467 S.W.3d 1
Tex. App.2015Background
- Late-night traffic stop: Officers observed Allen Tercero driving with a flat tire, contacted him in a parking lot, and detected signs of intoxication (odor of alcohol, bloodshot eyes, slurred speech).
- Tercero refused field sobriety tests and both breath and blood specimens; officers arrested him for DWI and transported him to a hospital for a warrantless blood draw after learning he had two prior DWI convictions.
- Officer Hogg testified he was near the police station, had time and means to obtain a warrant, and did not seek one because he believed the Transportation Code authorized a mandatory blood draw for repeat offenders.
- Tercero moved to suppress statements and the blood evidence as obtained in violation of the Fourth Amendment; the trial court suppressed the blood evidence, finding no exigent circumstances and that no warrant or valid consent existed.
- The State appealed, arguing (1) implied consent/mandatory-draw provisions of the Texas Transportation Code permitted the warrantless blood draw; (2) McNeely did not invalidate the statutory scheme or should not apply retroactively; and (3) the officer acted in reasonable good-faith reliance on the statute.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Tercero) | Held |
|---|---|---|---|
| Whether warrantless, nonconsensual blood draw was permissible under Texas implied-consent / mandatory-draw statutes | Statute deems drivers to have consented; mandatory-draw for repeat offenders authorizes warrantless collection without needing a recognized exception | Tercero revoked consent; warrantless blood draw violated Fourth Amendment absent exigency or other exception | Court: Suppression affirmed — implied-consent / mandatory-draw does not substitute for voluntary consent or a recognized exception to warrant requirement |
| Whether trial court impliedly held Transportation Code §724.012(b)(3)(B) unconstitutional | Statute is facially valid and authorizes mandatory draws in enumerated circumstances | The statute cannot authorize a warrantless search that violates the Fourth Amendment in application | Court: No facial invalidation; trial court did not rule §724.012 facially unconstitutional — statute may be valid but its application here (warrantless, nonconsensual draw) violated the Fourth Amendment |
Key Cases Cited
- Schmerber v. California, 384 U.S. 757 (warrantless blood test upheld where exigent circumstances existed)
- Katz v. United States, 389 U.S. 347 (Fourth Amendment protects against unreasonable searches and seizures)
- Schneckloth v. Bustamonte, 412 U.S. 218 (consent to search must be voluntary under totality of circumstances)
- United States v. Robinson, 414 U.S. 218 (warrantless searches incident to arrest principles)
- Griffith v. Kentucky, 479 U.S. 314 (new constitutional rules apply retroactively to cases on direct review)
- Riley v. California, 134 S. Ct. 2473 (warrant requirement principles in criminal investigations)
- Missouri v. McNeely, 133 S. Ct. 1552 (no per se exigency for blood draws; exigency determined case-by-case)
- Heien v. North Carolina, 135 S. Ct. 530 (reasonable mistake of law may support reasonable suspicion — distinguished here)