of decisions of courts of appeals).
b. Implied Consent that Has Been Withdrawn Is Not Voluntary Consent
Although it recognizes that a waiver of Fourth Amendment rights through consent to search
must ordinarily be carefully scrutinized for its free and voluntary character,7 the State asserts that
those principles are inapplicable to the present situation. Instead, it asserts that a “parallel exception”
applies when a defendant has previously waived his Fourth Amendment rights in exchange for
receiving some benefit or privilege from the State. Suggesting that this prior-waiver principle
applies to the present circumstances, it asserts that an individual suspected of DWI “accept[s] a
7
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); Meekins v. State, 340 S.W.3d 454, 458
(Tex. Crim. App. 2001).
Villarreal - 23
license to drive and such acceptance may carry with it an obligation to allow statutorily authorized
inspections of that activity that would otherwise require a warrant.” On this basis, the State urges
this Court to hold that, in light of the existence of the implied-consent and mandatory-blood-draw
provisions, 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.”
Although we acknowledge that Fourth Amendment rights “may be waived,” Zap v. United
States, 328 U.S. 624, 628 (1946), we find that principle to be inapplicable here. As the State
acknowledges, to constitute a valid waiver of Fourth Amendment rights through consent, a suspect’s
consent to search must be freely and voluntarily given. Schneckloth, 412 U.S. at 227 (observing that
consent must be voluntarily given in that it was not “coerced by threats or force, or granted only in
submission to a claim of lawful authority”); see also Bumper, 391 U.S. at 548 (observing that
consent must be “freely and voluntarily given”). An additional necessary element of valid consent
is the ability to limit or revoke it. See Florida v. Jimeno, 500 U.S. 248, 252 (1991) (suspect may
“delimit as he chooses the scope of the search to which he consents”); Miller v. State, 393 S.W.3d
255, 266 (Tex. Crim. App. 2012) (stating that it is “undisputed” that consent “may be limited or
revoked”). The matter of whether consent is voluntary is a “question of fact to be determined from
the totality of all the circumstances.” Schneckloth, 412 U.S. at 227. It would be wholly inconsistent
with these principles to uphold the warrantless search of a suspect’s blood on the basis of consent
when a suspect has, as in the present case, expressly and unequivocally refused to submit to the
search. That explicit refusal to submit to blood testing overrides the existence of any implied
Villarreal - 24
consent, and, unless some other justification for the search applies, there remains no valid basis for
conducting a warrantless search under those circumstances. See Bumper, 391 U.S. at 548-49
(explaining that a showing of “no more than acquiescence to a claim of lawful authority” cannot
constitute valid consent). 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. Compare TEX . TRANSP . CODE §§ 724.011, 724.012(b), with
Schneckloth, 412 U.S. at 227, and Jimeno, 500 U.S. at 252. In other words, implied consent that has
been withdrawn or revoked by a suspect cannot serve as a substitute for the free and voluntary
consent that the Fourth Amendment requires.
c. Prior Waiver of Fourth Amendment Rights in Other Contexts Inapplicable to
Criminal Suspects
Recognizing this apparent inconsistency between Texas’s implied-consent law and the
requirements for establishing voluntary consent under the Fourth Amendment, the State forgoes
urging us to directly hold that implied consent that has been revoked by a suspect can nevertheless
supply the type of “bare consent” needed to overcome the warrant requirement. Instead, it urges us
to hold that a driver who accepts the privilege of driving on Texas roadways has, by virtue of his
enjoyment of that privilege, lost the right to later revoke the implied consent supplied by the
Transportation Code or to complain about the absence of a warrant. Although the State suggests that
the Supreme Court has “long recognized” that a prior waiver can serve as a “parallel exception” to
the consent exception when the suspect has received some benefit or privilege in exchange for his
Villarreal - 25
waiver of constitutional rights, we are aware of no Supreme Court cases approving of this doctrine’s
applicability in a context similar to the one with which we are confronted today, which is a bodily
search of an individual suspected of criminal wrongdoing. Furthermore, we find that the cases relied
upon by the State to establish this “parallel exception” are distinguishable because they are limited
to (i) the federal-regulatory context, (ii) the context of parolees and probationers, or (iii) the non-
criminal context, none of which are implicated here.
i. Exceptions Applicable to Federal-Regulatory Context Are Not Analogous
In asserting that such a parallel exception to the consent exception should be applied here,
the State relies primarily on Zap, 328 U.S. at 627. But that case is distinguishable on its facts. Zap
involved the warrantless search of the accounting records of a United States Navy contractor who
had expressly agreed by the terms of his contract to permit such inspections, which were authorized
by federal regulation. Id. The Supreme Court upheld the warrantless search as permissible under
the Fourth Amendment, observing that Zap, “in order to obtain the government’s business,
specifically agreed to permit inspection” of his records, thereby waiving any claim to privacy in those
records which he otherwise might have had. Id. at 628. Thus, the Court’s holding in Zap was
primarily focused on the existence of a “contractual agreement for inspection” of business records
and on the fact that Zap had knowingly waived his rights pursuant to a “business undertaking for the
government.” Id. at 629-30. Zap is thus properly understood as indicating that, where an individual
makes an express contractual waiver of his privacy rights in exchange for the opportunity to do
business with the federal government, such a waiver may constitute valid prior consent to search a
business premises within the meaning of the Fourth Amendment. See id. It does not, as the State
suggests, more generally stand for the proposition that the government may exact from a citizen a
Villarreal - 26
generalized and irrevocable waiver of Fourth Amendment rights in exchange for the enjoyment of
everyday privileges, such as driving on the State’s roadways. Nor does it suggest that such a waiver
would be valid if the waiving party were actually unaware that he was giving up his rights in
exchange for some privilege. Furthermore, we note that the search in Zap was a search of “accounts
and records” and was not a bodily search, which necessarily implicates a greater and more personal
privacy interest than the interest one has in his business dealings. See id. at 628.
Similarly, although the State contends that the Supreme Court’s opinion in United States v.
Biswell establishes that “acceptance of a license to engage in a pervasively regulated activity may
carry with it an obligation to allow statutorily authorized inspection of that activity that would
otherwise require a warrant,” we do not read Biswell so broadly. See 406 U.S. 311, 311-12 (1972).
In that case, the Court upheld the warrantless search of the business premises of a federally licensed
firearms dealer pursuant to a federal statute authorizing such searches. Id. at 317.8 But the Court
in that case emphasized that its analysis was rooted in “the context of a regulatory inspection system
of business premises that is carefully limited in time, place, and scope.” Id. at 315. Because Biswell
chose “to engage in this pervasively regulated business and to accept a federal license, he [did] so
with the knowledge that his business records, firearms, and ammunition will be subject to effective
inspection.” Id. at 317. The Court further noted that Biswell had received a compilation of all the
statutes governing his obligations and defining the inspector’s authority to search, thus putting him
on actual notice of his obligations. Id. The Court’s upholding of the warrantless search in Biswell
8
The regulation at issue in Biswell authorized official entry during business hours into the
premises “of any firearms or ammunition . . . dealer . . . for the purpose of inspecting or examining
(1) any records or documents required to be kept . . . and (2) any firearms or ammunition kept or
stored” on the premises. United States v. Biswell, 406 U.S. 311, 311-12 (1972) (citing 18 U.S.C. §
923(g)).
Villarreal - 27
is properly understood as creating a limited exception to the warrant requirement that applies to
searches of business premises in historically “pervasively regulated industries,” for which the “threat
to privacy [is] not of impressive dimensions[.]” Id. at 316; see also New York v. Burger, 482 U.S.
691, 699 (1987) (explaining that the “expectation of privacy in commercial premises” is significantly
less than the “expectation in an individual’s home”). We, therefore, disagree with the State’s
suggestion that the meaning of Biswell can be expanded to apply to a bodily search of a driver,
simply by virtue of his acceptance of a driver’s license and mere constructive knowledge, at most,
of the terms of the mandatory-blood-draw statutes. The State’s general assertion that engaging in
any regulated activity subject to licensing and inspection requirements, even non-commercial ones,
subjects participants to an irrevocable implied waiver of Fourth Amendment rights to privacy in their
bodies while participating in that activity, is thus without support.
ii. Exceptions Applicable to Parolees and Probationers Are Not Analogous
The State cites two cases that it suggests establish that “[g]overnmental and quasi-
governmental bodies often condition the granting of a privilege upon the waiver of certain
constitutional rights.” See United States v. Knights, 534 U.S. 112, 116 (2001); Samson, 547 U.S.
at 852. Knights and Samson both dealt with warrantless searches of individuals who were on parole
or probation. Knights, 534 U.S. at 114; Samson, 547 U.S. at 846. The defendants in both of those
cases had been required by the conditions of their release to expressly waive in writing their Fourth
Amendment rights in exchange for avoiding prison time. See Knights, 534 U.S. at 116; Samson, 547
U.S. at 852. These cases, however, do not stand for the proposition that the government may
condition the granting of a privilege upon the waiver of a constitutional right, but instead are
instructive in applying a general Fourth Amendment balancing test that applies in limited contexts,
Villarreal - 28
as we discuss later in this opinion. The Supreme Court expressly stated in Knights and Samson that
it was not resting its holding in those cases on a consent rationale, but rather was applying a general
Fourth Amendment balancing test. See Knights, 534 U.S. at 118 (stating that rationale for
upholding search was not based solely on prior waiver of rights, but was rather rooted in the basis
that the search was “reasonable under our general Fourth Amendment approach of ‘examining the
totality of the circumstances,’” including Knights’s “signficantly diminished” expectation of privacy)
(quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)); Samson, 547 U.S. at 853 n. 3 (stating that
holding was based on “general Fourth Amendment” totality-of-the-circumstances analysis, thereby
avoiding the question “whether acceptance of the search condition constituted consent in the
Schneckloth sense of a complete waiver of Fourth Amendment Rights”; “we decline to rest our
holding today on the consent rationale”). Although the State contends otherwise, Samson and
Knights cannot stand for the proposition that the Supreme Court has broadly recognized that
acceptance of a condition or privilege from the government generally constitutes a valid basis for
finding an advance irrevocable waiver of Fourth Amendment rights. Furthermore, even if the
consent exception had been the basis for the holdings in Samson and Knights, we observe that the
individuals in those cases had waived their Fourth Amendment rights expressly and knowingly. See
Knights, 534 U.S. at 114 (observing that the defendant in that case had expressly agreed in writing
that he would “[s]ubmit his . . . person, property, place of residence, vehicle, personal effects, to
search at any time, with or without a search warrant”); Samson, 547 U.S. at 846, 852 (observing that
California parolees must “agree in writing to be subject to search or seizure . . . at any time of the
day or night, with or without a search warrant”). The situation in those cases is further
distinguishable from the situation presently before this Court, which involves an implied waiver of
Villarreal - 29
Fourth Amendment rights pursuant to a statutory scheme that does not expressly address the warrant
requirement. See TEX . TRANSP . CODE §§ 724.011(a), 724.012(b), 724.013.
iii. Exceptions Applicable to Drug Testing of Public-School Students Are Not Analogous
The State also refers to Board of Education v. Earls to support its suggestion that the
government may condition the granting of a privilege upon the waiver of certain constitutional rights.
Bd. of Educ. v. Earls, 536 U.S. 822, 825 (2002). For similar reasons as those explained above, we
find inapplicable the holding of Earls, which upheld warrantless drug testing of public-school
students engaged in extracurricular activities under the special-needs exception to the warrant
requirement. See id. In Earls, the Court expressly limited the reasoning of that case to the context
of “administrative searches” undertaken for purposes “not in any way related to the conduct of
criminal investigations.” See id. at 828 (observing that, although “[i]n the criminal context,
reasonableness usually requires a showing of probable cause[,]” the probable-cause standard is
“peculiarly related to criminal investigations and may be unsuited to determining the reasonableness
of administrative searches” where the government seeks to prevent the development of hazardous
conditions). It further based its holding in that case on the existence of schools’ “custodial and
tutelary responsibility for children,” the minimally invasive nature of urinalysis, and students’ limited
privacy interest in a public-school environment. Id. at 830. Because the situation in the present case
is not an administrative search but instead implicates the investigation of criminal conduct, the
holding and reasoning in Earls are clearly inapplicable.
d. Other Courts Have Rejected The Proposition that a DWI Suspect Waives His
Fourth Amendment Rights Through Implied Consent
In addition to finding that the cases cited by the State fail to establish the broad proposition
upon which it seeks to rely, we further note that courts in several other jurisdictions have recently
Villarreal - 30
considered challenges to statutes that aim to establish irrevocable implied consent and have
concluded that those statutes, when used to draw a suspect’s blood without a warrant and over his
objection, do not establish valid legal consent within the bounds of the Fourth Amendment. See,
e.g., State v. Wulff, ___P.3d___, No. 41179, 2014 WL 5462564 (Idaho Oct. 29, 2014) (holding that
Idaho statute establishing irrevocable implied consent for all drivers suspected of DWI “does not fall
under the consent exception to the Fourth Amendment of the United States Constitution”);9 Byars
v. State, __ P.3d ___, No. 61348, 2014 WL 5305892, at *12 (Nev. Oct. 16, 2014) (slip. op.)
(rejecting State’s argument that search was reasonable based on irrevocable consent provided by
implied-consent statute);10 State v. Wells, No. 172013-01145-CCA, 2014 WL 4977356, at *13 (Tenn.
9
The Idaho statute at issue in Wulff provided that a person gives implied consent to evidentiary
testing, including a blood draw, when a person drives on Idaho’s roads and a police officer has
reasonable grounds to believe that the person has committed the offense of DWI. State v. Wulff, No.
41179, 2014 WL 5462564 (Idaho Oct. 29, 2014) (citing IDAHO CODE § 18-8002).
10
The Nevada Supreme Court described Nevada’s mandatory blood-draw law that, like Texas’s
law, requires involuntary blood draws based on probable cause, but unlike Texas’s law, is not limited
to third-offender DWIs, stating,
According to the State, even though Byars refused to submit to the blood draw, he
had consented to it by choosing to drive on Nevada roads. NRS 484C.160(1)
provides that “any person who drives or is in actual physical control of a vehicle on
a highway or on premises to which the public has access shall be deemed to have
given his or her consent to an evidentiary test of his or her blood, urine, breath or
other bodily substance” if a police officer has reasonable grounds to believe that the
person was driving or in actual physical control of a vehicle while under the influence
of alcohol or a controlled substance or was engaging in other conduct prohibited by
certain statutes. If a driver does not submit to a test and the police officer has
reasonable grounds to believe that the person was under the influence of alcohol or
a controlled substance or engaging in other specified conduct, “the officer may direct
that reasonable force be used to the extent necessary to obtain samples of blood from
the person tested.”
Byars v. State, __ P.3d ___, No. 61348, 2014 WL 5305892, at *12 (Nev. Oct. 16, 2014) (slip. op.).
(continued...)
Villarreal - 31
Crim. App. Oct. 6, 2014) (slip. op.) (holding that “the privilege of driving does not alone create
consent for a forcible blood draw”; such a search is “not reasonable unless performed pursuant to
a warrant or to an exception to the warrant requirement”; “[t]he implied consent law does not, in
itself, create such an exception”);11 State v. Fierro, 853 N.W.2d 235, 237 (S.D. 2014) (implied-
consent statute did not constitute stand-alone exception to warrant requirement); State v. Butler, 302
P.3d 609, 613 (Ariz. 2013) (holding that, independent of implied-consent statute, Fourth Amendment
requires an arrestee’s consent to be voluntary to justify a warrantless blood draw). Furthermore, we
observe that almost all of the Texas courts of appeals that have considered such challenges to
Texas’s statutory scheme have reached that same conclusion.12
In Byars, the Nevada Supreme Court rejected the State’s argument “that consent is valid
based solely on [the defendant’s] decision to drive on Nevada’s roads,” describing that argument as
10
(...continued)
Notably, the court concluded that it had “found no jurisdiction that has upheld an implied consent
statute that allows an officer to use force to obtain a blood sample upon the driver’s refusal to submit
to a test.” Id.
11
The Tennessee Court of Criminal Appeals described that state’s implied-consent law, which
permits a nonconsensual blood draw when “law enforcement has ‘reasonable grounds to believe’ that
the person was driving under the influence or had committed vehicular assault, vehicular homicide,
or aggravated vehicular homicide as a proximate result of intoxication.” State v. Wells, No. 172013-
01145-CCA, 2014 WL 4977356, at *13 (Tenn. Crim. App. Oct. 6, 2014) (slip. op.) (citing T.C.A.
§ 55-10-406(a)(1) (2012)). Tennessee’s implied-consent law is similar to Texas’s law in that it
permits a nonconsensual blood draw when there is probable cause to believe that some aggravating
circumstance is present, such as the fact that the intoxicated driver has caused another person bodily
injury or death. Compare id. to TEX . TRANSP . CODE § 724.011(b).
12
See, e.g., State v. Anderson, ___ S.W.3d ___, No. 09-13-00400-CR, 2014 WL 5033262 (Tex.
App.—Beaumont Oct. 8, 2014) (concluding that Section 724.012(b) “does not constitute an
exception to the Fourth Amendment’s warrant requirement”); Aviles v. State, ___ S.W.3d __, No.
04-11-00877-CR, 2014 WL 3843756 (Tex. App.—San Antonio Aug. 6, 2014) (op. on remand)
(same); Forsyth v. State, 438 S.W.3d 216 (Tex. App.—Eastland 2014) (holding that implied consent
under Transportation Code not equivalent to voluntary consent for Fourth Amendment purposes).
Villarreal - 32
“problematic because the statute makes the consent irrevocable.” 2014 WL 5305892, at *4-5. And
in Wulff, the Idaho Supreme Court held that, after McNeely, that state’s implied-consent statute was
not an “acceptable” basis for conducting warrantless blood draws under the consent exception
because the statute “operate[d] as a per se exception to the warrant requirement,” for which the
Supreme Court had “repeatedly expressed disapproval” in McNeely. See Wulff, 2014 WL 5462564,
at *5. The Wulff court observed that whether consent is valid is a determination to be made based
on the totality of the circumstances and, as such, “[a] holding that the consent implied by statute is
irrevocable would be utterly inconsistent with the language in McNeely denouncing categorical rules
that allow warrantless forced blood draws.” Id. at *5, 7. We agree with these courts’ assessments
that, in the context of a nonconsensual, warrantless bodily search of a person suspected of criminal
activity, a statute providing for irrevocable implied consent cannot supply the type of voluntary
consent necessary to establish an exception to the Fourth Amendment warrant requirement. We
reject the State’s argument that a suspect can be held to have validly and irrevocably waived his
Fourth Amendment rights in advance of a search through the existence of implied consent on the
sole basis of his receipt of the privilege of driving on Texas roadways.
2. Automobile Exception Is Inapplicable
With respect to the State’s assertion that the warrantless search of a DWI suspect’s blood
should be upheld under the automobile exception, we reject that suggestion outright because the
automobile exception has been expressly limited to the vehicular-search context. See, e.g., Acevedo,
500 U.S. at 580. It cannot be expanded to encompass a bodily search in the form of a compulsory
blood draw of an individual. See Houghton, 526 U.S. at 303; United States v. Di Re, 332 U.S. 581,
587 (1948). Furthermore, although the State appears to contend that a driver’s privacy interest in
Villarreal - 33
his blood is, similar to his interest in an automobile, minimal under these circumstances in light of
the existence of implied consent and the highly regulated nature of driving, we similarly disagree
with that contention because it is inconsistent with the Supreme Court’s description of the substantial
privacy interests at stake here. See McNeely, 133 S. Ct. at 1565 (“But the fact that people are
‘accorded less privacy in . . . automobiles because of th[e] compelling governmental need for
regulation,’ does not diminish a motorist’s privacy interest in preventing an agent of the government
from piercing his skin.”) (quoting California v. Carney, 471 U.S. 386, 392 (1985)). We thus decline
to expand the automobile exception to apply to a bodily search of a driver suspected of DWI.
3. Special Needs Exception is Inapplicable
Regarding the State’s suggestion that this type of search may be upheld under the special-
needs doctrine, we find that argument similarly unconvincing. As described above, the special-needs
doctrine is limited to situations involving “special needs beyond normal law enforcement that may
justify departures from the usual warrant and probable-cause requirements.” Griffin, 483 U.S. at
873-74; see also King, 133 S. Ct. at 1978 (describing special-needs doctrine as encompassing
“programmatic searches of either the public at large or a particular class of regulated but otherwise
law-abiding citizens”). In those limited situations, the need for a warrant is diminished because “the
public interest is such that neither a warrant nor probable cause is required, or because an individual
is already on notice, for instance because of his employment, or the conditions of his release from
government custody, that some reasonable police intrusion on his privacy is to be expected.” King,
133 S. Ct. at 1958.
Furthermore, the special-needs doctrine creates an exception to the warrant requirement only
in situations in which the existence of special needs makes obtaining a warrant impracticable. See
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Griffin, 483 U.S. at 873 (describing exception as applying when special needs beyond the normal
need for law enforcement “‘make the warrant and probable-cause requirement impracticable’”). The
doctrine has thus been applied in the context of, among others, the need to deter drug use in public
schools through compulsory drug testing of students participating in school-sponsored athletics
programs, Vernonia, 515 U.S. at 653, and in the context of the need to assure that railroad employees
engaged in train operations are not under the influence of drugs or alcohol, Skinner, 489 U.S. at 623.
In both of those situations, the Court’s holdings were once again rooted in the particular context of
those cases. In Vernonia, the Court observed that “Fourth Amendment rights . . . are different in
public schools than elsewhere” in light of schools’ responsibility to ensure the safety and welfare of
students, and students accordingly have a lesser expectation of privacy than members of the
population generally. Vernonia, 515 U.S. at 656. And in Skinner, the Court stated that the privacy
interest at stake in that case was “minimal,” that railway employees have long been subject to a
reduced expectation of privacy in light of the historically pervasive regulation of that industry, and
that the “governmental interest furthered by the intrusion would be placed in jeopardy by a
requirement of individualized suspicion.” Skinner, 489 U.S. at 627.
Here, we see no basis for holding that the government’s need to conduct searches of DWI
suspects’ blood constitutes a “special need” that would permit a departure from the probable-cause
and warrant requirement. The need here does not go “beyond the normal need for law enforcement,”
nor does it “make the warrant and probable-cause requirement impracticable.” Griffin, 483 U.S. at
873. Furthermore, the Supreme Court has suggested that the special-needs doctrine is inapplicable
when the primary purpose of a search is to generate evidence for law-enforcement purposes. See
Ferguson v. City of Charleston, 532 U.S. 67, 83 (2001) (invalidating public hospital’s policy of
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conducting nonconsensual testing of pregnant women for illicit drug use because “the immediate
objective of the searches was to generate evidence for law enforcement purposes”; given that fact,
the case “simply does not fit within the closely guarded category of ‘special needs’”); see also
Skinner, 489 U.S. at 620-21(upholding warrantless drug testing of railroad employees in part because
testing was “not to assist in the prosecution of employees, but rather to prevent accidents and
casualties in railroad operations”) (citations omitted).
In Ferguson, the Supreme Court observed that it had never applied the special-needs doctrine
in the context of a search undertaken for the purpose of gathering evidence for use in a criminal
investigation. Ferguson, 532 U.S. at 83 n. 20 (“In none of our previous special needs cases have we
upheld the collection of evidence for criminal law enforcement purposes.”). Furthermore, in light
of the investigatory purpose underlying the searches in Ferguson, the Court explained that it would
apply the normal Fourth Amendment framework that requires a warrant or an applicable exception,
as opposed to a balancing-of-interests test. Id. at 85-86. It explained, “The fact that positive test
results were turned over to the police does not merely provide a basis for distinguishing our prior
cases applying the ‘special needs’ balancing approach to the determination of drug use. It also
provides an affirmative reason for enforcing the strictures of the Fourth Amendment.” Id. at 84.
Public-hospital employees who undertake to obtain evidence of criminal conduct “for the specific
purpose” of incriminating patients, it observed, “have a special obligation to make sure that the
patients are fully informed about their constitutional rights, as standards of knowing waiver require.”
Id. at 85. The Court further explained that to hold otherwise would mean that “any search to
generate evidence for use by the police in enforcing general criminal laws would be justified by
reference to the broad social benefits that those laws might bring about (or, put another way, the
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social harms that they might prevent).” Id. at 84 n. 22. Such an approach, it stated, would be
“inconsistent with the Fourth Amendment.” Id. at 84.
In light of these principles, we conclude that the special-needs doctrine is inapplicable in the
present context, when the search of a DWI suspect’s blood is undertaken by law-enforcement
officers for the primary purpose of generating evidence to be used in a criminal prosecution. See id.
at 81 (rejecting applicability of special needs when purpose “actually served” by search “‘is
ultimately indistinguishable from the general interest in crime control’”) (citing Indianapolis v.
Edmond, 531 U.S. 32, 44 (2000)). We further note that at least one other court has concluded that
the special-needs doctrine is inapplicable in the context of a mandatory blood draw of a DWI suspect
where the “primary purpose of the warrantless seizure of [a defendant’s] blood was evidentiary and
prosecutorial.” Fierro, 853 N.W.2d at 242-43. We similarly decline to hold that special needs
applies in this context, and we reject the State’s contention that the mandatory, nonconsensual blood
draw in this case may be upheld under a special-needs balancing test.
4. Search Incident to Arrest Is Inapplicable
With respect to the suggestion that a warrantless blood draw constitutes a search incident to
arrest, we also reject that contention because that exception to the warrant requirement applies only
if such a search is “substantially contemporaneous” with the arrest and is confined to the area within
the immediate control of the arrestee. State v. Granville, 423 S.W.3d 399, 410 (Tex. Crim. App.
2014) (citing Vale v. Louisiana, 399 U.S. 30, 33 (1970)). The justification for permitting such a
warrantless search is (1) the need for officers to seize weapons or other things which might be used
to assault an officer or effect an escape, and (2) the need to prevent the loss or destruction of
evidence. Id. at 410 (citing United States v. Robinson, 414 U.S. 218, 224 (1973); Chimel v.
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California, 395 U.S. 752, 762-63 (1969)). “Thus, a search incident to arrest cannot normally be
justified if the ‘search is remote in time or place from the arrest . . . or no exigency exists.’” Id.
(quoting United States v. Chadwick, 433 U.S. 1, 15 (1977)). Although the State contends that the
dissipation of alcohol in the bloodstream constitutes a “recognized exigency” that would justify
applying the search-incident-to-arrest exception here, we find that argument to essentially propose
adoption of a per se exigency rule that was expressly disavowed by McNeely. 133 S. Ct. at 1568.
Furthermore, in situations involving the possible destruction of evidence, the Supreme Court has
suggested that the search-incident-to-arrest exception is most commonly applied to an “active
attempt by a defendant or his associates to conceal or destroy evidence upon arrest.” Riley, 134 S.
Ct. at 2473. Given that alcohol in the bloodstream dissipates at a predictable rate and is encased
within a defendant’s veins, there is no possibility of that evidence being subject to sudden
destruction or disappearance as a result of any active efforts by a defendant. Based on these
considerations, we conclude that the search-incident-to-arrest exception is inapplicable.
5. Blood Draw Is Not Merely a Seizure
We briefly take note of the State’s related argument that the drawing of a DWI suspect’s
blood constitutes a seizure, which “generally does not require a warrant,” as opposed to a search.
We summarily reject this argument because it is foreclosed by Supreme Court precedent that has
repeatedly described any bodily intrusion as constituting a search for which either a warrant or an
applicable exception is required. See, e.g., King, 133 S. Ct. at 1980 (using buccal swab on inner
tissues of a person’s cheek in order to obtain DNA samples is a search); McNeely, 133 S. Ct. at 1556;
Schmerber, 384 U.S. at 770 (virtually any intrusion “into the human body” constitutes search);
Skinner, 489 U.S. at 616 (breathalyzer test, which requires “deep lung” breath for chemical analysis,
Villarreal - 38
constitutes a search). We decline to depart from the longstanding principle that the drawing of a
suspect’s blood constitutes a search within the meaning of the Fourth Amendment.
For all of the foregoing reasons, we conclude that the warrantless, nonconsensual testing of
a DWI suspect’s blood cannot be justified as a reasonable intrusion under any of the State’s proffered
exceptions to the warrant requirement.
D. Search May Not Be Upheld Under General Fourth Amendment Balancing Test
As an alternative to a finding that warrantless, nonconsensual blood testing under the
provisions in the Transportation Code falls within a recognized exception to the warrant requirement,
the State urges us to hold that such a search may be upheld on the basis that it is reasonable under
a general Fourth Amendment balancing test. That test, which is rooted in “traditional standards of
reasonableness,” requires a court to weigh “‘the promotion of legitimate governmental interests’
against ‘the degree to which [the search] intrudes upon an individual’s privacy.’” King, 133 S. Ct.
at 1970 (quoting Houghton, 526 U.S. at 300). In some circumstances, such as “[w]hen faced with
special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like,
the Court has found that certain general, or individual, circumstances may render a warrantless
search or seizure reasonable.” McArthur, 531 U.S. at 330. In support of its argument that such a
balancing test is applicable here, the State suggests that “several related justifications,” which
“balance the need to rid public roads of drunk drivers against the lessened expectation of privacy that
impaired drivers have concerning the drawing of a sample of their blood,” suffice to establish an
exception to the warrant requirement under the “narrowly specified circumstances” in the statute.
Specifically, it urges us to weigh the government’s legitimate interest in curbing drunk driving; the
gravity of the offense; the desirability of a bright-line rule; the presumption of validity and
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constitutionality that attaches to legislative enactments; the reduced expectation of privacy of a DWI
suspect who has been arrested; and the minimal nature of the intrusion.
Although we agree with the State’s contention that the government has a substantial interest
in preventing drunk driving, we disagree that a balancing test is appropriate given the context. The
Supreme Court has made clear that, in the context of an active criminal investigation, and when the
primary goal of law-enforcement activity is the gathering of evidence, a warrantless search of a
person is unreasonable unless it falls within an established exception to the warrant requirement.
See McNeely, 133 S. Ct. at 1558 (warrantless search of the person is reasonable only if it falls within
a recognized exception); Riley, 134 S. Ct. at 2482 (“[w]here a search is undertaken by law
enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally
requires the obtaining of a judicial warrant”; “[i]n the absence of a warrant, a search is reasonable
only if it falls within a specific exception to the warrant requirement”); Skinner, 489 U.S. at 619 (in
“most criminal cases, we strike this balance in favor of the procedures described by the Warrant
Clause of the Fourth Amendment”; “[e]xcept in certain well-defined circumstances, a search or
seizure in [a criminal] case is not reasonable unless it is accomplished pursuant to a judicial warrant
issued upon probable cause”). We decline to disregard this well-established principle in favor of a
more generalized balancing-of-interests test.
In seeking to establish the viability of a balancing test here, the State relies primarily upon
the standard set forth in Maryland v. King, in which the Supreme Court upheld the warrantless
collection of DNA from felony arrestees as part of a routine booking procedure for serious offenses.
King, 133 S. Ct. at 1970. In upholding the search in King, the Supreme Court took into
consideration the limited circumstances under which arrestees’ DNA would be collected and utilized.
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Id. at 1966-68.13 It emphasized that the collection of DNA from arrestees was reasonable in light
of the fact that the “arrestee is already in valid police custody for a serious offense supported by
probable cause.” Id. at 1970. Furthermore, it observed that the mandatory “DNA collection is not
subject to the judgment of officers whose perspective might be colored by their primary involvement
in the often competitive enterprise of ferreting out crime,” and it took note of the standardized nature
of the tests and the regulations that authorized them. Id. The Court went on to observe that the
purpose of the DNA collection was to allow law enforcement officers, “in a safe and accurate way[,]
to process and identify the person and possessions they must take into custody.” Id. Such procedures
were thus justified as reasonable, in large part, because they were not based upon an individualized
suspicion of criminal wrongdoing, which would trigger the need for the interposition of a neutral
magistrate between the citizen and the law enforcement officer, but rather were part of the routine
administrative procedures at the police station that guaranteed law enforcement’s ability to identify
and keep track of arrestees. See id. at 1977 (“In the balance of reasonableness required by the Fourth
Amendment, therefore, the Court must give great weight both to the significant government interest
at stake in the identification of arrestees and to the unmatched potential of DNA identification to
serve that interest.”).
With respect to the governmental interest at stake, the King Court went to great lengths to
clarify that the DNA information being collected from arrestees was not for the primary purpose of
13
The Court observed that a DNA sample would be collected only from an individual charged
with a crime of violence or burglary; that the sample would not be processed or placed in a database
until the individual had been arraigned and a judicial officer had verified that there was probable
cause to detain him; and that samples would be immediately destroyed if a judicial officer
determined that there was no probable cause to detain the arrestee for the qualifying offense or if the
arrest ultimately did not result in a conviction. Maryland v. King, 133 S. Ct. 1958, 1967 (2013).
Villarreal - 41
gathering evidence against them, but rather was for the purpose of routine identification of inmates.
Id. at 1971, 1977-78 (discussing government’s “legitimate interest” in identifying inmates and stating
that DNA collection “is no more than an extension of methods of identification long used in dealing
with persons under arrest”). And, although four dissenters disagreed with that assessment, that fact
formed the basis for the Court’s departure from the normal warrant requirement in that case. See id.
at 1980. Unlike King, where police used no discretion in the application of the routine-identification
process, the primary purpose of the search in the present case is for investigation of a crime based
on a discretionary determination by a law-enforcement officer that there is probable cause of
intoxication. See id. at 1969-1970 (“The need for a warrant is perhaps least when the search involves
no discretion that could properly be limited by the ‘interpo[lation of] a neutral magistrate between
the citizen and the law enforcement officer.’”) (quoting Treasury Employees v. Von Raab, 489 U.S.
656, 667 (1989)). We decline to hold that the balancing approach taken in King is appropriate in this
context.14
We further observe that, with respect to the privacy interest at stake, the King Court noted
that a detainee has a “reduced expectation of privacy” and would be subjected to only a “minimal
intrusion[ ]” in the form of a mouth buccal swab. Id. at 1978. But it further sought to establish that
14
We note that one author has recently interpreted King as being “broadly consistent with” and
leaving “intact” the traditional Fourth Amendment framework that requires either a search warrant
or the applicability of an established exception to the warrant requirement. See David H. Kaye, Why
So Contrived? Fourth Amendment Balancing, Per Se Rules, and DNA Databases After Maryland
v. King, 104 J. Crim. L. & Criminology 535, 564 (2014). Kaye observes that King “does not liberate
courts to weigh interests ab initio in light of the totality of the circumstances in every case,” nor does
it empower courts to consider, for example, “the nature of the specific crime [law enforcement] are
seeking to solve in deciding whether a particular warrantless search . . . is constitutional.” Id. at 564
n. 167. Kaye further notes that, “[h]ad the majority wished to discard the [traditional] framework
in this wholesale manner, it would not have needed to cobble together a set of purely detention-
related state interests.” Id.
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all searches are not acceptable “solely because a person is in custody.” Id. at 1979. In situations
involving weightier privacy concerns or greater intrusions, it acknowledged that such a search may
nevertheless require a warrant. Id. (observing that where “privacy-related concerns are weighty
enough,” search “may require a warrant, notwithstanding the diminished expectations of privacy of
the arrestee”).
Although the State contends that King broadly permits a reviewing court to conduct a
weighing of competing interests for the purpose of determining the reasonableness of an
investigative search, we disagree with this broad reading of King. The DNA search at issue in King
involved the minimally intrusive, non-discretionary search of individuals who were already being
subjected to routine booking procedures. In light of that fact, the Court concluded that “the
additional intrusion upon the arrestee’s privacy” beyond the already intrusive nature of other booking
procedures was minimal. Id. at 1976, 1978. By contrast, here, puncturing the skin constitutes a
substantial intrusion beyond what a DWI arrestee would otherwise experience. And the King Court
recognized that a buccal swab is a “far more gentle process” than venipuncture to draw blood. Id.
at 1968.
Moreover, even if we were to accept the viability of a Fourth Amendment balancing test here
as a substitute for the established exceptions to the warrant requirement, we would conclude that,
on balance, a DWI suspect’s privacy interest outweighs the State’s interest in preventing drunk
driving through warrantless searches. McNeely reaffirmed the principle that a compelled physical
intrusion beneath the skin to obtain evidence in a criminal investigation implicates significant
privacy interests, and this privacy interest is not automatically diminished simply because an
individual is suspected of a serious DWI offense. McNeely, 133 S. Ct. at 1558. McNeely further
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rejected the government’s interest in curbing drunk driving as a valid basis for departing from the
traditional exceptions to the warrant requirement, stating that “the general importance of the
government’s interest in this area does not justify departing from the warrant requirement without
a showing” that some established exception, such as exigency, applies. Id. at 1565. And, although
we acknowledge the magnitude of the drunk driving problem in Texas and the government’s
legitimate and substantial interest in curbing that problem, we see no compelling need on the part
of law enforcement to undertake to solve this problem through warrantless, nonconsensual searches
of suspects’ blood. This is particularly so in light of the fact that warrants for such blood testing are
often readily available, thereby providing the “traditional justification that a warrant provides.” Id.
at 1559 (citing Atwater v. Lago Vista, 532 U.S. 318, 347 n. 7 (2001)); see also Skinner, 489 U.S. at
622 (noting that a “warrant assures the citizen that the intrusion is authorized by law, and that it is
narrowly limited in its objectives and scope”). The marginal benefit to law enforcement in
combating Texas’s drunk-driving problem through warrantless searches is generally outweighed by
an individual’s substantial privacy interest here.
It is suggested by the dissenting opinions that a Fourth Amendment balancing test may
properly be applied in these circumstances. Balancing the interests in this case, the dissenting
opinions conclude that a warrantless, nonconsensual blood draw conducted pursuant to provisions
in the Transportation Code should be upheld as generally reasonable in light of the Legislature’s
clear intent to except such a search from the warrant requirement; the statute’s clear notice to repeat-
offenders that they are subject to a mandatory search; and the similarities between this situation and
situations involving constitutionally permissible warrantless searches of probationers, parolees, and
arrestees. We disagree that these considerations present a valid justification for departing from the
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traditional Fourth Amendment framework that requires either a warrant or an applicable exception.
Specifically, with respect to the contention that the Legislature has clearly indicated its desire
to create a new exception to the warrant requirement, we observe that the statutory language itself
is silent as to whether a law-enforcement officer conducting a mandatory, nonconsensual search of
a DWI suspect’s blood is required to first seek a warrant. See TEX . TRANSP. CODE § 724.012(b)
(stating that a peace officer “shall require the taking of a specimen” of a suspect’s breath or blood
if one of the enumerated aggravating circumstances is present, but making no reference to Fourth
Amendment warrant requirement). In any event, it is unclear why the Legislature’s intent in
enacting the mandatory-blood-draw statute should be dispositive of our analysis. The Legislature
“may not restrict guaranteed rights set out in constitutional provisions.” Venn v. State, 218 S.W.
1060 (Tex. Crim. App. 1920). To the extent the mandatory-blood-draw statute may be interpreted
as authorizing a warrantless search that would violate a defendant’s rights under the Fourth
Amendment, it cannot do so. See id. We thus disagree with the assertion that a warrantless,
nonconsensual search of a DWI suspect’s blood may be upheld as constitutionally reasonable on the
basis of the Legislature’s putative intent to permit such a search.
For similar reasons, we disagree with the contention that a search of this nature should be
upheld as reasonable on the basis that the statute gives clear notice to repeat-DWI offenders of their
obligation to provide a blood or breath specimen. Although we may agree that the statutory scheme
gives clear notice of the existence of implied consent and the requirement that a specimen be
collected under certain circumstances, the statutory scheme does not expressly make clear that
suspects will be required to submit to warrantless searches. See TEX . TRANSP . CODE §§ 724.011,
724.012. Even accepting the proposition that a DWI suspect may be deemed to have knowledge that
Villarreal - 45
a search of his blood is statutorily required under certain circumstances, he may also reasonably
expect that such a search will be carried out in accordance with his Fourth Amendment rights. We
are not persuaded that the implied-consent and mandatory-blood-draw provisions place suspects on
clear notice that they are categorically subject to warrantless, nonconsensual searches.
With respect to the suggestion that requiring a third-offender DWI suspect to submit to
having his blood drawn over his objection and without a warrant is analogous to the constitutionally
permissible warrantless, nonconsensual searches of parolees and probationers, we disagree with that
contention. The Supreme Court has explained why it is constitutionally permissible to conduct
warrantless, nonconsensual searches of parolees and probationers. See Knights, 534 U.S. at 116;
Samson, 547 U.S. at 852; Griffin, 483 U.S. at 873. In Knights, the Supreme Court upheld a
warrantless search of Knights’ dwelling, explaining that Knights’ status as a probationer and his
express agreement to submit to warrantless searches were “salient,” and it further noted that
probation, “like incarceration, is a form of criminal sanction imposed . . . after verdict, finding, or
plea of guilty.” Knights, 534 U.S. at 119. Thus, a probationer’s freedom from imprisonment is
subject to “reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding
citizens.” Id. The Court stated, “The judge who sentenced Knights to probation determined that it
was necessary to condition the probation on Knights’ acceptance of the search provision. . . . The
probation order clearly expressed the search condition and Knights was unambiguously informed
of it. The probation condition thus significantly diminished Knights’ reasonable expectation of
privacy.” Id. at 120. The Knights Court observed that probationers are “more likely than the
ordinary citizen to violate the law,” and the government was accordingly justified in focusing on
probationers “in a way that it does not on the ordinary citizen.” Id.
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Similarly, in Samson, the Court upheld the warrantless search of a parolee who had been
stopped on the sidewalk and subjected to a search of his person in the absence of reasonable
suspicion. Samson, 547 U.S. at 857. As in Knights, the Court upheld the warrantless search
primarily on the basis that parolees “are on the continuum of state-imposed punishments” and thus
have “severely diminished expectations of privacy by virtue of their status alone.” Id. at 852. It
concluded that Samson “did not have an expectation of privacy that society would recognize as
legitimate.” Id. at 853. The holdings of both Knights and Samson are clearly rooted in the limited
privacy interests of individuals who are actively subject to criminal penalties, thereby permitting
“privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.” Id.
In contrast to parolees and probationers, DWI suspects who have completed their sentences
are not free on conditional liberty. Rather, DWI suspects who have discharged their sentences on
their earlier DWI convictions enjoy absolute liberty from their prior convictions and have no ongoing
supervisory relationship with any parole or probation officer. “To a greater or lesser degree, it is
always true of probationers (as we have said to be true of parolees) that they do not enjoy ‘the
absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent
on observance of special [probation] restrictions.” Griffin, 483 U.S. at 874. Furthermore, the
situation faced by parolees and probationers is “an ongoing supervisory relationship—and one that
is not, or at least not entirely, adversarial—between the object of the search and the decisionmaker.”
Id. at 879. In view of the basis for the Court’s holdings in Knights and Sampson, we conclude that
there is no rational comparison between the reduced liberty interests of parolees and probationers,
who have only conditional liberty and a supervisory relationship with a law-enforcement officer, and
repeat-offender DWI suspects, who have fully discharged their earlier sentences and who have
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absolute liberty and no ongoing supervisory relationship. See Knights, 534 U.S. at 118; (observing
that, in light of his status, Knights had “signficantly diminished” expectation of privacy); Samson,
547 U.S. at 853.
Furthermore, as explained previously, the Supreme Court’s holding in McNeely makes clear
that drawing the blood of an individual suspected of DWI falls under the category of cases holding
that “a warrantless search of the person is reasonable only if it falls within a recognized exception”
to the warrant requirement. McNeely, 133 S. Ct. at 1558. The Court in McNeely further explained
that such an intrusion implicates an individual’s “‘most personal and deep-rooted expectations of
privacy.’” Id. (quoting Winston, 470 U.S. at 760). These principles from McNeely—the recognition
of the substantial privacy interests at stake and the applicability of the traditional Fourth Amendment
framework that requires either a warrant or an applicable exception—apply with equal force to this
case.
We hold that the provisions in the Transportation Code do not, taken by themselves, form
a constitutionally valid alternative to the Fourth Amendment warrant requirement. We thus reject
the State’s assertion that a warrantless, nonconsensual blood draw conducted pursuant to those
provisions can fall under one of the established exceptions to the warrant requirement described
above, and we further reject the State’s suggestion that such a search may be upheld under a general
Fourth Amendment balancing test. We overrule the State’s first ground.
IV. Constitutionality of Blood-Draw Statute
The State’s third ground asks this Court to review “[w]hether the Thirteenth Court of Appeals
erred in concluding that the mandatory [blood] draw statute does not allow the arresting officer to
draw blood without a search warrant or exigent circumstances, and specifically[,] whether the court
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failed to consider the distinction between the statutory directive for the arresting officer to require
or order the draw, and the nature of a warrant as an order of the issuing magistrate for the draw in
question.” The essence of the State’s complaint is that, in interpreting the statutory language during
the course of analyzing whether the statute was constitutional “as applied” to Villarreal, the court
of appeals erred by determining that the plain language in the statute did not dispense with the
requirement that an officer seek and obtain a search warrant. See Villarreal, 2014 WL 1257150, at
*11 (observing that the “literal text” of Section 724.012 “does not address or purport to dispense”
with the warrant requirement). Having already determined that Villarreal’s Fourth Amendment
rights were violated when his blood was drawn without a warrant in light of his refusal to submit to
the taking of a specimen, any further statutory analysis of whether the mandatory-blood-draw law
itself purports to authorize such a warrantless search is unnecessary to resolve this Fourth
Amendment issue. The remainder of the State’s challenge with respect to the meaning of the
statutory language pertains to the conclusion by the court of appeals that the statute was not
unconstitutional.15
15
The court of appeals cited this Court’s decision in Beeman v. State for the proposition that
“the constitutionality of the repeat offender provision of the mandatory-blood-draw law must be
based on the previously recognized exceptions to the Fourth Amendment’s warrant requirement.”
See State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150 (Tex. App.—Corpus Christi 2014)
(citing Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002)). In that case, after his blood
was drawn pursuant to a search warrant, Beeman argued that the State had no right to obtain a search
warrant to draw his blood in light of implied-consent laws for DWI cases. Id. In deciding that the
State may properly seek a warrant to collect a blood specimen regardless of a suspect’s refusal to
submit a specimen under implied-consent laws, this Court stated, “The implied consent law expands
on the State’s search capabilities by providing a framework for drawing DWI suspects’ blood in the
absence of a search warrant. It gives officers an additional weapon in their investigative arsenal,
enabling them to draw blood in certain limited circumstances even without a search warrant.” Id.
Beeman also observed that implied-consent laws do not give police officers anything “more than
[what] the Constitution already gives them.” Id. at 616. The holding in Beeman, that an officer may
(continued...)
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Villarreal’s constitutional challenge, however, was abandoned at the trial-court level.
Villarreal’s written motion to suppress stated, “[I]f the defendant’s blood was taken under the
authority of a statute, the statute should be deemed unconstitutional.” Later, however, Villarreal
abandoned that complaint. Villarreal narrowed the focus of his motion to suppress to the question
of whether the mandatory blood draw conducted without a warrant in this particular case violated
the Fourth Amendment. And the trial court’s findings of fact specifically determined that Villarreal
had narrowed the grounds in his motion to address only the Fourth Amendment violation. The trial
court’s second fact finding stated, “The Court finds that the Defendant narrowed the focus of his
motion, and represented as the sole basis of such motion, his claim that ‘taking a blood draw without
a warrant [is] a violation of the 4th Amendment.’” We, therefore, sustain the State’s third ground
to the extent that the court of appeals erred by addressing the constitutionality of the implied-consent
statute because Villarreal abandoned his constitutional challenge in the trial court.
V. Conclusion
We hold that a nonconsensual search of a DWI suspect’s blood conducted pursuant to the
mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken
in the absence of a warrant or any applicable exception to the warrant requirement, violates the
Fourth Amendment. We affirm the judgment of the court of appeals suppressing the blood-test
results on the basis of a Fourth Amendment violation.
(...continued)
obtain a search warrant even where implied consent statutes would authorize an involuntary blood
draw, remains good law. See id. But because it was decided before McNeely, Beeman has limited
value with respect to the instant question whether a person’s Fourth Amendment rights are violated
when his blood is drawn over his objection pursuant to the implied-consent statute.
Villarreal - 50
Delivered: November 26, 2014
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