## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

NO. P D-0306-14

THE S TATE O F TEXAS

v. DAVID V ILLARREAL, App ellee
O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E T H I R T E E N T H C O U R T O F A P P E A L S

N U E C E S C O U N T Y
A L C A L A , J., delivered th e opin ion of the Court in wh ich P R I C E , W O M A C K , J O H N S O N , and C O C H R A N , JJ., joined . K E L L E R , P .J., fi led a dissentin g opin ion in wh ich H E R V E Y , J., joined. M E Y E R S , J., fi led a dis senting opi nion . K E A S L E R , J., dissented.
O P I N I O N
I n this case , we are asked to decide whether the war rantless, nonconsensua l draw ing of blood from an individual suspected of driving while in to xic a te d , c o n d u c te d p u rsuant to the implied-consent and mandatory -blood-dra w provisions in the Texas Transpor tation Code, violates the Four th Amendment. See U.S. C O N S T
. amend. I V; T E X
. T R A N S P
. C O D E §§ 724.011(a) , 724.012(b), 724.013. This question comes to us in the form of a n interlocutory

appea l filed by

the S tate challeng ing the trial court’s order g ranting a motion to suppress in favor of David Villarre al, appellee , who wasV i l l a r r e a l

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arr ested for felony DWI and subjected to war rantless blood-specimen collection over his objection pursuant to the provisions in the Code. I n its petition for discretionar y revie w, the State challeng es the trial court’s and the court of appea ls’s conclusion that the war rantless sear ch of Villarre al’s blood under statutory authority providing for implied conse nt and mandator y blood-specimen c ollection violated the Four

th Amendment. See State v. Villarreal , No. 13-13-00253- CR, 2014 WL 1257150 (Tex. App.—Corpus Christi J an. 23, 2014). I t further challeng es two spec ific aspe cts of the c ourt of appea ls’s analy sis by contending that the court err ed in concluding that (1) the State forf eited its implied-consent arg ument on appea l by stipulating to the fac t tha t Villarre al did not consent to the blood draw , and (2) the mand at o ry -blood-dra w statute, by its terms, does not dispense with the

war rant re quirement.
I n addre ssing the merits of the State’s challeng e to the trial court’s ruling , we conclude that the war rantless, nonconsensua l te sting of a DWI suspect’s blood does not cate g orica lly fall within
any rec og nized exception to the Fourth Amendment’s warra nt require ment, nor can i t be jus tified under a g ener al Four

th Amendment balanc ing test. Acc ording ly , we hold that the sear ch in this case violated the Four

th Amendment. Wit h respe ct to the State’s specific complaints reg arding the court of appea ls’s analy sis, we conclude that, althoug h the court of appea ls err ed by deter mining that the State forf eited its impli ed-c onsent arg ument on appea l throug h stipulation, remand is unnece ssary in light of both the c ourt of appe als’s implicit rejection of tha t arg ument and our ex press re jection of that arg ument in our analy sis today

. We further conclude that the court of appea ls err ed to addre ss the constitutionalit y of the mandatory -blood-dra w statute and, in light of our holding in this case , we decline to revie w the State’s complaint with respe ct to that matter. We aff irm the trial court’s ruling suppressing the blood-test re sults.V i l l a r r e a l

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I. Background Apply ing the law to the undisputed fac ts, the court of appea ls upheld the trial court’s ruling
g ranting the motion to suppress the results of Villarr eal’ s blood test.
A. The F acts One Saturday evening in 2012, Villarre al was stopped for a traff ic violation. The office r who made the stop, Offic er Preiss, observe d that Villarre al had signs of i n t o x ication, and he contacted another office r, Offic er Wil liams, to conduct a DWI investiga tion. Upon arr ival at the scene , Wil liams observe d that Villarre al was exuding a strong odor of alcohol, was sway ing back and forth, and had red, water

y ey es and slurred sp ee ch

. W illiams reque sted that Villarre al perf orm standardized field sobriety tests, but he ref used. Be lieving Vi llarre al was intox icated, Wil liams

arr ested him on suspicion of DWI

. Wil liams then g ave Villarre al a writ t en statutory war ning
reque sting that he provide a blood specimen and advising him that, if he ref u s ed t o provide a specimen, his ref

usal may be admissible i n a s u b s eq uent prosec ution and would result in the suspension or denial of

his driver’s lice nse for

not less than 180 day s. Villarre al re fused. After a criminal-history chec k reve aled that Villarre al had been convicted of DWI on sever al

occa sions, Wil liams transporte d him to a hospital and reque sted that a qualified technicia n draw his blood over his objection. Wil liams prepa red a written repor

t aver ring that he had probable cause to believe that Villarre al had committed the offe nse of DWI and that, based on reliable information possessed or rec eived from a cre dible source , Villarre al had previously been convicted of or place d

on community supervision for DWI on two or more occa sions. The repor t stated that Wil liams was “invoking [hi s] authority under [Tex as Transpor tation Code], Section 724.012(b), to require theV i l l a r r e a l

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sus pect to submit to the taking of a specimen of the suspect’s blood.” See T E X
. T R A N S P
. C O D E § 724.012(b)(3 )( B) (statute providing for mandatory -blood-spec imen collection for person twice befor e convic ted of DWI ). The qualified t echnic ian drew Villarre al’s blood, which, upon testing,

reve aled a

blood-alcohol c oncentr ation of .16 g rams of a lcohol per hundr ed millili ters of blood.
B. Th e Trial Court P roce edings Given his multipl e prior convictions for DWI , Villarre al was indicted for felony DWI

. He 1
filed a written motion to suppress the results of his blood test. I n his motion, Villarre al aver red that there was no “dee med consent to the taki n g o f a blood specimen.” The trial court conducte d an 2
evidentiar y hear ing, at which Wil liams was the sole witness. Wil liams stated that he “could have” obtained a war

rant, but believed he “did not statutorily have to” in light of the mandatory -blood-dra w provision in the Code. He further stated that his decision to require the taking of the specimen was 3 based solely

on the statutory

authorization and not on any emer g ency

at the sce ne or the exis tence

See T E X
. P E N A L C O D E §§ 12.42(d), 49.04, 49.0 9 (b). Villarre al’s indictment for driving while 1 intox icated alleg ed that, on or about Marc h 31, 2012, he did opera te a motor vehicle in a public place while intox icated. The indictment further al l eged that he had twice befor e been convicted of misdemeanor off

en s es in 1988 and 1994 “re lating to the opera ting of a motor vehicle while intox icated,” and that he had twice befor e been convicted of felony DWI , once in 2001 and once in 2005, with the 2005 conviction being for an offe nse that occur red afte r the 2001 conviction beca me final. On the basis of Villarre al’s two prior felony convict i o n s , the State soug ht to enhanc e his punishment rang e to one car ry ing a minimum t erm of imprisonment of twenty -five y ear s up to a maxi mum sentence of life imprisonment. See id. § 12.42(d). Villarre al’s written motion also asser ted that the blood-test results should be suppressed 2 beca use the office rs conducte d his a rre st a nd sear ch without a valid war rant, rea sonable suspicion, or probable cause ; that the office rs failed to rea d him the require d statutory war nings un d er Transpor tation Code Section 724.015; that he did not voluntarily consent to the blood test; and that the statute purportedly au t h o ri z ing the taking of his blood without a war rant should be held unconstitutional. These additional cla ims were a bandoned a

t the suppression hea

ring

. See T E X
. T R A N S P
. C O D E § 724.012(b). 3V i l l a r r e a l

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of exigent circ umstances. Aside from Wil liams’s testimony , the parties additionally stipulated that Villarre al’s “blood wa s drawn w ithout his consent a nd without a war

rant.” After the close of evidenc e, Villarreal ’s at t o rney arg ued that the Supreme Court’s rec ent decision in Missouri v. McNee ly held that, in the absenc e of exigent circ umstances, a DWI suspect’s blood may not be draw n without a war rant, and he fu rt her arg ued that the fede ral Constit ution

overr ides the Texas statute that authorizes a mandatory blood draw in ce rt ai n s ituations. See
Mi s s o uri v. McNee ly , 133 S. Ct. 1552 (2013); T E X
. T R A N S P
. C O D E § 724.012(b). The State’s attorney disag ree d that McNee ly aff ecte d the validi ty of Tex as’s mandatory -blood-dra w provisi on and, based on the fac t that a portion of McNee ly was a plurality opinion, she asser ted that its holding did not nece ssarily

disapprove of

this ty pe of mandatory statutory blood draw conducte d pursuant to impli ed conse nt. After the attorney s’ ar g uments, the trial cour t gr anted Villar

rea l’s motion. The State filed a motion asking the trial court to rec onsider its ruling

. I n its motion, the State
repe ated its arg uments interpre ting the meaning of the McNee ly decision. The State asse rted that
McNee ly is g ener ally inapplicable to situations involving a mandatory blood draw throug h implied
consent in that McNee ly addre ssed only exigent circ umstances and did not addre ss other Four th Amendment exceptions. The State also asser ted that McNee ly included lang uag e signify ing that the
S upreme Court rema ins open to implied-consent laws as an alterna tive to a war rant. The Sta t e contended that the plurality portion of the McNee ly opinion signifie d that “ther e appea rs to be a differ ently -constituted-five -vote block [si c] that rema ins open to a modified rule depar ting from the

war rant require ment in circ umstances other than a per se blood-alcohol exigenc y .” I t sug g ested that the Supreme Court’s lang uag e contained “positive ref ere nces” to implied-c onsent laws and “ in no
way disapproved of the States’ car efully tailored implied consent scheme s wher e only specifie d andV i l l a r r e a l

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limit ed situations auth o r iz e d c o mp e ll e d b lood draw s afte r ref usal,” and when such sear ches are based upon probable cause . The State’s motio n t o rec onsider additionally made three specific arg uments, which are discussed more fully below, in suppor t of its br oader contention that a war rantless, nonconsensua l

sear ch conducte d pursuant to the statutory authority in the Transpor tation Code does not violate the
Four th Amendment: (1) Courts should uphold such a sear ch under t h e co n s en t exception to the

war rant require ment, appea

ring in the form of a waiver obtained throug h implied consent; (2) courts should consider whether some other exception to the sear ch-w arr ant require ment might apply , such

as expansion of the automobile exception into an automobile-driver exception or application of the specia l-nee ds exception; and (3) courts should conduct a balanc ing of g overn m ental and private interests and find that a war rantless sear ch of a DWI suspect’s blood is g ener ally rea sonable in light of the minimally intrusive nature of a blood draw and the State’s substantial public in t er est in protec ting a g ainst drunk driving

. I n its first arg ument, the State asser ted that “a defe ndant’s implied consent is val i d as an exception to the war

rant pref ere nce.” I t sug g ested that a defe ndant, by driving on Texas roadw ay s, which is a privileg e and not a ri gh t , h as impliedly consente d to have his blood draw n under the limit ed si tuations d es cr i bed in the m andator y -blood-dra

w provisi on, and he thus waives any rig ht
to later complain about a war rantless sear ch conducte d pursuant to that provision. The State asser ted that, unlike consent in the traditional sense, such a waiver of Four th Amendment rig hts applies “in spite o f t h e s u s pect’ s protest at the time of the sear ch in question.” The State contende d that the “Supreme Court ha s long rec og nized a para llel exception [to the consent exception] in the form of a prior waiver of t he Fourth Amendment rights t o probable cause and a war rant as a condition forV i l l a r r e a l

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some benef

it extend ed t o t h e suspect from the State.” I n the case of the mandatory -blood-dra w statute, “which the law presumes the driving public to have rea d,” the State sug g ested that “the driver impliedly ag ree s ahea d of time that, in exchang e for th e privileg e of driving on our roads, he is willing to waive the rig ht to a war rant in these limited circ umstances.” The S tate’s second ar g ument advocated for the broade ning of the automobi le ex ception to the war rant require ment into an automobile-driver excepti o n , o r, alt erna tively , application of the specia l-nee ds doctrine. The State claimed that, just as society has a lessened expectation of privac y in automobiles in light of their “re ady mobilit y ” and the “per vasive reg ulation of vehicles,” a driver’ s expectation of privac y in his blood is simil arly di m inished beca use he is “just as mobile as his vehicle, [a n d ] j u s t as subject to perva sive licensure and reg ulation[ .]” I t sug g ested that a driver’ s normal expectation of a war rant y ields to common conce rns inhere nt in a “hig hly reg ulated activity in which the driver fr ee l y chooses to eng ag e.” Driver s, it asser ted, are “on notice of the lessened deg ree of privac y protec tion in matters that conce rn the safe ty of the roads on which they drive,” and they should know that “their blood can be draw n without a war rant” under the conditions specifie d by statute. On that basis, it urge d t h e co u rt to “re cog nize a driver exception to the war rant require ment coextensive with the vehicle exception.” The State’s third arg ument sug g ested that a Four th Amendment balanc ing test should favor

a war rantless blood draw by weig hing the minimal intrusion of a blood draw ag ainst the substantial public interest in protec ting a g ainst drunk driving . The State c ontended that, even short of a f ree standing exception in the nature of the traditional exceptions to the war rant require ment, “the courts should allow the States to cra ft such an exception” to the war rant require ment based on the “substantial p u b l i c interest in ridding the road of drunk drivers,” as compar ed to only a “slig ht”V i l l a r r e a l

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invasion of a privac y interest throug h a minimal pin prick to the skin. Noting that the L eg islature’s objective for adopting the mandatory -blood-dra w law applicable to this case was to “save lives,” the
State’s attorne y

observe d that Texas has the nation’s wor st drunk-driving problem and its citizens “fa ce a uniquely disproportionate risk of being killed or injured by drunk drivers, compar ed to any other State.” I n contra st to the State’s and society ’s substantial interest in curbing drunk driving , the State’s attorney aver

red that a DW I s uspect has a dim inished privac y interest in his blood in light of the exis tence of implied consent and the highly reg ulated nature of driving

. As for the nature of the intrusion itself, the State’s attorne y arg ued that a pin pr ick to take a person’ s blood constitutes only a slight invasion of an individual’s privac y beca use these ty

pes of tests are considere d routine by most people. Afte r the S tate filed its motion asking the t rial court to rec onsider it s ruling , the t rial court made findings of f

act a nd a conclusion of l aw impl iedly deny ing the State’s m otion. I n pertinent part, the tr i al co u rt ’s finding s of fact determined that Offic er W illiams cre dibly assessed the fac ts showing that Villarre al was intox icated and had twice befor e been convicted of DWI ; that Villarre al’s blood was draw n with o u t a wa rra nt and without his consent; and that there wer e no exigent circ umstance s p re venting the office r from obtaining a war rant. The trial court’s single 4
conclusion of law s t at ed , “The Court conclude s that the Defenda nt’s blood was il leg ally obtained without a war

rant and in the absenc e of a rec og nized exception to the war rant require ment, and that the statutory blood draw was invalid and unconstitutional without exigent circ umstances to support

The rema inder of the trial court’s finding s of fac t deter mined that Vill ar re al n arr owed the 4 g rounds i n his motion to include onl y his claim t hat “taking a blood draw without a warra nt [i s] a violation of the 4 Amendment,” such that he abandone d any claim that he was illega lly arr ested or t h that the statute itself wa s unconstitutional.V i l l a r r e a l

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the abse nce of

a wa rra nt.” C. The Court of App eals Opin ion After the State filed an i n terlocutory appea l challeng ing the trial court’s ruling in favor of Villarre al, the court of appea ls aff irmed the ruling suppressing the results of the blood test. Villarreal , 2014 Tex. App. L EXI S 645, 2014 WL 1257150, at *1, 11. I n its sole issue on appea l, the
State contende d that the trial court err ed by g ranting Villarre al’s motion to suppress on the basis that the blood draw was involuntary and conducte d without a war ra n t , and it asser

ted that the “re peat offe nder” provision of the mandatory -blood-dra w statute could serve as a valid basis for upholding the sear ch. See T E X
. T R A N S P
. C O D E § 724.012(b)( 3). I n reje cting the State’s position, the court of
appea ls deter

mined tha t ( 1 ) n o tw it

h s ta n d in g th e o f

f ic e r ’ s c o mp li a

n c e w ith the mandatory -blood-dra w provision, the war

rantless blood draw in this case violated the Four th Am en d m en t , and (2) the mandatory -blood-dra

w statute wa s not unconstituti onal. Villarreal , 2014 WL 1257150, at *8-11. 1. Court of Appeals H eld that F ourth Am endm ent Violation Occurre d The c ourt of appea ls a ddresse d the arg uments that the State had prese nted to the trial court in support of its claim that t h e wa rr an t l ess sear ch of Villarre al’s blood did not violate the Four th Amendment. Wit h respe ct to the State’s broad claim that the McNee ly holding was inapplicable to this case and included lang uag e signify ing that the Supreme Court was open to implied-consent laws

as an alterna tive to a sear ch war rant, the court of appea ls disag ree d. Id . at *4, 10. I t obse rved that
McNee ly , which had disavowed a per se rule of exigenc y for blood draws i n DWI case s, signifie d that “[w]hether a war

rantless blood test of a drunk-dr iving suspect is rea sonable must be deter mined

case by ca s e based on the totality of circ umstances.” Id

. at *5. I t further cited McNee ly for the proposition that, “‘w here police office rs can rea sonably obtain a war rant befor e a blood sample canV i l l a r r e a l

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be draw n without signific antly undermining the eff icac y of the search , t h e Four th Amendment mandates tha t they

do so.’” Id . at *10 (quoting McNee ly , 133 S. Ct . at 1561).
I n addre ssing the State’s first specific arg ument that a driver has waived his rig ht to a war rant throug h implied-consent laws, the court of a ppeals initially

deter mined that the State had f ailed to
prese rve this arg ument for appea l, althoug h it then essentially addre ssed the merits of that arg ument. The court deter

mined that, by stipulating that Villarre al’s blood had been draw n without his consent, the State had forf

eited that arg ument and could not rely on the waiver exception to the wa rr ant require ment. The court of appea ls stated, “[T] o the extent that the State arg ues that there was valid
‘conse nt’ under the Four

th Amendment—whe ther by the mandatory blood draw law or the implied
consent law—it is barr ed from doing so in this appea l by its stipulation befor e the trial court that in this case ‘ [t ]here wa s no consent, no wa rra nt.’” Id. at *11. Although it found that the State had forf eited its arg ument reg arding implied consent, the
court appea

red to addre ss that arg

u m ent indirectly , stating, “[T] here is a distinction betwee n a

consensua l blood draw and an involuntary , m an d at o ry b lood draw

. The implied consent law is premised on consent. I n contra st, the mandatory blood draw law is premised on ref usal to consent.” Id. at *9 (citations omitted) (discussing T E X
. T R A N S P
. C O D E §§ 724.011(a) , 724.012(b))

. I t further observe d that, althoug h the State appe are d to a rg ue that “Chapter 724 cre ates a leg islative consent

or essentially a statutory waiver of the Four th Amendment,” that arg ument was inconsistent with the requir em ent that consent be g iven fre ely and voluntarily

. Id. at *10 (citing Bumper v. North Carolina , 391 U.S. 543, 548 (1968); Kolb v. State , 532 S.W .2d 87, 89 (Tex. Crim. App. 1976)). The court of appea ls indirectly reje cted the State’s second specific arg ument that, in addition
to consent and exigent circumstance s, there are other re cog nized ex ceptions to the s ear ch-w arr antV i l l a r r e a l

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require ment that could apply to this case . I n descr i b i n g t h e general law, the court observe d that “spec ial needs” is one of the rec og nized exceptions to the sear ch-w arr ant require ment. Id. at *7. The

c o u r t im plicitly reje cted the application of these other exceptions by observing that the “off icer ’s sole basis for not g etting a war rant was that the repe at offe nder provision of the mandatory -blood-dra w law require d him to take a blood sample without [Vil larre al’s] consent and without the nece ssity of obtaining a

sear ch wa

rra nt.” Id. at *11. The court of appea ls also addre ssed the State’s third specific arg ument that the minimal intrusi o n o f a b l o od draw must be balanc ed ag ainst the substantial public interest in protec tion
ag ainst DWI drivers. I t disag ree d with the State’s claims that a driver arr ested on suspicion of DWI has a lessened expectation of privac y in his blood. The court of appea ls quote d the lang uag e from
McNee ly explaining t hat “an invasion of bodily integ rity implicates an indi vidual’s m ost persona l and deep- rooted expectations of privac y .” Id

. at *4 (quoting McNee ly , 133 S. Ct. at 1558). I t also cited Schme rber v. Calif

ornia , 384 U.S. 757, 771 (1966), for the proposition that, althoug h “the Constit ution does not forbid the State’s minor intrusions into an individual’s body under stringe ntly limit ed conditions,” that princ iple “in no way indicates that it permits more substantial intrusions,

or intrusions under o t h er conditions.” Id

. at *5. Although it rec og nized that the drunk-dr iving problem is a national epidemic and that there is a strong g overnme ntal interest in curbing DWI s, the
court quoted McNee ly ’s observa tion that “the g ener al importance of the g overnme nt’s interest in this

are a does not justify depar ting from the war

rant require ment without showing exigent circ umstances that make securing a warra nt impractica

ble in a particular case.” Id

. at *4 (quoting McNee ly , 133
S. Ct . at 1565). 2. Court of Appeals H eld that Blood -Dr aw S tatute Is Not UnconstitutionalV i l l a r r e a l

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I n addition to ag ree ing wit h t h e trial court’s conclusion that the war rantless sear ch of Villarre al’s blood constituted a Fo u rt h Amendment violation, the court of appea ls considere d the constitutionalit y

of the mandatory -blood-dra w s tatute i tself, and it deter mined that the statute wa s
not unconstitutional “as applied” to Villarre al. Id. at *8. I n resolving this matter, the court observe d that, althoug h the Texas mandatory -blood-dr aw s tatute “re quired the office r to obtain a brea th or blood sample, it did not require the office r to do s o wi t h o ut first obtaining a war rant. I n fac t, the
statute does not a ddress or purport to dispe nse with the Four th A mendment’s war

rant require ment for blood draw s.” Id

. at *11. I n light of its deter mination that the s tatute i tself d o es n o t d i s p ense with the war

rant require ment and its conclusion that the Four th Amendment would require a war rant under the se circ umstances, the c ourt upheld the trial c ourt’s ruling suppressing the evidenc e. Id.
We g rante d the State’s petition for discretionar y revie w to ad dress its contention that the
court of appea ls err ed to hold that a war rantless blood draw conducte d pursuant to the provisions in the Tra nsportation Code violates the F ourth Amendment. 5
II. P rovisions In Transportation Code Do Not F orm Constitutionall y Valid Alternative t o

The State’s pe tition presents three g rounds for r eview: 5
1. Whether the Thirteenth Court of Appea ls err ed in ref using to hold that the mandatory blood draw provisions of t he Te x as Tra nsportation Code are a constitutionally valid alterna tive to the warrant require ment. 2. Whether t he Thirteenth Court of Appeals err ed in holding that t h e S t at e’ s stipulation that there was no consent to the blood draw amounted t o a wa iver of the “implied consent” or “dee med consent” arg ument under the Transpor tation Code.
3. Whether the T h i rt ee n t h Court of Appea ls err ed in concluding that the mandatory blood draw s t at u t e d o es not allow the arr esting office r to draw blood without a sear ch war rant or exigent circ umstances, and specific ally whether the court failed to consider the distinc t i o n b et we en the statutory direc tive for the arr esting office r to r equire or order the draw , and the nature of a war rant as an or der of

the issuing mag istrate for the dra w in question.V i l l a r r e a l

- 1 3 Warrant R equirem ent
I n its first g round for revie w, the State contends that the court of appea ls err ed by holding that the provisions in the Transpor tation Code do not form a valid alterna tive to the Four th Amendment

war rant require ment. To explain why we reje ct the State’s contention that the implied-consent and mandatory -blood-dra

w provisions establish a constitutionally valid basis for conducting a

nonconsensua l sear ch in the absenc e of a sear ch war rant, we revie w (A) the applicable statutory law and (B ) g ener al Four

th Amendment principles, and we then (C) discuss eac h of the State’s particula r
arg uments in turn. A. Transportation Code’s Im plied-Consent an d Mandatory-Blood-Draw Pr ovision s Be cause the State relies upon the provisions in the Transpor tation Code as constituting a valid substitut e for a war rant, we beg in our analy sis with a revie w of t h o s e p ro v i s ions. The Transpor tation Code contains a provision estab lishing implied consent for all drivers arr ested on suspicion of DWI

. See T E X
. T R A N S P
. C O D E § 724.011. That provision states,
I f a perso n is arr ested for an offe nse arising out of acts alleg ed to have been committed while the person was opera ting a motor vehicle in a public place

. . . the person is dee med to ha

ve consente d, subject to this chapte r, to submit to t he taking of one or more spec imens of the per son’s breath or bl ood for analy sis to determine the alcohol conce ntration or the prese nce in the person’ s b o d y of a controlled substance, dr

ug , dang erous dr

ug , or other substanc e. Id

. § 7 2 4

. 0 1 1 (a)

. Although this provision appea rs to cre ate a blanket rule of consent for all 6
individuals arr ested for DWI , its ter ms a re further modified by Section 724.013, which establishes

a rig ht to ref

use to provide a brea th or blood sample in routine DWI case s. See id. § 724.013. That

See also T E X
. T R A N S P
. C O D E § 724.012(a) (providing that (a) “[o] ne or more specimens of 6 a person’ s brea th or blood may be taken if the person is arr ested and at the reque st of a peac e office r having rea sonable g rounds to believe the person: (1) while intox icated was opera ting a motor vehicle in a public place ”).V i l l a r r e a l

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provision, entitled, “Prohibition on Taking Specimen if Person Refuses; Ex ception,” provides that, “a spe cimen may

not be taken if

a per son ref

uses to submit t o the taking of a specimen de signa ted by a peac e office r.” Id

. But this ri gh t o f re fu s al is not absolute. See id. (providing that rig ht of

re fu s al s u bject to exceptions “as provided by Section 724.012(b)” ). Section 724.012(b), in turn, establishes that, when cer tain ag g rava ting fac tors are prese nt during a DWI stop, a suspect may not ref use to submit to a specimen and, even if a suspect ref uses, an office r is required to obtain a specimen. Id. § 724.012(b). Tha t statute provides, (b) A peac e officer shall require the t aking of a specimen of the p er s o n ’s b rea th or blood under a

ny of the following circumstance s if the officer arre sts the person for an offe nse under Chapter 49, Penal Code, involving the opera tion of a motor vehicle

. . . and the person ref

uses the office r’s reque st to submit to the taking of a specimen voluntarily : (1) the person was the opera tor of a motor vehicle

. . . involved in an acc ident that the office r rea sonably believes occur red as a result of the offe nse and, at the time of the arr est, the off

icer rea sonably

believes tha t as a dire ct re sult of the acc ident: (A) a ny individual has died or will die; (B ) an individual other tha n the per son has suffe red se rious bodily injury ; or (C) an individual other than t h e p er son has suffe red bodily injury and been transporte d to a hospital or other me dical fa cility for medic al trea tment; (2) the offe nse for which the office r arr ests the person is an offe nse under Section 49.045, Penal Code [DWI with child passeng er]; or (3) at the t i m e o f the arr est, the office r possesses or rec eives reliable information from a c redible sour ce tha t the person: (A) has been previously convicted of or place d on community supervision for an offe nse under Section 49.045 [DW I with child passeng er], 49.07 [i ntox ication assault], or 49.08 [ intox ication manslaug hter], Penal Code . . . ; or (B ) on two or more occa sions, has been previously convicted o f o r place d on community supervision for an o ff ense under Section 49.04 [m isdemeanor DWI ], 49.05 [fly ing while intox icated], 4 9

. 0 6 [boating while intox icated], or 49.065V i l l a r r e a l

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[assembling or ope rating an amuse ment ride while intoxi cate d], P enal Code[.] Id

. § 724.012(b). Reading these provisions in conjunction, we observe that they establish a statutory scheme by which an individual who is arr ested for an “ordina ry ” DWI —that is, one that does not fall within any of the enumer ated circ umstances of Section 724.012(b)—ha s an absolute rig ht to ref use
to provide a specimen, notwithstanding the exis ten ce of implied consent. See id. §§ 724.011, 724.013; see also Fienen v. State , 390 S.W .3d 328, 332 (Tex. Crim. App. 2 0 1 2 ) (o bserving that, notwithstanding exis tence of implied-consent provision, in ordinary DWI situations, “a person
reta ins an absolute rig ht

. . . to ref u s e a test”). But, if one of the ag g rava ting circ umstances descr ibed in Section 724.012(b) is prese nt, then, as the State observe s, the statutory scheme appea rs
to “extinguish” a suspect’s rig ht to ref use to submit a specimen under those specifie d circ umstances. See id. § 724.012(b). Stated differ ently , if one of the ag g rava ting circ umstances i s p re s en t, then, pursuant to the statute, even if a suspect ref uses to comply , an office r has a mandatory duty to require that the suspect’ s blood be draw n. Id.
Be cause the dispute here cente rs on whether a war rantless, nonconsensua l sear ch of a DWI suspect’s blood conducte d pursuant to Section 724.012(b) complies with the Constit ution, we turn
to a re view of the rele vant Four th Amendment principles.
B. Fourt h Am endm ent Re qui rem ents
I n g ener al, to comply with the Four th Amendment, a sear ch of a person pursuant to a criminal investiga tion (1) require s a sear ch war rant or a rec og nized exception to the war rant require ment, and (2) must be rea sonable under the totality of the circ umstances. Fur thermore , of particula

r rele vance to DWI case s, the Supreme Court ha s rec og nized that the Four th A mendment is impl icated in that (3) the collection of a suspect’s blood invad es a s u b s t an tial privac y interest, and (4) the exigentV i l l a r r e a l

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circ umstances exception to the sear ch-w arr ant require ment is not established mere ly by the natura l dissipation of alcohol. We expl ain ea ch of the se re quirements in more de tail below.

1. A Search of a P erson P ursuan t to a Crim inal Investigation Requires a Search Warrant or Rec ognized Exception to a Warrant The F ourth Amendment provide s, The rig ht of t h e people to be secur e in their persons, houses, paper s, and eff ects, ag ainst unrea sonable searc hes and seizures, shall n o t b e v i o lated, and no Warrants shall issue, but upon probable cause , supported b y Oath or aff irmation, and particula rly descr ibing the place to be sear ched, and the persons or things to be seized.
U.S. C O N S T
. amend. I V. The touchstone of the Four th Am endment is rea sonablene ss. Riley v. Calif ornia , 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuar t , 5 4 7 U. S

. 398, 403 (2006) ). The Supreme Court has held that, “‘[w]here a sear ch is underta ken by law enfor ceme nt officia ls to discover evidenc e of criminal wrong doing,

. . . rea sonablene ss g eneral l y re quires the obtaining of a judicial war rant.” ’ Id. (quoting Vernonia School Dist. 47J v. Acton , 515 U.S. 646, 653 (1995)) ; see also Arizona v. Gant , 556 U.S. 332, 338 ( 2009) (de scribing “basic rule” as being that
“‘se arc hes conducte d outside the judicial proce ss, without prior approva l by judge or mag istrate, are
p e r s e u n r e a s o nable under the Four th Amendment—subjec t only to a few specific ally established a n d well-de lineated exceptions’”) (citations omitted). The purpose un d erly ing the sear ch-w arr ant require ment in the context of a criminal investiga tion is to “ensur e[ ] that the infere nces to support

a sear ch are ‘dra

wn by a neutra l and detac hed magi s t ra t e i n s t ead of being judge d by the office r

en gage d i n the often competitive enter prise of fer

reting out crime.’ ” Riley , 134 S. Ct. at 248 2 (quoting Johnson v. U

nited States , 333 U.S. 10, 14 (1948)). Specifica lly , with respe ct to sear ches of people underta ken for the purpose of furt h ering a criminal investig ation, the Supreme Court ha s deter mined that, in the absenc e of a sear ch wa rra nt,V i l l a r r e a l

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a “searc h of t he person i s re as o n ab l e only if it falls wit hin a recog nized exception” t o the warrant require ment. McNee ly , 133 S. Ct . at 1558; see also Riley , 134 S. Ct . at 2482 (“ I n the abse nce of a

war rant, a sear ch is rea sonable only if it falls within a specific exception to the wa rra nt

re q u i re m en t

. ”); Kentucky v. King , 563 U.S. ___, 131 S. Ct. 1849, 1856 (2011) (a war rant “mus t
g ener ally be secur ed,” but that require ment is “subjec t to cer tain re as o n ab l e exceptions”). The

rec og nized exceptions to the war rant require ment tha

t the State sug g ests are implicated in the prese nt

case are the consent exception, see Schnec kloth v. Bustamonte , 412 U.S. 218, 219 (1973); t h e automobile exception, see Calif ornia v. Ace vedo , 500 U.S. 565, 569 (1991); the sear ch-inc ident-toarr est exception, see Gant , 556 U.S. at 339; and the specia l-nee ds doctrine, see Griffin v. W isconsin , 483 U.S. 868, 873 (1987).

2. Reasonableness is Ju dged Und er t he Totality of Circum stances “Abse nt more prec ise g uidance from the founding era , we g ener ally deter mine whether to exempt a g iven ty

pe of sear ch fr o m the war rant require ment ‘by assessing , on the one hand, the deg ree to which it intrudes upon an individual’s privac y and, on the other, the deg ree to which it is neede d for the promotion of leg itimate g overnme ntal interests.”’ Riley , 134 S. Ct. at 2484 (quoting
W yoming v. Houghton , 526 U.S. 295, 300 (19 9 9 ))

. Fo r t he purpose of resolving such questions arising under the Four

th Amendment, we “examine the totality of the circ umstances” to deter mine whether a particula

r sear ch is rea sonable. Samson v. Calif ornia , 547 U.S. 843, 848 (2006); Brigham City , 547 U.S. at 406. Given this totality -of- the-c ircumstance s approa ch, for the most part, “per se rules are inappropria te in the Four th Amendment context.” United States v. Drayton , 536 U.S. 194,
201 (2002) (citing Florida v. Bostick , 501 U.S. 429, 439 (1991))

. As we explain more fully below, in examining the totality of the circ umstances applicable to particula r case s, the Supreme Court hasV i l l a r r e a l

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approve d of war

rantless sear ches th at fi t within a rec og nized exception to the sear ch-w arr ant require ment, or in limit ed situations involving “special law enfor ceme nt needs, diminis hed expectations of p rivac y , minimal intrusions, or t he li ke.” Illinois v. McArthur , 531 U.S. 326, 330 (2001).

3. Collect ion of

Sus pect’ s Blood Invad es a Sub stantial Pr ivacy Intere st – Schm erber v

. Californ ia
I n Schme rber , the S upreme Court considere d for the f irst time whether a law-enfor ceme nt office r may lawfully compel an individual suspected of driving while intox icated to submit to blood testing. 384 U.S

. at 767-69. The Court held that such an intrusion “plainly involves the broadly

conce ived rea ch of a sear ch and seizure under the Four th Amendment.” Id

. at 767. I n descr ibing the privac y interest at stake, the Court took note of “the interest in human dignity and privac y which the
Four th Amendment protec ts.” Id

. at 770. I t further observe d t h at, in light of the fac t that sear ch

war rants are “ordina

rily require d for sear ches of dwelling s . . . absent a n emer g ency , no less could be require d wher e intrusions into the human body are conce rned.” Id. The Court stated that the need
to secure a war

rant from a “neutr al and detac hed mag istrate” befor e permitting a law-e nforc ement office r to “invade another ’s body in searc h of evide nce of

g uilt is indisputable and g rea t.” Id. The C o u rt i n Schme rber never theless upheld the war

rantless, compelled sear ch of Schmerbe r’s blood as constitutionally permissible on the basis of exigent circ umstances. Id. at 770-
72. Schmerbe r had been in a car acc ident and was taken to the hospital. The Court explained that, in light of those fac tors, the office r “mig ht rea sonably have believed that he was confr onted with an

em er gen cy , in which the delay nece ssary to obtain a warra nt, under the circ umstances, threatene d the destruction of evidenc e.” Id. at 770. I t further explained that evidenc e of Schmerbe r’s crimeV i l l a r r e a l

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could have been lost if the of fice r had be en re quired to seek a war rant to draw Schmerbe r’s blood beca use “the perc entag e of alcohol in the bl ood beg ins to diminis h shortly afte r drinking s tops, as the body functions to eliminate it from the sy stem.” Id. I t a dded that “[p] articula rly in a case such

as this, wher e time had to be taken to bring the acc used to a hospital and to investiga te the scene of the acc ident, there was no time to seek out a mag istrate and secur e a war rant.” Id. at 771. The Court further noted that the blood te st “ involve[d] virtually no risk, trauma, or pain,” and was conducte d i n a rea sonable fashion “by a phy sician in a hospital environment acc ording to acc epted m ed i ca l
prac tices.” Id. at 771-72. Thus, a fter a cknowledg ing the substantial nature of t he privacy interest
at stake, the Court never

theless upheld the war

rantless sear ch of Schmerbe r’s blood on the basis of the exigent- circ umstances e x ception to the wa rra nt require ment. Id.
4. Exigent Circum stances Not Establi shed By Mer e Natural Dissipation of Alcohol – Missou ri v. McNe ely
I n McNee ly , the Supreme Court a ddresse d the question whether the natura l metabolization of alcohol in the bl oodstream presented a per se ex ige ncy that, t ak en o n i t s own, would suffice to justify an exception to the war rant require ment for nonconsensua l blood testing in all drunk-dr iving

case s. 133 S. Ct. at 1 5 5 6

. Mc N ee ly involved an indi vidual who was arr ested for DWI and whose blood was draw n over his objection and without a sear ch war rant. Concluding that the natura l dissipation of alcohol does not constitute a per se exigenc y , the Court h el d t h at , “c o nsistent with
g ener al Four

th Amendment principles, [ ] exigenc y in this context must be deter mined case by case based on the totality of the circ umstances.” Id. at 1557; see also id. at 1561 (ac knowledg ing that “a signific ant delay in testing will neg atively aff ect the probative value of the [bl ood-test] results,” but reje cting that fac t as basis for de partingfrom the “ car eful c ase- by -ca se asse ssment of exigenc y ”). Although McNee ly dealt primarily with exigent circ umstances, an exception to the war rantV i l l a r r e a l

- 2 0

require ment not at issue in the prese nt case , the opinion never theless contains g ener al principles of
Four th Amendment law that apply specific ally to the matter of nonconsensua l blood draw s in the context of a DWI investiga tion. Of g rea t importance to our resolution of this appea l is the Court’s broad r ecog nition that such a war rantless sea

rch of a per son for the pur

pose of g ather ing e vidence in a criminal investiga tion can be justified “only if it falls with i n a re co gnized exception” to the

war rant require ment, and that “that principle applies to” compulsory blood-specimen collection during a DWI investiga tion. Id. at 1558. The Court further rea ffirme d the principle, first established in Schme rber, that a “compe lled intrusion beneath [t he] skin and into [t he] veins to obtain a sample of [ ] bloo d fo r use in a criminal investiga tion” constitutes “an invasion of bodily integ rity ” that implicates “an individual’s most perso n al an d deep- rooted expectations of privac y .” Id

. at 1558 (quoting W

inston v. Lee , 470 U.S. 753, 760 (1985)). Having revie wed the rele vant statutory law and Four th Amendment principles, we now turn
to a revie w of the State’s arg ument s as t o why it maintains that the statutory provisions in the Transpor tation Code rende red the Four th Amendment war

rant require ment inapplicable to this case . C. Warrantle ss, Nonconsensual Blood Draw Does Not F all Within Any of State’ s P roff ere d Exceptions to Warrant Re qui rem ent The State sug g ests that a sear ch conducte d purs u an t t o the mandatory -blood-dra w provisions—specifica lly , in this case , the provision applicable to repe at DWI offe nders—should be upheld as cate g orica lly rea sonable under (1) the consent exception, applicable in the form of a prior waiver throug h implied consent, (2) the automobile exception, (3) the specia l-nee ds exception, (4) the sear ch-inc ident-to-ar

rest exception, or, alterna tively , (5) b y t re at i n g a blood draw as a seizure instead of a sear ch. We c onsider eac h of these contentions in tur n and, finding them to be without

m er i t , we hold that none of these established exceptions to the war rant require ment cate g orica llyVillarre al - 21

applies to except the warra n t l es s , n onconsensua l testing of a suspect’s blood pursuant to the provisions in the Transpor tation Code. We also note briefly here that, becaus e the fac ts are undisputed and the questions be fore us are matters of law, we apply a de novo standard of revie w. See Matthews v. State , 431 S.W .3d 596, 607 (Tex. Crim. App. 2014); Arguellez v. State , 409 S.W .3d 657, 663 (Tex. Crim. App. 2013). (1) Consent in the F orm of a Prior Waiver
Be fore addre ssing the merit s of the State’s arg ument reg arding implied consent, we first briefly explain why we ag ree with the State’s contention that the court o f ap p ea l s er red by deter mining that it forf

eited its rig ht to rely on implied consent as a v al i d b as i s for upholding the

sear ch in this case . We then explain why we disag ree with the State as to the merits of its arg uments that this sear ch may be upheld under the consent exception to the war rant require ment on the basis of a de fenda

nt’s irrevoc able “ prior wa iver” of his Four th Amendment rig hts.
a. The State Did Not F orfeit Its Right to Re ly on Cons ent in the F orm of Wai ver I n its second g round in its petition for discretionar y revie w, the State challeng es the court of
appea ls’s deter

mi n at i on that the State’s stipulation that there was “no consent” to the blood draw amounted t o a wa i ver of its “implied consent” or “dee med consent” arg ument based on the provisions in the Transpor tation Code. See Villarreal , 2014 WL 1257150, at *11. At the hear ing

on the motion to suppress, the parties stipulated that Vi l l arr eal’ s “blood was draw n without his
consent and without a war rant.” I t is clea

r from Villarre al’s motion to suppress and the evidenc e and
arg uments prese nted at the hear ing that the parties’ intent was to stipulate that Villarre al’s blood was draw n in spite of his ref

usal to provide a specimen and in the absenc e of a war rant. The parties thus stipulated to the fac tual matter of Villarrea l’s ref usal, but such a stipulation does not fore close theVillarre al - 22

State from raising a particula r leg al arg ument on appea l. Fur thermore , at all times, the rec ord indicates that the par t i es u n d erstood the dispute in this case to be narr owly based on the leg al question of whether the State could proper ly rely on the provisions in the Transpor tat ion Code, including the implied-consent statute, as an alterna tive to a sear ch war rant. We, there fore , ag ree with the State’s asser

tion that the court of appea ls incorre ctly deter mined that the State forf eited its implied-consent arg ument on appea l. We, howeve r, need not rema nd the case to the court of appea ls for further consideration of this arg ument beca use, despite initially stating that the State had forf eited this a rg ument on appea l, the court of appea ls then went on to discuss and disapprove of the State’s contention that implied consent could form a valid basis for upholding the s ear ch in this case . Be cause the court of appea ls revie wed and reje cted the State’s arg ument that implied consent could

serve as a valid basis for upholding the war rantless sear ch in this case , we may proper ly revie w the
court’s resolution of that leg al question. See T E X
. R. A P P
. P. 66.3 (providing for this Court’s revie w of dec isions of courts of appe als). b. Implied Consent that Has Been Withdraw n Is Not Volun tary C onsent Although it rec og nizes that a waiver of Four th Amendment rig hts throug h consent to sear ch
must ordinarily be car efully scrutinized for its fre e and v o l u n t ary char acte r, the State asser ts that 7
those principles are inapplicable to the prese nt situation. I nstead, it asser ts that a “par allel exception” applies when a defe ndant has previously wa i v ed his Four th Amendment rig hts in exchang e for

rec eiv i n g some benef

it or privileg e from the State. Sugg esting that this prior-w aiver principle applies to the prese nt circ umstances, it asser ts that an individual suspected of DWI “ac cept[s] a

Schnec kloth v. B u s ta m o nte , 412 U.S. 218, 227 (1973); Mee kins v. State , 340 S.W .3d 454, 458 7 (Tex. Crim. App. 2001).Villarre al - 23

license to drive and such acc eptanc e may car ry with it an obliga tion to allow statutorily authorized inspections of that ac tivity that would otherwise require a wa rra nt.” On this basis, the State urg es this Court t o hold that, in light of the e x istence of the implied-consent and ma ndatory -blood-dra

w provisions, a driver “impliedly ag ree s ahea d of t ime that, in exchang e for the privi leg e of driving

on our roads, he is w illing to waive the rig ht to a war rant in the se limit ed circ umstances. The deal is sealed whe n he g ets behind the whe el, and it ca n’t later be revoke d when he g ets caug ht driving in an impaired c ondition.” Although we acknow ledg e that Four th A mendment rig hts “ may be waived,” Zap v. United
States , 328 U.S. 624, 628 (1946), we find that principle to be inapplicable h er e. As the State acknow ledg es, to constitute a valid waiver of Four th Amendment rig hts throug h consent, a suspect’s
consent to sear ch must be fre ely and voluntarily g iven. Schnec kloth , 412 U.S. at 227 (obser ving that
consent must be voluntarily g iven in that it was not “coe rce d by threa ts or forc e, or g rante d only in submissi on to a claim of lawful authority ”); see also Bumper , 391 U. S

. at 548 (obser ving that
consent must be “fr eely and voluntarily g iven”)

. An additional nece ssary element of valid consent is the ability to limit or revoke it. See Florida v. Jimeno , 500 U.S. 248, 252 (1991) (suspec t may “delimit as he c hooses the scope of the sear ch to w hich he consents”) ; Miller v. State , 393 S.W .3d 255, 266 (T ex . C rim. App. 2012) (stating that it is “undisputed” that consent “may be limit ed or revoke d”). The matter of whether consent is voluntary is a “question of fac t to be deter mined from the totality of all the circ umstances.” Schnec kloth , 412 U.S. at 227. I t would be wholly inconsistent with these principles to uphold the warr antless sea rch of a suspec t’s blood on the basis of consent wh en a s uspect has, as in the prese nt case , expressly and unequivoca lly ref used to submit t o t h e

sear ch. That expli cit ref usal to sub m i t t o blood testing overr ides the exis tence of any impliedVillarre al - 24

consent, and, unless some other justification for the sear ch applies, there rema ins no valid basis for conducting a war

rantless sear ch under t h o s e ci rcumstanc es. See Bumper , 391 U.S. at 548-49 (e x p laining that a showing of “no more than acquie scenc e to a claim of lawful authorit y ” ca n n o t constitute valid consent). To the extent the State sug g ests that the implied-consent and mandatory

blood-draw provisions in the Transpor tation Code cate g orica lly exti ng uish a DWI suspect’s rig ht to withdraw consent when some ag g rava ting circ umstance is prese nt, that sug g e s ti o n c a nnot be square d with the require ment that, to be valid for Four th Amendment purposes, consent must be fre ely and voluntarily g iven based on the t o t ali ty of the circ umstances, and must not have been revoke d or wi t h draw n at the time of the sear ch. Compare T E X
. T R A N S P
. C O D E §§ 724.011, 724.012(b), w i t h Schnec kloth , 412 U.S. at 227, and Jimeno , 500 U.S. at 252. I n other words, implied consent that has been withdrawn or re v o k ed b y a s u spect cannot serve as a substitut e for the fre e and voluntary consent that the F ourth Amendment re quires.

c. P rior Waiver o f Fo urth Am endm ent Rights in Other Contexts Inap plicabl e to Crim inal S usp ect s Recog nizi ng this appar ent inconsistency betwee n Tex as’s implied-consent law and the requirem en t s for establishing voluntary consent under the Four th Amendment, the State forg oes
urg ing us to direc tly hold that implied consent that has been revoke d by a suspect can never theless supply the ty

pe of “bar e consent” neede d to overc ome the war rant require ment. I nstead, it urg es us
to hold that a driver who acc epts the privileg e of drivin g o n T ex as roadw ay s has, by virtue of his enjoy ment of that privileg e, lost the rig ht to later revoke the implied consent supp l i ed b y t h e Transpor tation Code or to complain about the absenc e of a war rant. Although the State sug g ests that the Supreme Court has “long rec og nized” that a prior waiver can serve as a “par allel exception” to the conse nt e x ception when the suspect has re ceive d some bene fit or privileg e in exchang e for hisVillarre al - 25

waiver of constitutional rig hts, we are awa re of no Supreme Court case s approving of this doctrine’ s applicability in a context sim ilar to the one w ith which we a re c onfronted toda

y , which is a bodily

sear ch of an individual suspected of criminal wrong doing. Fur thermore , we find that the case s relied
upon by the State to establish this “par allel exception” are distinguishable beca use they are limit ed
to (i) the fede ral-r eg ulatory context, (ii) the context of parole es and probationer s, or (i i i ) the noncriminal conte x t, none of whic h are implicated her e.

i. Exceptions App licable to F ederal- Regulatory C ontext Ar e Not Analogous
I n asser ting that such a para llel exception to the consent exception should be applied her e, the State relies primarily on Zap , 328 U.S. at 627. But that case is distinguishable on its fac ts. Zap involved the warrantless searc h of the a ccounting rec ords of a United S tates Navy contra ctor who had expressly ag ree d by the terms of his contra ct to permit such inspections, which wer e authorized by fede ral reg ulation. Id. The Supreme Court upheld the war rantless sea

rch a s permissible under the Four th Amendment, observing t hat Z ap, “in order to obtain the g overnme nt’s business, specific ally ag ree d to permit inspection” of his r ecor ds, there by waiving any claim to privac y in those

rec ords which he otherwise might have had. Id. at 628. Thus, the Court’s holding in Zap was primarily focuse d on the exis tence of a “contr actua l ag ree ment for inspection” of business rec ords and on the fac t that Z ap had knowing ly waived his rig hts pursuant to a “business underta king for the
g overnme nt.” Id

. at 629-30. Zap is thus proper ly understood as indicating that, wher e an individual makes an express contra ctual waiver of his privac y rig hts in exchang e for the opportunity to do business with the fede ral g overnme nt, suc h a waiver may constitute valid prior consent to sear ch a business premises within the meaning of t he Fourth Amendment. See id. I t does not, as the State
sug g ests, more g ener ally

stand for the proposition that the gover nment may exact from a c itiz en aVillarre al - 26

g ener alized a

nd irrevoc able wa iver of Four th A mendment rig hts in exchang e for the enjoy ment of

ever y day privileg es, such as driving on the State’s roadw ay s. Nor does it sug g est that such a waiver would be valid if the waiving par t y wer e actua lly unawa re that he was g iving up his rig hts in exchang e for some privileg e. Fur thermore , we note that the sear ch in Zap was a sear ch of “ac counts and rec ords” and was not a bodily sear ch, which nece ssarily implicates a g rea ter and more persona l privac y interest than the inter est one ha s in his busi ness dea lings. See id. at 628. Simi larly , althoug h the State contends that the Supreme Court’s opinion in United States v. Biswell establishes t hat “acce ptance of a license to eng ag e in a pervasively reg ulated activity may

car ry with it an obliga

tion to allow statutorily authorized inspectio n o f t h at activity that would otherwise require a war

rant,” we do not rea d Biswell so broadly

. See 406 U.S. 311, 311-12 (1972).
I n that case , the Court upheld the war rantless sear ch of the business premises of a fede rally licensed firea rms deale r pursuant to a federa l statute authorizing such sear ches. Id. at 317. But the Court 8
in that case emphasized that its analy sis was rooted in “the context of a reg ulatory inspection sy stem of business premises that is car efully limit ed in time, place , and scope.” Id. at 315. Be cause Biswe ll chose “to eng ag e in this perva sively reg ulated business and to a cce pt a fe dera l license, he [di d] so with the knowledg e that his business rec ords, firea rms, and ammunition will be subject to eff ective inspection.” Id. at 317. The Court fur ther noted tha t Biswell had r ece ived a c ompilation of all the
statutes g overning his obliga tions and defining the inspector’ s authority to sear ch, thus putting him

on actua l notice of his obliga tions. Id. The Court’s upholding of the war rantless sear ch in Biswell

The reg ulation at issue in Biswell authorized o ff i ci al entry during business hours into the 8 premises “of any firea

rms or ammunition

. . . deale r . . . for the purpose of inspecting or examining (1) any rec ords or documents require d to be kept

. . . and (2) any firea rm s o r am m u n i t i on kept or stored” on the premises. United States v. Biswell , 406 U.S. 311, 311-12 (1972) (citing 18 U.S.C. § 923(g )).Villarre al - 27

is proper ly understood as cre ating a limit ed exception to t h e war rant require ment that applies to

sear ches of business premises in historically “per vasively reg ulated industries,” for which the “thre at to privacy [i s] not of impressive dimensions[.] ” Id. at 316; see also New Y ork v. Burger , 482 U.S.
6 9 1 , 6 9 9 (1987) (explaining that the “expectation of privac y in commerc ial premises” is signific antl y less than the “expectation in an individual’s home”)

. We, there fore , disag ree wit h t h e S tate’s
sug g estion that the meaning of Bi s w el l can be expanded to apply to a bodily sear ch of a driver, simply by virtue of his a cce ptance of a driver’ s license and mere constructive knowledg e, at most, of t he terms of t he mandatory -blood-dra w s tatutes. The S tate’s ge nera l asser tion that eng ag ing in
any reg ulated activity subject to licensing and inspection require ments, even non-commer cial ones, subjects participa

nts to an irrevoc able implied waiver of Four th Amendment rig hts to privac y in their bodies while par

ticipating in that a ctivity , is thus without support. ii. Exceptions Ap plicabl e to P arolee s and P robationers Ar e Not Analogous The State cites two case s that it sug g ests establish that “[g] o v er n m en t al and quasig overnme ntal bodies often condition the g ranting of a privileg e upon the waiver o f cer tain constitutional rig hts.” See United St ates v. K nights , 534 U.S. 1 1 2, 116 (2001); Samson , 547 U.S.
at 852. Knights and Samson both dealt with war rantless sear ches of individuals who wer e on parole

or probation. Knights , 534 U.S. at 114; Samson , 547 U.S. at 846. The defe ndants in both of those

case s had been require d by the conditions of their rele ase to expressly waive in writing their Four th Amendment rig hts in exchang e for avoiding prison time. See Knights , 534 U.S. at 116; Samson , 547
U.S. at 852. Thes e ca s es, howeve r, do not stand for the proposition that the g overnme nt may condit ion the g ranting of a privileg e upon the waiver of a constitutional rig ht, but inst ea d ar e instructive in apply ing a g ener al Four th Amendment balanc ing test that applies in limit ed contexts,Villarre al - 28

as we discuss later in this opinion. The Supreme Court expressly stated in Knights and Samson that it was not resting its holding in those case s on a consent rationale , but rathe r was apply ing a g ener al
Four th Amendment balanc ing test. See Knights , 534 U.S. at 118 (stating t h at rationale for upholding se arc h was not base d solely on prior wa iver of r ights, but wa s rather rooted in the ba sis that the sear ch was “re asonable under our g ener al Four th A mendment approa ch of ‘examining the totality of the circ umstances,’ ” including K n ig h ts ’ s “ s ig n f ic a n tl y d im in is h e d ” e xp e c ta

tion of privac y

) (quoting Ohio v. Robinette , 519 U.S. 33, 39 (1996)) ; Samson, 547 U.S. at 853 n. 3 (stating that holding was based on “g ener al Four th Amendment” totality -of- the-c ircumstance s analy sis, there by avoidi ng the question “whe ther acc eptanc e of the sear ch condition constituted consent in t h e S ch n ec kl oth sense of a complete waiver of Four th Amendment Rights”; “we decline to rest o u r holding t o d ay o n the consent rationale ”). Although the State contends otherwise, Samson and Knights cannot s t an d for the proposition that the Supreme Court has broadly rec og nized that

acc eptanc e of a condition or priv i l ege fr o m the gover nment g ener ally constitutes a valid basis for finding an advanc e irrevoc able wa iver of Four th Amendment rig hts. Fur thermore , even if the
consent ex ception had been the ba sis for the holding s in Samson and Knights , we obse rve tha t the individuals in those case s had waived their Four th Amendment rig hts expressly and knowing ly

. See Knights , 534 U.S. at 114 (obser ving that the defe ndant in that case had expressly ag ree d in writing that he would “[s] ubmit his

. . . person, proper ty , place of residenc e, vehicle, persona l eff ects, to

sear ch at any time, with or without a sear ch war rant” ); Samson , 547 U.S. at 846, 852 (obser ving that California parolees must “ag ree in writing to be subj ect to sear ch or seizure .

. . at any time of t he day or night, with or wi t h o u t a sear ch war rant” ). The situation in those case s is further distinguishable from the situation prese ntly befor e this Court, which involves an implied waiver ofVillarre al - 29

Four th Amendment rig hts pursuant to a statutory scheme that does not expressly addre ss the war rant require ment. See T E X
. T R A N S P
. C O D E §§ 724.011(a) , 724.012(b), 724.013.
iii. Exce pt io ns A pp li c a bl e t o D r ug Te s t in g o f P ub li c-School Stud ents Are Not Analogous The State also ref

ers to Board of Education v. E a r l s t o s u p port its sug g estion that the
g overnme n t ma

y c o n d it ion the g ranting of a privileg e upon the waiver of cer tain constitutional rig hts. Bd. of E duc. v. Earls , 536 U.S. 822, 825 (2002). For simil ar rea sons as those explained above, we find inapplicabl e t h e h o lding of Earls , which upheld war rantless drug testing of public-school students eng ag ed in extracurr i cu l ar activit ies under the specia l-nee ds exception to the war rant require ment. See id

. I n Earls , the Court e x pressly limit ed the rea soning of that case to the context of “administrative sear ches” underta ken for purposes “not in any wa y related to the conduct of criminal investiga tions.” See id. at 828 (obser ving that, althoug h “[i] n t h e criminal context,

rea sonablene ss usually require s a showing of probable cause [,] ” the p ro b ab le-c ause standard is “pec uliarly rela ted to criminal investiga tions and may be unsuited to deter mining the rea sonablene ss of administrative sea

rche s” whe re the g overnme nt seeks to pre vent t he development of haz ardous conditions). I t further based its holding in that case on the ex i s t en ce o f s chools ’ “custodial and tutelary resp o n s ib il it

y f o r c h il d r e n , ” th e mi n im ally invasive nature of urinaly sis, and students’ limit ed privac y interest in a public-school environment. Id. at 830. Be cause the situation in the prese nt case is not an administrative sear ch but instead implicates the investiga tion of criminal conduct, t h e holding a nd rea soning in Earls are clea rly inapplicable.
d . Other Courts Have Rej ect ed The P roposition that a DWI Sus pect Waives H i s F ourth Am endm ent Rights Through Im plied Con sent
I n addition to finding that the case s cited by the State fail to establish the broad proposition
upon which it seeks to rely , we f urther note that courts in sever al ot her jurisdictions have rec entlyVillarre al - 30

considere d challeng es to statutes that aim t o es t ab lish irrevoc able implied consent and have conclude d that those statutes, when used to draw a suspect’s blood without a wa rra nt and over

his objection, do not establish valid leg al consent within the bounds of the Four th Amendment. See,
e.g., State v. W

ulff , ___P.3d___, No. 41179, 2014 WL 5462564 (I daho Oct. 29, 2014) (holding that
I daho statute establishing irrevoc able implied consent for all drivers suspected of DWI “does not fall under the consent exception to the Four th A mendment of the United States Constitut ion”); Byars 9

v. State , __ P.3d ___, No. 61348, 2014 WL 5305892 , at *12 (Ne v. Oct. 16, 2014) (slip. op.) (re jecting State’s arg ument th at s earch was rea sonable based on irrevoc able consent provided by implied-consent statute); State v. W ell s , N o . 1 7 2 0 1 3

- 0 1 1 4 5

- CC A , 2 0 1 4 WL 4977356, at *13 (Tenn. 1 0

The I daho statute at issue in W ulff provided that a person g ives implied consent to evidentiar y 9 testing, incl u d i n g a b l ood draw , when a person drives on I daho’s roads and a police office r has rea sonable g rounds to believe that the person has committed the offe nse of DWI

. State v. W ulff , No. 41179, 2014 WL 5462564 (I daho Oc t. 29, 2014) (citing I D A H O C O D E § 18-8002). The Neva da Su

p r e me Co u

r t d e s c r ib e d N e v a d a ’ s mandatory blood-draw law that, like Texas’s 1 0 law, require s involuntary blood draw s based on probable cause , but unlike Texas’s law, is not limit ed to third-offe nder D WI s, stating,
Acc ording to the S tate, even t houg h By ars refuse d to su b m i t t o the bl ood draw , he had consente d to it by choosing to drive on Neva da roads. NRS 484C.160( 1 ) provides that “any person who drives or is in actua l phy sical control of a vehicle on a highw ay or on premises to which the p ublic has acc ess shall be deeme d to have g iven his or her consent to an evidentiar y test of his or her blood, urine, brea t h or other bodily substance” if a police office r has rea sonable g rounds to believe that the person was driving or in actua l phy sical control of a vehicle while under the influence of alcohol or a controlled substance or was eng ag ing in other conduct prohibited by cer tain statutes. I f a d ri v er does not submit to a test and the police office r has rea sonable g rounds to be lieve that the per son was under the influence of alcohol or a controlled substance or eng ag ing in other specifie d conduct, “the office r may direc t that rea sonable forc e be used to the extent nece ssary to obtain samples of blood from the per son tested.” Byars v. State , __ P.3d ___, No. 61348, 2014 WL 5305892, at *12 (Ne v. Oct. 16, 2014) (slip. op.). ( c o n t i n u e d

. . . )Villarre al - 31

Crim. App. Oct. 6, 2014) (slip. op.) (holdi n g t h at “t he privileg e of driving does not alone cre ate

cons ent for a forc ible blood draw ”; s uch a sear ch is “not reasonable unless perf ormed pursuant to

a war rant or to an exception to the war rant re q u i re m en t ”; “[ t] he implied consent law does not, in itself, cre ate s u ch an exception”); State v. Fierro , 853 N.W.2d 235, 237 (S.D. 2014) (implied- 1 1

consent statute did not constitute stand-alone exception to war rant require ment); State v. Butler , 302 P.3d 609, 613 (Ariz. 2013) (holding that, indep e n d e n t o f im p li e d

- c o n s e n t s ta

tu te, Four th Amendment require s an arr estee ’s consent to be voluntary to justify a war rantless blood draw ). Fur thermore , we observe that almost all of the Texas courts of appea ls that have co n s i d er ed such challeng es to Texas’s statutory

scheme have r eac hed that same conclusion. 1 2
I n Byars , the Neva da Supreme Court reje cted the State’s arg ument “that co n s en t i s valid based solely on [t he defe ndant’s] decision to drive on Neva da’s roads,” descr ibing that arg ument as

(

. . . c o n t i n u e d ) 1 0 Notably , the cour

t concluded tha t it had “found no jurisdiction that has upheld an implied consent statute that allows an office r to use forc e to obtain a blood sample upon the driver’ s ref usal to submit to a test.” Id

. The Tenne ssee Court of Criminal Appea ls descr ibed that state’s implied-consent law, which 1 1 permits a nonconsensua l blood dra w w h e n “ la

w e n f o r c e me nt has ‘re asonable g rounds to believe’ that the person was driving under the influence or had committed vehicular assault, vehicular homicide, or ag g rava ted vehicular homicide as a proxi mate result of intox ication.” State v. W ells , No. 172013- 01145-CCA, 2014 WL 4977356, at *13 (Te nn. Crim. App. O ct. 6, 2014) (slip. op.) (citing T.C.A. § 55-10-406( a)( 1) (2012))

. Tenne ssee’ s implied-consent law is simil ar to Tex as ’s l aw i n that it permits a nonconsensua l blood draw when there is probable cause to believe that some ag g rava ting circ umstance is prese nt, such as the fac t that the intox icated driver has cause d another person bodily injury or dea th. Compare id . to T E X
. T R A N S P
. C O D E § 724.011(b). See, e.g., State v. A n d

erson , ___ S.W .3d ___, No. 09-13-00400- CR, 2014 WL 5033262 (Tex. 1 2 App.—B eaumont Oct. 8, 2014) (conc luding that Section 7 2 4 .012(b) “does not constitute an exception to the Fourth Ame ndment’s war rant re quirement” ); Aviles v. State , ___ S.W .3d __, No. 0 4 -11-00877-CR, 2014 WL 3843756 (Tex. App.—San Antonio Aug

. 6, 2014) (op. on re m an d ) (same) ; Forsyth v. State , 438 S.W .3d 216 (Tex. App.—Eastland 2014) (holding that implied consent under Tr ansportation Code not equiva lent to voluntary consent for

Four th Amendment purposes)

.Villarre al - 32

“proble matic beca

use the statute makes the consent irrevoc able.” 2014 WL 5305892, at *4-5. And in W ulff , the I daho Supreme Court held that, afte r McNee ly , that state’s implied-consent statute was
not an “ac cepta

ble” basis for conducting war rantless b l o od draw s under the consent exception beca use the s t at ute “oper ate[d] as a per se exception to the war rant require ment,” for which the Supreme Court had “re peate dly expressed disapproval” in McNee ly

. See W ulff , 2014 WL 5462564, at *5. The W

ulff court obser

ved that whe ther c onsent is va lid is a deter mination to be made based

on the totality of the circ umstances and, as such, “[a] holding that the consent implied by statute is irrevoc able would be utterly inconsistent with the lang uag e in McNee ly denouncing cate g orica l rules that allow war

rantless forc ed blood draw s.” Id. at *5, 7. We ag ree with these courts’ assessments that, in the context of a nonconsensua l, war rantless bodily sear ch of a person suspected of criminal

ac t ivity , a statute providing for irrevoc able implied consent cannot supply the ty pe of vo l u n t ar y
consent nece ssary to establish an exception to the Four th Amendment war

rant require ment. We reje ct the State’s arg ument that a suspect can be held to have validly and ir re v o ca b l y waived his
Four th Amendment rig hts in advanc e of a sear ch throug h the exis tence o f implied consent on the sole basis of his rec eipt of the privileg e of dr iving on Te x as roa dway s.

2. Autom obile Exception Is Inap plicabl e Wit h respe ct to the State’s asser tion that the war

rantless sear ch of a DW I s u s p ec t ’s blood should be upheld un d er t h e au tomobile exception, we reje ct that sug g estion outrig ht beca use the automobile exception has been expressly limit ed to the vehicular -sea rch context. See, e.g., Ace vedo , 500 U.S. at 580. I t cannot be e x panded to e ncompass a bodily sear ch in the form of a compulsory blood draw of an individual. See Houghton , 526 U.S. at 303; United States v. Di Re , 332 U.S. 581,
587 (1948). Fur

thermore , althoug h the S t ate appea rs t o contend that a driver’s privacy interest inVillarre al - 33

his blood is, similar to his interest in a n automobile, minimal under these circ umstances in light of the exis tence of implied consent and the highly reg ulated nature of driving , we sim ilarly disag ree with that contention beca

use it is in c onsistent with the Supreme Court’s descr iption of the substantial privac y intere s t s at s t ak e h ere. See McNee ly , 133 S. Ct. at 1565 (“B ut the fac t that people are ‘ac corde d less privac y in

. . . automob i l es b ec au s e of th[ e] compelling g overnme ntal need for
reg ulation,’ does not diminis h a motorist’s privac y interest in preve nting an ag ent of the g overnme nt from pierc ing his skin.”) (quoting Calif ornia v. Carney , 471 U.S. 386, 392 (1985))

. We thus decline to expand the automobile exception to apply to a bodily

sear ch of a

driver suspe cted of

DWI

. 3. Special Needs Exception is In appl icable Reg arding the S tate’s sugg estion that t h i s ty pe of sear ch may be upheld under the specia lneeds doctrine, we find that arg ument simil arly unconvincing

. As descr ibe d a b o v e , th e s pecia l-nee ds doctrine is limit ed to situations involving “spec ial needs bey ond normal law enfor ceme nt that may justify depar

tures from the usual war

rant and probable -ca

use require ments.” Gr iffin , 483 U.S. at 873-74; see also King , 133 S. Ct. at 1978 (desc ribing specia l-nee ds doctri n e as en compassing “prog rammatic sear ches of either the public at larg e or a particula r class of reg

ulated but otherwise law-a biding citizens”). I n those limit ed situations, the need for a war rant is diminis hed beca

use “the public interest is such that neither a war rant nor probable cause is require d, or beca use an individual is alrea dy on notice, for instance beca use of his employ

ment, or the c onditions of his release from
g overnme nt custody , that some rea sonable police intrusion on his privac y is to be expected.” King , 133 S. Ct . at 1958.
Fur thermore , the specia l-nee ds doctrine cre ates an exception to the war rant require ment only in situations in w hich the exis tence of specia l needs makes obtaining a war rant impractica

ble. SeeVillarre al - 34

Griffin , 483 U.S. at 873 (desc ribing exception as apply ing when special needs bey ond the n o rm al

n e e d f o r la w enfor ceme nt “‘ma ke the war rant and probable -ca

use require ment impracti c a b le ’ ” )

. T h e doctrine has thus be en applied in the context of, among others, the need to deter drug use in public schools throug h compulsory drug test i n g o f students participa ting in school-sponsore d athletics
prog rams, Vernonia , 515 U.S. at 653, and in the context of the need to assure that railroa d employ ees
eng ag ed in train opera tions are not under the influence of drug s or alcohol, Skinner , 489 U.S. at 623.
I n both of those situations, the Court’s holdings wer e once ag ain rooted in the particula r context of those case s. I n Vernonia , th e C o u rt observe d that “F ourth Amendment rig hts

. . . are differ ent in public schools than elsewhe re” in light of schools’ responsibility to ensure the safe ty and welfa re of

s t u d ents, and students acc ording ly have a lesser expectation of privac y than members of t h e population g ener ally

. Vernonia , 515 U.S. at 656. And in Skinner , the Court stated that the privac y interest at stake in that case was “minimal,” that railwa y employ ees have lon g b een subject to a reduc ed expectation of privac y in light of the historically perva sive reg ulation of that industry , and that the “g overnme ntal interest furthered by the intrusion would be place d in jeopar dy by a require ment of individualiz ed suspicion.” Skinner , 489 U.S. at 627.
Her e, w e s ee n o basis for holding t hat t he gover nment’s need to conduct searc hes of DWI suspects’ blood constitutes a “spec ial need” that would permit a depar ture from the probable -ca use and war rant require ment. The need here does not g o “bey ond the normal need for law enfor ceme nt,”

nor does it “make the war rant and probable -ca

use require ment impractica ble.” Griffin , 483 U.S. at 873. Fur thermore , the Supreme Court has sug g ested that the specia l-nee ds doctrine is inapplicable when the pr imary

purpose of

a sea rch is to gene rate evidenc e for law-e nforc ement purposes. See Ferguson v. City of Charleston , 532 U.S

. 67, 83 (2001) (invalidating public hospital’s policy ofVillarre al - 35

conducting n o n co nsensual testing of preg nant women for illicit drug use beca use “the immediate objective of the sear ches was to g ener ate evidenc e for law enf orce ment purposes” ; give n that fac t, the case “simply does not fit within the closely g uarde d cate g ory o f ‘s p ec i al needs’ ”); see also Skinner , 489 U.S. at 6 2 0

- 2 1 ( u p h o ld ing war

rantless drug testing of railroa d employ ees in part beca use testing was “not to assist in the prosec ution of employ ees, but rathe r to preve nt ac ci d ents and

casua lties in railroad ope rations”) (citations omitted).
I n Ferguson , the Supreme Court observe d that it had never applied the specia l-nee ds doctrine in the context of a sear ch underta ken for the purpose of g athering evidenc e for use in a criminal investiga tion. Ferguson , 532 U.S. at 83 n. 20 (“I n none of our previous specia l needs case s have we upheld the collection of evide nce f or cr iminal law enfor ceme nt purposes.”)

. Fur thermore , in lig ht of the investiga tory purpose underly ing the sear ches in Ferguson , the Court explained that it would apply the normal Four

th Amendment framework that require s a war rant or an applicable exception, as opposed to a balanc ing- of-inter ests test. Id. at 85-86. I t explained, “The fac t that positive test results wer e turned over to t h e p o l i ce does not mere ly provide a basis for dist inguishing our prior

case s apply

ing the ‘spec ial needs’ balanc ing approa ch to the d et er m i n at i on of drug use. I t also provides an aff

irmative rea son for enfor cing the strict u res of the Four th Amendment.” Id. at 84. Public-hospital employ ees w ho underta ke to obtain evidenc e of c riminal conduct “ for the spe cific purpose” of incriminating patients, it observe d, “have a specia l obliga tion to make sure that t h e patients are fully informed about their c o n s ti tu ti onal rig hts, as standards of knowing waiver require .” Id. at 85. The Court further explained that t o h o l d o t h erwise would mean that “any sear ch to
gen er ate evidenc e for use by the police in enfor cing g ener al criminal laws would be justi fi ed b y

re fe renc e to the broad social benef its that those laws might bring about (or, put another way , theVillarre al - 36

social harms that they might preve nt).” Id. at 84 n. 22. Such an approach, it stated, would be “inconsistent with the Four th Amendment.” Id. at 84.
I n light of these principles, we conclude that the specia l-nee ds doctrine is inapplicable in the
prese nt context, when the sear ch of a DWI suspect’s blood is u n d ertaken by law-e nforc ement office rs for the primary purpose of g ener ating evidenc e to be used in a criminal prosec ution. See id.
at 81 (re jecting applicability of specia l needs when purpose “ac tually serve d” by sear ch “‘ is ultimately indisti ng uishable from the g ener al interest in crime control’” ) (citing Indi a n a p olis v. Edmond , 531 U.S. 32, 44 (2000))

. We further note that at least one other court has conclude d that the specia l-nee ds doctrine is inapplicable in the context of a mandatory blood draw of a DWI suspect wher e the “primar

y purpose of the war

rantless seizure of [a defe ndant’s] blood was evidentiar y and
prosec utorial.” Fierro , 853 N.W.2d at 242-43. We simil arly decline to h o l d t h at specia l needs applies in this context, and we reje ct the State’s contention that the mandatory , nonconsensua l blood draw in this case may

be upheld unde r a spe cial-ne eds bala ncing test. 4. Search Incident to Ar rest Is Inap plicabl e Wit h respe ct to the sug g estion that a war rantless blood draw constitutes a sear ch incident to

arr est, we also reje ct that contention beca use that exception to the war rant require ment applies only if such a sear ch is “substantially contempora neous” with the arr est and is confine d to the are a within the immediate control of the arr estee

. State v. Granvill e , 4 2 3 S.W .3d 399, 410 (Tex. Crim. App. 2014) (citing Vale v. Louisi ana , 399 U.S. 30, 33 (1970))

. The justification for p er m i t t i n g such a

war rantless sear ch is (1) the need for office rs to seize wea pons or other things which might be used
to assault an office r or eff ec t an es ca p e, and (2) the need to preve nt the loss or destruction of evidenc e. Id. at 410 (citing Uni t ed States v. Robinson , 414 U.S. 218, 224 (1973); Chimel v.Villarre al - 37

Calif ornia , 395 U.S. 752, 762-63 (1969))

. “Thus, a sear ch incident to arr es t cannot normally be j u s t i fi ed if the ‘sea

rch is remote in time or place from the arr est

. . . or no exigenc y exis ts.’” Id

. (quoting United St ates v. C hadwick , 433 U.S. 1, 15 (1977)). A lthough the State c ontends that the dissipation o f alcohol in the bloodstream constitutes a “re cog nized exigenc y ” that would justify apply ing the sear ch-inc ident-to-ar rest exception here , we find that arg ument to essentially propose adoption of a pe r se e x ige ncy rule that wa s expressly

disavowed by McNee ly

. 133 S. Ct. at 1568.
Fur thermore , in situations involving the possible destruction of evidenc e, the Supreme Court has
sugges t ed t hat the sear ch-inc ident-to-ar rest exception is most commonly applied to an “ac tive attempt by a defe ndant or his a ssociates to c oncea l or destroy evidenc e upon arr est.” Riley , 134 S.
Ct. at 2473. Given that alcohol in the bloodstream dissipates at a predic table rate and is enca sed within a d ef

en d ant’s veins, there is no possibili ty of that evidenc e being subject to sudden destruction or disappea

ranc e as a result of any active eff orts by a d ef

en dant. Ba sed on these considerations, we conc lude that the sea rch- incident-to-a

rre st ex ception is inapplicable

. 5. Blood Draw Is Not Me rely a Seizure
We briefly take note of the State’s rela ted arg ument that the draw i n g o f a DW I suspect’s blood constitutes a seiz ure, which “g ener ally does not requir e a w arr ant,” a s opposed t o a search.
We summarily reje ct this ar gu m en t b ec ause it is fore closed by Supreme Court prec edent that has
repe atedly descr ibed any bodily intrusion as constit uting a sear ch for which eit her a war rant or an applicable exception is require d. See, e.g. , King , 133 S. Ct. at 1980 (using b u cc al swab on inner tissues of a person’ s chee k in order to obtain DNA samples is a sear ch); McNee ly , 133 S. Ct. at 1556; Schme rber , 384 U.S. at 770 (vi rt u al ly any intrusion “into the human body ” constitutes sear ch); Skinner , 489 U.S. at 616 (bre athaly zer test, which require s “dee p lung” brea th for chemica l analy sis,Villarre al - 38

constitutes a sear ch). We decline to depart from the longsta nding principle that the draw ing of a suspect’s blood constitutes a se arc h within the meaning of the F ourth Amendment.
For all of the fore g oing rea sons, we conclude that the war rantless, nonconsensua l testing of

a DWI suspect’s blood cannot be justified as a rea sonable intrusion under any of the State’s proff ere d exceptions to the warr ant re quirement.
D. Searc h May Not Be Upheld Under Ge neral F ourth Am endm ent Balancing T est As an alterna tive to a finding that war rantless, nonconsensua l blood testing under the provisions in the Transpor tation Co d e f

a ll s w it h in a r e c o g nized exception to the war rant require ment, the S tate urge s us to hold that such a sea rch ma y be upheld on the ba sis that it i s rea sonable unde r

a g ener al Four

th Amendment balanc ing test. That test, which is rooted in “tra ditional standards of

rea sonablene ss,” require s a court to weig h “‘the promotion of leg itimate g overnme ntal interests’
ag ainst ‘the deg ree to which [the searc h] i ntrudes upon an individual’s pr ivacy .’” King , 133 S. Ct.
at 1970 (quoting Houghton , 526 U.S. at 300). I n some circ umstances, such as “[w]hen f ace d with specia l law enfor ceme nt needs, diminis hed expectations of privac y , minimal intrusions, or the like, the Court has found that cer tain g ener al, or individual, circ umstan ce s may rende r a war rantless

sear ch or seizure reasonable.” McArthur , 531 U.S. at 3 3 0

. I n s u pport of i ts arg ument that such a b al an cing test is applicable here , the State sug g ests that “seve ral rela ted justifications,” whi ch “bala nce the need to rid public roads of drunk drivers ag ainst the lessened expectation of privac y that impaired drivers have conce rning the d ra wi ng of a sample of their blood,” suffice to establish an exception to the warr ant require ment under the “nar rowly specifie d circ umstances” in the statute. Specifica lly , it urg es us to weig h the g overnme nt’s leg itimate interest in curbing drunk driving ; the
g ravity o f t h e o ff

en s e; the desirability of a brig ht-line rule; the presumption of validity andVillarre al - 39

constitutionalit y that attache s to leg islative enac tments; the reduc ed expectation of privac y of a DWI suspect who ha s been a

rre sted; and the minimal nature of the intrusion. Although we ag ree with the State’s contention that the g overnme nt has a substantial interest in preve nting drunk driving , we disag ree that a balanc ing test is appropr iate g iven the context. The Supreme Court has made clea r that, in the context of an active criminal investiga tion, and when the primar y go al of law-e nforc ement activity is the g ather ing of evidenc e, a war rantless sear ch of a person is unrea sonable unless it falls wit hin an establish ed ex ception to the warrant requireme nt. See McNee ly , 133 S. Ct. at 1558 (wa rra ntless sear ch of the person is rea sonable only if it falls within

a rec og nized exception); Riley , 134 S. Ct. at 2482 (“[w]here a sear ch i s u nderta ken by law enfor ceme nt officia ls to discover evidenc e of cri m i n al wrong doing,

. . . rea sonablene ss g ener ally require s the obt aining of a judicia l warr ant”; “[i]n t he abse nce of a wa rra nt, a sea rch is re asonable only if it falls within a specific exception to the war rant require ment”); Skinner , 489 U.S. at 619 (in
“most criminal case s, we s t ri k e t h i s balanc e in favor of the proce dures descr ibed by the Warrant Clause of the Four

th Amen d m en t ”; “[e]x cept in cer tain well-de fined circ umstances, a sear ch or seizure in [a criminal] case is not rea sonable unless it is acc omplished pursuant to a judicial war rant issued upon probable cause ”). We decline to disreg ard this well-e stablished principle in favor of a
more g ener alized balancing -of- interests test.
I n seeking to establish the viability of a balancing test here , the State re lies primarily upon the standard set forth in Maryland v. King , in which the Supreme Court upheld the war rant l ess collection of DNA from felony arr estee s as part of a routine booking proce dure for serious offe nses. King , 133 S. Ct. at 1970. I n upholding the sear ch in King , the Supreme Court took into

c o n s id e r a ti o n th e li mited circ umstances under which arr estee s’ DNA wo u ld b e c o ll e c te d a n d u ti li ze d

.Villarre al - 40

Id. at 1966-68. I t emphas i z ed that the collection of DNA from arreste es was rea sonable in light 1 3
of the fac t that the “ar

restee is alre ady in vali d p o l i ce cu s t ody for a serious offe nse supported by probable cause .” Id. at 1970. Fur thermore , it observe d that the mandatory “DNA collection is not subject to the judgme nt of office rs whose perspe ctive might be colore d by their primary involvement in the often competitive enter prise of fer

reting out crime,” and it took note of the standardized nature of the tests and the reg ulations that authorized them. Id. The Court went o n t o observe that the
purpose of the DNA collection was to allow law enfor ceme nt office rs, “in a safe and acc urate way [,]
to proce ss and identify the person and possessions they must take into custody .” Id

. Such proce dures

wer e thus justified as rea sonable, in larg e part, beca use they wer e not based upon an individualiz ed suspicion of criminal wrong doing, which would tr i gger the need for the interposition of a neutra l
mag istrate betwe en the citizen a nd the law enfor ceme nt office r, but rathe r we re pa rt of the r outine administrative proce dures at the police station that g uara nteed law enfor ceme nt’s ability to identify and keep trac k of arr estee s. See id. at 1977 (“I n the balanc e of rea sonablene ss require d by the Four th Amendment, there fore , the Court must g ive g rea t weig ht both to the signific ant g overnme nt interest
at stake in the identification of arr estee s and to the unmatched p o t en t i al o f DNA identification to

serve that interest.”)

. Wit h respe ct to the gover nmental i ntere st at s take, the King Court went to g rea t leng ths to clar ify that the DNA information being collecte d from arr estee s was not for the primary purpose of

The Court observe d that a DNA sample would be collecte d only from an individual char g ed 1 3 with a crime of violence or burg lary ; that the sample would not be proce ssed or place d in a databa se until the individual had been arr aig ned and a judicial office r had verifie d that there was probable cause to detain him; and that samples would be immediately destroy ed if a judi ci al office r deter mined that there was no probable cause to detain the arr estee for the qualify ing offe nse or if the arr est ultimately did not result in a conviction. Maryland v. King , 133 S. Ct. 1958, 1967 (2013).Villarre al - 41

g ather ing evidenc e ag ainst them, but rathe r was for the purpose of routine identification of inmates. Id. at 1971, 19 7 7

- 7 8 ( d is c u s s in g g o v e r n me n t’ s “ leg itimate interest” in identify ing inmates and stating that DNA collection “is no more than an extension of methods of identification long used in dealing with persons under arr est”). And, althoug h four dissenters disag ree d with that assessment, that fac t formed the basis for the Court’s depar ture from the normal war

rant require ment in that case . See id.
at 1980. Unlike King , wher e police used no discretion in the application of the routine-identific ation
proce ss, the primary

purpose of the s ear ch in the pre sent ca se is for investig ation of a c rime base d

on a discretionar

y deter mination by a law-e nforc ement office r that there is probable cause of intox ication. See id. at 1969-1970 (“The need for a war rant is perha

ps least when the sear ch involves

no discretion that could proper ly be limit ed by the ‘interpo[lation of] a neutra l ma g istrate betwee n the citizen and the law enfor ceme nt office r.’” ) (quoting Treasury Employe es v. Von Raab , 489 U.S. 656, 667 (1989))

. We decline to hold that the balanc ing approa ch taken in King is appropr iate in this
context. 1 4
We further

observe that, with respec t to the privacy interest at stake, the King Court noted that a detainee has a “reduc ed ex pecta tion of privacy ” and would be subj ecte d to only a “minimal intrusion[ ]” in the form of a mouth bucca l swab. Id. at 1978. But it further soug ht to establish that

We note that one author has rec ently interpre ted King as being “broa dly consistent with” and 1 4 leaving “intact” the traditional Four th Amendment fra

mework that require s either a sear ch war rant or the applicability of an established exception to the war rant require ment. See David H. Kay e, W hy So Contrived? Fourth A mendme nt B alancing, Per Se Rules, and DNA Databases After Maryland v. King , 104 J

. Crim. L

. & Criminology 535, 564 (2014). Kay e observe s that King “does not liberate courts to weig h interests ab initio in light of the totality of the circ umstances in ever y case ,” nor does it empower courts to consider, for example, “the nature of the specific crime [l aw enfor ceme nt] are seeking to solve in deciding whether a particula r war rantless sear ch

. . . is constitutional.” Id. at 564 n. 167. Kay e further notes that, “[h] ad the majority wished t o discard the [t raditional] framew ork in this wholesale manner , it would not have neede d to cobble toget h er a set of purely detentionrela ted state intere sts.” Id.Villarre al - 42

al l s ea rc hes are not acc eptable “solely beca use a person is in custody .” Id. at 1979. I n situatio n s involving weig htier privac y conce rns or g rea ter intrusions, it acknow ledg ed that such a sear ch may

never theless require a war

rant. Id. (obser

ving that wher e “privacy -related conce rns are weig hty
enoug h,” sear ch “may require a war rant, notwithstanding the diminis hed expectations of privac y of the ar restee ”). Altho u gh t h e State contends that King broadly permits a revie wing court to conduct a weig hing of competing interests for the purpose of deter mi n i n g the rea sonablene ss of an investiga tive sear ch, we disag ree with this broad rea ding of King

. The DNA sear ch at issue in King involved the m inimally intrusive, non-discre tionary sear ch of individuals who were already being subjected to routine booking proce dures. I n light of that fac t, t h e C o u rt conclude d that “the

a d d it io n al intrusion upon the arr estee ’s privac y ” bey ond the alre ady intrusive nature of other book in g
proce dures was minimal. Id. at 197 6 , 1 9 7 8

. By contra st, here , puncturing the skin constitutes a substantial intrusion bey ond what a DWI arr estee would otherwise experience

. And the King Court

rec og nized that a bucca l swab is a “f ar more g entle proce ss” than venipuncture to dr aw blood. Id.
at 1968.
Moreove r, even if we wer e to acc ept the viability of a Four th Amendment balanc ing test here

as a substitut e for the established exceptions to the warrant requireme nt, we would conclude th at ,

on balanc e, a DW I s u s p ect’s privac y interest outweig hs the State’s interest in preve nting drunk driving throug h war

rantless sear ches. McNee ly rea ffirme d the principle tha t a compelled phy sical intrusion beneath the skin to obtain evidenc e i n a criminal investiga tion implicates signific ant privac y interests, and this p ri vacy interest is not automatically diminis hed simply beca use an individual is suspected of a serious DW I offe nse. McNee ly , 133 S. Ct. at 1558. McNee ly furtherVillarre al - 43

reje cted the g overnme nt’s interest in curbing drunk driving as a va lid basis for departing from the traditional exceptions to the war rant require ment, statin g t h at “the g ener al importance of the
g overnme nt’s interest in this area does not justify

depar ting from the war

rant re quirement without

a showing ” that some established exception, such as exigenc y , applies. Id. at 1565. And, althoug h

we acknow ledg e the magn i t u de of the drunk driving problem in Texas and the g overnme nt’s leg itimate and subst antial i ntere st in curbing that problem, we see no compelling need on the part of law enfor ceme nt to underta ke to solve this problem throug h war rantless, nonconsensua l sear ches of suspects’ blood. This is particula rly so in light of the fac t that war rants for such blood testing are often rea dily available , there by providing the “tra ditional justification that a war rant provides.” Id.
at 1559 (citing Atwater v. Lago Vista , 532 U.S. 318, 347 n. 7 (2001)) ; see also Skinner , 489 U.S. at 622 (noting that a “wa

rra nt a ssures the citizen that the intrusion is authorized by law, and tha

t it is

narr owly limit ed i n i ts objectives and scope” ). The marg inal benef it to law enfor ceme nt in combating Texas’s drunk-dr iving problem throug h war rantless sear ches is g ener ally outweig hed by an individual’s substantial privac y interest her e. I t is sug g ested by the dissenting opinions that a Four th Am en d m en t balanc ing test may
proper ly b e ap p l i ed in these circ umstances. Ba lancing the interests in this case , the dissenting opinions conclude that a war rantless, nonconsensua l blood draw conducte d pursuant to provisions in the Transpor

tation Code should be upheld as g ener ally rea sonable in light of the L eg islatu re’s clea r intent to except such a sear ch from the war rant require ment; the statute’s clea r notice to repe atoffe nders that they are subject to a mandatory sear ch; and the simil arities betwee n this situation and situations involving constitutionally permissible war rantless sear ches of probationer s, parole es, and

arr estee s. We disag ree that these considerations prese nt a valid justification for depar ting from theVillarre al - 44

traditional Four

th Amendment fra

mework that require s either a war rant or an applicable exception. Specifica lly , with respe ct to the contention that the L eg islature has clea rly indicated its desire
to cre ate a

new e x ception to the war rant re quirement, we observe that the statutory lang uag e itself is silent as to whether a law-e nforc ement office r conducting a mandatory , nonconsensua l sear ch of

a DWI suspect’s blood is require d to first seek a war rant. See T E X
. T R A N S P
. C O D E § 7 2 4 .012(b) (stating that a pea ce of

fice r “sha ll require the taking of a specimen” of a suspec t’s brea th or blood if one of the enumerated ag g rava ting circumstances i s p resent, but making no ref ere nce to Four

th
Amen d m en t wa rr ant require ment). I n any event, it is unclea r why the L eg islature’s intent in

enac ting the mandatory -blood-dra w statute should be dispositi ve of our analy sis. The L eg islature “may not restric t g uara

nteed rig hts set out in constitutional provisions. ” Venn v. State , 218 S.W

. 1060 (Tex. Crim. App. 1920). To the extent the mandatory -blood-dra w statute may be interpre ted

as authorizing a war

rantless sear ch that would violate a defen dant’s rig hts under the Four th Amendment, it cannot d o s o . S ee i d

. We thus disag ree with the asser tion that a war

rantless,

nonconsensua l sear ch of a DWI suspect’s blood may be upheld as constitutionally rea sonable on the basis of the L eg islature’s putative intent to per mit such a sear ch.
For simil ar rea sons, we disag ree with the contention that a sear ch of this nature should be upheld as rea sonable on the basis that the statute g ives clea r notice to repe at-DWI offe nders of their obliga tion to provide a blood or brea th specimen. Although we may ag ree that the statutory scheme gi v es cl ear notice of the exis tence of implied consent and the require ment that a specime n b e collecte d under cer

tain circ umstances, the statutory scheme does not expres s l y m ake clea r that suspects will be re quired to submit to warra ntless searc hes. See T E X
. T R A N S P
. C O D E §§ 724.011,
724.012. Even acc epting the proposition that a DWI suspect may be deeme d to have knowledg e thatVillarre al - 45

a sear ch of his blood is statutorily require d under cer tai n ci rc u m s t ance s, he may also rea sonably expect that such a sear ch will be car ried out in acc ordanc e with his Four th Amendment rig hts. We

are not persua ded that the implied-consent and mandatory -blood-dra w provisions place suspects on clea r notice tha t they

are cate g orica lly

subject to war

rantless, nonc onsensual sea rche s. Wit h respe ct to the s u gges t i o n that requiring a third-offe nder DWI suspect to submit to having his blood draw n over his objection and without a war rant is analog ous to the constitutionally permissible war

rantless, nonconsensua l sear ches of parole es and probationer s, we disag ree with that contention. The Supreme Cour t h as explained why it is constitutionally permissible to conduct

war rantless, nonconsensua l sear ches of par o l ee s and probationer s. See Knights , 534 U.S. at 116;
Samson , 547 U.S. at 852; Griffin , 483 U. S

. at 8 73. I n Knights , the Supreme Court upheld a

wa rr antl ess sear ch of Knig hts’ dwelling , explaining that Knig hts’ status as a probationer an d h i s
express ag ree ment t o s u b m i t to war rantless sear ches wer e “salient,” and it further noted that probation, “like inc arc era tion, is a form of cr iminal sanction imposed

. . . afte r ver dict, finding , or plea of g uilty .” Knights , 534 U.S. at 119. Thus, a probationer ’s freed o m fr o m imprisonment is subject to “re asonable conditions that deprive the offe nder of so me fre edoms enjoy ed by law-a biding citizens.” Id. The Court sta ted, “The judge who sentenc ed Knig hts to probation deter mined that it

wa s nece ssary to condition the probation on Knig hts’ acc eptanc e of the s ear ch provision.

. . . T h e probation order clea

rly expressed the sear ch condition and Knig hts was unambig uously informed

o f i t

. T he probation condition thus signific antly diminis hed Knig hts’ rea sonable expectation of privac y .” Id

. at 120. The Knights Court observe d that probationer s are “mo re l i k el y than the ordinary citizen to viola t e t h e law,” and the g overnme nt was acc ording ly justified in focusing on probationer s “in a wa

y that it does not on the ordinary citizen.” Id.Villarre al - 46

Simi larly , in Samson , the Court up h el d t h e war rantless sear ch of a parole e who had been

s topped on the sidewalk and subjected to a sear ch of his person in the absenc e of rea sonable suspicion. Samson , 547 U.S. at 857. As in Knights , the Court upheld the war rantless sear ch primarily on the basis that parole es “ar e on the continuum of state-imposed punishments” and thus have “seve rely diminis hed expectations of privac y by virt u e o f t h ei r s t atus alone.” Id. at 852. I t conclude d that Samson “did not have an expectation of privac y that society would rec og niz e as leg itimate.” Id. at 853. The holdings of both Knights and Samson are clea rly rooted in the limited privac y interests of individuals who are actively subject to criminal penalties, there by permitt i n g “priva cy intrusions that would not ot herw ise be tolerated under the Four th Amendment.” Id.
I n contra st to parole es and probationer s, DWI suspects who have completed their sentenc es

are not free on conditional liberty

. Rather, DWI suspects who have discharg ed their sentence s on their ear lier DWI convictions enjoy absolute liberty from their prior c o n v ic tions and have no ong oing

su p er v i s o ry re lationship with any parole or probation office r. “To a g rea ter or lesser deg ree , it is alway s true of probationer s (as we have said to be true of parole es) that they do not enjoy ‘the absolute liberty to which ever y citizen is entitled, but only

. . . conditional liberty proper ly depende nt

on observa

nce of s p ecial [probation] restric tions.” Griffin , 483 U.S. at 874. Fur thermore , the situation fac ed by parole es and probationer s is “an ong oing supervisory rela tionship—and one that is not, or at least not entirely , adver sarial—be tween the object of the sear ch and the decisionmake r.” Id

. at 879. I n view of the basis for the Court’s holdings in Knights and Sampson , we conclude that there is no rational compar ison be tween the reduc ed liberty interests of pa

rolee s and proba tioners, who have only conditional liberty and a supervisory rela tionship with a law-e nforc ement office r, and
repe at-off ender DWI suspects, wh o h av e fully discharg ed their ear lier sentenc es and who haveVillarre al - 47

absolute liberty and no ong oing supervisory rela tionship. See Knights , 534 U.S. at 118; (obser ving that, in lig ht of his status, Knig hts ha d “sig nfica ntly diminis hed” expectation of privac y ); Samson,
547 U.S. at 853.
Fur thermore , as explained previously , the Supreme Court’s holding in McNee ly makes clea r that draw ing the blood of an individual suspected of DWI falls under the cate g ory of case s holding that “a war

rantless sear ch of the person is rea sonable only if it falls within a rec og nized exception”
to the war rant require ment. McNee ly , 133 S. Ct. at 1558. The Court in McNee ly further explained that such an intrusion implicates an indi vidual’s “‘most perso n al an d deep- rooted ex pecta tions of privac y .’” Id. (quoting W

inston , 470 U.S. at 760). These principles from McNee ly —the rec og nition of the substantial privac y interests at stake and the applicability of the traditional Four th Amendment framework that require s either a war rant or an applicable exception—apply with equal forc e to this

case . We hold that the provisi ons in th e Transpor tation Code do not, taken by themselves, form a constitutionally

valid alterna tive to the Four th A mendment war

rant require ment. We thus re ject the State’s asser

tion that a war

rantless, nonconsensua l blood draw conducte d pursuant to those provisions can fall under one of the established exceptions t o t h e war rant require ment descr ibed above, and we further reje ct the State’s sug g estion that such a sear ch may be upheld under a g ener al
Four th Amendment balanc ing te st. W e over rule the State’ s first g round.
IV. Constitutionali ty of Bl ood-Draw Statute The State’s third g round asks this Court to r e v ie w “ [w ]h ether the Thirteenth Court of Appea ls

err ed in conc luding that the ma ndatory [bl ood] draw s tatute does not allow the arre sting off icer to draw blood without a sear ch war rant or exigent circ umstances, and specific ally [,] whether the courtVillarre al - 48

failed to consider the distinction betwee n the statutory direc tive for the a

rre sting off

icer to require or orde r the dra

w, and the na

ture of a war

rant as an order of the i ssuing magistra te for the dra w in question.” The essenc e of the State’s complaint is that, in interpre ting the statutory lang uag e during the course of analy

zi n g whether the s tatute was constitutional “as applied” to Villarre al, t he court of appea ls err ed by deter mining that the plain lang uag e in the statute did not dispense with the require ment that an office r seek and obtain a sear ch war rant. See Villarreal , 2014 WL 1257150, at *11 (obser

ving tha t the “litera l tex t” of Sec tion 724.012 “does not addre ss or purport to dispense” with the war

rant require ment). Having al re ady deter mined that Villarre al’s Four th Amendment rig hts wer e violated when his blood was draw n without a war rant in light of his ref

usal to submit to the t aking of a specimen, any further statutory analy sis of whether the m andator y -blood-dra

w l aw itself pu rp o rts to authorize such a war rantless sear ch is unnece ssary to resolve this Four th Amendment issu e. The rema inder of the State’s challeng e with respe ct to the meaning of the statutory lang uag e per t ai n s t o the conclusion by the court of appea ls that the statute was not unconstitutional. 1 5

The c ourt of appe als cited this Court’s decision in Bee man v. State for the pr oposition t hat 1 5 “the constitutionalit y of the repe at offe nder p ro v i s ion of the mandatory -blood-dra w law must be based on the previously rec og nized exceptions to the Four th Amendment’s war

rant require ment.” See State v. Villarreal , No. 13-13-00253- CR, 2014 WL 1257150 (Tex. App.—Corpus Christi 2014) (citing Bee man v. State , 86 S.W .3d 613, 615 (Tex. Crim. App. 2002)). I n that case , afte r his blood was draw n pursuant to a sear ch war rant, Bee man arg ued that the State had no rig ht to obtain a sear ch war rant to dr aw his blood in lig ht of implied-consent laws for DWI case s. Id

. I n deciding that the State may proper ly seek a war rant to collect a blood specimen reg ardle ss of a suspect’s ref usal to submit a specimen under implied-consent laws, this Court stated, “The implied consent law expands on the State’s sear ch capa biliti es by providing a fra mework for draw ing DWI suspects’ blood in the absenc e of a sear ch war

rant. I t g ives office rs an additional wea pon in their investiga tive arse nal, enabling them to dr aw blood in cer tain limit ed circ umstances even without a sear ch war rant.” Id

. Bee man also observe d that implied-consent laws do not g ive police office rs any th i n g “more than [what] the Constit ution alre ady g ives them.” Id. at 616. The holding in Bee man , that an office r may (continued...)Villarre al - 49

Villarre al’s const i t u t i o nal challeng e, howeve r, was abandone d at the trial-cour t level. Villarre al’s written motion to suppress s t at ed, “[I ]f the defe ndant’s blood was taken under the authorit y of a statute, the statute should be deeme d unconstitutional.” L ater , howeve r, Villarre al abandone d that complaint. Villarre al narr owed the focus of his motion to suppr ess to the question of whether the mandatory blood draw c onducted without a warra nt in this particula

r case viol ated the Four th Amendment. And the trial court’s finding s of fac t specific ally deter mined that Villarre al had narr owed the g rounds in his motion to addre ss only the Four th Amendment violation. The trial
court’s second fac t finding stated, “The Court finds that the Defendant narr owed the focus of his motion, and repr esente d as the sole basis of such motion, his claim that ‘taking a blood draw without

a wa rra nt [ is] a violation of the 4th Amendment.’” We, theref ore, sustain the State’ s third gr ound
to the extent that the court of appea ls err ed by addre ssing the constitutionalit y of the implied-consent statute bec ause V illarrea l abandone d his constituti onal cha lleng e in the trial c ourt. V. Conclusion
We hold that a nonconse n s u al s ea rch of a DW I suspect’s blood conducte d pursuant to the

ma n d a to r y - b lo o d -dra

w and implied-consent provisions in the Transpor ta ti o n Co d e , w h e n u

n d e r ta k e n in the absenc e of a war

rant or any applicable exception to th e wa rr ant require ment, violates the
Four th Amendment. We aff

irm the judgme nt of t h e co u rt of appea ls suppressing the blood-test results on the basis of a

Four th Amendment violation.

(...continued) obtain a sear ch war

rant even wher e implied consent statutes would authorize an involuntary blood draw , rema ins g ood law. See id

. But beca use it was decide d befor e McNee ly , Bee man has limit ed value with respe ct to the instant question whether a person’ s Four th Amendment rig hts are violated when his blood is drawn ove r his objection pursuant to the implied-c onsent statute.Villarre al - 50

Deliver ed: Novembe r 26, 2014 Publis h