Reversed and Remanded and Opinion Filed May 20, 2015 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-14-00075-CR 

HENRY WILSON RICHARDS, JR., Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 282nd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. F-1263948-S 

MEMORANDUM OPINION 

Before Justices Bridges, Fillmore, and Brown 

Opinion by Justice Bridges 

Henry Wilson Richards appeals his driving while intoxicated (DWI) conviction. After 

the trial court overruled his motion to suppress evidence, appellant pleaded guilty to DWI, and 

the trial court sentenced him to ten years’ confinement, probated for five years, and $2000 fine. 

In a single issue, appellant argues the trial court erred in denying his motion to suppress blood 

test evidence because the warrantless, nonconsensual blood draw constituted an unconstitutional 

search and seizure and violated his Fourth Amendment rights. We agree with appellant. We 

reverse the trial court’s judgment and remand this case for further proceedings. 

 On December 30, 2012, Officer Shannon Smith observed appellant driving faster than the 

speed limit and almost colliding with another vehicle. Smith stopped appellant, who “opened up 

his door immediately.” Smith observed appellants’ eyes were red and his breath smelled of 
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alcohol. After performing field sobriety tests, Smith arrested appellant for DWI. Appellant 

refused to give a blood sample. Smith took appellant to the Lew Sterrett Justice Center where 

Smith discovered records indicating appellant had been convicted of DWI twice before. 

Although Smith could have “easily” obtained a warrant, she did not do so. After approximately 

two hours, blood was drawn from appellant without his consent pursuant to section 724.012 of 

the Texas Transportation Code. 

 Before trial, appellant filed a motion to suppress, alleging the warrantless, nonconsensual 

blood draw was a violation of his Fourth Amendment rights. Following a hearing, the trial court 

denied appellant’s motion. The trial court entered findings of fact that, among other things, 

appellant refused to give a blood sample, blood evidence was nevertheless seized without a 

warrant, and the blood evidence was seized under Texas Transportation Code section 724.012. 

While this appeal was pending, the Court of Criminal Appeals, relying on Missouri v. McNeely, 

___ U.S. ___ , 133 S.Ct. 1552 (2013), issued its opinion in State v. Villarreal, No. PD-0306-14, 

__ S.W.3d __ 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014), addressing involuntary blood 

draws taken under the authority of the Texas Transportation Code. 

 In a single issue, appellant argues the trial court erred by denying his motion to suppress. 

Appellant claims that, because he did not consent to the blood draw and the State did not have a 

warrant to draw his blood, the search was reasonable only if the State could show exigent 

circumstances. Because the State did not do so, appellant claims the search violated his Fourth 

Amendment rights, the motion should have been granted, and the blood alcohol concentration 

evidence should have been suppressed. 

 We review a trial court’s ruling on a motion to suppress evidence under a bifurcated 

standard. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). We grant almost total 

deference to the trial court’s determinations of historical facts and mixed questions of law and 
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fact that rely on credibility when supported by the record. Id. But when mixed questions of law 

and fact do not depend on the evaluation of credibility and demeanor, we review the trial court’s 

ruling de novo. Id.

 The State argues that, by accepting the privilege to drive, a person accepts the 

responsibility to be subject to the reasonable regulations the State will use to protect the welfare 

and safety of the general public, including those of the implied-consent statute, section 724.012, 

and Administrative License Revocation program. The State argues the implied-consent statute is 

“a codification of exigent circumstances that gives helpful guidance to law enforcement 

officials” and these exigent circumstances made a warrant unnecessary in this case. 

 To the extent the State relies on the implied-consent statute to justify the warrantless 

blood draw in this case, such reliance is misplaced. The court of criminal appeals, in Villarreal, 

held as follows: 

To the extent the State suggests that the implied-consent and mandatory-blooddraw provisions in the Transportation Code categorically extinguish a DWI 

suspect’s right to withdraw consent when some aggravating circumstance is 

present, that suggestion cannot be squared with the requirement that, to be valid 

for Fourth Amendment purposes, consent must be freely and voluntarily given 

based on the totality of the circumstances, and must not have been revoked or 

withdrawn at the time of the search. 

Villarreal, 2014 WL 6734178 at *11; see Lloyd v. State, 453 S.W.3d 544, 547-48 (Tex. App.—

Dallas 2014, pet. ref’d). 

 As to the presence of exigent circumstances in this case, the State essentially relies on the 

same factors that invoke the mandatory blood draw statute. See TEX. TRANSP. CODE ANN. § 

724.012; Lloyd, 453 S.W.3d at 548. These factors are not exigent circumstances that provide an 

exception to the warrant requirement; exigent circumstances are those “exigencies of the 

situation” that “make the needs of law enforcement so compelling that [a] warrantless search is 

objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 394 
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(1978). These include, for example, the threat of imminent removal or destruction of evidence, 

threat to human life, rendering emergency assistance to injured occupants, or hot pursuit of a 

fleeing suspect. See Kentucky v. King, ___ U.S. ___ , 131 S.Ct. 1849, 1856 (1978). However, as 

a general rule, the “context of blood testing is different in critical respects from other destructionof-evidence cases in which police are truly confronted with a ‘now or never’ situation.” 

McNeely, 133 S.Ct. at 1561. Such cases should be considered on a case-by-case assessment of 

exigency, not a categorical rule. Id. In fact, in “those drunk-driving investigations where police 

officers can reasonably obtain a warrant before a blood sample can be drawn without 

significantly undermining the efficacy of the search, the Fourth Amendment mandates that they 

do so.” Id. Here, no exigent circumstances existed which would justify a warrantless search. 

 Appellant did not consent to the draw, and the taking of his blood did not fall under 

another recognized exception to the warrant requirement. We therefore conclude the warrantless, 

nonconsensual blood draw violated appellant’s Fourth Amendment rights. See McNeely, 133 

S.Ct. at 1561-63; Villarreal, 2014 WL 6734178 at *20; Lloyd, 453 S.W.3d at 548. The trial 

court therefore abused its discretion in denying appellant’s motion to suppress. We sustain 

appellant’s sole issue. 

 We reverse the trial court’s judgment and remand for further proceedings 

consistent with this opinion. 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

140075F.U05 

 

/David L. Bridges/ 

DAVID L. BRIDGES 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

HENRY WILSON RICHARDS, JR., 

Appellant 

No. 05-14-00075-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 282nd Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. F-1263948-S. 

Opinion delivered by Justice Bridges. 

Justices Fillmore and Brown participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED

and the cause REMANDED for further proceedings consistent with this opinion. 

Judgment entered May 20, 2015.