Reversed and Remanded and Majority and Dissenting Opinions filed

November 13, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00208-CR

JONATHAN ALBERT LEAL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 12CR0947

DISSENTING OPINION

The Fourth Amendment to the United States Constitution provides that 

“[t]he right of the people to be secure in their persons ... against unreasonable 

searches and seizures, shall not be violated, and no warrants shall issue” unless the 

warrants meet certain requirements.1

 The Supreme Court of the United States has 

1 U.S. Const. amend. IV; see also Tex. Const. art. I, § 9. 

 
determined that, where a search is undertaken by law-enforcement officials to 

discover evidence of criminal wrongdoing, the Fourth Amendment generally 

requires the obtaining of a judicial warrant.2 In the absence of a warrant, a search 

is reasonable under the Fourth Amendment only if it falls within a specific 

exception to this general warrant requirement.

3

 One such exception is a search 

conducted pursuant to consent.4

 

Today, this court faces as issues of first impression (1) whether section 

724.012(b)(3)(B) of Texas’s implied-consent statute falls within the consent 

exception to the warrant requirement and (2) whether consent under this particular 

provision is revocable. More specifically, we must decide whether this subsection 

of the statute provides a basis for concluding that appellant Jonathan Albert Leal 

irrevocably consented to the blood draw. If the trial court’s ruling is supported by 

the record, we are to affirm that ruling if there is any valid theory of law that 

supports the ruling, even if the theory was not presented to the trial court and even 

if the theory is not advanced by the prevailing party on appeal.5

The ultimate touchstone of the Fourth Amendment is reasonableness.6

 We 

are to examine the totality of the circumstances to determine whether a search is 

reasonable.7

 The Fourth Amendment’s protection against unreasonable searches 

and seizures requires courts reviewing searches to balance opposing interests and 

2 See Riley v. California, —U.S.—, —, 134 S. Ct. 2473, 2482, 189 L.Ed.2d 430 (2014). 

3 See id.

4 See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043–44, 36 L.Ed.2d 

854 (1973).

5 Alford v. State, 400 S.W.3d 924, 928 n.2 (Tex. Crim. App. 2013); Miller v. State, 393 

S.W.3d 255, 263 (Tex. Crim. App. 2012).

6 Riley, —U.S. at —, 134 S. Ct. at 2482.

7 Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 2197, 165 L.Ed.2d 250 

(2006). 

2

 
determine the reasonableness of a particular search in a particular context.8

 

Whether a search is reasonable depends upon the degree to which it intrudes upon 

an individual’s privacy and the degree to which it is needed to promote legitimate 

government interests.9

 Thus, context is crucial in assessing reasonableness. 

Validity of Implied Consent to Blood Draw by DWI Repeat Offenders

In assessing the validity of the implied consent in today’s case, the issue is

whether police reasonably could assume that appellant, who twice before had been 

convicted of driving while intoxicated (DWI), irrevocably consented to a blood 

draw

10 through his conduct in operating a motor vehicle on Texas’s public 

roadways. Texas Transportation Code sections 724.012(b)(3)(B) and 724.011 

effectively advise individuals with two or more prior DWI convictions (“DWI 

Repeat Offenders”) that police will interpret a DWI Repeat Offender’s conduct in 

operating a motor vehicle as giving consent to a blood draw in the event of a new 

DWI arrest.11

Implied consent, if otherwise valid, is sufficient to support the consent 

exception.12 The majority, however, rejects implied consent and suggests that 

despite the statute’s plain statement of the consequences flowing from a DWI 

arrest for a DWI Repeat Offender, a police officer cannot interpret a DWI Repeat 

Offender’s conduct in operating a motor vehicle as consent to a blood draw 

because such an interpretation would establish a categorical rule and categorical 

8 See Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 1778, 167 L.Ed.2d 686 (2007). 

9 Samson, 547 U.S. at848, 126 S.Ct. at 2197. 

10 Transportation Code Section 724.012 provides that a police officer “shall require the 

taking of a specimen of breath or blood.” Tex. Transp. Code Ann. § 724.012(b) (West 2014). 

Under this statute, an officer may take a breath sample rather than a blood sample.

11 Tex. Transp. Code Ann. §§ 724.011, 724.012(b)(3)(B) (West 2014).

12 McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).

3

 
rules are prohibited by the Supreme Court’s opinion in Missouri v. McNeely.

13 The 

majority says that “whenever a person has been arrested for DWI and is a repeat 

offender, consent will necessarily exist because section 724.012(b)(3)(B) says it 

does.” 14 This oversimplification of how this provision of the implied-consent 

statute operates skews the focus away from the important contextual 

considerations that should drive the court’s analysis. Analyzing consent in context 

leads to the opposite conclusion.

Consent exists because individuals are deemed to know the law.15 This is 

especially true for recidivists. By nature, they are reoffenders who, after being 

convicted, break the same law again. In crafting many of our state’s statutory 

schemes, Texas lawmakers recognize the distinct risk posed by recidivists and 

identify specific consequences for reoffenders.16 Section 724.012(b)(3)(B) 

provides that, for a particular class of DWI reoffenders, taking the action of driving 

on public roadways is consent to a blood draw.17 Accordingly, police reasonably 

can assume that a DWI Repeat Offender who uses public roadways and is charged 

with knowledge of laws governing such use, consents to a blood draw in the event 

a police officer has reasonable grounds to believe that the DWI Repeat Offender is 

driving while intoxicated. Just as it is reasonable for police officers to assume that 

the category of individuals who speak the words, “Yes, I give you consent to 

search,” in fact, have consented, a police officer reasonably can interpret the 

13 See maj. op. at ___; Missouri v. McNeely, —U.S.—, —, 133 S.Ct. 1552, 1561, 185 

L.Ed.2d 698 (2013). 

14 Maj. op. at ____.

15 See Tex. Penal Code Ann. § 8.03 (West 2014); Johnson v. State, 423 S.W.3d 385, 388 

n.2 (Tex. Crim. App. 2014).

16 See, e.g. Tex. Penal Code § 12.42 (West 2014).

17 Tex. Transp. Code Ann. § 7.012(b)(3)(B). This opinion does not address whether an 

individual who drives on a public street has consented to a search based of any other section of 

Texas Transportation Code Section 7.012.

4

 
conduct of a DWI Repeat Offender in driving a vehicle on the public street as 

giving consent for the blood draw.18

Irrevocability of Consent

The majority suggests that, in any event, appellant effectively revoked any 

consent for the blood draw. But, under Texas’s statutory scheme, consent by a 

DWI Repeat Offender cannot be revoked.19 The majority states that there is a 

categorical rule that an individual’s consent to a search is limited in scope and that 

such consent is always subject to the right of withdrawal.20 The Supreme Court 

has found otherwise. Revocation is not always an option. In various contexts, the 

“right of withdrawal” has been found unreasonable and unavailable. 21 Drawing 

from this body of jurisprudence and the intent and purpose of the Texas Legislature 

in creating this particular provision of the implied-consent statute, it makes more 

sense to conclude that revocation of implied consent is not an option for a DWI 

Repeat Offender.

Consent affects the balance of interests between an individual and the 

government.22 The balance can tip for or against revocation of consent, depending 

on the circumstances. For example, in the context of searches of probationers’ 

homes, the Supreme Court, in United States v. Knights, relied on a probationer’s 

18 As the majority acknowledges, the reality that a driver must make a tough choice, 

between driving and knowing that his conduct in driving will be interpreted as consent, does not 

render the consent invalid.

19 See Tex. Transp. Code Ann. § 724.011, et seq.

20 See Mason v. Pulliam, 557 F.2d 426, 428 (5th Cir. 1977). 

21 See U.S. v. Spriggs, 30 F.3d 132, 132 (4th Cir. 1994), cert. denied, 513 U.S. 1159, 115 

S.Ct. 1120, 130 L.Ed.2d 1083 (1995) (holding that visitor to prison could not revoke consent to 

search); U.S. v. Knights, 534 U.S. 112, 116, 122 S.Ct. 587, 590, 151 L.Ed.2d 497 (2001) (holding 

that probationers may not revoke consent to searches); U.S. v. Herzbrun, 723 F.2d 773, 775 (11th 

Cir. 1984) (holding that airline passengers may not revoke consent to search); U.S. v. Haynie, 

637 F.2d 227, 230 (4th Cir. 1980) (same).

22 See U.S. v. Knights, 534 U.S. at 116, 122 S.Ct. at 590.

5

 
signed form23 to enforce the probationer’s agreement to “submit to a search ‘by 

any probation officer or law enforcement officer.’”24 In concluding that the 

probationer’s motion to suppress evidence from such a search should be denied, 

the Supreme Court reasoned that:

The judge who sentenced Knights to probation determined that it was 

necessary to condition the probation on Knights’ acceptance of the 

search provision. It was reasonable to conclude that the search 

condition would further the two primary goals of probation—

rehabilitation and protecting society from future criminal violations. 

The probation order clearly expressed the search condition and 

Knights was unambiguously informed of it. The probation condition 

thus significantly diminished Knights’ reasonable expectation of 

privacy. 534 U.S. at 119–20, 122 S.Ct. at 591–92.

In weighing the government’s interest in Knights, the high court, recognizing the 

context, noted that the probationer is more likely than the ordinary citizen to 

violate the law.25 In light of this reality, the Supreme Court essentially determined 

that the State, to further its goal of protecting the public from past offenders, may 

condition the granting of a privilege upon the past offender’s irrevocable consent 

to a search.26 And, in the context of parolees, the Supreme Court found it 

23 The Supreme Court of the United States also has upheld searches of parolees based on 

statutory scheme as opposed to the parolee’s signature on a form. See Samson v. California, 547 

U.S. 843, 857 (2006).

24 Knights, 534 U.S. at 116, 122 S.Ct. at 590. The Court of Criminal Appeals of Texas 

has held that consent given by a probationer in accepting a probation condition is invalid under 

the Fourth Amendment and Article 1, Section 9 of the Texas Constitution. See Tamez v. State, 

534 S.W.2d 686, 690–92 (Tex. Crim. App. 1976). U.S. v. Knights overruled Tamez with respect 

to the Fourth Amendment. See Townes v. State, 293 S.W.3d 227, 230–31 (Tex. App.—San 

Antonio 2009, no pet.). The Court of Criminal Appeals has held that Article 1, Section 9 of the 

Texas Constitution does not provide any greater right than the Fourth Amendment. See Hulit v. 

State, 982 S.W.2d 431, 437 (Tex. Crim. App. 1998). Even if the Texas Constitution did provide 

a greater right, the DWI search is based upon probable cause unlike the search probation 

condition determined to be too broad in Tamez. See Tamez, 534 S.W.2d at 692.

25 See id. 

26 See id.

6

 
significant that “in most cases, the State is willing to extend parole only because it 

is able to condition it upon compliance with certain requirements.27”

28 

Significantly, the high court reasoned that the State is not required to “ignore the 

reality of recidivism or suppress its interests in ‘protecting potential victims of 

criminal enterprise’ for fear of running afoul of the Fourth Amendment.”29 

The Supreme Court’s consideration of the “reality of recidivism” as key to 

the government’s interest in protecting potential victims of crime has obvious 

application in the context of the DWI Repeat Offender, who poses a grave risk to 

public safety on roadways. Courts have observed that “an automobile in the hands 

of a drunk driver can be just as lethal a weapon as a gun”30 and have “repeatedly 

lamented” the “increasing slaughter on our highways. . . now reach[ing] the 

astounding figures only heard of on the battlefield.”31 The high court’s 

determination that the State is not required to suppress its interests in protecting 

potential victims of crime out of concern of stepping on the Fourth Amendment is 

particularly relevant and compelling in the repeat-offender drunk-driving context. 

Similar public-safety concerns have prompted courts to fashion special 

exceptions to the warrant requirement and to disallow revocation of implied 

consent given in exchange for a privilege. For example, in considering consent 

given in exchange for the benefit of air travel, courts have disallowed revocation, 

holding that officials are not required to ignore the attendant dangers of air piracy. 

27 Similarly, for DWI Repeat Offenders the State of Texas has conditioned the privilege 

of driving upon implied consent to a blood draw. See Tex. Transp. Code Ann. §§ 724.011, 

724.012(b)(3)(B). 

28 See Samson, 547 U.S. at 850, 126 S.Ct. at 2198.

29 Id. at 849, 2198.

30 U.S. v. Tristan-Madrigal, 601 F.3d 629, 633–34 (6th Cir. 2010) (internal quotations 

omitted).

31 Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2486, 110 

L.Ed.2d 412 (1990) (internal quotations omitted).

7

 
The Eleventh Circuit concluded, even before the increased concern following the 

infamous terrorist attacks on America on September 11, 2001, that to keep the 

airways safe from “the intense danger of air piracy,” airports are “critical zones” in 

which special Fourth Amendment considerations apply.32 Courts have determined 

that an individual who begins the process of airport screening may not avoid the 

search by asking to leave.33 Noting that air travel is a privilege, the Fourth Circuit 

has reasoned that it may be conditioned upon irrevocable consent to a search.34 In

balancing the government’s interest in disallowing revocation of consent, courts 

have placed special focus on the statutory scheme and purpose, noting that 

allowing an individual to leave after the individual has reached the point of 

embarkation “greatly damages the prophylactic purpose of the search procedure.”35 

Importantly, “the very fact that a safe exit is available ... would, by diminishing 

the risks, encourage attempts.”36 Courts have recognized the necessity for 

restricting the right to revoke consent after this crucial point, noting that the 

problem with allowing a “safe exit” is that “established search procedures are 

perhaps more valuable by what they discourage than what they discover.”37

The majority notes that since the events of September 11, federal circuit 

courts have overruled prior cases that predicated the reasonableness of airport 

screening on irrevocable implied consent and determined that the Fourth 

32 See Herzbrun, 723 F.2d at 775.

33 See id. 

34 Haynie, 637 F.2d at 230.

35 See U.S. v. Skipworth, 482 F.2d 1272, 1277, 1281 (5th Cir. 1973) (Aldrich, dissenting) 

(the majority agreed with this part of the dissenting opinion, holding Skipworth’s “right-toleave” argument lacked merit).

36 Id.

37 See id.

8

 
Amendment requires even less protection of the individual in dangerous contexts.38 

Indeed, the majority cites cases holding that today airport searches are 

administrative and no consent is needed at all.39 The majority argues that it is 

unpersuasive to attempt to justify a rule of irrevocable consent by comparing a 

warrantless blood draw to an administrative search. But, the danger factor that has 

driven courts to conclude administrative searches are reasonable in the context of 

perilous and high-risk circumstances only further supports the position that 

preventing a DWI Repeat Offender from revoking consent to a blood draw is also 

reasonable under the Fourth Amendment. Though administrative searches have no 

requirement of consent or individualized suspicion, section 724.012(b)(3)(B) 

requires an officer to have made a valid arrest of a DWI Repeat Offender before 

the officer obtains a blood draw. If administrative searches at airports are 

reasonable under the Fourth Amendment, then it is also reasonable to enforce this 

particular provision of the implied-consent statute in the narrow context of DWI 

Repeat Offenders exercising the privilege of driving on public roadways. 

Today’s case is similar to the special cases involving criminal recidivism 

and zones of danger. Yet, it presents a unique circumstance requiring review of a 

search in the multi-faceted context of (1) a recidivist (2) who has engaged in 

dangerous conduct on the roadways, (3) consented to a narrow search (blood draw 

or breath specimen in the event of another DWI arrest) in exchange for the 

privilege of being allowed to drive in spite of that past dangerous conduct, (4) 

accepted the benefits of the conditioned privilege by driving on a public roadway, 

and (5) is arrested for engaging in the same highly dangerous conduct again. 

38 See maj. op. at ___.

39 See George v. Rehiel, 738 F.3d 562, 575 (3d Cir. 2013); Elec. Privacy Info. Ctr. v. U.S. 

Dep’t of Homeland Sec., 653 F.3d 1, 10 (D.C. Cir. 2011); United States v. Aukai, 497 F.3d 955, 

960-61 (9th Cir. 2007) (en banc).

9

 
Confronted with this extraordinary public endangerment and the critical need to

deter the fatal activity, the Texas Legislature enacted a series of laws,

40 specifically 

focusing its efforts on the severe threat posed by recidivists who fail to observe the 

prohibition against drunk driving even after being convicted of the offense at least 

twice before. Because this class of offenders represents a particular, known, and 

heightened threat to public safety, the Texas Legislature sought to deter DWI 

Repeat Offenders from getting behind the wheel and again endangering the public 

by driving in an impaired state. The legislative solution to the recidivist threat 

was to provide a framework that conditioned the driving privilege on consent to 

police officers obtaining blood or breath samples from DWI Repeat Offenders who 

are suspected of driving while intoxicated and to obtain the samples in the absence 

of a search warrant.41 This provision of the statute is narrowly tailored, specific to 

the search, and is limited in scope, effectively serving the purpose and meeting the 

requirements of a warrant.42

Section 724.012(b)(3)(B) of Texas’s implied-consent law creates a compact 

that is akin to the compact enforced against probationers and parolees. The 

majority argues that, unlike probationers and parolees, DWI Repeat Offenders do 

not have conditional liberty interests. But, driving is a privilege, not a right.43 Just 

as it is reasonable to enforce the agreements of parolees and probationers that 

diminish their liberty interests, it is reasonable to enforce agreements of DWI 

Repeat Offenders to consent to blood draws on condition of exercising driving 

privileges. 

40 See Tex. Transp. Code Section 724.001, et seq. (West 2014).

41 See Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). 

42 See New York v. Burger, 482 U.S. 691, 703, 107 S.Ct. 2639, 2644, 96 L.Ed.2d 601 

(1987).

43 See Tex. Transp. Code Ann. § 724.035 (West 2014). 

10

 
In exchange for the privilege of driving on public roads in Texas, the DWI 

Repeat Offender irrevocably consents to have blood drawn in the event that the 

DWI Repeat Offender is arrested yet again for driving while intoxicated.44 Under 

this compact, the DWI Repeat Offender faces a difficult choice:

45 forego driving a 

motor vehicle on Texas roadways or consent to a blood draw in the event of 

another DWI arrest.46 The latter choice does not include the option of 

revocation.47 It is significant that the Texas Legislature did not 

outright deny the driving privilege to DWI Repeat Offenders, but instead gave 

these individuals the option of enjoying the privilege subject to the condition. 

Appellant’s acceptance of the benefits of this conditioned privilege supports the 

irrevocability of his consent. Once appellant, a DWI Repeat Offender, elected the 

condition attached to the driving privilege by turning the key to start the vehicle’s 

ignition, it was too late to revoke consent. At that point, as a DWI Repeat 

Offender, appellant had accepted the risk of a blood draw should he be arrested for 

driving while intoxicated. 

If a police officer suspects a DWI Repeat Offender of driving while 

intoxicated, the officer shall arrange for a statutory blood draw or the collection of 

a breath specimen. Were the DWI Repeat Offender entitled to revoke consent at 

that point, then the prophylactic purpose of the search procedure prescribed by the 

Texas statute would be frustrated.48 Likewise, the deterrent effect of the statutory 

scheme would be thwarted as the DWI Repeat Offender would be able to revoke 

consent for the blood draw even after accepting the conditioned privilege of 

44 See Tex. Transp. Code Ann. §§ 724.011; 724.012. 

45 See McGautha v. California, 402 U.S. 183, 213 (1971).

46 Tex. Transp. Code § 724.011. 

47 See generally, id. at § 724.011, et seq.

48 See Skipworth, 482 F.2d at 1281.

11

 
driving. The State of Texas is not required to ignore either the grave public danger 

of drunk driving or the reality of recidivism in DWI Repeat Offenders. 

The majority concludes that the DWI Repeat Offender can revoke consent 

after being arrested for another DWI offense. According to the majority,

reasonableness requires the State to allow the DWI Repeat Offender’s revocation. 

Rather than examine the search in the context of the State’s keen interest in 

curbing fatal recidivist activity and regulating that activity within a recognized 

danger zone for the purpose of protecting the public from threat of death or injury, 

the majority relies on cases in home-search contexts that have little application to 

the circumstances presented by today’s case.49

In the context of drunk driving and DWI Repeat Offenders, reasonableness 

does not dictate that revocation of consent is always an option, as the majority 

concludes. It is not an option in the context of air piracy, where the State has an 

interest in thwarting and deterring activity that endangers the public. Is drunk 

driving by DWI Repeat Offenders any less risky or dangerous to human life? Does 

a DWI Repeat Offender on a public roadway create any less of a “zone of danger” 

than one suspected of air piracy? 

Just as the need to protect the public in the airways makes it reasonable to 

prevent individuals from revoking their consent to a search before boarding a 

plane, the need to protect the public on roadways makes it reasonable to prevent 

DWI Repeat Offenders from revoking consent to a search after being arrested for a 

new DWI offense. Allowing a DWI Repeat Offender who embarks on a public 

roadway to revoke consent to a search once arrested for DWI provides the “safe 

exit” the Supreme Court condemned in the air piracy context.50 Just as allowing 

49 See maj. op. at ___.

50 See Skipworth, 482 F.2d at 1281.

12

 
revocation in the airways context would frustrate the federal scheme, the “safe

exit” the majority creates today undermines Texas’s ability to prosecute DWI 

Repeat Offenders who choose to drive drunk again. 

The Texas Legislature has recognized the serious and pervasive threat posed 

by recidivists and has taken focused action to address it in our state by imposing 

conditions on DWI Repeat Offenders who, despite their prior DWI convictions, are 

granted and accept the privilege of driving on Texas roadways. Both this 

deterrence interest and the reality of recidivism among DWI Repeat Offenders are 

important factors in determining whether a search is reasonable under the Fourth 

Amendment.

51

In holding that the State may not rely upon the DWI Repeat Offender’s 

statutory consent or enforce section 724.012(b)(3)(B) of the implied-consent 

statute, the majority does not properly account for the crucial public-safety interest

at stake in deterring DWI Repeat Offenders from drunk driving as a means of 

thwarting the extraordinary threat resulting from this deadly recidivist activity. 

These interests make it reasonable to prevent a DWI Repeat Offender from 

withdrawing consent to a blood draw upon arrest for another DWI offense.

Conclusion

Today’s case presents a combination of factors, compelling interests as well 

as limiting principles, that make the irrevocability of consent to a blood draw under 

section 724.012(b)(3)(B) reasonable in the context of a DWI Repeat Offender’s 

arrest for a new DWI offense. Though the state’s public- safety interest is 

compelling, even that does not provide the government with a free pass to conduct 

51 See Knights, 534 U.S. at 116, 122 S.Ct. at 590, Samson, 547 U.S. at 850, 126 S.Ct. at 

2198; See Skipworth, 482 F.2d at 1277, 1281.

13

 
indiscriminate blood draws. There must be limiting principles for the irrevocable 

statutory consent to be reasonable and thus pass muster under the Fourth

Amendment. The rationale for the rule of irrevocability in this limited 

circumstance is grounded on built-in statutory boundaries and restrictions that 

operate as a check on police power and a strong safeguard against unwarranted 

government intrusion. Summarized below, these boundaries, sewn into the fabric 

of the statute, provide the necessary measure of protection that makes the 

irrevocability of consent under subsection (b)(3)(B) reasonable in this narrow 

context.

• The search is authorized only after police have made a valid arrest

based on probable cause of a repeat offender in the danger zone.

• The statutory provision implying consent and authorizing the search 

effectively functions like a warrant, tightly restricting the scope of the 

search by naming the single place to be searched and specifically 

identifying the single thing to be seized.52

• The irrevocability of consent is based upon the DWI Repeat 

Offender’s voluntary choice to exercise, and accept the benefits of, a 

privilege (driving) granted by the State on condition of consent to the 

search.

These limiting principles, coupled with the government’s compelling interests in 

protecting the public from the heightened risk of death or injury from recidivist 

drunk drivers, make it reasonable to prevent a DWI Repeat Offender arrested for 

drunk driving from revoking consent to a statutory blood draw.53

52 See Maryland v. King, 133 S.Ct. 1958, 1970, 186 L.Ed.2d 1 (2013) (noting that limits 

of police officer’s discretion weigh in favor of constitutionality of search); Skinner v. Railway 

Labor Executives Ass’n, 489 U.S. 602, 622–25, 109 S.Ct. 1402, 1416–17 (1989) (noting that 

imposing a warrant requirement would add little assurance of certainty and regularity not already 

afforded by regulations). 

53 See Bailey v. U.S., ___ U.S. ____,133 S.Ct. 1031, 1040, 185 L.Ed.2d 19 (2013) (noting 

the importance of limiting principles). 

14

 
Notably, the First Court of Appeals has concluded that “the warrantless 

taking of appellant’s blood sample in compliance with Transportation Code section 

724.012(b) did not violate [the defendant’s] Fourth Amendment rights by requiring 

him to submit to a warrantless blood test without his consent.” 54 Though several 

other sister courts of appeals have determined that consent under the impliedconsent statute is either invalid or revocable,55 none of them addressed the public 

dangers associated with allowing revocation. None of them considered the State’s 

strong deterrence interest or the conditional nature of the driving privilege granted 

to DWI Repeat Offenders. None of them accounted for the reality of recidivism 

among DWI Repeat Offenders. And, none of them considered the built-in statutory 

checks and other important limiting principles at work in this special circumstance. 

This court should affirm rather than reverse the trial court’s judgment 

denying appellant’s motion to suppress the evidence obtained as a result of the 

blood draw. Because it does not, I respectfully dissent.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost, Justices Donovan and Brown. (Brown, J., 

majority).

Publish—TEX. R. APP. P. 47.2(b)

54 Perez v. State, No. —S.W.3d—, 2014 WL 943126, at *7 (Tex. App.—Houston [1st 

Dist.] Mar. 11, 2014, no pet.). 

55 See Weems v. State, 434 S.W.3d 655, 659–64 (Tex. App.—San Antonio 2014 pet. 

granted); Reeder v. State, 428 S.W.3d 924, 929 (Tex. App.—Texarkana 2014, pet. granted); 

State v. Villarreal, —S.W.3d—, No. 13-13-00253-CR, 2014 WL 1257150, at *10 (Tex. App.—

Corpus Christi Jan. 23, 2014, pet. granted); State v. Sutherland, 436 S.W.3d 28, 39-41 (Tex. 

App.—Amarillo 2014, pet. filed); State v. Anderson, —S.W.3d—, No. 09-13-00400-CR, 2014 

WL 5033262, at *8-11 (Tex. App.—Beaumont Oct. 8, 2014, no pet. h.).

15