Lead Opinion
Michael Anthony McGruder was convicted of the offense of driving while intoxicated, a felony offense, and sentenced to 30 years in prison. See Tex. Penal Code Ann, § 49.04 (West 2011). Because , section 724.012(b)(3)(B) of the Texas Transportation Code is not unconstitutional, we affirm the trial court’s judgment.
BACKGROUND
In September of 2011, McGruder was stopped by a College Station police officer because McGruder’s pickup matched the description of a suspicious vehicle in the area. After McGruder got out of his pickup, the officer who initially stopped McGruder and another officer who had arrived at the scene noted- that, even from a distance, McGruder smelled of alcohol. McGruder responded to questioning by the officers and gave “nonsensical” and conflicting answers. He also refused .to perform any field sobriety exercises. McGru-der was arrested and refused to submit to a breath or blood test. After McGruder’s pickup was inventoried and towed, McGru-der was taken to the police department where an officer began to prepare a search warrant to obtain a sample of McGruder’s blood. During the- process of preparing the warrant, the officer learned that McGruder had two prior DWI convictions.
At that time, the officer discontinued preparing the warrant and began working on the “mandatory blood draw” paperwork. The officer testified that a blood draw becomes mandatory when a DWI suspect has two prior DWI convictions; McGruder was then taken to the hospital and his blood was drawn.
Objection and Issue
At his trial in 2013, McGruder objected to the State’s introduction of the blood draw kit and the blood draw vial on the basis that section 724.012 of the Texas Transportation Code, the section which contains the mandatory blood draw provision, is unconstitutional in that it allows for the seizure of evidence without a warrant.
The Statute
As it applies to this case, section 724.012(b) 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 or a watercraft and the person refuses the officer’s request to submit to the taking of a specimen voluntarily:
⅜ ⅝ ⅛
(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:
* * ⅜
(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.
Tex. Transp. Code Ann. § 724.012(b)(3)(B) (West 2011).
McNeely
Relying on the recent opinion from the United States Supreme Court in Missouri v. McNeely, — U.S.-,
Generally speaking, drawing blood from a suspect is a search and seizure within the scope of the Fourth Amendment to the United States Constitution. See Schmerber v. California, 384 U.S. 757, 767,
In McNeely, the United States Supreme Court addressed the issue of whether the Fourth Amendment required police to obtain a warrant before taking a blood sample from a non-consenting driver suspected of driving while intoxicated. McNeely,
Prior to McNeely, at least one Texas appellate court had interpreted section 724.012(b) to be an exception to the Fourth Amendment warrant requirement; that is, no warrant was necessary to draw the defendant’s blood if he refused to consent to the blood draw and had two prior DWI convictions. See Aviles v. State,
Facial Constitutional Challenge
But McGruder asks us to find that section 724.012(b)(3)(B) is unconstitutional. To prevail on a "facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances. State v. Rosseau,
Whether a statute is facially constitutional is a question of law that we review de novo. Ex parte Lo,
Section 724.012(b) merely requires an officer to take a blood or breath specimen in certain circumstances. What makes the statute mandatory is that the officer has no discretion in those situations to obtain either a blood or a breath specimen. It doés not mandate, nor does it purport to áuthorizé, a specimen be taken without compliance with the Fourth Amendment. And although the Court of Criminal Appeals has said that the implied consent law, the body of law in which this particular statute is contained, enables officers to draw blood in certain limited circumstances, a.k.a. exigent circumstances, even Without a search warrant, the "Court also said that the law did not give officers the ability to forcibly obtain blood samples from anyone just because they were arrested for DWI. Beeman v. State,
Further, as written, section 724.012(b) does not require a blood or breath specimen to be taken contrary to the Fourth Amendment; that is, without a warrant or without a recognized exception to the warrant requirement. See Forsyth v. State, No. 11-12-00198-CR,
McGruder has failed to point us to anything else that would show the statute to be unconstitutional. Thus, McGruder’s facial challenge to the statute must fail, and we presume the statute to be constitutionally valid.
Conclusion
Accordingly, McGruder’s sole issue is overruled, and the trial court’s judgment is affirmed.
Justice DAVIS dissenting.
Notes
. McGruder later objected to the lab report which contained the blood alcohol content results of McGruder’s blood test by stating, "Renew my earlier objection.” He did not however, object to the chemist’s testimony prior to the introduction of the lab report that McGruder’s blood alcohol content was .09 grams per 100 milliliters. We note that there was no motion to suppress filed; only objections made to the various exhibits as they \vere introduced into evidence. The Amicus Curiae, presented by the Texas Criminal Defense Lawyers Association, ' argues the trial court erred in overruling the objections to the kit, vial, and lab report. The Amicus Curiae does not address the admission, 'without objection, of the blood, alcohol content testimony. Nevertheless, this is not the issue that McGruder has presented on appeal. Rather, McGruder raises a direct challenge to the Constitutional validity of the "mandatory” blood draw provision.
. McGruder does not argue that the Texas Constitution provides any greater or different protection thari the United States Constitution; thus we treat them as the same in this context. See Luquis v. State, 7.
, This is not the issue we have been asked, to decide and express no opinion regarding, that issue;
. Other courts of appeals agree with this interpretation. See Douds v. State,
Dissenting Opinion
dissenting.
At least six of our sister courts, based on Missouri v. McNeely, — U.S. — ,
While it appears that no court has explicitly passed on the facial constitutionality of section 724.012(b),
• Forsyth,438 S.W.3d at 224 ,2014 WL 3865777 , at *7 (“we decline to hold that mandatory blood draws under the Texas Transportation Code are per se reasonable and further decline to hold that an officer is not required to obtain a warrant for the blood draw or show that the blood draw was conducted under a recognized exception to the warrant requirement.”).
• Holidy,2014 WL 1722171 , at *1 (“This appeal involves the sole question of the constitutionality of taking and testing blood: under the implied- consent -provisions of Section 724.012(b)(3)(B)_ Because we are constrained by principles recently enunciated by the United States Supreme Court, we reverse the conviction herein based on the unconstitutionality of the statute and remand this case for a new trial”).
• Sutherland,436 S.W.3d at 41 (“To the extent ] that Section . 724.012(b)(3)(B) can be read to permit, nonetheless, a warrantless seizure of a suspect’s blood in the absence of such exigent circumstances or the.suspect’s consent, it runs afoul of the Fourth Amendment’s warrant requirement.”).
’ Section 724.012(b) does not explicitly require an officer to obtain a blood or breath sample without a--warrant, but it also does not instruct an officer to obtain a warrant in the absence of exigent circumstances. And the common facts in our sister courts’ opinions and in this case are that the officer did not obtain a warrant solely because of section 724.012(b) and did compel or forcibly obtain a blood sample without the defendant’s consent solely because of section 724.012(b):
• Forsyth, 438 S.W.3d at 219 ,2014 WL 3865777 , at *2 (“A criminal history check and Appellant’s own admissions revealed that Appellant had two prior convictions for DWI. Appellant refused to submit to a breath or blood test. Relying on Section 724.012 of the Texas Transportation Code, Officer McDaniel transported Appellant to Brackenridge Hospital for a mandatory blood draw. ... Officer McDaniel acknowledged that there were magistrates available to issue a search warrant twenty-four hours a day, but stated that,he could not have secured a warrant because that ‘is not what you dó according to law or policy.’ ”).
• Weems,434 S.W.3d at 658, 660 (“No warrant was procured for the blood draw. ... In this case, Officer Busta-mante testified that the blood draw was administered because a .person other than Weems suffered bodily injury and was transported to a hospital for medical attention. The State also points out. that the THP-51 form, which was admitted in evidence, indicates that the blood draw was also ordered because Weems had two prior DWI convictions.”).
• Douds, 434 S.W.3d at 845-46 (“Officer Tran took the appellant to a local medical center, Texas Emergency Care, for a mandatory blood draw. Officer Tran testified his decision to obtain a blood draw was based on his reasonable belief that section 724.012 of the Texas Transportation Code had been satisfied and allowed him to do so. ... Nothing in the record ■ suggests that any officer attempted to obtain a warrant authorizing the blood draw at any point. Indeed, the evidence does not mention a warrant at all. ... Officer Tran testified that he ordered the mandatory blood draw under the authority of section 724.012 of the Texas Transportation Code.”).
• Holidy,2014 WL 1722171 , at *1 & n. 2 (defendant, who had two prior DWI convictions, “was told by officers that he had no choice, so he ‘didn’t argue’ with them about the blood draw”),
• Reeder,428 S.W.3d at 926 (after defendant, who had two prior DWI convictions, “refused to give his consent to have his blood drawn and tested for alcohol, law enforcement officials took a blood specimen anyway and tested it under the authority of ’ Section . 724.012(b)(3)(B)”).'
• Sutherland,436 S.W.3d at 31 (“[Officer] Housmans testified that, as justification for the warrantless blood draw, he relied solely on the provision in the Texas Transportation Code that requires him to obtain a sample of asuspect’s blood whenever he learns that the individual has been convicted two or more times of driving ■ while intoxicated.”).
• Id.,436 S.W.3d at 32 (“Housmans conceded, too, that he did not seek out a magistrate the night appellant was arrested; it was Housmans’s understanding of Section 724.012 that he was not required to do so. In fact, Housmans testified that he understood Section 724.012 as placing upon him a duty to take appellant for a mandatory blood draw .under the circumstances . presented to him the night appellant was arrested: T. have no discretion. The statute says I shall.’ To fail to do so, he testified, would mean that he ‘would be violating the law.’ ”).
• Villarreal,476 S.W.3d at 58-59 ,2014 WL 1257150 , at *11 (“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 appellee’s consent and without the necessity of obtaining a search warrant.”).
Plainly, the statute’s silence on warrants explains the officers’ views that the statute authorizes them to compel warrantless blood draws. See Forsyth,
Because of the statute’s silence on warrants and the indisputable practice of war-rantless blood draws based solely on the silent statute, and based on the Texas progeny of McNeely that border on a finding of facial unconstitutionality, I cannot agree with the majority that McGruder’s facial challenge to section 724.012(b) fails. See Holidy,
Accordingly, I respectfully dissent..
. The majority quotes two sentences in a footnote from Douds that appear to be dicta. See Douds,
. In Beeman, the court of criminal appeals did state: "This does not give officers the ability to forcibly obtain blood samples from anyone arrested for DWI.” Beeman v. State,
The dissent .implies that we have given carte blanche to officers to draw blood in every single' DWI case. But we have given police .officers nothing more than the Constitution already gives them — the ability to apply for' a search warrant and,' if the magistrate finds probable cause to issue thatwarrant, the ability to effectuate it. This does not give officers the ability to forcibly obtain blood'samples from anyone arrested for DWI. Instead, it gives officers the ability to present an affidavit to a magistrate in every DWI case, just like every other criminal offense. Whether any search ultimately occurs rests, as always, in the hands of the neutral and detached magistrate.
Id. (emphasis added). This statement is therefore inapplicable to the warrantless blood draw cases where the officers have been forcibly obtaining blood samples without warrants under the alleged authority of- the statute. And because Beeman involved a warrant, its language about warrantless blood draws is dicta. See Weems,