Reversed and Remanded and Opinion Filed May 20, 2015 

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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 ev idence, appellant pleade d guilty to DWI, and the trial court sentenced him to ten years’ confin ement, probated for five years, and $2000 fine. In a single issue, appellant argues the trial co urt erred in denying his motion to suppress blood test evidence because the warrantless, noncons ensual blood draw constituted an unconstitutional search and seizure and violated his Fourth Ame ndment rights. We agree with appellant. We reverse the trial court’s j udgment and remand this case for further proceedings. On December 30, 2012, Officer Shannon Smith obs erved appellant driving faster than the speed limit and almost colliding with another vehi cle. Smith stopped appellant, who “opened up his door immediately.” Smith observed appellants’ eyes were red and his breath smelled of–2– alcohol. After performing field sobriety tests, Smith arrested appellant for DWI. Appellant refused to give a blood sample. Smith took appella nt 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 Amendm ent rights. Following a hearing, the trial court denied appellant’s motion. The trial court ente red findings of fact th at, among other things, appellant refused to give a blood sample, blood evidence was neverthele ss seized without a warrant, and the blood evidence was seized und er Texas Transportation Code section 724.012. While this appeal was pending, the Cour t 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 se arch was reasonable only if the State could show exigent circumstances. Because the State did not do so, a ppellant 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 mo tion to suppress eviden ce 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–3– 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 credibil ity and demeanor, we review the trial court’s ruling de novo. Id. The State argues that, by accepting the priv ilege to drive, a person accepts the responsibility to be subj ect to the reasonable regu lations the State will us e to protect the welfare and safety of the general public, including thos e of the implied-consen t 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 implie d-consent statute to justify the warrantless blood draw in this case, such reliance is mi splaced. 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 categor ically extinguish a DWI suspect’s right to withdraw consent wh en some aggravating circumstance is present, that suggestion cannot be squared with the requi rement that, to be valid for Fourth Amendment purposes, consent must be freely a nd voluntarily given based on the totality of th e 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, th e State essentially relies on the same factors that invoke the ma ndatory blood draw statute. See T EX
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. C ODE A NN . § 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 enforcem ent so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona , 437 U.S. 385, 394–4– (1978). These include, for example, the threat of imminent removal or destruction of evidence, threat to human life, rendering emergency assist ance 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 diffe rent in critical respect s from other destructionof-evidence cases in which polic e 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-driv ing investigations where police officers can reasonably obtain a warrant before a blood sa mple can be drawn without significantly undermining the efficacy of the sear ch, 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 excepti on 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 judgme nt and remand for further proceedings consistent with this opinion.

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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 da te, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
Judgment entered May 20, 2015.