*1 of Texas STATE VILLARREAL, Appellee David PD-0306-14
NO. Appeals Criminal of Texas. Court of 26, 2014 November Delivered: Rehearing Feb. Granted Rehearing
Opinion on Denial December *3 appeals’s
and the court of conclusion that the, warrantless search Villarreal’s blood statutory authority providing im plied mandatory consent and blood-speci men collection violated the Fourth Amend Villarreal, ment. See State v. No. 13 — 13— 00253-CR, 476 S.W.3d 2014 WL 1257150 (Tex.App. Corpus Christi Jan. — 23,2014). It further challenges two specif ic aspects of of appeals’s analysis court contending the court erred con the State forfeited its im cluding *4 plied-consent argument on appeal by stipu lating to the fact that Villarreal did not draw, consent the blood and .(2) (cid:127) statute, mandatory-blood-draw by its Jimenez, Law, Attorney Fred Corpus terms, does not dispense .with the warrant Christi, TX, Appellant. for . requirement. Norman, Douglas K Assistant District Christi, TX, Attorney, Corpus addressing the merits of Lisa C. the State’s McMinn, Austin, Attorney, challenge State’s for to the trial ruling, court’s we warrantless, State. that conclude nonconsen- testing sual suspect’s does blood OPINION fall within recognized categorically ALCALA, J., exception to Fourth Amendment’s opinion war- delivered PRICE, WOMACK,. requirement, rant justified Court which can it be nor JOHNSON, COCHRAN, JJ., general and under a joined. bal- Fourth ancing Accordingly, test. we hold that case, In this we are asked to decide this the. .case violated warrantless, whether nonconsensual Amendment. respect With the State’s drawing of blood from an individual sus specific complaints regarding the court of pected intoxicated, while con analysis, that, appeals’s we conclude al- pursuant ducted implied-consent to the though the court of appeals erred de- mandatory-blood-draw and provisions in termining that the its im- forfeited State Code, Transportation Texas violates plied-consent argument on appeal through the Fourth Amendment. See U.S. Const. ; stipulatioii, unnecessary light rem'and is amend. Transp. IV Tex. Code of both 724.011(a), appeals’s §§ 724.012(b), implicit re- 724.013. This the.court jection argument question express that and. our comes to us in the form of an rejection of interlocutory argument analysis that in our appeal filed the State today. challenging We conclude court the trial court’s that the granting order further appeals suppress a motion to erred to David address favor of constitu- Villarreal, tionality mandatory-blood-draw appellee, was who for stat- arrested felony and, case, ute subjected light holding DWI and of our blood-specimen objec complaint collection over his we decline to the State’s review pursuant tion provisions respect in the with to that matter. We affirm Code. In its petition discretionary ruling suppressing the trial re court’s view, the challenges the trial court’s blood-test results. occasions, transported Williams several Background
I. hospital requested him -to a and law undisputed to the Applying qualified technician draw his blood over facts, appeals upheld *of trial the'court objection. re- prepared written Williams sup- granting' the motion to ruling court’s port averring probable had cause he of Villarreal’s test. the results press had committed believe that Villarreal A. The Facts of DWI and based offense Saturday evening in Villarreal One possessed information received reliable for a traffic violation. The was stopped source, pre- from credible had Villarreal Preiss, stop, officer Officer who made placed of or on com- viously been convicted signs of had intox- Villarreal observed supervision on two or munity for DWI officer, ication, another he contacted report occasions. stated more Williams, to a DWI investí1 Officer conduct “invoking authority un- [his] Williams was scene, gation. árrival át Upon Code], Transportation der [Texas Section was ex- Williams observed Villarreal 724.012(b), require suspect to sub- alcohol, sway- uding strong odor taking specimen mit forth, red, watery had ing back Transp. See Tex. suspect’s blood.” Code speech. Williams re- eyes slurred 724.012(b)(3)(B) (statute § providing for perform quested Villarreal standard- mandatory-blood-specimen collection tests, sobriety he ized field but refused. *5 DWI). person twice before convicted intoxicated, was Believing Villarreal qualified The technician drew Villarreal’s suspicion him on Williams arrested blood, which, testing, upon revealed a gave then Villarreal a writ- DWI. Williams of .16 grams blood-alcohol concentration warning requesting that he statutory ten per milliliters of alcohol hundred blood. specimen advising and him blood provide a Proceedings B. The Trial Court that, provide specimen, if a he refused in a admissible may his refusal be subse- his multiple prior Given convictions for prosecution and would result in the quent DWI, for felony Villarreal was indicted suspension denial' license or driver’s motion sup- DWI.1 He filed written days. not than 180 Villarreal re- less press the results his blood test. In his fused. motion, that averred there Villarreal was no taking consent to the of a a’criminal-history check “deemed After revealed specimen.”2 blood trial that had been convicted of The court con- DWI Villarreal 12.42(d), up twenty-five years §§ maximum to a 1. See Tex. Penal sentence 49.04 Code , 49.09(b). 12.42(d). indictment imprisonment. § Villarreal's of life id. See that, alleged on or while about intoxicated operate he did a motor vehi March motion Villarreal's written asserted also place while public cle in intoxicated. The sup- that should the blood-test results be alleged he further that had twice indictment pressed because the officers conducted his of misdemeanor of before convicted been warrant, valid arrest and 'search without “relating oper fenses in and cause; suspicion, probable reasonable or that intoxicated,” ating vehicle while motor required him the officers failed read had twice before been'convicted and he that statutory warnings Transportation DWI, once in felony of 2005, once 724.015; that he did Code Section not volun- being conviction for an with the 2005 test; tarily consent to blood and that the occurred after the 2001 convic offense that authorizing purportedly taking statute On basis of tion final. Villarreal’s became his blood without a warrant should held convictions, felony sought prior the State two unconstitutional. These additional claims punishment range to one car to enhance his suppression hearing. were abandoned at the imprisonment rying term of a minimum hearing, at did evidentiary which other Fourth ducted not-address was witness. Williams sole Williams exceptions. also State asserted that obtained a stated he “could have” McNeely language signifying included warrant, “did but he believed statutori- Supreme. open Court remains to im- mandatory- of the ly light have to” plied-consent laws as alternative to He provision in Code.3 fur- blood-draw warrant. The contended that require ther stated that his decision plurality portion McNeely opinion , solely taking specimen, based on signified appears “there abe differ- statutory not on any authorization and ently-constituted-five-vote block [sic] emergency at the scene the existence open remains to a rule departing modified exigent Aside circumstances. warrant, from the in circum- parties testimony, Williams’s addition- per stances other than se blood-alcohol aEy stipulated “blood was that Villarreal’s exigency.” It that the suggested drawn without his consent without a language Court’s “positive contained refer- warrant.” implied-consent ences” to laws “in no evidence, After the close Villarreal’s way disapproved carefully States’ attorney argued that the Court’s implied tailored consent schemes where v. McNeely recent decision in Missouri only specified and limited situations au- exigent circum held the absence compelled thorized blood draws re- after stances, suspect’s blood fusal,” and when such searches are based without a furthér drawn warrant, hé upon probable causé. argued Constitution over that the federal rides the Texas statute authorizes motion to State’s reconsider addi- mandatory certain situa draw tionally specific arguments, made three McNeely, — tions. See Missouri v. below, fully more discussed , L.Ed.2d 696 — support of its e contention broader *6 Transp. (2013); 724.012(b). § Tex. Cod warrantless, nonconsensual search con- disagreed attorney- The 'that State’s pursuant statutory authority ducted to the McNeely validity of Texas’s affected the in the Transportation Code does not vio- and, mandatory-blood-draw provision (1) late the Fourth Amendment: Courts on a portion based the fact that McNee a uphold should such search under the was a ly plurality opinion, she asserted consent exception require- to warrant the its holding necessarily disap that did ment, appearing in form of the a waiver mandatory prove type statutory of this (2) consent; through implied obtained pursuant implied draw to conducted courts should some other consider whether attorneys’ consent. arguments, After the - exception to the require- search-warrant granted the court Villarreal’s motion. trial might apply, expansion as ment such of the asking The filed a motion Stat'e the trial exception automobile into automobile- ruling. to In court reconsider its mo- its application of exception spe- driver the tion, arguments repeated the State its in- exception; cial-needs courts should terpreting meaning McNeely the the balancing governmental conduct a decision. that McNee- The State asserted private interests and find that a warrant- to ly generally is situations inapplicable suspect’s less of a blood is involving a mandatory -through blood draw generally light in mini- implied reasonable McNeely that consent in ad- only mally intrusive of a blood exigent dressed circumstances nature draw and 724.012(b). § See Tex. Transp. Code yields a to expectation of warrant interest normal public substantial the State’s “highly driving. drunk common concerns inherent protecting against free regulated activity in-which driver argument, In its first the State asse%ted Drivers, it assert ly engage.” chooses implied consent that “a defendant’s valid ed, degree of notice of the lessened are “on prefer- to the warrant exception as an matters concern privacy protection in that defendant, by suggested It ence/’ they on safety roads which (cid:127) driving roadways, Texas drive,” they know “their - should impliedly right, not a has- privilege and without a warrant” blood can be drawn his blood drawn under consented to have specified statute. conditions in the the limited situations described basis, “recog the court to urged On that mandatory-blood-draw provision, and he t’o nize a driver the warrant exception any right complain later waives thus requirement vehicle coextensive conducted.pur- about warrantless exception.” provision. The suant State assert- that, unlike consent traditional ed in the. argument suggested third State’s sense, such. waiver Amend- balancing test that a Fourth Amendment rights applies “in spite.of sus- ment favor warrantless blood draw shduld. the search in pect’s protest at time of intrusion of a blood weighing the minimal question.” State contended .The "public inter- against draw substantial long recognized “Supreme driving. drunk against est in protecting parallel exception excep- consent [to the that, short State contended even form of a prior waiver tion] free-standing the nature rights probable Fourth Amendment exceptions traditional the warrant n cause as a condition for .and warrant requirement, “the courts allow should suspect some benefit to the extended exception” such States to craft mandatory- case of the the State.” based the “sub- statute,, pre- blood-draw “which the'law road public ridding stantial interest read,” driving public sumes to.have drivers,” only a compared of drunk suggested impliedly driver “the “slight” invasion of a agrees exchange of time ahead prick to the skin. through pin a minimal roads, privilege on our he Noting Legislature’s objective willing right to a warrant in waive the law adopting mandatory-blood-draw these limited circumstances.” lives,” applicable this case was “save *7 attorney the observed that Texas State’s argument
The second advocated State’s drunk-driving prob- has worst nation’s of the broadening for the ex the automobile “face a- uniquely lem and dis- its ception to the into an citizens proportionate being or in- or; risk of killed exception, automobile-driver alterna drivers, compared jured by drunk tively, application of special-needs the doc other that, State.” contrast just the.State’s trine. State claimed as .In society’s and curb- of substantial society expectation a lessened priva has ing attorney driving, the drunk State’s cy light “ready in automobiles of their ¡the suspect a a mobility” averred dimin- “pervasive regulation that DWI and light ished in his vehicles,” privacy interest privacy blood expectation a driver’s the implied consent similarly in his the and blood diminished because existence 'Vehicle, highly driving. “just regulated nature As he is as .as his mobile [and] itself, just pervasive nature of intrusion the subject licensure and the regulation^]” suggested attorney prick It a that a argued pin that driver’s State’s 724.012(b)(3). § only In person’s rejecting blood constitutes the State’s take slight of. individual’s. position, appeals the court of determined invasion these, types, (1) because of tests considered notwithstanding the officer’s com- by people. routine most pliance with mandatory-blood-draw provision, the warrantless blood draw asking After filed its-motion the State Fourth.Amendment, this case violated the ruling, its trial to reconsider court mandatory-blood-draw and findings of trial fact court made statute and Villarreal, impliedly was not conclusion of law unconstitutional. denying pertinent part, State’s motion. In the trial .WL at *8-11.
court’s fact findings of determined that Appeals Court Held credibly that Fourth
Officer assessed Williams facts showing that Villarreal was intoxicat- Violation Occurred ed and twice before been convicted had court of appeals addressed the ar DWI; blood was Villarreal’s drawn guments that the presented State had consent;' without a warrant and without trial court of its claim support exigent no circum- there were the warrantless search Villarreal’s blood preventing stances the officer obtain- did violate the Fourth Amendment. single trial warrant.4 The court’s respect With State’s broad claim stated, conclusion of con- law “The Court holding McNeely that the inapplicable was that the blood was cludes Defendant’s ille- to this language case and included signify gally'obtained without a warrant and in ing that open Court was recognized exception' the absence of a to’ as an implied consent laws alternative the warrant requirement, warrant, court appeals disa statutory blood was draw invalid and un- *4, greed. Id. at It observed that exigent constitutional without circum- McNeely, which disavowed a per had se stances to support absence war- ‘ rule exigency for blood draws in DWI rant.” cases; signified that “[w]hether warrant- Appeals Opinion C. The drunk-driving suspéct less' blood test of a After an interlocutory filed is reasonable must be determined case appeal challenging the' trial court’s ruling totality case based circum Villarreal, in' appeals favor of the court of It stances.” at *5. further cited ruling suppressing affirmed the the results “ McNeely proposition ‘where Villarreal, test. blood Tex. police reasonably officers can obtain a war 1257150, *1, App. LEXIS 2014 WL sample rant before can be drawn 11. In its sole issue ón appeal, the State undermining without-significantly the effi trial contended that court erred search, cacy of the the Fourth Amendment granting'Villarreal’s suppress motion to they mandates that Id. at so.’”, do *10 basis the blood draw involun 1561). (quoting McNeely, S.Ct. at tary warrant, without eoriducted addressing first specific State’s “repeat it asserted that pro offender” *8 argument that driver has mandatory-blood-draw vision of a waived the statute right through implied-consent to a warrant could serve basis for upholding valid Transp. laws, appeals initially search. See Tex. the court of deter- Code ’ 4. The remainder trial court's findings [is] of the warrant a violation the 4th Amend ment,” of fact determined that Villarreal narrowed such that he abandoned claim grounds only illegally in his motion to include hi that he was arrested or that the stat s “taking claim that blood draw ute itself was unconstitutional- without re- exceptions nized search-warrant preserve had that failed mined the State it although then argument appeal, implicitly court this Id. *7. The quirement. of that
essentially the merits addressed ex- other rejected application these that, by court argument. The' determined “officer’s ceptions by observing that had blood been stipulating Villarreal’s that getting for not was sole warrant basis consent, the State had drawn without his provision that repeat offender rely could not argument and forfeited that him to mandatory-blood-draw required law exception to on the waiver warrant sample [Villarreal’s] take without a blood stated, appeals court of requirement. The ob- necessity consent and without argues that the extent that State “[T]o *11. a search warrant.” Id. at taining the Fourth was ‘consent’ under there valid , mandatory by the Amendment —whether appeals court also addressed implied or the consent law blood draw specific argument State’s that third- doing so in is from this law—it barred minimal must be intrusion of blood draw stipulation before trial appeal its in against public balanced the substantial cáse was no court that in this ‘[t]here protection against drivers. terest DWI ” consent, *11. no Id. at warrant.’ with that a disagreed It the State’s claims Although it found that had suspicion of has a driver arrested oh regarding argument implied forfeited its expectation of in his lessened consent, appeared to the court address court appeals quoted blood. The indirectly, argument stating, “[T]here that McNeely explaining that language is a distinction between a blood consensual bodily integrity implicates invasion “an involuntary, mandatory and an draw deep- personal most individual’s prem- law is implied draw. The consent *4 expectations privacy.” rooted Id. at contrast, In ised consent. mandato- 1558). S.Ct., at It (quoting McNeely, 133 premised ry law is on refusal blood draw California, also Schmerber cited (citations omitted) at *9 to consent.” Id. Transp. (discussing Tex. Code that, (1966), al for the proposition 724.011(a), 724.012(b)). §§ It further ob- though “the does not forbid Constitution that, although appeared served the State minor the State’s intrusions into an indi legis- argue creates “Chapter body stringently vidual’s limited essentially a statutory lative consent conditions,” way that principle “in no indi Amendment,” waiver permits cates that it in substantial more argument inconsistent the re- trusions, or intrusions under condi other given freely quirement that consent be Although recognized tions.” Id. at *5. voluntarily. (citing Bumper Id. at *10 drunk-driving problem a nation Carolina, North epidemic strong al (1968); State, there Kolb v. L.Ed.2d 797 DWIs, (Tex.Crim.App.1976)). governmental in curbing 532 S.W.2d interest n observation quoted McNeely the -court appeals indirectly rejected The court of general importance gov that “the of the specific argument the State’s second ernment’s in this area does exigent in addition to consent and circum- justify departing from the warrant re stances, recognized there other excep- quirement showing exigent cir without tions to the search-warrant securing cumstances that make could apply case. describ- law, impracticable in a general particular court ease.” observed 1565). “special *4 recog- (quoting McNeely, needs” one 133 S.Ct. at *9 Appeals Transportation Held II. Provisions In 2. Court of Code Constitutionally Form Statute Is Not Do Not Blood-Draw Valid Requirement Unconstitutional Alternative to Warrant ground review, In first its for the State In the trial agreeing addition to appeals contends that court of erred court’s the warrantless conclusion holding provisions that the in the Trans- search blood constituted Villarreal’s portation do Code form a not valid alterna- violation, the court Amendment tive to Fourth Amendment warrant the. constitutionality of appeals considered requirement. why reject To explain wé itself, mandatory-blood-draw statute the State’s implied- contention and it that the statute not determined was and mandatory-blood-dr'aw consent provi- applied” unconstitutional “as Villarreal. sions a constitutionally establish valid basis matter, resolving
Id. at *8. In conducting for search in nonconsensual that, although court observed the Texas warrant, of á absence we review mandatory-blood-draw “required statute (A) applicable statutory (B) law and blood the officer to obtain breath or general Fourth principles, sample, require to do did not the' officer (C) then ,we discuss each the State’s obtaining without so first warrant. particular arguments in turn. fact, pur- or statute does address to dispense with the Fourth Amend- port Transportation Implied- A. Code’s requirement ment’s for warrant blood Mandatory-Blood-Draw Consent light *11. In draws.” its deter- Provisions mination that the statute itself does Because the upon provi rélies dispense with the warrant the Transportation sions in Gode as consti its conclusion the Fourth Amend- tuting wárrant, a valid for a substitute we ment would a warrant require under these begin analysis oúr with a review of those circumstances, upheld court the trial provisions. Transportation Code con ruling court’s suppressing the evidence. provision establishing tains a implied con n
Id.' all sent for drivers suspicion arrested on 724,011. Transp. § See Tex. DWI. Code granted petition
We the State’s dis- states, provision That cretionary contention review address its a, person the court to hold that If appeals erred for an arrested offense pursu- arising
a warrantless draw out of alleged blood conducted acts have been provisions Transportation to the person operat- ant in the committed while was motor place Code violates the Fourth Amendment.5 in a ... vehicle public presents petition grounds The State’s Appeals three 3.' Whether the Court of Thirteenth for review: concluding mandatory erred in that the blood Appeals arresting 1. Whether the Thirteenth Court of draw statute does not allow offi- refusing mandatory erred in to hold that the cer to draw blood without Transpor- blood draw provisions of the circumstances, Texas exigent specifically constitutionally tation alter- Code are a valid whether court failed consider the dis- requirement. native to the warrant statutory between” tinction directive for Appeals Whether the Thirteenth Court arresting require officer to or order the holding stipulation erred that the State’s draw, and the nature of a warrant as an order that there no draw consent issuing magistrate ques- draw “implied amounted to con- a waiver n . . tion. . argument sent’’ or “deemed consent’’ Transportation Code. *10 and, consented, as a of the offense curred result to have person is deemed officer, arrest, time of the reason- chapter, to subject this submit to ably or of the direct result specimens more believes taking of one analysis to or blood person’s breath the accident: concentration or the alcohol
determine die; (A) or any has died will individual of a person’s body in the presence . person than the (B) an individual other substance, drug, dangerous controlled bodily injury; or serious has suffered drug, Orother substance. (C) person an than the individual other 724.011(a).6 M§ Although provision injury been bodily has suffered rule appears to create blanket consent or transported hospital to a other medi- DWI, its for all individuals arrested treatment; facility cal for medical further modified Section terms are (2) ar- which the officer the offense for 724.013, right establishes refuse an under person rests the offense provide or blood sample a breath 49.045, [DWI with Penal Code .Section § routine cases. See id. 724.013. or passenger]; child entitled, on provision, That “Prohibition (3) arrest, at the time of the the officer Refuses; if Taking Ex- Specimen Person possesses or reliable informa- receives that, may ception,” specimen “a provides per- tion from a source credible person not be if a refuses submit taken son: specimen designated by of a taking (A) previously has or been convicted Id. peace right But this officer.” community supervision for an placed (providing id. refusal is not absolute. See 49.045 offense under Section [DWI subject to right exceptions of refusal as- passenger], [intoxication child 49.07 724.012(h)”). provided by “as Section Sec- sault], manslaugh- or 49.08 [intoxication 724.012(b), turn,, tion establishes ter], ...; or Penal Code aggravating factors pres- when certain (B) occasions, two or more been stop, may suspect ent a DWI during or previously placed on convicted of and, to a specimen submit even if refuse supervision community for an offense refuses, required an suspect officer Section 49.04 [misdemeanor under 724.012(b). § Id. specimen. obtain a DWI], intoxicated], [flying 49.05 while provides, That statute intoxicated], [boating 49.06 or while (b) require A peace officer shall the tak- operating 49.065 or an [assembling person’s specimen of a breath intoxicated], amusement ride while Penal any following or of the cir- blood C ode[ . per- if the officer arrests the cumstances 724.012(b). § Chapter son offense under Reading provisions for an these Code, involving operation of a they Penal conjunction, we estab observe ... person statutory motor vehicle and the re- lish a which an indi scheme request to submit to fuses officer’s “ordinary” who is an vidual arrested for specimen voluntarily: of a taking is, not fall DWI —that one that does within (1)the circumstances of of a enumerated operator was the person 724.012(b) right ... motor accident Section absolute vehicle involved —has reasonably provide specimen, notwith- officer oc- refuse believes 724.012(a) peace having grounds § 6. See officer reasonable also Transp. Code Tex. (a) specimens more (providing person: “[o]ne or while intoxicated believe person's if of a breath taken operating public place”). in a a motor vehicle person request arrested and at the *11 standing implied 1. A existence consent. Search a Person Pursuant to a 724.011,724,013; §§ See id. Investigation see also Fien Requires Criminal a State, 328, (Tex.Crim. v. en 390 Recognized S.W.3d 332 Search or Warrant Ex- that, App.2012) (observing notwithstanding ception to a Warrant implied-consent provision, existence of The Fourth provides, Amendment situations, ordinary person DWI “a retains right of people The secure test"). right absolute ... a refuse houses, persons, their papers, and ef- But, if aggravating one circum fects, against unreasonable searches and 724.012(b) stances described Section seizures, violated, shall not be and no then, present, observes, as the issue, Warrants shall but upon probable statutory appears “extinguish” scheme a cause, supported by affirmation, Oath or suspect’s right speci to refuse to submit a particularly describing and place men specified under those circumstances. searched, persons things and the or 724.012(b). § differently, See id. if Stated to be seized. .aggravating one circumstances is U.S. Const. amend. IV. The then, present, statute, pursuant the Fourth touchstone of Amendment if suspect even to comply, refuses — California, reasonableness. v. Riley mandatory officer duty require -, 2473, 2482, U.S. 134 S.Ct. 189 suspect’s blood be Id. drawn. (2014) (quoting Brigham City L.Ed.2d 430 dispute Because the here centers on Stuart, 398, 403, 126 1943, 547 U.S. S.Ct. warrantless, whether ndnconsensual (2006)). 164 650 L.Ed.2d “ of a suspect’s blood conducted ‘[wjhere that, Court has held a search' is pursuant 724.012(b) complies Section by undertaken law enforcement officials to Constitution, with the turn to a we -review of criminal wrongdoing, discover evidence of the relevant Fourth 'princi- Amendment ... generally requires reasonableness ples. obtaining judicial warrant.’” Acton, (quoting Vemonia School Dist. 47J B. Require- Fourth Amendment 646, 653, 2386, U .S. 115 S.Ct. 132 515 ments (1995)); L.Ed.2d 564 see also Arizona v. general, comply Gant, with U.S. Amendment, Fourth person (2009) a search of a (describing “basic “
pursuant (1) .investigation criminal being rule” as ‘searches conducted requires, a search warrant or a recognized judicial outside the process, prior without exception to requirement, the warrant approval by judge magistrate, per (2) must be totality reasonable under the se unreasonable under the Fourth Amend Furthermore, of the circumstances. subject only to a few specifically ment — cases, particular to DWI relevance excep Su- established well-delineated preme tions’”) (citations Court has recognized that omitted). purpose Fourth implicated in that underlying require the search-warrant (3) the suspect’s collection blood in- ment in the context of investiga a criminal interest, vades a is to substantial “ensure[ ] that the inferences to tion. exigent exception to support circumstances search are ‘drawn a neutral -requirement
the search-warrant
is not es-
magistrate
of being
detached
instead
merely by
dissipation
tablished
the natural
judged
engaged
the officer
in the often
explain
alcohol.
competitive
We
each
these re-
enterprise
ferreting
out
”
quirements in
Riley,
more detail below.
crime.’
(quoting
L.Ed.2d 709
may lawfully compel
enforcement officer
suspected
individual
while
Judged
2.
Under
Reásonableness
testing.
intoxicated to submit to blood
Totality of
Circumstances
767-69,
U.S. at
1826. The Court
guidance
precise
“Absent more
“plainly
held that
an intrusion
in-
such
era,
founding
generally
we
deter
broadly
volves the
conceived
reach
exempt
given type
mine
whether
search
seizure under
the Fourth
requirement ‘by
warrant
search from the
Id.
Amendment.”
at
L.Ed.2d 408
arising
ings
emergency,
...
resolving
questions
under the
absent an
no less
such
-Exigent
required
into the
could be
where intrusions
Circumstances Not Estab-
Id.
body
By
human
concerned.”
Dissipation
lished
Mere Natural
to secure
Court stated
the need
McNeely
Alcohol —Missouri v.
from a “neutral
detached
McNeely,
Court ad-
magistrate”
permitting a law-en-
before
question
dressed the
whether the natural
body
officer to
another’s
forcement
“invade
of alcohol in
metabolization
the blood-
guilt
indisputa-
evidence
presented
per
exigency
stream
se
great.”
ble and
own,
.taken on its
to justify
suffice
nevertheless
Schmerber
the warrant
warrantless,
upheld
compelled
testing
for nonconsensual
in all
of Schmerber’s blood as constitutionally
drunk-driving cases. 133 S.Ct.
permissible
exigent
the basis
circum-
McNeely involved an
who
individual
was
770-72,
Id. at
stances.
arrested for
and whose blood
accident,
had
in a car
Schmerber
been
*13
objection
his
drawn over
a
and without
hospital.
was taken to the
ex-
The Court
warrant. Concluding
search
natu-
that the
that,
factors,
light
in
of
the
plained
those
dissipation
ral
alcohol does not consti-
pfficer “might reasonably have believed
per
exigency,
tute
se
the Court held
emergency,
that was
he
confronted'with an
general
with
“consistent
Fourth Amend-
in
obtain a
delay necessary
which the
to
ment principles,
exigency
[
in
]
this context
warrant,
circumstances,
under the
threat-
must
be determined
case
case based
Id.
ened the destruction of
evidence.”
of the
totality
the
Id. at
circumstances.”
explained
that evidence of
crime
Schmerber’s
could
that
significant delay
testing
“a
in
will
been lost
if
been
have
officer had
the
negatively
to
to
required
probative
a warrant
affect the
value
the
seek
draw
results,”
percent-
Schmerber’s blood
“the
because
rejecting
but
that fact
[blood-test]
age
begins
of alcohol in
to,
dimin-
blood
departing
as basis for
from the “careful
shortly
drinking
ish
after
as
stops,
case-by-case
exigency”).
assessment
body functions to eliminate it
Although McNeely
primarily with
dealt
system.”
“[particularly
Id.
It
that
added
circumstances,
exigent
an exception to the
this,
in a case such as
to
where time had
requirement
warrant
not at
issue in
to bring
hospital
taken
to
accused
case,
present
opinion
con-
nevertheless
investigate
and to
of the acci-
scene
general principles
tains
of Fourth Amend-
dent, there
out
was no time to seek
apply
ment
specifically
law that
magistrate
Id. at
a warrant.”
secure
matter of
nonconsensual blood draws
771,
waiver 58-60, 2014 at WL S.W.3d Villarreal (3) exception, special-needs automobile hearing on the at At the *11. (4) exception, the search-incident-to-arrest parties stipulated to suppress, motion or, exception, alternatively, by treating that was without Villarreal’s “blood drawn a blood draw as seizure instead of a It and without warrant.” search; consent each of We consider these conten suppress clear motion to from Villarreal’s and, in finding turn tions them be with arguments presented and the evidence and merit, none of out we hold that these parties’ was hearing that the intent exceptions established warrant re stipulate that was Villarreal’s blood categorically applies quirement except spite provide drawn in his refusal warrantless, nonconsensual testing specimen and the absence a warrant. provisions suspect’s pursuant to parties, stipulated thus factual Transportation in the Code. We also note refusal, but such that, matter Villarreal’s briefly here because the facts stipulation does foreclose the State undisputed questions before and the us are law, raising particular legal argument apply matters of we a de novo. stan State, Furthermore, times, on appeal. dard See Matthews all review. parties 607 (Tex.Crim.App.2014);
431 S.W.3d that record indicates under- case, statutorily be dispute this narrow- allow inspections stood authorized legal ly on whether question activity based -the require would otherwise provi- properly rely could on basis, the -State urges a warrant.” On this the .State Code, including in the Transportation sions that, this to hold light statute, alterna- implied-consent the, implied-consent existence of man- therefore, We, tive to a search warrant.. datory-blood-draw provisions, a driver “im- agree time, assertion State’s pliedly agrees ahead of ex- incorrectly court determined appeals change privilege on our implied-consent that the State its forfeited roads, willing to -right he is to a waive the however, We, argument appeal. need in these limited circumstances. of ap- not remand to the court case behind gets is sealed when he The-deal peals for this ar- further consideration wheel, it can’t when later revoked because, gument despite stating initially he gets caught driving in con- impaired the State had forfeited this argument dition.” then went appeal, appeals the court Although we acknowledge that disapprove on to discuss State’s rights “may Fourth Amendment implied form contention that consent could waived,” States, Zap v. United upholding basis the search valid L.Ed. appeals this case. Because the court (1946), principle inappli we find that to be rejected argu- reviewed the State’s cable As acknowledges, serve as a here. the State implied ment that consent could for upholding valid basis the warrantless a valid waiver of Fourth constitute Amend case, may properly we re- rights through consent, suspect’s ment legal view resolution of court’s consent to search must be vol freely and Tex.R.App. question. (provid- See 66.3 P. Schneckloth, untarily given. 412 U.S. at for this Court’s of decisions of review 2041 (observing consent of appeals). courts voluntarily given in must be that it force, or Implied granted “coerced b. threats Consent Been that Has *15 Voluntary only Withdrawn Is Not to Consent submission claim of lawful authority”); Bumper, see also 391 at U.S. Although recognizes waiv it. that 648, (observing 88 1788 that consent rights through er “freely voluntarily given”). must be and ordinarily to search consent must be care necessary An additional of valid element fully voluntary scrutinized for its and free to or it. ability consent limit revoke character,7 the those State asserts that Jimeno, See Florida 500 U.S. present principles inapplicable are to the 1801, 114 111 S.Ct. L.Ed.2d 297 situation., Instead, “paral it asserts that may “delimit (suspect as. he ch.ooses exception” appliés lel a defendant when consents”); scope to which of the search he previously waived his Fourth Amendr State, 255, (Tex.Crim.App.2012) Miller v. 393 S.W.3d 266 rights receiving in exchange ment some for (stating it is “undis privilege Sug or benefit from the State. “may or puted” that consent be limited
gesting prior-waiver ap that this principle revoked”). The matter of whether consent circumstances, plies present it as to “question is a voluntary fact be that an serts individual DWI suspected totality from the “accept[s] a license to such ac determinéd all drivé and Schneckloth, obligation at ceptance carry with it to' circumstances.” U.S. State, (Tex Bustamonte, U.S. Meekins v. 340 S.W.3d Schneckloth v. (1973); . .Crim.App.2001) consent” supply type' “bare wholly It be less 93 S.Ct. require- uphold the warrant principles to to overcome these needed
inconsistent with Instead, urges us to hold that suspect’s blood ment. has, suspect accepts privilege when a on basis of consent driver who case, has, by and un of his expressly roadways virtue present in the Texas right to submit privilege, lost the equivocally enjoyment refused sup- to submit explicit-refusal implied That search. to later revoke consent testing existence overrides or Transportation Code plied and, consent, unless some oth any implied absence of a warrant. complain about the applies, justification the search for Although suggests er Su- State conducting basis for remains no valid there “long recognized” Court has preme those circum warrantless search excep- waiver as a prior “parallel can serve 548-49, at Bumper, stances. See U.S. exception tion” the consent when (explaining showing 88 S.Ct. or suspect privi- some benefit has received to a claim of acquiescence “no than more of constitu- exchange lege waiver valid constitute authority” lawful cannot rights, tional of no we are aware consent). sug To the the State extent approving cases of this doctrine’s implied-consent that the and manda gests a context similar the one applicability in tory-blood-draw provisions in the Trans today, which with which we are confronted extinguish a categorically portation Code bodily suspect- is a of an individual suspect’s right withdraw consent Furthermore, wrongdoing. of criminal ed aggravating circumstance when some by the upon find that the relied we cases squared present, suggestion cannot “parallel exception” establish for' valid with the distinguishable they because are limit- are purposes, consent Fourth Amendment (i) context, (ii) federal-regulatory ed freely voluntarily given based must be context parolees probationers, circumstances, totality (iii) context, none or non-criminal or must not have revoked withdrawn been implicated here. Compare at time of Tex. the search.
Transp.
724.011, 724.012(b),
§§
Code
Exceptions Applicable
i.
to Federal-
Schneckloth,
Regulatory Context Aré Not
Jimeno,
Analogous
words,
implied
In
consent
other
parallel excep-
such a
asserting that
that has been
revoked
withdrawn
tion to the consent
should be
as a substitute
suspect cannot serve
*16
here,
applied
primarily
the State'relies
voluntary
and
that
the
the free
consent
Zap,
U.S. at
1277. But
S.Ct.
requires.
Fourth Amendment
distinguishable
that
on its facts.
case
Amend-
c. Prior
of Fourth
Waiver
Zap involved
warrantless
the
Rights
Inappli-
ment
in Other Contexts
accounting
States
records
United
Suspects
cable to Criminal
Navy
expressly agreed
contractor who had
permit
terms
such
by the
of his contract to
Recognizing
apparent
inconsistency
inspections, which were
fed-
authorized
law and
implied-consent
between Texas’s
regulation.
Id. The
establishing
for
eral
requirements
volun-
permissi-
search as
upheld
Amend-
tary consent
the Fourth
under
Amendment,
ment,
observ-
urging us to di- ble
forgoes
State
Zap,
gov-
that
“in order
rectly
implied
hold that
consent that
obtain
business,
suspect
specifically agreed
revoked
can neverthe-
been-
ernment’s
records,
thereby
obligation
statutorily
permit inspection”
his
allow
author
in
inspection
those-
ized
waiving
privacy
activity
claim
rec-
that
that would
might
require warrant,”
have had.
ords which he otherwise
otherwise
we do not
Thus,
628,
311,
Id. at
broadly.
S.Ct. 1277.
read Biswell so
See
U.S.
311-12,
primarily
in
fo-
holding
Zap
1593,
Court’s
was
cused on the existence of a
upheld
In that
the Court
agreement
inspection”
business rec-
warrantless search of the business
premises
Zap
fact
had know-
ords and on the
that
federally
of a
licensed firearms dealer
ingly
rights
to a
pursuant
waived his
“busi- pursuant
authorizing
a federal statute
undertaking
government.”
ness
süch
Id.
317,
searches.
ness
1593. Because
“to engage
Biswell
chose
prior
waiver
consent
constitute valid
regulated
this pervasively
business and to
within
premises
to search a business
accept
license,
so
federal'
he
[did]
meaning of the Fourth
See
Amendment.
records,
the knowledge that his business
not,
suggests,
id.
It does
as the State
firearms,
ammunition
subject
bewill
proposition
more
stand for the
generally
inspection.”
to effective
Id. at
government may
that
from' a
exact
1593. The-
Court further noted that
citizen a
waiv-
generalized and irrevocable
Biswell had
received
of all
compilation
rights
er of Fourth
in ex-
governing
obligations
statutes
his
change
enjoyment
everyday
for the
defining
inspector’s
authority
privileges,
such
on the State’s
search,
putting
thus
him'bn actual
notice
roadways.
such a
suggest
Nor does it
that
obligations.
his
Id.
uphold
The Court’s
waiving party
waiver
if
valid
ing of the warrantless
Biswell is
search in
actually
giving
were
unaware
he was
properly
creating a
understood as
limited
up
rights
exchange
privi-
for some
Furthermore,
lege.
we note
applies
premises
searches
business
search in
was a
of “accounts
Zap
historically “pervasively regulated indus
search,
bodily
and records” and was not a
tries,” for
privacy
which
the “threat
[is]
necessarily implicates
greater
impressive
not of
.dimensions[.]”
personal privacy
more
than the
interest
1593;
see also New
York
dealings.
has in his
one
business
Burger,
See id. at
Similarly, although contends premises” significantly less than “ex opinion Court’s Unit- home”). We, pectation ed States Biswell establishes “ac- individual’s therefore, disagree perva- sug in a State’s ceptance engage of a license to with the *17 gestion sively regulated activity may carry meaning with it that the of Biswell can be (2) quired kept any regulation to be ... firearms or 8. The at issue in authorized and Biswell kept premises. during ammunition or entry official hours into the stored” on business 311, Biswell, 311-12, premises any United "of ... States v. 406 U.S. firearms or ammunition . 1593, (1972) (citing inspecting 92 S.Ct. 32 purpose dealer .. of or L.Ed.2d 87 18 for 923(g)). § examining any re U.S.C. records or documents 802 balancing See test. of a Fourth Amendment apply bodily search
expanded to 118, Knights, 122 driver, U.S. at S.Ct. 587 acceptance of his 534 by virtue simply upholding search (stating that rationale for constructive of a driver’s license and mere prior most, on waiver of solely was not based knowledge, of -the terms at rights, in the basis was rooted but mandatory-blood-draw statutes. rather . our general engaging in search was “reasonable under assertion that
State’s
that the
activity
licensing general
approach
Fourth
subject to
Amendment
any regulated
'of
circum
‘examining
totality
inspection
non-
requirements,, even
”
ones,
stances,’
Knights’s
subjects
including
“significant
participants to
commercial
privacy)
ly
expectation
Fourth
diminished”
implied waiver
an irrevocable
Robinette,
33, 39,
(quoting
519
in
Ohio
rights
their bod-
U.S.
Amendment
417,
(1996));
in, that
117
stand that he “[s]ubmit for the residence, person, 'property, vehi granting privi place ment condition the cle, time, effects, any upon personal of a constitutional lege the waiver search warrant”); right, with or apply but instead arfe instructive without search Sam son, general ing Amendment balanc contexts, (observing parolees iñ applies test that limited California must “agree opinion. writing subject or
we discuss later The Su to be day night, preme expressly Knights seizure ... at or stated time warrant”). with without a resting and Samson was not its holding cases on a consent situation those cases is further distin those ratio nale, applying general guishable presently be- but rather the situation *18 Court, implied in that holding which involves an case fore this existence of pur tutelary rights responsi- of Fourth Amendment schools’ “custodial and waiver does, children,” bility minimally statutory not suant scheme Invasive to..a requir urinalysis, nature of students’ expressly address the limited - Transp. public-school interest in a environ- ement See Code Tex. 830, 724.012(b), at 724.011(a),
§§
ment.
804 172013-01145-CCA, that conclu-
Wells,
ry scheme
reached
same
2014 WL
have
No.
sion.12
Oct.
(Tenn.Crim.App.
at *13
2014)
privilege
that
(holding
“the
(slip.op.)
Byars,
Supreme Court
(cid:127)In
the Nevada
alone
consent
create
does
con
argument
“that
rejected
State’s
draw”;
is
such a search
blood
for a forcible
solely on
defen
sent
is valid based
[the
performed pursuant
unless
“not reasonable
to drive on Nevada’s
decision
dant’s]
an
to the
exception
to
or
to warrant
roads,”
argument
“pro
describing that
as
con
implied
“[t]he
requirement”;
the statute makes
blematic because
itself,
not,
such
create
law does
sent
at 945.
consent
336 P.3d
irrevocable.”
Fierro,
v.
N.W.2d
exception”);11 State
853
Wulff,
Court
the Idaho
And
(S.D.2014) (implied-consent stat
235, McNeely,
that,
im
that state’s
held
after
excep
constitute stand-alone
ute did.not
“accept
was not an
plied-consent statute
v.
requirement);
tion to warrant
conducting
able” basis
Butler,
84,302
Ariz.
P.3d
23
exception
blood draws
consent
independent of im
(2013) (holding
per se
“operaté[d]
as a
because
statute
statute, Fourth Amendment
plied-consent
exception
requirement,”
the warrant
to be volun
requires
consent
an arrestee’s
“repeatedly
which
Court had
draw).
See
blood
McNeely.
tary
justify
a warrantless
expressed disapproval”
Furthermore,
almost all
court
Wulff,
observe that
we
337 P.3d
580. The Wulff
is
appeals
have con
observed that
consent
valid
the Texas courts
whether
that
challenges to
statuto-
made
on the
Texas’s
determination to be
based
sidered such
"any person who
is in actual
when "law
has
'reasonable
drives or
enforcement
highway
physical
grounds
person
of a vehicle on
control
that the
was driv
believe’
public
premises
which
or on
ing under
or
committed
the influence
had
given
his or
access shall be deemed
have
homicide,
assault,
ag
or
vehicular
vehicular
evidentiary
his or
to an
test of
her consent
gravated
proximate
vehicular homicide as a
urine,
blood,
bodily
breath or other
her
Wells,
No.
.result
intoxication.” State v.
officer
polite
if a
has reasonable
substance"
172013-01145-CCA,
WL
person
grounds
believe that
was driv-
6, 2014)
op.)
(slip,
(Tenn.Crim.App.
*13
Oct.
ing
physical
of a vehicle
or in actual
control
(2012)).
55-10-406(a)(1)
(citing
§
T.C.A.
or a
of alcohol
while under
influence
implied-consent
Tennessee’s
is similar to
law
engaging in
controlled substance
was
permits
law
it
a nonconsensual
Texas's
in that
prohibited by
stat-
other conduct
certain
probable
blood draw
cause to
when there
utes.
If
driver does
submit to
test
aggravating
believe that
some
circumstance
police officer has
and'
reasonable
.the
present, such
the fact that the intoxicated
as
person
un-
grounds
believe that
to.
person bodily inju
driver has
another
caused
der
influence of alcohol or a controlled
ry
Compare
or death.
id. to Tex.
Transp.
Code
engaging
specified
substance or
conduct,
other
724.011(b).
§
"the officer
rea-
direct
neces-
be used
the extent
sonable .force
See,
Anderson,
e.g.,
As an alternative to warrantless, given the context. The priate, nonconsensual blood test provisions Transpor- in the Court has made clear in the context It investigation, and 1966-68.13- emphasized of an 'active criminal at the col- primary goal law-enforcement when the lection DNA from arrestees was reason- evidence, activity gathering light able in of the fact that the “arrestee person search of a is unrea already police custody valid for a it falls an established sonable unless -within serious by offense supported probable requirement. the warrant Furthermore, cause.” Id. at 1970. it ob- (warrant- McNeely, at 1558 See that the mandatory served “DNA collec- person less search is reasonable not subject tion is judgment only recognized, excep if it falls within officers whose col- might be perspective (“[w]here tion); Riley, at 2482 primary ored their in the involvement by law search is undertaken enforcement competitive enterprise often of ferreting officials to discover evidence criminal crime,” out and it note of the stan- took ng, wrongdoi generally reasonableness dardized nature tests regu- and. judicial of a requires obtaining war lations authorized them. Id. The warrant, rant”; the absence “[i]n Court went on to observe that purpose if only within a reasonable falls of the DNA collection was to allow law specific exception require to the warrant enforcement, officers, “in a safe and accu- Skinner, ment”); way[,] process identify rate (in cases, S.Ct. 1402 criminal we “most person possessions they must take proce strike this balance in favor of the into custody.” procedures Id. Such were dures described the Warrant Clause reasonable, justified thus in large part, Amendment”; “[e]xcept the Fourth in cer they because were upon not based an indi- circumstances, tain well-defined a search suspicion of wrongdo- vidualized criminal case is not rea [a criminal] seizure ing, which would trigger the need.for accomplished unless it is pursuant sonable interposition of a magistrate be- neutral judicial upon probable to a warrant issued tween citizen the law enforcement and. cause”). disregard We well- decline to officer, part but rather were of the routine principle established in favor of a more administrative procedures police generalized balancing-of-interests test. *24 guaranteed that station enforcement’s law seeking In of viability establish the ability to identify keep track of arres- here, balancing pri- test the State relies (“In tees. See id. at the balance marily upon the set forth in Ma- standard required by reasonableness the ryland King, in v. which the Amendment, therefore, Court must the Court upheld the warrantless collection give, great weight significant both the felony part DNA from arrestees as government interest at stake in identi- booking for of- procedure routine serious fication arrestees to the unmatched King, up- fenses. at In 1970. potential of DNA to serve identification holding King, search in interest.”). that into Court took consideration the limited respect governmental inter- circumstances With under arrestees’ stake, King great DNA would be Id. est at Court collected utilized. the. went to him; sample samples immediately 13. The Court observed that a DNA and that would be destroyed judicial if only would be collected from an individual officer determined that charged- probable burglary; with a violence or there was no crime of cause to detain the (cid:127) sample processed qualifying for if that the would not be or arrestee offense or ultimately placed in a had arrest database until the individual did result a convic — -, arraigned judicial Maryland, King, been and a officer had veri- tion. U.S. (2013). probable there fied that was cause to detain 186 L.Ed.2d jected only a “minimal clarify intrusion[]” that the DNA informa lengths to at being tion collected from swab. Id. arrestees the form of a mouth buccal gathering evi primary purpose for sought But it establish further them, for the against but rather was dence acceptable “solely all searches are not that of in purpose of routine identification custody.” Id. at person because a is in (discussing 1977-78 mates. Id. at involving weightier In situations “legitimate government’s interest” iden intrusions, privacy greater concerns stating col tifying DNA inmates that acknowledged that such a search nev- no more lection “is than extension (observ- Id. ertheless warrant. require long in deal identification used methods “privacy-related concerns ing that where arrest”). And, persons with al “may weighty enough,” require though disagreed that four dissenters with warrant, notwithstanding the diminished assessment, that fact formed for thé basis arrestee”). privacy of the expectations of normal departure the Court’s from the id. case. See King Although the State'contends King, police at 1980. where used Unlike broadly permits 'a court to con- reviewing rou application no in the discretion weighing for competing duct interests process, primary tine-identification purpose determining reasonable- present the search in the case purpose of search, investigative we dis- ness investigation of a crime on a based agree reading King. with this broad determination discretionary a law-en- King DNA search at issue involved the probable forcement officer that there is minimally intrusive, non-discretionary cause id. at intoxication. See 1969-1970 already search of individuals who were (“The a warrant perhaps least need being subjected booking proce- to routine no when search involves discretion fact, iight dures. of that the Court ‘inter- properly could limited concluded “the intrusion additional magistrate pellation a neutral between of] upon beyond privacy” arrestee’s offi and the law enforcement citizen already booking nature of other intrusive cer.’”) Treasury (quoting Employees procedures was minimal. Raab, Von (1989)). contrast, here, By puncturing L.Ed.2d 685 decline We balancing approach to hold taken skin a substantial constitutes intrusion be- Kingis in this context.14 appropriate yond what a DWI would other- arrestee King experience. wise And rec- Court respect observe We further ognized that is a “far a. swab stake, buccal more King process” gentle venipuncture than to draw detainee a “reduced noted *25 sub- privacy” and blood. Id. at 1968. expectation of would light totality recently one We author has inter the circumstances in note that case," every empower being "broadly as King consistent nor does it courts to preted consider, leaving example, spe nature of with" "intact” the traditional for “the seeking' requires cific [law enforcement] framework that crime are Amendment to deciding particular applicability or solve in a either a warrant whether war- re rantless ... an established to warrant is constitutional.” Id. at that, Kaye Kaye, Why quirement. "[h]ad H. So Contrived? n. 167. further notes See David Balancing, majority Per Se wished discard [tradition to Four th.Amendment manner, Rules, Maryland al] in this wholesale DNA Databases framework After together King, L. cobble Criminology & not have needed a 104 J.Crim. (2014). King purely set of Kaye "does detention-related state observes that interests." weigh in initio liberate courts to ab interests
Moreover, accept generally if we were to rantless is outweighed even searches viability balancing by of Fourth Amendment a privacy individual’s substantial inter- for test here as the estab a substitute est here. require exceptions lished the warrant It is suggested by dissenting opin ment, balance, we would conclude ions that Fourth Amendment' balancing a. interest suspect’s privacy out applied test in properly be these cir in
weighs interest preventing State’s Balancing cumstances. the interests in through drunk case, dissenting this opinions'conclude McNeely the princi searches. reaffirmed warrantless,'' nonconsensual blood ple physical compelled that a intrusion be draw pursuant provisions in conducted neath the skin evidence obtain the Transportation upheld Code should be investigation implicates significant criminal as generally light Legislature’s reasonable interests, this privacy interest to except clem such int ent is not automatically simply diminished be requirement; search from the warrant suspected cause an individual seri -repeat-offenders statute’s clear notice McNeely, ous DWI offense. they to a subject mandatory rejected McNeely gov further search; and the similarities between this curbing ernment’s interest drunk driv involving situation and situations constitu departing as a from valid basis tionally permissible warrantless searches exceptions traditional the warrant re probationers, parolees, and arrestees. quirement, general that “the stating im disagree We these considerations portance government’s interest present a justification departing valid this area'does not justify departing from the 'Fourth traditional warrant without a show requires framework that either a warrant ing” exception, that some such established ' or And, applicable exception. as exigency, Id. at 1565. applies. although acknowledge magnitude we Specifically, respect -the the drunk driving problem Texas and has; Legislature clearly contention government’s legitimate and substan excep its desire to create a new indicated curbing tial problem, we tion to requirement, the warrant we ob see no compelling part need of law statutory language serve that the itself is to solve enforcement to undertake silent a law-enforcement whether warrantless, problem through noriconsen conducting officer mandatory, noncon- sual suspects’ searches of blood. This is suspect’s sensual search of DWI blood particularly light so in of the fact that required to first seek a warrant. See testing
warrants for such blood are often Tex, Trantsp. 724.012(b) § (stating, that a Code readily available, thereby providing the peace taking, officer “shall require the justification that a “traditional warrant specimen” of suspect’s breath if provides.” (citing Id. at 1559 Atwater v. one aggravating circum enumerated Vista, Lago n. present, making stances no. refer but (2001)); see re Fourth Amendment ence Skinner, also event, quirement). .it is unclear 1402 (noting that a “warrant . assures'the *26 why Legislature’s in enacting intent citizen that the intrusion is authorized mandatory-blood-draw law, .statute should narrowly and that it is limited in its analysis. dispositive Legis be of our objectives The marginal The scope”). and ben . “may. guaranteed rights to lature combating
efit
law
Tex
restrict
enforcement
provisions.”
as’s
drunk-driving problem through war-
set out
Venn
constitutional
warrantless,
to conduct
nonconsensu-
State,
1060 sible
Tex.Crim.
S.W.
probationers.
al
(1920).
mandatory-
parolees
of
and
searches
To
extent
interpreted
Knights,
be
as
at
See
blood-draw statute
587; Samson,
search that
U.S. at
126 S.Ct.
authorizing
warrantless
2193;
rights
Griffin,
a defendant’s
under
ty. suspects have DWI dis 1611). at 105 S.Ct. principles These charged their their earlier sentences from McNeely recognition of the sub —the DWI enjoy liberty convictions absolute stantial at interests stake and prior from their convictions and have no applicability of the traditional Fourth ongoing relationship supervisory with Amendment requires framework that ei or parole probation greater officer. “To a ther a applicable warrant or an excep always degree, proba or lesser true of apply with equal force to this case. tion— (as tioners we have said be true of provisions We hold that in the enjoy parolees) they ‘the do abso not, Transportation do Code taken liberty every lute to which citizen is enti themselves, form a constitutionally valid tled, only liberty prop but ... conditional y alternative to the Fourth Amendment war- dependent special on observance erl requirement. rant reject We thus Griffin, [probation] restrictions.” warrantless, that a State’s assertion non- Furthermore, at pursuant consensual blood draw conducted probation situation faced and parolees provisions to those can fall under one of supervisory is “an ers relation ongoing exceptions the established not, ship or one that is at least not —and above, and described we fur- entirely, object adversarial —between reject suggestion ther the State’s that such search and the decisionmaker.” Id. general upheld at view balancing test. We holdings in.Knights basis the Court’s ground. first overrule the State’s Samson, and we conclude there no comparison rational between .reduced Constitutionality IV. liberty parolees probation interests Blood-Draw Statute ers, liberty who only have conditional ground The State’s third asks this Court supervisory relationship a law-en review Thirteenth Court “[w]hether officer, repeat-offender forcement , Appeals concluding erred in suspects, fully discharged who have mandatory statute does not [blood] draw their earlier who have sentences and abso allow arresting officer to draw blood ongoing liberty supervisory lute and no exigent without a search warrant cir- relationship. Knights, See U.S. cumstances, specifically[,] whether 587; (observing light court the distinction failed to status, consider be- “significantly Knights had di statutory tween the directive the ar- expectation privacy); minished” Sam son, resting require or order S.Ct. 2193. officer *28 chal
draw,, as an Villarreal’s constitutional the nature of a warrant however, at tri the magistrate lenge, for the was abandoned issuing order of the written motion al-court Villarreal’s The essence the level. question.” draw in stated, to the defendant’s complaint interpreting suppress “[I]f State’s authority under of a during course blood was the statutory language the taken the statute, un the statute should the statute was con deemed analyzing whether Later, however, Villarreal, Villarreal to the applied” stitutional “as constitutional.” complaint. nar determining Villarreal appeals that abandoned that court of erred his to suppress the of motion plain language the did not rowed focus statute mandatory question of whether the an offi to the dispense with the that See without a warrant conducted cer a search warrant. blood draw seek obtain Villarreal, particular this case violated Fourth 2014 WL 476 S.W.3d the trial court’s find (observing *11 “literal Amendment. And ings specifically determined text” “does not address fact of Section 724.012 grounds in his narrowed the dispense” to with the warrant Villarreal had purport only Fourth requirement). Having already motion address Amend determined court’s rights ment violation. The trial second that Villarreal’s Fourth stated, finding “The Court finds that were his blood was dráwn fact violated when focus light of of his a his refusal narrowed the without' warrant in Defendant motion, specimen, any as the basis taking represented submit to the of á sole motion, ‘taking statutory analysis of such his claim that further whether viola purports law itself blood draw warrant mandatory-blood-draw [is] without ” We, tion of authorize such a warrantless search the 4th Amendment.’ there fore, unnecessary ground this Fourth third resolve sustain State’s ' of appeals Amendment issue. The remainder extent that the court erred challenge respect constitutionality by addressing with the mean State’s statutory language pertains to implied-consent because Villarreal statute of appeals challenge the court his conclusion abandoned constitutional court, the statute was not' unconstitutional.15 the trial appeals capabilities by providing cited The court this-Court’s de a framework for proposition cision Beeman v. drawing suspects’ State in the absence blood DWI constitutionality repeat "the of gives It officers an a search warrant. provision mandatory-blood-draw fender investigative weapon in additional their arse- previously recog law on the must based nal, enabling blood in them draw certain exceptions nized to the Fourth Amendment's limited circumstances even without a search Villarreal, requirement.” warrant See State v. im- warrant." Id. observed that Beeman also 13-13-00253-CR, No. S.W.3d police plied-consent give laws do not officers 2014) (Tex.App Corpus WL 1257150 Christi — anything than [what] Constitution "more v. State, (citing Beerhan S.W.3d gives holding already at 616. The them." Id. case, (Tex.Crim.App.2002)). In that his after Beeman, officer obtain was, pursuant blood drawn to a war implied search warrant even where consent rant, argued that the State no Beeman had involuntary blood statutes would authorize an right to obtain search warrant draw law, draw, good id. See But be- remains light implied-consent blood in laws for McNeely, cause it before was decided Beaman deciding cases. respect instant limited value :may properly seek to collect person's question Amend- whether specimen regardless suspect’s re rights ment when his blood is are violated specimen implied- fusal to submit a laws, stated, objection pursuant im- drawn over his implied consent "The expands plied-consent consent law State’s search statute. In King, Conclusion
V. Court relied in *29 part on an expectation arrestee’s reduced of We a nonconsensual search hold that of the arrestee “already where was suspect’s pursuant conducted valid,police in custody for a serious offense implied- mandatory-blood-draw supported by probable cause.”4 The provisions Transportation consent in the by analyzed search was to “rea- reference Code, when in absence undertaken of sonableness, not suspicion.”5 individualized exception to any applicable warrant or Reasonableness is weighing determined requirement, warrant violates the Fourth “ promotion legitimate ‘the governmen- judgment affirm the Amendment. We against tal degree interests’ ‘the to which appeals suppressing the court of the blood- upon [the search] intrudes an individual’s test basis of a Fourth results on the ”6 privacy:’ The fact the biiccal swab Amendment violation. minimally weighed intrusive heavily in the Court’s decision.7 KELLER, dissenting P.J., filed J., which'HERVEY,
opinion
joined.'
in
present
The
case was
more
King,
intrusive than
the search
but ap-
MEYERS, J.,
dissenting
opinion.
filed
pellee
simply
was more than
an “arrestee.”
KEASLER, J., dissented.
prior
He had
least two
convictions
DWI,
precise
and that is the
reason that
KELLER,
J.,
dissenting
P.
filed
subject
he was
to the mandatory-blood-
HERVEY, J.,
opinion
joined.
in which
prior
draw statute. The fact
convic-
Court has created a con-
put
tions is what
this case
King
between
exceptions
tinuum
re-
Knights.
quirement
analysis
that inform the
in the
(1)
present
subject
Knights,
case.
are
In
Parolees
Court consid-
warrantless,
suspicionless,
“totality
intrusive
ered
the circumstances” to
(2)
subject
are
decide
searches.1
whether the warrantless search of
Probationers
probationer’s apartment
intrusive searches if
there is
violated the Con-
they
Among
things,
stitution.8
other
suspicion
reasonable
believe
have
the Court
(3) People
.high
took into
committed an
arrest-
account
recidivism
offense.2
rate
probable
probationers.9
provision
ed on
cause for serious offenses
relevant
subject
requires
just
warrantless searches
statute
Texas
recidivism,
possibility
collection
from a buccal
I
but
of DNA
swab.3
recidivism
fact,
person
it
requires
believe that
in this
falls
in that
the search
case
have
probation
categories
placed
between the
been convicted
second and
third
dissent,
prior
I
two
respectfully
cases.
And
DWI cases.
the offense
843,
1.
5.
California,
Samson
Id.
v.
U.S.
L.Ed,2d
(search
pocket).
shirt
Wyoming Houghton,
6.
v.
(quoting
Id.
526 U.S.
119 S.Ct.
which the does Knights, recognized exceptions war- current an intoxication offense. «said, I requirement. disagree rant do not ap- State’s] interest “[The believe, however, law, do, I criminal this conclusion.
prehending violators Legislature victims of that the to create thereby protecting potential intended justifi- the warrant enterprise, exception criminal therefore new statute, way ably probationers in a with this focus ordinary citizen.”-10
does not on constitutional. *30 724.012(b)(3)(B) down to a that an question boils Section states The whether taking speci- a person prior require two DWI convictions is officer “shall if enough probationer person’s a that the men of the breath or blood” similar allows- a officer an for totality circumstances has individual under arrest other cir- not be allowed for.some- an intoxication some that would offense exists, one without that criminal record. cumstance such- as individual Before.
King, posi- driving been a difficult two for having prior that have convictions would tion The majority to defend. Now while intoxicated. holds that fact type held that the mere that a when this of search blood has a person nonconsensually is a arrested for serious offense without war- occurs warrantless, standardized, rant, case, justifies a mini- in this it is as not constitutional. search, However,
mally appears intrusive even outside there be the circumstances permits room provision, for a statute a warrant- this who obtain listed in officers less, standardized, more a intrusive warrant are to take .search allowed blood has any who person samples a arrested two breath from arrest- individual prior driving convictions for DWI. If ed for this is while intoxicated. case, permitted in then existence of the Fourth The touchstone Amend- provision purpose of this would no have
ment Under the totali- is reasonableness. it is to allow for unless meant unwarranted circumstances, ty what happened searches specific instances listed. this does not me case strike as unreason- majority’s pro- conclusion renders Therefore, respectfully able. I dissent. Further, if vision a unnecessary. warrant MEYERS, J., required, wording is of. the statute dissenting opinion. filed stating get a speci- the officer “shall” it is While well settled the Fourth' place men would officer in violation of ordinarily require will war magistrate sign refuses law.if rant search or seizure conducted warrant, the officer officer’s since State, it is also settled well there obtaining prevented speci- would multiple exceptions this warrant men. See, requirement. Carroll v. United e.g., States, provision 69 L.Ed. upheld This should be as an (1925); Railway Skinner v. Labor Ex exception requirement to the warrant be- Ass’n, the search is not ecutives’ cause an unreasonable Here, (1989). put one 103 L.Ed.2d and because individuals are majority mandatory they that the expect clear notice that can some concluded police intrusion specific draw outlined Section under these cir- 724.012(b)(3)(B) Transporta- far Texas cumstances.1 This statute clearer 10. specific circumstances oc- we. refer ito at. prior two cur when an individual with least already intoxication offense convictions has I judicially exceptions than created Because believe that it clear that the exigent such as requirement, Legislature the 'warrant wanted to create circumstances, objectively de- which is requirement that warrant ob- This provision fined a written statute. before taking specimen tained from an legislatively and is codified was created under arrest for individual while There- Transportation the Texas Code. in specific, intoxicated circum- limited fore, to have knowl- drivers are deemed stances, I disagree majority’s con- with the edge of it and have notice such I clusion. would hold that Section cir- required specific search is under these 724.012(b)(3)(B) contains a constitutional Although exactly this is not cumstances. exception to the probation where the same term overturn the decision of court of into a required defendant breathe appeals. Therefore, I respectfully dissent. content device that measures blood alcohol car, if starting Legislature before OPINION passed requiring a statute defendants *31 Per curiam. their use a device continue to such after
probationary period I cer- expired, would Having granted State’s for motion pass tainly think that constitutional rehearing case, in this 'and consid- having muster. The current situation is the same merits, its ered we now that the conclude thing as to contin- requiring sex offenders motion State’s was improvidently granted. register long ue to with after deny rehearing. We motion for State’s or punishment probation expired. their No further for will rehearing motions Here, telling essentially we are defendants entertained. that after their conviction of driv- second intoxicated, they to while must submit MEYERS, J., a concurring opinion. ffled search, warrant, even if arrest- without a RICHARDSON, J„ concurring filed an again. ed such offense opinion. . Further, 724.012(b)(3)(B) lim- Section scope, NEWELL, J;, only ited to applying individuals concurring filed n. (not with ar- prior two convictions mere opinio rests) driving It is while intoxicated. KEASLÉR, J., a dissenting opinion filed an overreaching applica- statute HERVEY, J., joined. in which average only ble to the as it driver affects repeat the individuals who offenders YEARY, J., dissenting filed a opinion well legal and are aware of the conse- KELLER, F.J., joined. intoxicated, but
quences driving while yet have another intoxi- been arrested OPINION THE CONCURRING TO cation offense. a special The State has DENIAL OF STATE’S MOTION dangerous in- prosecuting these FOR REHEARING protect public in order to dividuals MEYERS, J., opinion, a concurring filed roads, repeat keeping off the offenders case, I original opinion In the in this had Legislature provision enacted that I indicating authored a dissent provide re- thought Legislature quirement such a had created these instances where danger special present. exception- the warrant suspicion been arrested on of a third intoxi- cation offense. can- only past convictions. You based Transportation Code Section
Texas past in- presumption that a 724.012(b)(3)(B). I not make the While do believe in other sec to an Legislature did consent toxication offense indicates is what the statute, mandatory:blood-draw tions blood draw. unwarranted happened that is what longer I think no reásons, join I foregoing For the examining, specific section we are with the motion denying the State’s opinion Court’s conv intoxication-offense prior related for rehearing. ns. ictio did in Section Legislature All CONCURRING OPINION 724.012(b)(3)(B) the criteria was establish RICHARDSON, J., concurring filed was that an. felt individual that it indicated opinion. waiving to or implied consent giving to a blood right object join deny I in the Court’s decision that the crite- I do not believe draw. now rehearing. year, motion for Last State’s prior the statute-two convic- ria outlined decide whether this Court asked sufficient of an offense-is tions intoxication warrantless, drawing nonconsensual there was a waiver establish Villarreal, David arrested consent, evidence additional absent intoxicated, suspicion while con consent to this showing individual’s pursuant implied-consent ducted n particular blood-draw. (Section 724.011(a)) mandatory-blood- pleads guilty, we have When defendant (Section 724.012(b)) provisions draw criteria and well-established admonish- *32 Code, Transportation Texas violated make in that court must order ments of the Fourth Amendment United States jury a for waiver of trial to the defendant's opinion 2014 Constitution. The Court’s knowing voluntary. and It be considered blood, drawing held that the of Villarreal’s significant in such should not be different warrant, without a undertaken waiving right his way when'an individual any applicable, recognized absence of ex bodily or blood to refuse a draw. ception requirement, tó was a thé warrant rights. Both are basic constitutional person of his violation today My analysis somewhat differs Villarreal, Fourth State v. Amendment. original majority opinion PD-0306-14, No. 2014 WL 475 S.W.3d case, “a pro- that statute indicated agree I (Tex.Crim.App.2014). implied for can-
viding
consent
irrevocable
with that decision.
-voluntary
supply
type
consent
not
person is
search of a
The warrantless
necessary
exception
to the
to establish
recog
only
reasonable
if it falls within a
I
requirement.”
Fourth Amendment
Fourth
exception
nized
Amendment.
point out
unlike
some
McNeely,
v.
S.Ct.
Missouri
examined, here,
majority
original
cases the
(2013) (holding
natural
metabo-
cri-
Legislature provided
additional
for
lization of alcohol in the bloodstream
before the blood draw
teria
must exist
circumstance); Riley
exigent
not
per
se
provision
required.
-It is not a blanket
—
-,
California,
v.
U.S.
done
that mandates blood draws be
across
2482,189
(2014) (“In
board,
on the
that an
sole basis
individ-
warrant,
absence .of a
a search
reason
roadways.
driving
ual was
Texas
excep
however,
only
specific
able
if it falls within
permis-
it is
Regardless,
still
Pay
requirement.”);
tion to the warrant
provide
sible
the statute to
York,
ton
knowing consent or waiver
v. New
U.S.
individual’s
(1930) (War
case,
1371,
delineated
the warrantless blood
but
Leon,
sumption);
States v.
United
“invoking-
instead stated
he was
[his]
897, 960-61, 104
ing) course, repeatedly held suspect taking speci submit are presump Villarreal, searches suspect’s ofmen blood.” - unreasonable, tively and that there are PD-0306-14, 475 S.W.3d No. only carefully exceptions a few delineated (Tex.Crim. *2 WL As presumption.”). recently that basic App.2014). our opinion, 2014 Villarreal Court as June of held recognized the Court discussed each ex Patel, City Angeles in- Los ception to the warrant requirement and (2015),that evaluated whether -the facts of this case fit ' protects [t]he “[t]he They one them. don’t.- The right of people be secure their Supreme recognize does a de persons, houses, effects, papers, and as a repeat fendant’s status DWI offender against unreasonable searches sei separate exception constituting 'provides zures.” It further that “no warrant requirement falling or as within issue, upon probable Warrants shall but already recognized one exceptions to Based cause.” this constitutional on. requirement. the warrant text, -repeatedly the Court held that question It is without needs of judicial “searches outside the conducted in putting stop law enforcement to re process, prior without .approval [a] peated instances drunk are cer judge or magistrate [judge], per [a] tainly It compelling. makes sense that se only ... subject to a unreasonable offender, when repeat DWI such as specifically few established well-de Villarreal, David is once again arrested Gant, exceptions.” lineated Arizona v. *33 intoxicated, suspicion driving while he 332, 338, 556 U.S. 129 S.Ct. 173 significantly should expec have a lessened (2009) (quoting 485 Katz v. L.Ed.2d tation that make a war- privacy States, 347, 357, United 88 draw, rantless under circum those (1967)) 507, 19 S.Ct. L.Ed.2d 576 . stances, person. a search reasonable of his facial, Although- challenge Patel a involved Howevér, And, is not that the law. irre municipal a City Angeles of Los ordi- spective of I that such whether believe nance, opinion it clear a makes that certainly seemed rea give validity statute cannot to searches’ and circumstances, sonable under those since if seizures that fall outside of Fourth recog not within exception does fall or a recognized exception Amendment Court, Supreme nized it was an thereto. it is war- Because clear unlawful search. ... rantless in this case not blood draw does ’ Therefore; 1 believe that’ our recognized exception do fall within a Legislature has created Section I warrant do believe that requirement, 724.012(b)(3)(B), create, or even could ability this find Court has such a Amend- theory statutory exception based Fourth solely valid on the .join I requirement. was reasonable ment’s because Villarreal I majority was a -believe Court’s repeat DWI offender. because 820 exceptions.” and Supreme well-delineated properly follows
2014 decision Califor 565, 580, Acevedo, 111 nia 500 v. U.S. precedent. Court (1991).2 ex 619 These L.Ed.2d OPINION CONCURRING ceptions by engag have been established legitimate balancing in a test which NEWELL, concurring opinion. J. filed weighed against government interests are involving the Fourth any case of privacy. expectation individual’s Amendment, exceptions I believe See, State, 221 v. e.g. Gutierrez S.W.3d should care the warrant However, (Tex.Crim.App.2007). only extended based fully considered Court, in con United States analysis. And proper reasonableness repeatedly ducting inquiry, has cau recognize new if we are to “[tjhere is no formula tioned requirement, should not we the warrant Each determination of reasonableness. - totality-of-the-exceptions ap employ a own facts and case is be decided its among qualities proach picks desired while, established, California, circumstances.” Ker v. exceptions dis 1623, 10 U.S. L.Ed.2d 726 justify rationales1 that those carding the (1963) (citations (plurality opinion) Instead, employ we should exceptions. oniitted). quotations balancing Amendment test
proper- Fourth the State’s interest de weighs Strongly Per Se Rules Are Disfavored against .of crime prevention tection and Fourth Under Amendment in his interest. own individual’s original majority opinion the United As the As States blood. holds, realized, proper per se are correctly repeatedly rules test, per se balancing war- incompatible the Fourth Amend Amendment with permissible is not draw protection rantless blood respect ment’s an indi the criminal status of the based sub upon right vidual’s free from to be unreasonable dissipation alcohol ject arid the Drayton, searches. United States why join I This order bloodstream.1 U.S. L.Ed.2d rehearing motion for State’s dismissing (“[F]or (2002) part the most se per the. improvidently granted agree in the Fourth inappropriate rules majority opinion. original context.”); Royer, Florida analysis of Fourth Amendment warrant- disavowing “lit (expressly heavily simple on a
less rests searches single mus-paper test” or “sentence or ... principle notion: “It remains cardinal rule,” in recognition ... paragraph the judi- conducted outside that searches facts and circum prior “endless variations process, cial approval without *34 implicating stances” the Fourth Amend magistrate, per judge or se unreason- Chesternut, ment); Michigan Fourth Amendment —sub- able under 572-573, specifically a ject only to few established 108 S.Ct. L.Ed.2d existing noting perhaps exigent- that no member 1. It is of this extension worth an argue that appears to the warrantless Court exception. circumstances of blood in this search for seizure case and justified exception under an established exceptions re- 2. Established to the warrant Rather, pro- requirement. to the warrant quirement exception, include consent ponents in this of the search seizure case exception, exigent-circumstances the automo- upon general rely Fourth amend- seem to exception, ’ bile the search-incident-to-arrest balancing recognize excep- ment a new test exception, special-needs and the doctrine. requirement, warrant tion to the search A urged plurality rule of the Court bright-line expressed its (rejecting parties contrary as by per the “tradi- concern a se “categori- rule that approach”); Florida v. cally tional contextual authorizes warrantless blood draws” Bostick, particular on a “discourage basis would (1991) (rejecting per a se rule efforts to expedite the process.” warrant Court). Supreme adopted the Florida Id. at Leading plurality, Justice bright-line the desire for a “While rule Sotomayor observed “the Fourth understandable, Fourth Amendment Amendment not adoption tolerate [does] overly not adoption an [does] tolerate an overly categorical approach broad categorical approach broad that would di- requirement dilute the warrant requirement warrant a context lute context significant where privacy interests significant privacy where interests are at plu- are at stake.” Id. 1564. And the McNeely, Missouri v. stake.” rality opinion pointed to widespread state 1552,1564 (2013) op.). (plurality statutory upon restrictions nonconsensual McNeely, Missouri v. testing blood without warrant as support per Court se rejection reiterated its proposition for the compelled rules the context of the warrantless implicate significant draws privacy inter- by declining search and seizure of blood to est. Mat per recognize exigency se claim based Kennedy join portion Justice did not this upon the of alcohol evidence destruction of the Supreme opinion, writing Court’s a DWI defendant’s bloodstream. instead to the limited nature of the note (“In short, at 1563 while natural dissi- Court’s holding. He states observed that pation of alcohol support finding of governmental and other entities that en- case, in a exigency it did in specific rules, force can adopt proce- laws Sehmerber, categorical- do so does not dures, protocols that meet the reason- ly.”). The granted Court had review to requirements ableness the Fourth split authority question resolve helpful guidance give dissipation of whether of alco- the natural law enforcement officials. Id. at 1569 per hol in the establishes a bloodstream se (Kennedy, concurring). course, J. Of he own exigency justify on its to- suffices gave rules, proce- no hint as to what such dures, And, or protocols might be.3 did he testing nonconsensual blood drunk- join concurring dissenting driving investigations. McNeely, 133 S.Ct. Roberts, opinion authored Chief Justice per
at 1558. The se rejected Court bright-line rule based proposed claim, exigency only on the basis of its upon exigency attendant to the natural history per own towards disinclination rules, dissipation of a showing alcohol and se but record failed also because the beyond there was no time secure search war- any exigency ‘establish the dissi- most, rant. At pation Id. at 1568. Justice Ken- attendant alcohol nedy agreed eight Id. at with other case. members earth-shattering interpreted consistently hardly 3. This is observa- part Kennedy Amendment). on the tion that states Justice rulings *35 pass governmental or laws entities can consis- Kennedy’s IBut do into Justice not read : with We tent the Fourth Amendment. have explicit any implica- to refusal issue reach recognized other as much in contexts. See par- tion issue in a that he would decide the State, e.g. Hudson v. 662 S.W.2d (much way approval ticular less his of (noting (Tex.Crim.App.1984) article 15.25 case). in this Texas statute at issue of Procedure Code Criminal must concern, not to the individual only of grave elimination that'the natural the Court bloodstream was suspect’s society alcohol chooses to dwell from a but to a which circumstance, but that circum- exigent security and freedom from in reasonable per a se rule justify did alone not stance of right privacy When the surveillance. requirement dispensing with warrant yield right of reasonably must Id. at 1569. itself. rule, by a is, as a to be decided search officer, policeman a judicial by not Requirement The Warrant agent. enforcement Government Exceptions its and that the warrant seem The mere fact the, antipathy for constitutional Given unnecessary, step does like an additional affinity proper a se rules and the per abandoning involved, justify I not con- sufficiently of interests test balancing majority opinion agree original prior of safeguard a determina- stitutional Transportation Code Texas magis- cause a neutral probable of tion 724.012(b)(3)(B) § se per does create a subject only requirement trate. It is a prior a of of rule that minimum number certain, exceptions. well-establish justifies a blood draw fenses clear, exceptions estab To be these dissipation when with the natural coupled s of one another. We independent lished suspect’ a blood stream. alcohol entirely exception new should not craft requirement The Amendment existing exceptions mashing up all a warrant be from neu a search secured most picking choosing their magistrate carrying tral out before a exception As Each qualities. is not formalism. attractive officious explained Johnson has an individual ra warrant States, 10, 13-14, 68 United it. tionale behind Searches incident (1948): L.Ed. 436 justified arrest are on the interest of based of the Fourth Amendment ... point The escape, safety, officer the prevention that it law enforcement the denies and the evidence. See Chi destruction support of the usual inferences mel v. California, U.S. men from evidence. reasonable draw (1969). The automo requiring Its protection consists because bile his established by a neutral those inferences be drawn torically expectation is a lower there magistrate and detached instead be- of motor interior vehicles ing judged by engaged the officer in the exigency in auto well as an inherent enterprise ferreting competitive often See mobility. mobile’s Carroll United Any assumption out that evi- crime. States, L.Ed. support magis- dence sufficient (1925). exigent ex circumstances to is- disinterested determination trate’s ception concerns the imminent destruction justify sue a search will inability and the of law en evidence making officers without obtain a warrant. See forcement warrant would reduce McNeely, (listing 1558-559 nullity homes people’s leave variety giving rise to exi circumstances of, only police in the discretion secure noting type but gency, each is, course, ... -Crime officers. circumstance, justi warrantless search society, the law grave concern to is a compelling need fied because there on prop- such reached allows crime and no time secure official action showing. right er officers warrant). into home is also thrust themselves
823 varying exceptions governing- All of involve these reasonableness standard differing any government'interests specific requires levels class searches bal- Yet, against privacy, ancing none of the need to interests. ex search the inva- entails.”) requirement,.are warrant ceptions-to.the sion (emphasis search added). in their interchangeable principles. majority basic As the original opinion Therefore,' notes, not a rule in should sanction correctly Supreme we Court has which an warrantless search impermissible made'very recently clear “in the ab- satisfy except warrant, cannot the automobile sence search' is reasonable ion,4 except the search-incident-to-arrest only if it falls within a specific exception to ion,5 exception,6 exigent-circumstances requirement.” warrant Riley, 134 or exception7 somehow hot-pursuit 2482; S.Ct. at McNeely, S.Ct. at 133 1558 permissible search equals (“[A] person of a is only reasonable to exceptions when all those added if it a recognized falls within [to gether has mini because defendant requirement]”); see the warrant also Ken mum and the number offenses 452, tucky King, v. 563 U.S. 131 S.Ct. naturally dissipating. alcohol in is his blood 1856, 1849, (2011) 179 L.Ed.2d (noting 865 totality-of-the-excep This unprecedented generally warrant must secured one, tions approach adds zeros to create subject to certain exceptions). reasonable ignoring exceptions Fourth join majority returning I to our requirement warrant “have Amendment original opinion in this case I can because jealously carefully been drawn.” support excep creation new State, 348, (Tex. Hudson v. 351 S.W.2d requirement tion to warrant where the Crim.App.1979) (quoting v. United Jones is supported by at issue any States, 499, 493, 1253, 2 357 U.S. S.Ct. carefully rationales underlying, de (1958)). L.Ed.2d 1514 Frank We cannot exceptions require to the warrant lineated entirely excep enstein into an them new out Court. ment set predecessors. tion that consume its Appellee’s Privacy Interest words, although balancing other Is Not Diminished
approach analysis Fourth Amendment right The individual’s free from an is it should not sacri- permitted, be at the. bodily integrity” “invasion obvious carefully excep-
fice other delineated McNeely, substantial. 133 S.Ct. at tions requirement to the warrant deny as no can one that drunk 1558. Just warrant balanc- itself lest the scourge roadways, upon, our ing-test exception swallow the whole rule. they deny govern- nor can the fact that the
Instead, keeping notion with the body’s beyond ment’s intrusions sur- presumptively that a with a search is valid “implicate' personal most deep- face though cir- are certain even there expectations privacy.” McNeely, rooted cumstances, legitimate particularly where Lee, v. (quoting Winston government abound, an ex- 133 interests when S.Ct. 470 U.S.
ception may
with-
validate
search done
(1985)).
T.L.O.,
Jersey
out a
See New
warrant.
v.
California,
v.
clear
Schmerber
83 made
(“The
forbids
L.Ed.2d 720
determination
Houghton,
McNeely,
Wyoming
526 U.S.
S.Ct. at 1566.
(1999).
such intrusions rights given 384 might privacy justifiable be obtained.” are ished desired evidence 1826, 16 757, 769-70, ... providing L.Ed.2d “restrictions 86 S.Ct. the interest U.S. (1966). plain of probation Under the text serves
908
meant
assure
Amendment,
to be
person’s right
a
period-
genuine
a
rehabilitation.”
as
body
or
is
875,
3164;
of-his
her
free from a search
Griffin,
“first U.S. S.Ct. Knights, see also 534 U.S. at (“The to be secure right people of the Samson, IV 853, 126 587; at see also 547 U.S. houses, ef papers,
in their
and
persons,
S.Ct.
fects,
and
against
searches
unreasonable
justify
a
Thé circumstances
dimin
violated,
seizures,
and no War
shall
and
privacy right
probationers
ished
cause,
issue,
probable
upon
rants
but
shall
that in
"present
are not
cases
parolées
affirmation,
par
or
and
supported by Oath
Re
repeat
Villarreal.
volve
offenders like
describing
place to be
ticularly
not part
punish
are
of that
peat "offenders
searched,
things
or
persons
to be
and the
expressed in
nor
ment continuum
Samson
seized.”).
they subject to the same restrictions
are
prevent
“privacy interest
Villarreal’s
parolees
probation
or
placed
prisoners,
from
agent
government
supervisory
no
or
There is
custodial
ers.
skin,”
be minimized
piercing his
cannot
person
relationship between the
and a
State
parolee
or
based on
probationer
prior
See also Ver
convictions.
has prior
fact
that he
offenses.
Acton,
Dist.
v.
515 U.S.
nonia School
47J
McNeely,
1565. As
cor
133 S.Ct. at
we
654,
2386,
646,
can
class of
as de-
person
one
excep
volved.
than
a
serving
upon
imply
Rather
new
less
based
sta-
crime,
search,
tistical likelihood
commit
what
tion
warrantless
the Court
Certainly, probable
entry
cause
rantless
into
could
used
home.
the-
"Probable
merely
obtain
but
the existence
.
.
cause
is the first hurdle .[t]he
second
not,
own, sup
prior convictions would
on its
exigent
hurdle is that
... must
circumstances
port a
one of the
probable
exigent
exist.
also
If either
cause or
exceptions
requirement.
to the warrant
See
established,
circumstances are not
a warrant-
State,
(Tex.
Parker
S.W.3d
entry
pass
[into
less
home] will
muster
Crim.App.2006) (noting
there are
two
Amendment.”)
.
under the Fourth
pass
justify
hurdles
officer must
war-
traditional,
ing a
of the arrestee’s DNA
exigent-cir
cheek swab
limited Welsh
analysis.
legitimate
booking procedure
reading
police
And
Welsh was
cumstances
to a
gravity
the offense
elevating the
is reasonable under
Id,
factor would
singularly determinative
But
the Court
Amendment.
subsequent opinions
inconsistent
is a
buccal swab
took care
note
“[a]
admonishing
lower
gentle
venipunc-
process
far more
than
.
broadly”
reading
too
Welsh “far
courts
ture to
blood” was
“central rele
draw
opinion
to a
restating
its
went
determining
vance to
reasonableness.”
point
much more
“warrantless
limited
conscious ef
Court made
*39
nt
entry to
a misdemeana
should
arrest
analysis
to
its
of
á wall
fort
create
between
—
——,
Sims,
v.
U.S.
be rare.” Stanton
in
King
facts
and
had
the
how
deter
(2013)
3, 6-7,
341
L.Ed.2d
134 S.Ct.
187
the
of the warrant-
mined
reasonableness
Welsh,
466
(citing
U.S. at
104 S.Ct.
McNeely only
in-
blood draw
two
less
McArthur,
2091);
v.
531
see also Illinois
months earlier.
121
148
S.Ct.
L.Ed.2d
U.S.
This
even
clear when con-
becomes
more
to consider the under
(refusing
sidering
government
play
interest at
the
in
important
given
as an
factor
lying offense
as
King, which the Court described
the
restric
temporary
the
involved
that
case
“need for
officers in a
law enforcement
home,
the
than war-
tion outside
rather
way
process
safe
and iden-
and accurate
intq the
in
entry
home like
rantless
they
tify
persons
possessions
the
and
must
Welsh).
custody,”
gather-
take
than
into
the
rather
Furthermore, Maryland
King
v.
does
Id,
prosecution.
evidence for future
that
support
not
the claim
the defendant
buccal
at 1970. The
of the
swab
purpose
in
expectation
a sufficient
lacks
not
the
investigation;
government
body
his
for
arrest
a-“seri
because
simply
needed to ensure
“more accurate
King,
the Court consid
ous” offense.10
identifying
form of
that
arrestees”
allowed
procedure in
the buccal swab
the
ered-
in
they
officers
know who
had
their
to an
context of a
incident
arrest
1976;
(J.
jails.
Id.
see
id. at 1980
at
also
during
proce
administrative
the “routine
Scalia,
(“Whenever
dissenting)
this Court
at
station
police
house incident
dure[s]
a.
search, it
suspicionless
has allowed a
Mary
booking
jailing
suspect.”
the
apart
(2013).
upon
motive
justifying
insisted
King,
land v.
133 S.Ct.
crime.”).11
Court,
According
taking
analyz-
investigation
This
murder,
tify
aggravated robbery,
King
rape,
burgla
in
Court does note
10.
assault,
subject
ry) aggravated kidnapping,
felony
the arrestee
buccal swab search
robbery,'
necessarily
police custody
in
as
valid
"for
sexual assault
the serious
through
supported by
prevented
offenses that
probable
could
serious offense
cause.”
procedures).
use of
Maryland
King,
buccal swab identification
v.
However,
(2013).
unpersuaded
I remain
clear
reference to a
Court also makes
King
felony
severity
“serious
includes
its
with the
of the of
offense"
concern
DWI.
derives from the nature of
crime
fense
itself,
not the status of
offender.
Id.
noting
majority
It
(noting
is also
that the
that the determination of bail
worth
contingent
King recognized
upon
potential
prompt
"the nature and the circum
DNA
impris-
charged”).
testing
wrongfully
stances
the offense
And
exonerate
provides
identify
speed
apprehension of
up
Court
links
oned and
crimi-
to studies
offenses,
"preventable” felony
they
none which
nals before
commit additional crimes.
identify felony
type
133 S.Ct. at
The warrantless blood-
"serious”
preventable by
carry
type
draw in a DWI
does
a similar
offense
case
(citing
potential.
issue.
that iden
Id.
to several studies
interest,
minimal
compared
purpose
with the
inva-
cause
primary
of those check
privacy rights
sion of
in points
“general
individual
at issue
was a
crime
King,
led to
buccal
control.” City
Indianapolis
Edmond,
conclusion
process
during
booking
swab
awas
447, 148
L.Ed.2d
reasonable search.
at 1980.
(2000). Notably,
recognized
the Court
the State’s interest
in stopping the
felony
But
DWI defen-
seizure
illegal
trafficking of
narcotics was great,
dant’s
no interest
blood serves
identifi-
but it
Instead,
nevertheless
not find the type
did
safety.
cation or
pur-
officer
close
between
State’s
connection
pose
engage
draw is
need
the blood
investigation
prevent
further
for the most
detect
and use of
accurate
crime
possible.
of intoxication
checkpoint
evidence
Given
to do so as it
in Sitz.
did
Id. at
44-45,121
Court’s
avoidance
deliberate
investigation
of using
justification
as a
took
analysis
step fur-
bodily
even the
minimal of
most
searches
Charleston,
in Ferguson City
ther
King,
King
to justify
we should
read
blood draw for purely
inves-
*40
(2001). There, the
University
Medical
tigative purposes.
majority
Like the
Carolina instituted
policy whereby
a
South
original
our
I
opinion,. can find no rationale
pregnant mothers would
screened for
King beyond the facts
extending
cocaine
required any
use and
mother who
certainly
that
case and
not
the extent
positive
tested
to comply
awith substance
supports
blood draw
warrantless
program
abuse
under
treatment
threat of
solely
based
on the
criminal
driver’s
rec-
72-73,
arrest.
Id. at
include Skinner be- J. Assn., showing particular Executives’ 489 tied to either a Railway Labor or 103 L.Ed.2d blood alcohol concentration the driver’s “special example needs” as repeat one status as offender. Tex. Code Yet, -in case). acknowledged also (West he 2013); art. 14.03 Crim. Proc. Ann. cases, traditional warrant (Tex. “[t]he State, those 28, 41 Miles v. 241 S.W.3d are waived probable-cause requirements Crim.App.2007) (noting that while explicit assumption that ... on the against public is an intoxicated offense in the search was obtained evidence peace). law enforcement intended used statutory provisions to li related Kennedy Justice While purposes.”.. suspension place upon cense reliance some hospital may have had recognized (as well blood alcohol concentration law enforce unrelated to legitimate need concentration), they breath-alcohol but ment, penal “a character program had upon that dependent also not evidence connection to en with a far law greater suspend even DWI a recidivist offender’s other searches sustained forcement' than offender, driver’s A license. even rationale.” Id. at special our needs DWI, felony one who can commits & have 1281. I see the same issue suspended regardless license wheth with the collection provides provide he to' er refuses cases; in recidivist DWI alcohol evidence Transp. specimen of blood. Tex. Code Ann. certainly a connection between there is 2013) (West (setting § 524.011 out officer’s roadway safety, levels blood alcohol duty possession to take an arrestee’s in blood alcohol but the State’s interest analysis of upon driver’s license either evidence,- law, at least under current Texas *41 specimen showing breath or an blood alco does not the State’s need detect advance limit); legal hol concentration over safety crime for the of prevent those Transp. (West § 724.032 Tex. Ann. Code roadway beyond general a on interest 2013) (setting duty to out officer’s take control. crime possession of an arrestee’s driver’s license law, Under Texas evidence of blood alco- upon provide a a driver’s refusal re necessary is hol not arrest concentration quested specimen for alcohol concentration driver, or a one even convict even DWI testing). arresting Significantly, an officer charged felony DWI. Blood alcohol give temporary must still a driver’s license of way proving is one intoxi- concentration driver, a repeat arrested DWI even cation, higher and a alcohol concentration offender, until Department of Texas from a B a Glass- misde- enhances sentence Safety Public suspends license driver’s a Class meanor misdemeanor. . A Tex. receiving report arresting after (West 2013); 49.01(1) §. Penal Ann. Code of regarding analystí officer results (West 2013). § 49.04 Tex. Ann. Penal Code specimen. of the breath or blood Tex. prove can But the also intoxication State Transp. 2013). (West § 524.012 Code Ann. by showing particular of concentration requirements per same exist when or 'in a driver’s breath urine alcohol taking son refuses to submit to 'of a any showing any particular of even without Transp. specimen. Tex. Code Ann. alcohol concentration whatsoever. Tex. (West 2013). § periods 724.032 While the 49.01(2) (West 2013). § Ann. Penal Code suspensions of these if are increased certainly can arrest a sus- Police officers previously driver has his had or her driv pect they a warrant when without have er’s suspended, suspension pe license person probable believe has cause diiving upon of riods not dependent showing offense in- are of committed the while concentration; toxicated, ability particular their to do so but- blood alcohol (West § Transp. pelling 524.022 in getting interest drunk drivers off Tex. Code Ann.- 2013): § Transp, 724.035 they the road before an cause accident Tex. Ann. Code (West 2013). beyond a general interest in law enforce- Moreover, ment. seizure this blood pre-trial release and conditions alcohol concentration no has evidence more post-conviction probation place equally impact upon the felony DWI defendant independent any showing blood alco than it does misdemeanor DWI defen- charged hol A defendant concentration. dant.
with a
A
or
Class
misdemeanor DWI.
get
ignition
above
required
inter
The State’s
interest
case must
be
lock
upon his or her car
device installed
weighed
context of the search at
regardless
condition
bail
whether
issue,
namely
search for blood alcohol
particular
there is
of a
alco
evidence
concentration evidence. Vernonia School
hol concentration. Tex. Code Crim.. Proc.
Dist.,
(ex
shown at trial that the defendant had an merely case more, general furthers the State’s alcohol concentration 0.15 or but a Ferguson, in crime control. showing of blood alcohol concentration is (“While 82-84, U.S. at required. period Id. The installa *42 goal program may tion is not ultimate the the well upon extended based defen get have question dant’s status or of a been to the in showing particular a women blood jail alcohol concentration. Id. And into substance abuse treatment and off of time required probation a drugs, condition objective the immediate searches, felony DWI defendants is not contin generate towas law evidence for (or extended) gent upon showing a of a purposes to in order reach enforcement defendant’s alcohol concentration. Edmond, blood goal.”); that see also 531 U.S. at Tex. Code Crim. Proc. Ann. art. 42.12 sec. 44, 121 And to the extent that (West 13(a)(1) 2013). one argue Railway that Skinner v. Assn, Labor Executives’ the supports war- provisions
These
a
reveal
scheme de-
in
rantless search
the one
cases like
before
signed
useful,
compelling
secure
even
us,
the
Court has made clear that
evidence for
rather
than to detect
trial
justified
Skinner was
upon a rationale be
through
testing
intoxicated drivers
yond the normal need for law enforcement.
in order to
drunk
prevent
acci-
dents;
Skinner,
at
tional
conditions
oversight
no rea-
tory of
government
safety.
public
hazardous
health and
privacy
could exist
expectation
sonable
City
Municipal
Camara v.
the stock of such
proprietor
for a
over
Francisco,
County
San
(ob-
Patel,
enterprise.
535-36,
L.Ed.2d 930
sales,
dealing,
serving
firearms
liquor
(1967).
Court allowed for
While the
junkyard
mining,
running
are the
inspectors
need
residence
compli
warrant to maintain code
without a
only
Court as
recognized by the
industries
ance,
sanction
nevertheless refused
Driving
“closely regulated”).
is
one
inspections
unless
above,
discussed,
felony
them.
And as
could demonstrate
warrant
re
DWI
have
lessened
does
defendant
quirement
reg
would frustrate the State’s
of his sta-
expectation
virtue
ulatory goals.
831' McNeely, Opinion (DWI) Like This is Narrow while-intoxicated convictions. The judge suppressed the results of the blood Despite gnashing all teeth and as a .violation, draw Fourth Amendment garments rending of this follow and we Properly .weighing affirmed.1 original majority Court’s adherence its circumstances,.of particular this case and. opinion, important to it is note limited underlying interests at I play, dissent holding. nature of the We did not hold from this Court its withdrawing order police could never obtain blood alcohol granting the motion for rehearing. State’s defendants, evidence from DWI even the Instead, I prior opin- would withdraw our incorrigible most ones. Neither did we ion and hold the search reasonable. police always hold that must a secure simply do so. We held History Facts I. and Procedural suspected the status a driver night of March On coupled Corpus while intoxicated with the police dissipation stopped. natural alcohol his* Christi David Villarreal’s not, itself, by justify police suspected blood-does a vehicle. The warrant- Villar intoxicated, less search and was seizure. Like- the Su real and an officer from preme in McNeely, department’s we did not fore DWI unit —trained and possibility close in field-sobriety certified tests —was called felony driv seizure DWI scene. In the course the traffic justified upon er’s blood could be a show stop, signs Villarreal exhibited several circumstances, exigent or another intoxication, including watery red and t requirement. to the warran eyes, speech, slurred Villar swaying. But showing has not such made request real refused the officer’s to under y case; simply pointed It go a standardized test. field-sobriet statute, just McNeely.- as the State did in Based his own observations those o provided patrolman t him I join who majority’s dismissing order initially stopped Villarreal, rehearing the State’s motion for im- the officer then DWI, granted. I arrested Villarreal providently agree And handcuffed ‘ him, original opinion him his majority rights. because I cannot read Miranda support holding felony' statutory that a DWI When officer read the warn de- greater fendant expectation priva- ing requesting sample, blood Villarreal cy in phone the contents his cell than his refused. But searching after Villarreal’s thoughts, own blood. With these I concur. criminal history,, the officer learned that eight previous Villarreal had DWI arrests DISSENTING OPINION prior- and three On convictions.
KEASLER, J.,
convictions,
of those
basis
prior
dissenting
filed a
officer
J.,
to a
HERVEY,
nearby hospital
escorted Villarreal
opinion, in
joined.
qualified
where
was drawn
blood
exhibiting
After
in-
clear indications of
technician.
during
stop,
toxication
a routine traffic
David
The officer
hospital,
Villarreal
escorted
obtained neither Villarreal’s
and his
pursuant
blood was drawn
draw
affirmative consent
nor a
t
Texas
requiring
statute
such searches of
court-ordered
authorizing
search warran
prior driving-
drivers with two or more
it. The officers ordered the blood draw
*44
No,
Villarreal,
26,
PD-0306-14,
2014).
1.
App.
State v.
475
Nov.
784,
(Tex.Crim.
S.W.3d
832 Nevertheless, the Su- the Texas otherwise.”7 provision to- a mined pursuant holding in Missouri preme that mandates Court’s recent Transportation Code McNeely for DWI with at v. sparked has debate renewed of drivers-arrested draws operates as to how the Amendment convictions.2 Fourth prior least two Fourth Amendment a blood-alcohol con in DWI cases. The blood draw revealed “in hous- (BAC) 0.16, people persons, their secures the level twice centration es,, qualify papers, sufficient effects” “unreason- statutory 0.08 level amend- able searches seizures.”8 “intoxicated.”3 into ment can broken two clauses: itself prior on his three DWI convic- Based (2) Clause Reasonableness tions, felony indicted Villarreal was (cid:127) properly Although Warrants Clause.9 suppress moved to DWI.4 Villarreal way to is often surest warrant obtained warrantless, non-consensual results of being evidence from later exclud- prevent the Fourth Amendment blood draw under trial,10 only it not constitution- ed recent and the Court’s decision obtaining ally valid method evidence. Missouri, McNeely.5 v. suppres- At the sup arresting con- While a to warrant hearing, pursuant sion officer search cause, by a exigent by probable and issued ported were no circum- that there ceded generally magistrate pre will that he could obtained neutral stances and have draw, reasonable,11 argued but warrant for the-blood sumed if falls within “a have to because of can also be reasonable he did pro- specifically Transportation
Texas Code’s relevant few established well-delin State, however, mo- exceptions.”12 The judge granted vision. The Villarreal’s eated results, tion, establishing, blood-draw bears the burden that the suppressed the except falls one these and denied reconsid- State’s motion Although interlocutory ions.13 er. filed When the.State rulings, recognized excep court's several of these challenging trial discrete
appeal the, general require appeals tions court affirmed.6 including exigent circumstances— ment— Analysis II. exceptions merely these applications are. Transportation general Amendment’s Statutes like the Code’s reason Fourth Therefore, mandatory provisions pre- ableness blood-draw “are standard.14 until it is to be “touclistone constitutional deter- sumed 724.012(b)(3)(B). §
2. See
9. See id.
Transp.
Tex.
Code
1, 20-22,
49.01(2)(B).
Ohio,
Terry
§
See
v.
392
88
See Tex. Penal Code
10.
U.S.
3.
(1968).
1868,
to the Fourth Amendment and the
results, of the blood test under the Fourth
exigen-
failed to establish
Amendment,
prosecution argued that
cy in this case.
dissipation
the “natural
alcohol
v. McNeely,
Missouri
bloodstream”
per
exigency
created a
se
“natural
effect,
Court held
metaboliza
under the Fourth Amendment.26 In
prosecution
tion
does
wagered
the bloodstream”
everything on
alcohol
present
“per
exigency
justi
dissipation
not
se
alone.
Court re-
jected
per
fies an
approach
the Fourth Amend
se
to the exigency
exception,
ment’s warrant
opting
for noncon-
a “totality
instead for
testing
drunk-driving
sensual blood
in all
approach,
the circumstances”
which the
843,
Acton,
California,
15. Samson v.
547 U.S.
855 n.
18. Vernonia Sch. Dist.
v.
47J
515 U.S.
646, 661,
(2006).
126 S.Ct.
16.
v.
19.
Id.
1958, 1970,
(2013) ("Urgent
conclude blood draw While;I mate conclusion.39 was Villarreal reasonable.34 be- no or
lieve that one circumstance I. status as a recidivist .Villarreal’s subjective alone can overcome Villarreal’s DWI offender results . diminished expectation privacy, when considered expectation privacy. together totality under of the circum- foremost, First and under the Fourth requires35 McNeely stances —as con-—I general Amendment's reasonableness stan- they Although analysis clude that do. this dard, Supreme Court recog- often may provide as ixiuch guidance offi- expectation nized a of privacy lower based would, as a bright-line cers the field rule on an individual’s status. Prisoners are Sotomayor McNeely, as Justice stressed in Palmer, ready example. In v. Hudson “hardly unique.”36 it is Supreme “society held that Court is not
Because I find no
error
the officer’s prepared
recognize
legitimate
as
Villarreal,
search of
I do not
address
subjective expectation
privacy
that a
(1)
alternative theories:
State’s
Villar prisoner might
prison
have in his
cell.”40
real “is
deemed
have consented” to the
prison serving
While
convic-
multiple
Transportation
under
.
blood draw
tions, Palmer’s-
cell
locker and
had been
search,
Code,37
(2) that
search resulted
subjected to-a “shakedown”
from a
The
reasonable mistake
law.
ripped pillowcase.41
revealed a
Prison offi-
argument
bases
latter
charge
brought
destroying
a-
cials
state
Supreme Court’s
Palmer,
recent
against
decision Helen
who
property
was found
North, Carolina,38
opinion
guilty
issued af
to reimburse
ordered
ter our initial
in this
holding
challenged
case
state.42
pris-
When Palmer
require
warrantless,
did
exclusion of
on’s
non-consensual shake-
evidence
—
McArthur,
U.S.-,
34. See Illinois v.
38.
(2014).
47.
Id.
at
S.Ct. 2193.
("The
60.
l-DWI_Recidivism_in_USA-tsf-m.pdf.
S.Ct. at
Sitz,
ept.
Police v.
496 U.S.
State
D
Id. at 1.
(1990)).
110 L.Ed.2d
McNeely,
65. See
at 1565.
Knights,
61. See
Knights,
tioner, chooses to exercise not ling person as I find that his status recidivist when driving.70. like And implicates very right, privilege same but offender DWI pertaining given police already probable had pro as those interests State for, driving while cause arrest safeguarding populace from Villarreal bationers: would, intoxicated, expectation of Vil- any be unwise to Indeed it recidivism. be of would hold, might fact larreal have simple “necessarily based on the Therefore, I scope.”71 fit protect Legislature has seen diminished the Fourth Amendment’s mandatory hold that under interest means State standard, gov- blood-draw, general provision, that reasonableness somehow in protect- interest significantly compel heightened less ernment’s interest from established DWI roadways our probation.. ling than its already recognized been arrested Legislature may simply have recidivist who had intoxi- pose., exhibiting who after clear indications of opposed offenders diminished Villarreal’s general threat of recidivist cation significantly more criminalir probation expectation require privacy. continual ty that would recidivist offenders ary supervision, DWI 2. The search Villarreal bears .they .that specific threat —not more pose regulatory search. hallmarks of a .crime, likely commit some but tp. more '' are Furthermore, felony although tq likely commit they more and the results criminal offense fashioned its specific crime DWI—and. pursuant to an ar- performed blood draw accordingly.67 response likely be used a subse- rest under it will Samson, Furthermore, 'Legis- quent it also exhibits prosecution, as in criminal *50 many of regulatory on notice of the hallmarks has even Villarreal placed lature offense, generally to such a search which afford-a subject that he defendant of For expectation privacy. his with two or diminished on status as driver based jail Although example, beyond possible fines and convictions.68 there more DWI time, can any he also lead signed is no 'show that DWI convictions evidence did, revocation, as I do or annual agreement suspension notice Samson not license license, interven- compelling ig- surcharges find this distinction because maintain the in- generally programs, no tion norance excuse69 law education compel- assumption especially ignition that is stallation of interlock devices.72 —an Korenev, State, (presum- Tharp 281 at 434 70. 935 S.W.2d 159 See S.W.3d See 67. constitutional). ing statutes (Tex.Crim.App.1996) (“Driving is not a consti- protected privilege.”). tutionally right, but 724.012(b)(3)(B). § See Tex. 68. Transp. Code Samson, 547 U.S. at See also 520, 557, Wolfish, 71. Bell v. 3067(a) § (citing Ann. Cal. Penal Code (1979). King, See also L.Ed.2d 447 (West 2000)). ("Once an has individual (“It See, 8.03(a) e.g., § Code Tex. Penal danger- probable been on cause arrested prosecution no actor was defense to may require detention ous offense that before ignorant any provisions after the law trial, however, pri- expectations or her effect.”). law has taken See also Jerman v. vacy police scrutiny from and freedom McNellie, Rini, Carlisle, Ulrich, & Kramer reduced.”). , L.P.A., (2010) (“We long recog have generally See maxim, Tex Code Crim. Proc. art. nized familiar the ‘common all § minds, 42.12 13. See also Tex. Transp. ignorance of will the law Code any person, civilly § excuse or either crimin 708.102. ly. al before, “pri- ling -possibly explained compelling And as we more have even — —an mary purpose” ensuring “safety sanc- interest regulatory such trav eling public” or on roadways tions “is not our on deter the licensee as our . retribution, railways Therefore,, pub- is to protéct seek but interest “re quires the, publie.roads justifies” lic on carnage from the same sort “su pervision to Texas These caused drunk drivers.”73 assure.that restrictions consequences felony-DWI are in regulatory fact as the observed” highlight legiti- offense further the State’s Court allowed in Skinner.78 IAnd do interest, protecting roadways mate its simple believe that per blood draw from DWI formed a driver .with an extensive recidivism. history already who. properly been ar-. Railway Labor Skinner Executives suspicion rested on of DWI and would iation,74 Assoc several associations subject therefore to a battery whole railway sought enjoin workers fingerprinting, booking, invento searches— Federal Railroad Administration under ry, possibly even buccal-swab promulgat from searches —is more unreasonable under ing regulations similar blood mandating than performed circumstances one on a and urine railway tests of workers in worker, railway just happens who to be volved train .accidents. working when accident occurs. recognized initially a blood “infringes expectation procedures
draw means and of the society performed prepared recognize were Villarreal rejecting But in this facial reasonable. reasonable.”75 challenge regulation, the Court significant (cid:127)It is also to a general reason- governmental noted the “in en analysis per- ableness that the blood draw suring safety public traveling formed on Villarreal was reasonable in themselves,” employees and of the procedures. both its means and The Su- justifies “plainly prohibiting em covered preme acknowledged Court has that blood ployees using drugs alcohol on draws —as invasions of a person’s bodily duty, or subject being while called integrity implicate person’s per- “most — *51 duty.”76 held that And’the Court this deep-rooted sonal and expectations pri- justifies interest “requires and the exer it recognized But also has that vacy.”79 of supervision cise to assure re “neither forbids strictions in fact observed.”77 intrusions,” all permits nor such but in- people thé number innocent constrains against
Given stead “intrusions roadways circumstances, who travel justified our numer are not in the and the ous tragedies occur DWI-related each which are made in an improper manner.”80 year, possesses just compel the State requires We have held that this both (citations omitted). Tharp, (addressing 73. See S.W.2d at 159 77. Id. license-suspension provi the administrative sion of the Tex. former Rev. Civ. Stat. art. 78. See id. 6687b-1). Lee, 79. Winston v.
74. 489 U.S.
103 L.Ed.-2d
(1985).
84 L.Ed.2d
(1989).
75.
Id.
Schmerber,
(citing
Id.
82. Id. 88. at Id. 612-13. Schmerber, See 384 86
83. U.S. at at 89. Id. 613. ("[W]e 1826 that the test are satisfied chosen petitioner's to measure blood-alcohol level 90. at 616. Id. one.”). awas reasonable 91. Id. Johnston, Id. 336 at 84. See also S.W.3d 658. (2003). 609 at 616-17. 85. 105 S.W.3d 92.Id.
841 cause, only meaning, searched within dehumanizing, undignified, Villarreal was hu- miliating, Thus, hospital.93 terrifying.”100 of a And sterile if the confines body-cavity performed visual only per- search on the search Villarreal was passed the rigors McGee the Fourth professional.94 formed medical trained standard, Amendment’s impor- Supreme The stressed the .reasonableness how can we now find that the common- of these distinctions in Schmer- tance two ber,95 place performed on blood draw Villarreal does not? importantly, But most the nature Legislature’s The 4. enactment greatly. Since
two searches differed Transportation Code’s mandatory Schmerber, consid Supreme Court has provision worthy blood-draw is of con- “commonplace,” ered blood draws sideration. people procedure noted “for most trauma, risk, no virtually
involves I Finally, Legislature’s believe the deci McNeely not pain.”96 And did overrule worthy issue sion of consider Schmerber,97 sole,critique Its of Schmer ation. United States Constitution is years —noting ber “the 47 since Schmerber “supreme Law of the Land.”101 No exigent only questioned legislate strictures, can state around its decided”— Amendment., drunk-driving circumstances investi including the Fourth And.it create, can gations commonplace not the is a principle bedrock constitutional that it con nature of a draw itself.98 In “emphatically province duty trast, Court has warned judicial department say what the search, per body-cavity Nevertheless, like the one law is.”102 McGee, “instinctively gives [the formed Court has acknowledged example, in —for pause.”99 Court] most We ourselves circumstances relating fingerprinting— legislatures have found that such searches .can “de- some role state in assisting ("The unjustified 93. See id. at 617 element personal risk infec- occurred n fire station.... fire was not as pain.”), station tion hospital.’’). sterile an environment as a See Johnston, ("Though S.W.3d also at 662 S.Ct, 96. at 1826. ideal, medical environment it does settings mean that other unreasonable (Thus, McNeely, 97. S.Ct. at our According Fourth Amendment. analysis comfortably Schmerber fits within research, upon depends our reasonableness applying exigent our case law circum place whether environment a safe exception.”), stances blood.”). which to draw S.W,3d McGee, (“Officer 98. Id. at 1561-62. 94. See at Rowan while had testified he had never cavity training conducting formal Wolfish, 441 99. U.S. 1861. searches, on-the-job experience he while had officers.”). working with senior McGee, (citations at 616 S.W.3d omitted). 771-72, Schmerber, See ("We presented S.Ct. 1826 are thus VI, 101. U.S. Const. art. cl. 2. questions which if a the serious would arise involving technique, use medical (1 Cranch) Marbury Madison, sort, rudimentary made even most were *53 177, 137, ("Those (1803) 2 L.Ed. who 60 by personnel other other than medical or in cases, apply rule to particular must of example, if than medical environment —for necessity expound interpret and that rule. If by police privacy it were in administered other, two conflict un- laws each To tolerate searches courts stationhouse. eách.”). might operation invite an must on the der these decide conditions 842 history beyond requirements well the Fourth the contours of shape, the provision. protections.103
Amendment’s Therefore, Transporta- I interpret Therefore, interpret judges should not significant tion as provisions Code’s authority monopoly on constitu- their as a —but necessarily not determinative —evidence to act It like tionality. is not license weight of the nature the state'inter- and Instead, legisla- robes. bullies black driving. play intoxicated policing ests in shap- role should be allowed some tures They but consideration issues, one espe- framing and constitutional ' “totality overall Fourth Amendment’s cially Fourth Amendment those like the analysis we that have circumstances” concepts and vague into esoteric that delve long recognized and “expectatioii[s] like “reasonableness” MeNeely. And I find reaffirmed recognize as society would pertaining recidivist DWI provision legitimate.”104 Compared judicial particularly compelling á circum- offenders branch, Legislature well-equipped analysis, in that when especially stance representative of structurally, as the Tex- in-conjunction with Villarreal’s considered clarify con- generally, ans these difficult clear indications of intoxication led to cepts. concept And this is not new our history his arrest and his extensive DWI why generally pre- It is we jurisprudence. beyond the-provision’s requirements. “until it is
sume a statute constitutional
otherwise.”105
determined
III. Conclusion
However, judges
forget
must
never
light
particu-
of all
circumstances
the Fourth
as
Amendment was established
underlying
lar
and the
inter-
case
action,
government
including
check on
I
play,
ests at
hold that the
would
blood
Therefore,
Legislature.
action
I
performed
draw
on Villarreal
reason-
interpret
Transportation
I
able.
would withdraw our
Therefore
provisions
per
Code’s
allowing
se rules
prior opinion
and conclude
trial
warrantless,
non-eonsensual
draws.
court
suppressing
erred
the results
merely
cannot
invoke a
statuto-
reasons,
the blood draw. For
re-
these
I
ry provision
escape
Fourth Amendment
spectfully dissent.
analyses.
an interpretation would
Such
comport
nor
with neither state
federal
DISSENTING OPINION
law.106 But
here.
that did
occur
Al-
YEARY, J.,
dissenting opinion
filed
though
arresting
focus his
officer did
KELLER, P.J., joined.
which
authority
compel a
of Villar-
blood draw
real on
Drunk
Transportation
scourge
the relevant
Code
our road-
destruction,
provision
ways.
carnage
and conceded that
were no
there
circumstances,
exigent
also
inflict on
fellow
he
testified
drunk drivers
their
citi-
signs
enough,
that Villarreal
of in-
exhibited clear
zens
the United States
toxication,
said,
programmatic
had
on Court has
properly
justify
been
arrested
DWI,
a,
suspicion
possessed
every
checkpoints
driver
Florida,
852,
Samson,
103. Hayes v.
104. See
U.S.
855
h.
U.S.
(referenc
(1985)
S.Ct. 2193.
L.Ed.2d 705
ing,
Mississippi,
Davis v.
Karenev,
See
843
(that
briefly
say, minimally gravity
detained
recidivist’s offense and -his
,
purposes)
incorrigibility
for
Fourth Amendment
evident
makes
all
seized
it
evidence;
investigate
they may
driving
be
imperative
whether
more
best
Department
Michigan
intoxicated.
while
lost
intoxication
in the time it usual-
Sitz,
ly
v.
U.S.
110
a
takes to secure warrant.
this
For
State Police
496
(1990).
reasons,
bloodstream over time application' exigent of the circumstances INTRODUCTION: THE warrant INCORRIGIBLE DRUNK DRIVER —at not for of least the run-of-the-mill DWI compelled extraction of Missouri v. 133 McNeely, fender. S.Ct. body the human for purposes conduct (2013).2 1552 ing ah evaluation blood-alcohol concen however, my view, In unquestionably' the whole constitu- is- for tration. changes
tional calculus purposes. once offender Fourth Amendment Skinner Assn, proven incorrigible has Railway himself to be Labor Exec. instance, 616, 109 (1989)
drunk driver. In that L.Ed.2d 639 fact DWI, Schmerber, 767-68, prior along (citing for numerous 384 U.S. at convictions 1826); probable Maryland with the officer’s v. King, cause believe S.Ct. (2013). Indeed, again, may ensuing yet.
the offender struck “[t]he reasonably «objective chemical'analysis take the of the of the place sample obtain magistrate’s that a further Of physiological assessment data invasion Moreover, provide. would otherwise interests.” the tested [individual’s] — Jardines, ——, Compare year, many people Florida v. U.S. 1.4 million as are arrest- country while intoxicat- ed Amendment, ("[W]hen it comes to the Fourth See, e.g., Investigation, ed. Fed. Bureau among Wyo equals.”) the home is first with No. Of Table Arrests, Estimated Arrest 295, 303,- ming Houghton, (2010), https://www.fbi.gov/about-us/cjis/ucr/ L,Ed.2d (1999) (recogniz (re- crime-in-the-u.s.-2010/tables/10tbI29.xls heightened ing .unique, significantly pro "the porting 1.4 million arrests for driv- more than against per tection afforded of one's searches year 2010). in the I while intoxicated do son”). subject every disagree that to one of them compelled blood draw indignity course, bound, 2. This Court is the Unit- judg- without intervention detached ed States construction of the Court’s magistrate indeed, should ment of a neutral my quarrel Fourth Amendment. And itself, holding McNeely Fourth-Amendment is not with the deemed unreasonable agree. given purposes. which I am inclined to *55 844 is being the influence alcohol
Skinner, 109 U.S. at 489 inconsistent with the Fourth Amendment.” integrity impli bodily an invasion "Such J., (Kennedy, at 1569 McNeely, 133 S.Ct. personal ‘most an cates individual’s concurring). expectations privacy.’” deeply-rooted (quoting at
McNeely, Win Kennedy on to insist Justice went Lee, U.S. v. ston ... not to “general proposition ought this (1985)). Particularly 84 L.Ed.2d to interpreted question be indicate investigations, of criminal in the context susceptible guidelines not rules “[sjearch ordinarily required warrants.are give can important practical instructions emergency ... where intru officers, absent an any arresting in instructions that
.
body
human
are concerned.”
sions
a war-
would allow
into
number
instances
Schmerber,
at
preserve
ing of I. REASONABLENESS IS byit Kennedy, Justice .given articulation THE TOUCHSTONE vote, deciding fifth and supplied the who concurring instant opinion: “[TJhe ease provides, rel- provide ... does framework where right part, people evant “[t]he more than that hold persons against be secure their ... prudent always a warrant for a unreasonable ... shall dispensing searches violated, issue, and no Warrants shall but test driver arrested when 784, 808-09, upon probable cause[.]” S.W.3d 2014 WL Const. , - Riley (Tex.Crim.App. amend. IV. *17 Nov. California ' 2014) (“The recently- United States Court has made *56 clear holdings of its with in context of an summarized the state the active respect investigation, in the con criminal and when pri- searches undertaken the : investigations mary goal of of activity text criminal law-enforcement evidence, the gathering of a clear, warrantless
As the the text makes ultimate person search of a is unreasonable un- touchstone of Amendment is the it less falls within excep- an established eases reasonableness. Our have deter- tion to the requirement.”).4 warrant undertak- mined that a where by en law officials to dis- enforcement But has Supreme really the Court made wrongdoing, cover criminal evidence of proposition this so I clear? do believe requires generally the reasonableness in of presumption the favor warrants is as obtaining warrant. ’Such a judicial of a monolithic as the made it out to Court be warrant the ensures that inferences to original Examples submission. abound support by drawn search are neutral of cases involving investigations criminal in of magistrate detached instead be- which Supreme has not Court automat- ing judged by engaged officer in ically presumption resorted to the that a competitive enterprise ferreting often of search must be supported warrant in warrant, out of crime. In the absence of already absence some well-estab- only if search is it falls reasonable exception. question lished Often arises exception within a specific war- respect scope proper seem- rant requirement. well ingly exception. established this (internal context, (2014) 2473, ci Court has not Supreme hesi- tations, marks, brackets, quotation apply generalized tated a more ap- “reasonableness,” omitted).3 ellipses Seizing upon proach this lan one which sim- guage ply particular as balances Riley, well similar lan the State’s interest as in guage origi against this law McNeely, Court on enforcement citizen’s nal particular expectation privacy. submission it declared was And just bound has done so not in the context of a search cases presumption involving person supported suspi- searches by, must administrative (the programmatic warrant cionless searches unless the circumstances called so- cases),5 for called application already “special, but also in needs” well-estab: involve, Villarreal, lished v. context of cases exception. See State balancing Riley question 3. “a test” in the whether the con involved disown phones cell for evidence text of normal need for law "the enforce upheld ment”). criminal .activity could the- exception to the search-incident-to-arrest requirement. Supreme warrant Court cases, "special Describing such needs” ultimately that the rationale determined "[w]e Court has observed that have exception extend to defeat the did upheld suspicionless and seizures to searches enhanced inherent expectation drug testing personnel of railroad conduct personal modern-day aof content cellular accidents; involved train to conduct ran telephone. drug testing dom customs officials of federal carry drug who arms or are involved inter Charleston, City Ferguson See also diction; and to maintain check automobile 121 S.Ct. n. 7 & points looking immigrants illegal and con (tracing development traband, "special and drunk drivers.” so-called needs” and seem Vernonia cases enforcement, original law it on submis- favor the needs Court characterized that is sion, investigation[.]” against a personal-privacy active criminal “an Villarreal, ordinarily 2014 WL at weak.” Id. 475 S.W.3d *17. itself, Riley And in instance, Houghton, Wyoming For generalized balancing again resorted to 143 L.Ed.2d test, this to determine the time order (1999), Supreme Court addressed scope appropriate search-ineident- scope of proper the so-called automo exception require- to-arrest requirement. the warrant bile investigation. The during ment a criminal au specific question whether *57 acknowledged that “a me- Supreme Court exception probable that rule tomobile —the in precedents of application” chanical its for contra cause to search an automobile “might support this area well the warrant- of band warrantless search authorizes a phone of cell less search” the defendant’s feasibly that might container therein following his arrest. S.Ct. at 2484. ought to em 134 contain that contraband — But, than fall on such a rather back rote passen brace a warrantless search Supreme application, Court invoked the personal the ger’s belongings, namely, pas Houghton, again to once declare: senger’s purse. Id. at S.Ct.
Though Houghton clearly crimi to ex- generally involved a determine whether [W]e investigation, Supreme empt given nal none from the type Court of search the proper approach “by assessing, theless that the on requirement declared warrant the question hand, to was to degree the one the to it which an upon privacy ... intrudes the search under tradition- individual’s
evaluate
and,
other,
on
to
it
by
degree
al
as-
the
which
standards
reasonableness
the
hand,
the
sessing,
degree
promotion
legitimate
one
the
to
needed for the
an
governmental
individual’s
upon
it intrudes
interests.”
and,
other,
privacy
the
to
degree
the
300,
(quoting Houghton,
Id.
526 U.S. at
promotion
the
which it is
needed
1297). Re-evaluating
com
S.Ct.
the
119
legitimate governmental interests.
peting
that are at stake
interests
when
300,
Ultimately
Supreme
119
to
phones,
Id. at
comes
the
Court
S.Ct.
cell
exception
the
the
holding
automobile
search-ineident-to-ar-
concluded
requirement
justify
exception
to
á warrant-
rest
should indeed extend
warrant
that,
purse,
less
'the
control
some
passenger’s'
should
absent
way
Supreme
along
exception,
Court
other
Fourth Amend
observed
valid
competing
requires
interests “militate in ment
Id: at 2484-91.6
warrant.
653-54,
47J,
646,
present
objected
who
School
515
115
District
U.S.
defendant —was also
(1995).
entry.
Id. at
126
L.Ed.2d 564
S.Ct. 1515.
Concluding
such a warrantless
intrusion
investiga
involving
case
6. Another
a criminal
for Fourth Amend-
unreasonable
balancing approach
purposes,
Supreme
tion
ment
Court observed
that conducts a
that,
against
balancing
govern-
personal privacy
governmen
competing
"in
measure
bar,
legiti
tal
in
mental'
tire
unrea-
determine the
interests entailed
order to
searches,
scope
general
cooperative occupant’s
mate
to' the
sonable
Randolph,
requirement
Georgia
nothing
government’s
invitation adds
103, 114-20,
indi-
objecting
side to
of an
counter
force
(2006),
against
question
security
govern-
in Ran
vidual’s
L.Ed.2d
The
claim
dolph
dwelling
-investigating police
place.”
offi
ment’s
into
was whether
intrusion
his
omitted).
114-15,
(citation
cers
enter a
with the‘consent of
rant (driv reh’g) for motion (opinion State’s is no scope, there with such an issue right”). privilege “is a not a Most Court would reason doubt this, having passed drivers understand balancing ap- same have' undertaken the license, receiving a examination before Riley, Houghton and proach it did in driving in for having’ pulled been over exigent determine whether circumstances they point at some if have been fraction particular might, those circum- any period for of time all. licensed stances, justify a search' “implied is a so-called consent” Texas person. DWI offender’s at 1566 McNeely, 133 S.Ct. state. See reasons, I For believe Court these (“[A]ll opinion) have (plurality states original, ac- submission should have laws[.]”). adopted This implied consent knowledged general ap- balancing that the statutory adopted means that Texas has case, notwith- proach appropriate whereby been any person who has scheme Urge I standing McNeely. while intoxicated arrested balancing analysis conduct taking to have “deemed consented” and, it, having that the conducted conclude a deter specimen breath or blood tips balance in the State’s favor. After a concentration, mination of blood-alcohol scheme, exposition statutory I brief *59 724.011(a).7 § Accord Tex. TRANS. Code I my explaining why to will devote efforts “may” ingly, specimen a be breath or blood right believe that is the conclusion. if the DWI offender an accedes taken Transp. arresting “request.” Tex. II. THE STATUTORY officer’s SCIÍEME 724.012(a)(1).8 § these so- Despite Code an normally, Even auto- operated when “implied provisions, called consent” howev implement; can dangerous mobile be a er, arresting may not compel officer the hands, wrong deadly weap- it can a the be a taking specimen of such from the ordi State, on. Walker v. 897 S.W.2d nary or second-time offender first- DWI all (Tex.Crim.App.1995). Because we who simply refuses to submit. Téx. Trans. roadways, public driving share the must § circum activity 724.013.9 Under highly regulated privilege, a these Code —a stances, right. Department not a See Texas the officer must obtain a search of person grounds per- "If having a is arrested for offense aris- reasonable to believe the ' alleged of operating out to have been son a 'acts commit- ... while intoxicated was person operating place[.]” while public ted the a motor in a motor vehicle public place vehicle .'.. while a intoxicat- ed, 724.012(b), provided person 9. Except ... to have the deemed consent- Section ed, chapter, subject may specimen person to this to submit the taken not be if taking taking specimens per- specimen more one or the to submit to the refuses analysis designated by peace or á son’s breath blood for deter- officer.” The driver’s ” concentration!,] consequences, mine the course— alcohol refusal has adverse suspension privileges the his person's against specimens of a him subse upon 8. “One or more the use of refusal person quent prosecution. or if the breath taken is- Tex. Code Trans. 724.061, 724.035, request peace §§ arrested and at the of a officer State, might to apply warrant. Beeman v. S.W.3d found circum- under the (Tex.Crim.App.2002), this particular stances the case. just consent is one recognized implied Thus, arresting while the officer the a blood way an officer can seek obtain run-of-the-mill DWI case some meas- specimen; or if the first- or second- breath ure of discretion deciding whether give consent time DWI offender refuses specimen seek a for analysis, blood-alcohol fact, go beyond officer can the still not this is so when it to his investi- comes statutory a search war- and seek scheme gation, incorrigible DWI offender. compel taking specimen rant to of a evident legislative intent of Section the Fourth breath or blood consistent with 724.012(b)(3)(B)is to eliminate the arrest- nothing statutory Amendment. .But ing officer’s choice whether to such obtain requires ask scheme the officer either to specimen incorrigible from an of- DWI for a specimen or to seek warrant Indeed, fender. He must simply do so. compel specimen in ease of ordi- if he seeks a warrant neutral and the even nary DWI offender. magistrate and detached declines issue That the case under Section it, the statute requires still the officer to 724.012(b)(3)(B) Transportation sense, the specimen. take In this provision, Code. sus- Under DWI taking mandating of blood least — pect convic- prior with least two DWI specimen or every incorrigible breath- statutorily does have same tions offender, DWI without exception granted ability to consent as does refuse —the statute authorizes the first- and even second-time searches offend- .724.012(b)(3)(B). body §§ incorrigible er. Tex. Trans. DWI offender. Code statutory That is because the scheme question So arises: Does the arresting leaves officer no room legislative judg- tolerate discretion; once he has a sus- “arrest[ed]” exigency ment inherent in the loss pect “possesses DWI and he re- BAC passage evidence of time is a ceives information” that he reliable justifies the authorization a warrantless (or more) offender, three-time blood draw dan- combat manifest require taking speci- officer “shall gers presented by the incorrigible DWI Id.; exception. men”—without Tex. I offender? Legislature’s *60 believe TRAnsp. § Nothing in Sec- 724.013. Code judgment pass the would Court’s 724.012(b) speaks tion explicitly to whether general balancing test for Fourth Amend- arresting to' officer first to seek needs ment reasonableness. taking obtain warrant before re- quired specimen. Nor does Section THE III. BALANCE OF INTERESTS 724.012(b) spell particular out any contin- gencies, ar- apart from fact of a new Purpose A. Preamble: discovery prior rest at least two Requirement the Warrant convictions, that DWI serve to re- essential, , “An purpose re warrant arresting having lieve -officer of to quirement protect privacy is.to interests Rather, obtain a it unequivocally warrant. assuring subject or citizens to a requires arresting to compel officer such seizure‘that intrusions are to to a three-time DWI submit offender or arbitrary government random acts of blood, specimen regardless of of breath or Skinner, 621-22, 109 agents.” 489 U.S. at whether the officer has obtained a warrant cases, 1402 (citing, any among S.Ct. other previously well-established whether 1, Chadwick, 9, exception to States v. requirement the warrant United 433 U.S.
850 (1977) See Gerald De 2476, committed that offense. L.Ed.2d 538 97 S.Ct. 53 —a investiga- Alford, venpeck a focused criminal involving case (2004) (“In tion), provides A also the de- warrant scrutiny magistrate, law, of a neutral conformity common tached the rule at with objective determina- ensures and thus is by a law officer rea warrantless arrest in justified an intrusion is tion whether sonable under the Fourth Amendment at given case.” Id. is cause believe probable where there may search or But warrantless seizure or is being has that a criminal offense been yet the' Fourth reasonable under committed.”). Thus, the offender’s when, under particular sce- being bodily in not seized not so interest nario, to further “a warrant would do little intervention of weighty require Moreover, Id. these aims.” prob magistrate to evaluate independently govern- proclaimed that “the Court has Is cause. his incremental interest able with the dispensing ment’s interest in war- sufficiently being also searched strongest rant its requirement is at when protections of a weighty as invoke obtaining a warrant ... the burden of magistrate officer’s assess evaluate governmental likely pur- to frustrate the That probable depends ment of cause? (internal pose the search.” Id. behind upon scope of the search: a the nature and omitted). quotation marks and citations person warrantless search of the incident delay true “the particularly This is when arrest, immediately assuring limited may ... necessary procure preserving safety officer’s and/or result, evi- of valuable destruction destroyed, is ordi evidence that could “imposing a warrant dence.” When Riley, S.Ct. at narily reasonable. ... would little to the add Indeed, of a 2483-84. even the absence certainty regularity al- assurances arrest, formal search of the a warrantless particular regulatory ready [a afforded if person the State’s be reasonable regime], significantly hindering, and while objective is preserve “highly evanescent frustrating,” cases the State’s ob- many Murphy, evidence.” U.S. Cupp jectives, a warrant not “essential” to 36 L.Ed.2d of that regime reasonableness assure the Schmerber).10 (citing, things, of all the Fourth Amendment.' Id unquestionably abiding I evaluate constitu- stemming compelling validity “implied of Texas’s consent” tional driving: of drunk “No one can seri- tide statutory regime principles these ously dispute magnitude drunk- foremost in mind.
-driving problem
en or the States’ interest Query: Purpose Is the
B. Sitz, eradicating it.” Already S.Ct, Served? Warrant But when is.balanced against *61 privacy inter- DWI offender’s the may with- A DWI offender be arrested .punctur- est to a involves avoid search that warrant, consistent out with the Fourth a a vessel Amendment, arresting both the skin and -blood long as offi- so the has to obtain probable cer cause to believe he order his blood—even the has v, 3) put scrapings; Cupp Murphy, fingernail Court- consent to he 10. the In his pre-arrest back and rubbed them to hands behind his concluded 4) gether; put fingernails justified pock he in his Murphy’s was then them sound, 1) ets, keys making Murphy police metallic such aware that “a because: , change giving rattlingf.]” him of an him U.S. at suspected offense evidence; 2) destroy he refused to to motive “highly sake of the preserving statutory evanescent.evi- scheme. .authorization dence” of the level of alcohol his blood- of a.warrantless blood draw under Section 724.012(b)(3)(B) stream offense—the (1) time State’s triggered only is an sufficiently weighty justi- (2) interest is arrest and discovery of-reliable fy categorical rejection the warrant suspect information that the has been ac- requirement. McNeely, See 133 S.Ct. at tually convicted least two previous on at (“[Wjhile dissipation the natural of occasions for while intoxicated. may support alcohol in the blood a finding order, to incorrigible arrest DWI .of- case, of exigency in a as it specific did fender, must probable the officer find Schmerber, categorical- not do so does suspect cause to has been driv- believe ly.”). ing while same finding intoxicated —the magistrate have make would later case, At ordinary least in the DWI authorize, a blood But draw.11 once the State’s in preserving evidence is officer also reliable receives information simply enough justify substantial ,the from a suspected source credible dispensing mag- with the intervention of a DWI has' offender been convicted least istrate, if practicable, independently conduct, twice before- for same his verify probable the existence cause. In of probable current cause context, efficacy magistrate determination significantly, by objective bolstered evi- cannot be doubted serve .constitu- proven dence propensity the.offender’s tionally function stand intended between to commit such crime.12 Because the citizen and constable assure that prior convictions substantial objective lend fact credence basis in exists to merit officer’s, to the probable-cause-to-arrest de- incrementally greater that a intrusion termination, magistrate rarely find beyond blood draw mere constitutes — fact of occasion doubt overall factual upon basis person custodial arrest — of the suspect officer’s conclusion offender. may very again.13 well offended once have
But when it to Texas’s incorrigi- comes scheme, prove It rare for a magis- ble-DWI-offender the intervention also should of a magistrate practical little of trate to doubt objectivity adds find cause to val- ue. The assurance of neutrali- the information that the arresting detached offi- ty already to a extent upon certain inherent in had cer relied to establish probable 11. The cause propensity, officer’s nal determination while it be deemed inad- reasons, suppress, can be tested motion to missible policy later in at trial for is no less course, fails, probable pertinent and if probable cause cause determina- tion). evidence from the draw should then be suppressed poison- event as fruit of the See, State, Monge ous e.g., tree. given S.W.3d good has 13.”[T]he citizen who no ("The (Tex.Crim.App.2010) 'fruit of believing engaged cause for he [criminal] poisonous generally precludes tree’ doctrine activity proceed -way is entitled to on-his with- - evidence, indirect, use both direct and recently out one interference. who But - arrest.”). illegal following obtained repeatedly given ground substantial believing engaging that he is in [similar crimi- suspect’s prior activity] immunity[.]” [A] -... convictions are not nal has no such Brine- See, gar, barred e.g., from consideration. the issue of 338 U.S. at LaFave, Rousseau, probable Wayne cause.” 2 R. Commonwealth v. 465 Mass. Search 383-84, and Seizure: A 553-54 N.E.2d on the Fourth Treatise Amend - (5th (search 3.2(d), ed.2012). § ment including & n.147 at 72-4 informa- affidavit *62 States, 160, Brinegar See suspects’ 338 tion United as “extensive criminal 172-78, histories,” supply probable 69 93 S.Ct. L.Ed. 1879 was sufficient cause). (explaining suspect’s that evidence of a crimi- 852 “light touch arresting of- as the mere on [a] offenses.
suspect’s past
process”,
in
source,”
taking
the inside of
cheek” involved
required by
ficer’s “credible
purposes, King,
likely to
an official
buccal swab
DNA
rec-
statute;
1-33
at
draws are none
him
S.Ct.
ord,
conveyed
his- dis-
either
days
in
commonplace
“a
theless
these
his-squad
on
car
patcher or memorialized
experi
periodic physical examinations and
a mag-
same kind
source
computer —the
quantity
ence
them teaches
likely
he
consult were
istrate would
minimal,
and that for
blood extracted
stray beyond the four corners
war-
people
procedure involves
most
virtual
verify
order
the infor-
affidavit
rant
risk, trauma,
Schmerber,
ly
pain.”
no
or
application.
mation
(footnote
at
86
1826
384 U.S.
S.Ct.
status as-a twice-convicted
suspect’s
omitted).
thus confirmed ‘so
“Schmerber
essentially an.objective
DWI offender
ciety’s judgment
that blood tests do not
fact,
realistically subject
is not
one that
unduly
imposition
constitute
extensive
perspective of
competitive”
the “often
privacy
on an
and bodily integ
individual’s
Riley,
officer.
S.Ct. at
investigating
” Skinner,
rity.’
at
489 U.S.
S.Ct.
Jácksdn’s
Justice
famous
(quoting
(quoting
L.Ed.2d 639
Winston v.
phrase
Johnson v. United
turn
1611).
Lee,
853 The person of the of the DWI offender D. State’s Interest of his is but an taking a specimen Combating Incorrigibility DWI than greater intrusion incrementally I need dwell long abiding not on the already permitted is war- without legitimacy of the interest. State’s To be- rant, probable so cause to arrest long as with, gin is no denying “there the fact that exists. very there is strong societal Finally, respect to the blood-draw dealing effectively problem with the of analysis, only information private driving.” LaFave, drunken 5 R. Wayne is seeks obtain “evidence SEARCH AND SEIZURE: A TREATISE THE ON presence alcohol or of a con concentration 10.8(d), (5th § at 429 FouRth Amendment substance, drug, dangerous drug, trolled ed.2012). Texas is not immune to the Transp. or other substance[.]” Tex. Code problem. alone, In 2014 officers state- § Nothing Chapter 724.064. 724 70,569 driving wide made arrests for Transportation contemplates Code Dep’t. the influence. Tex. Safety, Texas suspect’s analyzed for blood will be (2014) http://www.txdps.state. Arrest data Thus, purpose. other the State conducts tx.us/crimereports/14/citCh9Add.pdf. testing no additional “wheth determine There total of 925 were intoxication- is, [Appellee] example, epileptic, er for related collisions involving fatalities King, 133 pregnant, or S.Ct. at diabetic.” year, 1,041 resulting same the deaths Vernonia, 47J, Dist. School (quoting people this is over and above the —and 2386). 515 U.S. at S.Ct. Dep’t. 2,328 incapacitating injuries. Tex. sharply the blood itself is. and DUI Transp., (Alcohol) total fatal cused, personal and the revelation infor Injury Comparison crashes quite mation is limited. circumscribed http://ftp.dot.state.tx.us/pub/txdot/trf/ erash-statistics/2014/37.pdf. In addition to deny
None of this is to that a DWI carnage driving while intoxicated not of the offender’s interests are “most inflicts, resulting property damage is nature, implicating “deep-rooted personal” neighborhood estimated to in the expectations McNeely, privacy.” annually billion dollars nationwide. L.J. Lee, at (quoting Winston Blincoe, Miller, Zaloshnja, T.R. E. & B.A. 1611). U.S. at But U.S.’Dep’t. Lawrence, Transp., Nat’l. bodily integrity Of insult to inherent in the Highway Safety Admin., Economic and contemplated blood draw Section Impact of 724.012(b) Societal Motor Vehicle CRashes relatively benign, is the offender (2015), http://www-nrd.nhtsa.dot.gov/ time, legitimately under arrest pubs/812013.pdf. are sim- These numbers private and the information extraction mind-boggling. ply is not analysis of that blood indis- criminate, revealing in- only potentially But more is at here than even stake ordinary criminating weighty information relevant DWI deterrence —a intoxicated, nothing enough right. while extrane- consideration its own So- ciety also has least a inter- ous.16 “substantial” probationer regard (Knights, that a U.S. at 119- It that I do not should be noted 587) (Samson, incorrigibility parolee or recidivist DWI offender’s 850-52, 2193) Rather, expectation U.S. at does. privacy. factor that reduces Appellee probation parole the fact is an established Unless he still on DWI convictions, properly regarded as a factor previous he is recidivist one of his State, custody be considered the State’s-interest side of constructive ledger. so he does suffer the reduction *64 854 the be tolerated Fourth “combating in recidivism.” Samson v.
est
otherwise
853,
Samson,
126
California, 547 U.S.
S.Ct.
547 U.S. at
Amendment.”
2193,
(2006).17 In
250
United
165 L.Ed.2d
S.Ct.
112, 122
U.S.
Knights,
States
724.012(b)(3)(B),
Legisla
the
In Section
(2001),
Supreme
the
effectively combined these two
ture has
highlighted the
expressly
Court
Govern
interests;
in gener
DWI
already-weighty
in
legitimate
curtailing
interest
re
ment’s
al,
combating
in
the
recidi
persons
probation,
in
on
placed
cidivism
Moreover,
vism.
the statute addresses
concern,
justi
quite
alluding to the “the
particularly
in a
interests
these combined
fied,
[they]
likely
more
to
will be
targeting
repeated
way,
efficacious
than an
in criminal conduct
ordi
engage
of
pernicious
particularly
commission of a
nary
community.”
Id. at
member
only
triggered
is
fense. The blood draw
120-21,
Supreme
587. The
information
credible
when there is
Court concluded that
Government’s
suspect
multiple
is in
DWI
recidivist
fact
apprehending
in
violators of the
“interest
probable
to be
whom there is
cause
law,
protecting potential
thereby
criminal
yet again.- In this
he has
lieve
offended
victims of criminal
there
enterprise,
way,
approach
it
constitutes measured
probationers
justifiably
fore
bn
in
focus
most
problem,
tailored to the
DWI
ordinary
way
not on'the
citi
does
peril:
intractable drunk
obvious
driv
zen.” Id. at
justify a
that “the
holding
control,
apt
havoc
be the most
to wreak
supported by
suspi
search ...
reasonable
limb,
life,
property
in
future.
by a
of pro
cion
condition
and authorized
society
It
him
from
needs
most
bation,
meaning
was
within the
reasonable
does,
protect itself—and
as illustrated
Id.
Amendment.”
imposed upon
punishments
the enhanced
general
What péak íeached before or he was after increases, so too does the need offense p e d . stop just of intoxi- hot some preserve, evidence cation, very but best evidence inon We went Mata to emphasize reasonably Nobody disputes be obtained. studies, “given the concepts other seem alcohol the “evanescent” character indisputable,' including that” ... a tést *67 drawn,at any Blood time concentration.' in nearer time alleged to-the' time of the - precisely the fact reflect the after will offense increases' to ability the determine (“BAC”) alcohol at the blood concentration subject’s the offense-time Id. BAC[.]” in of the offense. As observed time we vein, ín similar the Court (Tex. State, Mata v. S.W.3d that,’ has also noted “because 'an’individu Crim.App.2001): gradually al’s alcohol level soon declines consumed, drinldng, significant delay it from he a passes stops
As alcohol
after
testing
negatively
into
in
will
stomach
intestines
the
affect
proba
the
the
blood,
the
process
absorp
a
tive value of
McNeely,
referred to
results.”
at 1561.
may
tion. When the alcohol
the S.Ct.
And “longer
reaches
intervals
of
system,
questions
accuracy
and nervous
the chárac-
raise
about the
the
brain
signs
begin
up
to
calculation.” Id. at 1563. The
[BAC]
teristic
intoxication
* *
At
drink
shot is that the more
point
goes
show.
some
after
time
ceased,
arresting
person’s
BAC'will
before
officer is
to draw
able
testing,
peak.
suspect’s
a
the BAC a
for
peak,
reach
After the
DWI
BAC
(2006),
ques
determining
emergency
exists[.]”
164.L.Ed.2d
whether an
And,
"police
Welsh,
a home
tion was whether
enter
for it worry quickly about circum parsing make, very from the worst of offend- itself constitutionally-accept stances proven have themselves ers—those who judgment call. while the “factors able And injury and likely perpetrate most future favoring always pres a search will not damage. Any delay follows property ent, ... interests must balancing arresting stop officer requiring to, an eye generality conducted obtaining a feasibility and assess the cases” and “take these must account *68 be much more con- warrant first will Houghton, 526 practical realities.” U.S. at short, sequential. prosecution In in the 305-06, Indeed, cal “[t]he offender, incorrigible DWI “second-best embody culus of must al reasonableness will to ade- simply evidence” not suffice police for the officers lowance fact that See satisfy the State’s interests. quately make, split-second judg often forced to (Roberts, C.J., concurring id. at 1571 tense, that are circumstances ments—in (“The dissenting) for [to need evi- uncertain, evolving,” Ken and rapidly compelling no be- is less BAC] dence tucky King, acquire to police might able cause Connor, (quoting Graham v. second-best, evidence some other 396-97, way.”).25 (1989)). obtaining When the best evidence ordinary imperative suspect as in is is satisfactory, Nor it because offender, case, say may proven incorrigible to well be “[a] DWI rule there DWI s (and longer require it no ultimately some cases in which will take officers courts) convey delays, to to balance transportation to obtain warrant than “sanitary availability, magis to incorrigible suspect hospital to the access DWI place” required státute for blood trates not a workable rule natu- [since] might expert they DWI of- incorrigible context of because use be able fender, take Thom- persuasive ap- we should to heart Justice witness and less evidence to ' n, facing de- assertion: “Police inevitable Id. at 1578 as's proximate they what lost." forgo collecting struction situations need (Thomas, J., dissenting). available,evidence simply the most accurate processes destroy tionally ral inevitably the evi reasonable even without a warrant. every passing
dence with
minute.” While even
incorrigible DWI
offender
(Thomas,, J.,
McNeely,
enjoys
necessary 1) balancing analysis to probable determine cause arrest. 2) that such a always intoxicated, warrantless search will while proof reliable be “reasonable” under the Fourth prior convictions, Amend- two magistrate’s ment. respect We should that legislative independent contributes little evaluation judgment it if is not inconsistent with further guarantee objective reason Fourth Amendment reasonableness. ableness of the search.
IWhén do the I balancing myself, agree that, balance, I conclude a warrant- legislative judgment' long analysis less blood draw carried as a blood draw is carried out strict out prescribed by under the terms criteria, statutory accordance with the always prove statute will to be reasonable may categorically regarded as constitu purposes.28 Fourth Amendment also, See, e.g., ("Our Randolph, 26. See e.g., Riley, at 121— at 2493 *69 course, (refusing S.Ct. 1515 to holding, fashion a rule is not that the information search; requiring police co-occupant to seek phone out the on a cell is it immune is of a home in order to determine generally required whether he instead that a seárch, might object co-occupant’s to phone another before such á even consent when a cell arrest.”). premises to a 'of the because seized incident to “would needlessly capacity limit of the police respond ostensibly legitimate to to op suggest any I do not mean to one of portunities “impose in the field” and would the State's interests discussed above would suffice, itself, requirement, consuming time justify the field warrantless blood courtroom, Rather, in the systemic no apparent draw under the statute. it is the justification”). Forcing police general officer to combination State’s interests —the whether, pause intoxicated, consider circum deter while case, particular likely'to stances of the he gravity felony driving offense while intoxicated, be able to obtain a search warrant preventing in the the interest recidi- (and same or particularly, incorrigible driving less as it would time take vism amount intoxicated), convey incorrigible suspect heightened to a while and the inter- place” “sanitary imposes possible for obtaining blood extraction est best evidence similarly counterproductive requirement. against naturally such offenders it before with, will statute, properly complied when appliea- of its constitutionally all
operate Appellee tions, including applied appeals court Both this case. erred, in original submission this Court- than Rather view, hold otherwise. my granting our earlier order simply rescind rehearing, motion State’s look endorse a second take should legislative judgment considered under the search conducted 724.012(b)(3(B), by Section set conditions prove constitutional.29 will ' dissent. respectfully I STATE Texas JOHNSON, Appellee
Terence NO. PD-0228-14 Appeals of Texas. Court of Criminal October Delivered: 9, 2015. Rehearing Denied December dissipates categorically inevitably serves the terms of the satisfied. As statute are —that incorrigible recently Riley, .Supreme outweigh the DWI offender's as in Court con- analysis determine whether interest. ducted such an particular type of warrantless search was clear, justifiable as a note: I if it search incident arrest. 134 One final wish to make Here, already, advocating pursuing I S.Ct. at 2484-91. after a sim- am not is not *70 Legislature exception I unheard-of ilar conclude that the analysis,, some heretofore general application exigent involv- in cases has identified an of the warrant investigations. contrary, exception always On circumstances will criminal general simply it. my whole thesis reasonable and has codified Be- agree Legislature balancing approach to Fourth Amendment cause I that this "reasonableness,” scope already application exigent of an ex- circumstances ex- exigent ception operate constitutionally isting exception circumstances will in a rea- —the requirement prop- pur- manner for sonable —to erly poses, judgment I 'to authorize automatic would reverse extends incorrigible appeals. DWI offenders when draws for court