Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-13-00366-CR

Daniel James WEEMS,

Appellant

v.

The STATE of 

The STATE of Texas,

Appellee

From the 226th Judicial District Court, Bexar County, Texas

Trial Court No. 2012CR6570

Honorable Sid L. Harle, Judge Presiding1

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: May 14, 2014

REVERSED AND REMANDED

At issue in this appeal is whether the warrantless blood draw administered to Daniel James 

Weems violated his rights under the Fourth Amendment to the Constitution. Because we hold that 

Weems’s rights under the Fourth Amendment were violated, we reverse the judgment of the trial 

court and remand for a new trial.

1 The Honorable Sid Harle signed the trial court’s judgment. The Honorable George Goodwin, sitting as a visiting 

judge, presided over the trial.

 
04-13-00366-CR

BACKGROUND

Weems was charged with the felony offense of driving while intoxicated with a “repeat 

felony offender” enhancement allegation. At trial, the arresting officer, Jimmy Bustamante of the 

Bexar County Sheriff’s Office, testified that on June 4, 2011, around midnight, he was dispatched 

for a major automobile crash. A vehicle had hit a telephone pole and was turned upside down on 

its roof. Witnesses reported that the driver, who was wearing a Harley Davidson shirt and tan pants, 

ran from the scene. The passenger of the vehicle had been transported to the hospital by ambulance. 

The driver, Weems, was found about a quarter mile east from the crash site hiding 

underneath a car. Weems had cuts, scrapes, and bruises consistent with the crash. Officer 

Bustamante testified that a strong odor of alcohol emanated from his breath, and Weems had 

bloodshot eyes. Weems was unsteady and swaying, and had slurred speech. The officer handcuffed 

Weems and read the DIC-24 form requesting a breath or blood specimen. Weems refused to 

provide a specimen. According to Officer Bustamante, no field sobriety tests were performed 

because Weems had been involved in a car crash and was complaining of back and neck pains. 

Because of his medical complaints, Weems was transported to the hospital, and a mandatory blood 

draw was taken there, instead of at the San Antonio Magistrate’s Office. No warrant was procured 

for the blood draw. Officer Bustamante testified that a mandatory blood draw was taken because 

Weems was driving a car involved in a crash and the passenger was injured. According to Officer 

Bustamante, two to three hours passed between the time of the crash and the time a specimen of 

Weems’s blood was taken. 

The passenger of the car, Scott Noland, also testified. According to Noland, on June 4, 

2011, he and Weems had been drinking beer and working on Weems’s car. At around 10:45 p.m., 

they went down the street to a bar. Weems drove. At the bar, they each had two mixed drinks. 

They left the bar around 11:30 p.m., intending to go back to Weems’s home. Weems was driving 

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the car when “he slowly started to veer off the road” and a “second later we were just tumbling 

around and spinning around and the accident happened.” The vehicle “had flipped over on to its 

roof” and “the front end of the car was facing towards the road.” Noland got out of the car, and 

some people who had been passing by helped him to sit down. Noland testified that Weems also 

got out of the car and then he noticed that Weems had left the scene. At the hospital, Noland “had 

to get some stiches and staples on the side of [his] head.” 

Veronica Hargrove, who is employed at the Bexar County Medical Examiner’s Office in 

the toxicology lab, testified that at 2:30 a.m., Weems’s blood ethanol concentration was 0.18 grams 

per deciliter. According to Hargrove, on average, a person eliminates alcohol at about 0.02 grams 

per deciliter per hour. So, on average, a person who was at 0.18 at 2:30 a.m. and did not drink any 

additional alcohol would have had a blood ethanol concentration of 0.24 at 11:30 p.m. Hargrove 

testified that because Weems took his last drink at around 11:30 p.m. and his blood was drawn at 

2:30 a.m., if he “only had a couple of drinks at 11:30, it would be unlikely that [he was] below 

0.08” at the time of the accident. Hargrove estimated that Weems had consumed about twelve 

drinks.

After hearing the evidence, the jury found Weems guilty of driving while intoxicated. 

Weems appeals.

DISCUSSION

Weems argues the trial court erred in failing to suppress the results of the warrantless blood 

draw. Before trial, Weems filed a pretrial motion to suppress, but there was no pretrial hearing and 

the trial court did not rule on the pretrial motion. Before Hargrove testified during trial, however, 

Weems moved to suppress any evidence related to the blood draw, explaining that the Supreme 

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Court had that day issued its opinion in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The trial 

court declined to suppress any evidence.2

A. Warrantless searches are not reasonable under the Fourth Amendment unless they fall 

within a recognized exception to the warrant requirement.

The Fourth Amendment provides that “[t]he right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon probable cause.” U.S. CONST. amend. IV. The 

Supreme Court has held that a warrantless search of the person is reasonable only if it falls within 

a recognized exception. See, e.g., McNeely, 113 S. Ct. at 1558; United States v. Robinson, 414 

U.S. 218, 224 (1973). Exigent circumstances is one such well-recognized exception. McNeely, 113 

S. Ct. at 1558. The State argues in this case that the statutory scheme found in the Texas 

Transportation Code, which implies consent of a driver and mandates blood draws under certain 

scenarios, is “a reasonable substitute” for the Fourth Amendment’s warrant requirement. In other 

words, it argues that this statutory scheme should be considered an exception to the warrant 

requirement. We hold that it is not.

B. Does Texas’s implied consent and mandatory blood draw statutory scheme constitute an 

exception to the Fourth Amendment’s warrant requirement?

The implied consent statute, found in section 724.011(a) of the Texas Transportation Code 

provides the following:

If a person is arrested for an offense arising out of acts alleged to have been 

committed while the person was operating a motor vehicle in a public place, or a 

watercraft, while intoxicated . . ., the person is deemed to have consented, subject 

to this chapter, to submit to the taking of one or more specimens of the person’s 

breath or blood for analysis to determine the alcohol concentration or the presence 

2 On appeal, the State argues Weems did not preserve this issue for appeal. We disagree and hold that Weems preserved 

the issue by arguing his suppression motion before Hargrove testified. See Everitt v. State, 407 S.W.3d 259, 263 (Tex. 

Crim. App. 2013) (criticizing the court of appeals’s “parsing of appellant’s objections” as “the kind of hyper-technical 

analysis that we have repeatedly rejected”).

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in the person’s body of a controlled substance, drug, dangerous drug, or other 

substance.

TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011). Section 724.013, in turn, states that “[e]xcept 

as provided by section 724.012(b), a specimen may not be taken if a person refuses to submit to 

the taking of a specimen designated by a peace officer.” Id. § 724.013. Section 724.012(b) requires 

a peace officer to take a specimen of a person’s breath or blood, even if the person refuses, if the 

person is arrested for an intoxication offense under chapter 49 of the Penal Code involving the 

operation of a motor vehicle or watercraft and 

(1) the person was the operator of a motor vehicle or a watercraft involved in an accident 

that the officer reasonably believes occurred as a result of the offense and, at the time 

of the arrest, the officer reasonably believes that as a direct result of the accident: (A) 

an individual has died or will die; (B) an individual other than the person has suffered 

serious bodily injury; or (C) an individual other than the person has suffered bodily 

injury and been transported to a hospital or other medical facility for medical treatment;

(2) the offense for which the officer arrests the person is [driving while intoxicated with a 

child passenger]; or 

(3) at the time of the arrest, the officer possesses or receives reliable information from a 

credible source that the person (A) has been previously convicted of or placed on 

community supervision for [driving while intoxicated with a child passenger,

intoxication assault, or intoxication manslaughter]; or (B) has been on two or more 

occasions previously convicted of or placed on community supervision for [driving 

while intoxicated, flying while intoxicated, boating while intoxicated, or assembling or 

operating an amusement ride while intoxicated].

Id. § 724.012(b). In this case, Officer Bustamante testified that the blood draw was administered 

because a person other than Weems suffered bodily injury and was transported to a hospital for 

medical attention. The State also points out that the THP-51 form, which was admitted in evidence, 

indicates that the blood draw was also ordered because Weems had two prior DWI convictions.

In support of its argument that the warrantless blood draw was reasonable pursuant to the 

implied consent and mandatory blood draw statutes, the State relies on the following dicta from 

Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002):

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The implied consent law does just that–it implies a suspect’s consent to a search in 

certain instances. This is important when there is no search warrant, since it is 

another method of conducting a constitutionally valid search. On the other hand, if 

the State has a valid search warrant, it has no need to obtain the suspect’s consent.

The implied consent law expands on the State’s search capabilities by providing a 

framework for drawing DWI suspects’ blood in the absence of a search warrant. It 

gives officers an additional weapon in their investigative arsenal, enabling them to 

draw blood in certain limited circumstances even without a search warrant.

Id. (emphasis added). Although this language is dicta, the Texas Court of Criminal Appeals did 

recognize in Beeman that the implied consent statute expanded the State’s authority to draw a DWI 

suspect’s blood in the absence of a warrant. 

We relied on this dicta in Beeman in Aviles v. State, 385 S.W.3d 110, 116 (Tex. App.—

San Antonio 2012), vacated, 134 S. Ct. 902 (2014), where we held that a warrantless blood draw 

of a DWI suspect that was conducted according to the prescriptions of the Transportation Code 

did not violate the suspect’s rights under the Fourth Amendment. In so holding, we first quoted 

the dicta in Beeman for the proposition that the implied consent law allows officers to draw blood 

“in certain limited circumstances even without a search warrant.” Id. at 115. We reasoned that 

“[t]his situation, as outlined in section 724.012, is one of the ‘circumstances’ the Texas Court of 

Criminal Appeals has held where blood may be drawn without a search warrant.” Id. at 116 (citing 

Beeman, 86 S.W.3d at 616). We concluded that whether the officer could have obtained a warrant 

before authorizing the blood draw was “immaterial given the mandate of section 

724.012(b)(3)(B).” Id. at 116. Thus, we held that “the warrantless seizure of Aviles’s blood was 

conducted according to the prescriptions of the Transportation Code, and without violating 

Aviles’s Fourth Amendment rights.” Id. The Texas Court of Criminal Appeals denied Aviles’s

petition for discretionary review. However, on January 13, 2014, the Supreme Court granted 

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certiorari and vacated our judgment. Aviles v. State, 134 S. Ct. 902 (2014). It then remanded the 

case to this court “for further consideration in light of Missouri v. McNeely.” Id.

C. The Supreme Court’s decision in McNeely prohibits per se rules that justify an exception 

to the Fourth Amendment’s warrant requirement.

In McNeely, 133 S. Ct. at 1556, the Supreme Court addressed “whether the natural 

metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception 

to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunkdriving cases.” The Court concluded that it did not and rejected the State’s suggested per se rule. 

Id. Instead, the Court held that “consistent with general Fourth Amendment principles,” “exigency 

in this context must be determined case by case based on the totality of the circumstances.”3 Id.

McNeely dealt with a typical DWI traffic stop where the driver, McNeely, failed fieldsobriety tests and refused to use a portable breath-test device to measure his blood-alcohol 

concentration (BAC). Id. at 1557. After McNeely was placed under arrest for DWI, he was taken 

to a nearby hospital for blood testing. No warrant was obtained. Id. Less than thirty minutes after 

McNeely was first stopped by the officer, his blood was taken without his consent by a hospital 

lab technician. Id. The results of the blood test measured McNeely’s BAC at 0.154. Id.

3 Justice Sotomayor was the author of McNeely. Parts I, II-A, II-B, and IV of the opinion were joined by Justices 

Scalia, Kennedy, Ginsburg, and Kagan and thus constitute the majority opinion of the Court. Parts II-C and III were 

joined only by Justices Scalia, Ginsburg, and Kagan and thus constitute a plurality opinion. Justice Kennedy wrote a 

separate concurrence. Chief Justice Roberts wrote an opinion concurring in part and dissenting in part, which was 

joined by Justices Breyer and Alito. Justice Thomas wrote a dissenting opinion. The plurality portions of McNeely are 

directed toward Chief Justice Robert’s opinion that he would adopt a per se rule, just a different one from the State. 

In Part III of McNeely, the plurality notes that the general importance of the government’s interest in eradicating DWI 

“does not justify departing from the warrant requirement without showing exigent circumstances that make securing 

a warrant impractical in a particular case.” McNeely, 133 S. Ct. at 1565. The plurality notes that states have a “broad 

range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless 

nonconsensual blood draws.” Id. at 1566. As an example, the plurality notes that all fifty states “have adopted implied 

consent laws that require motorists, as a condition of operating a motor vehicle within the [s]tate, to consent to BAC 

testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.” Id. “Such laws impose 

significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately 

suspended or revoked, and most [s]tates allow the motorist’s refusal to take a BAC test to be used as evidence against 

him in a subsequent criminal prosecution.” Id. Thus, the states have tools to combat drunk driving without having to 

resort to nonconsensual blood draws. See id.

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McNeely moved to suppress the blood test results, arguing the warrantless blood draw 

violated his rights under the Fourth Amendment. Id. The State argued the exigency exception to 

the warrant requirement applied. Id. The Supreme Court “granted certiorari to resolve a split of 

authority on the question whether the natural dissipation of alcohol in the bloodstream establishes 

a per se exigency that suffices on its own to justify an exception to the warrant requirement for 

nonconsensual blood testing in drunk-driving investigations.” Id. at 1558. 

The Court first emphasized that in Schmerber v. California, 384 U.S. 757 (1966), it had 

concluded (1) the warrant requirement applied generally to searches that intrude into the human 

body, and (2) absent an exception to the warrant requirement, a compelled blood draw was 

unconstitutional. See McNeely, 133 S. Ct. at 1558-59 (discussing Schmerber). The McNeely Court 

stressed that in holding the exigency exception to the warrant requirement authorized the 

warrantless compelled blood draw, the Court in Schmerber looked at the totality of circumstances. 

Id. at 1559. Thus, the McNeely Court emphasized that its analysis in Schmerber fit “comfortably 

within [its] case law applying the exigent circumstances exception.” Id. at 1560. The Court 

explained that “[i]n finding the warrantless blood test reasonable in Schmerber, [it had] considered 

all of the facts and circumstances of the particular case and carefully based [its] holding on those 

specific facts.” Id.

After reaffirming its holding in Schmerber, which it emphasized was based on the totality 

of the circumstances presented in that case, the McNeely Court then criticized the State for 

proposing a per se rule: “The State contends that whenever an officer has probable cause to believe 

an individual has been driving under the influence of alcohol, exigent circumstances will 

necessarily exist because BAC evidence is inherently evanescent.” Id. “As a result, the State claims 

that so long as the officer has probable cause and the blood test is conducted in a reasonable 

manner, it is categorically reasonable for law enforcement to obtain the blood sample without a 

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warrant.” Id. (emphasis added). The Court recognized that “as a result of the human body’s natural 

metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is 

fully absorbed and continues to decline until the alcohol is eliminated.” Id. Thus, “because an 

individual’s alcohol level gradually declines soon after he stops drinking, a significant delay in 

testing will negatively affect the probative value of the results.” Id. at 1561. The Court emphasized 

that this “fact was essential” to its holding in Schmerber, as it had recognized in Schmerber “that, 

under the circumstances, further delay in order to secure a warrant after the time spent investigating 

the scene of the accident and transporting the injured suspect to the hospital to receive treatment 

would have threatened the destruction of evidence.” Id. But, the Court concluded that it did not 

follow that it “should depart from careful case-by-case assessment of exigency and adopt the 

categorical rule proposed by the State and its amici.” Id. (emphasis added). According to the 

Court, “[i]n 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. While the Court did “not doubt that 

some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol 

from the bloodstream will support an exigency justifying a properly conducted warrantless blood 

test,” such circumstances are reasons “to decide each case on its facts,” “not to accept the 

considerable overgeneralization that a per se rule would reflect.” Id. (citations omitted). 

The Court stressed that unlike “circumstances in which the suspect has control over easily 

disposable evidence,” “BAC evidence from a drunk-driving suspect naturally dissipates over time 

in a gradual and relatively predictable manner.” Id. “Moreover, because a police officer must 

typically transport a drunk-driving suspect to a medical facility and obtain the assistance of 

someone with appropriate medical training before conducting a blood test, some delay between 

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the time of the arrest or accident and the time of the test is inevitable regardless of whether police 

officers are required to obtain a warrant.” Id.

The Court further emphasized that the State’s proposed per se rule “fails to account for 

advances in the 47 years since Schmerber was decided that allow for the more expeditious 

processing of warrant applications, particularly in contexts like drunk-driving investigations where 

the evidence offered to establish probable cause is simple.” Id. at 1561-62. “Well over a majority 

of [s]tates allow police officers or prosecutors to apply for search warrants remotely through 

various means, including telephonic or radio communication, electronic communication such as 

e-mail, and video conferencing.” Id. at 1562. “And in addition to technology-based developments, 

jurisdictions have found other ways to streamline the warrant process, such as by using standardform warrant applications for drunk-driving investigations.” Id. The Court explained that it was 

“by no means” claiming that “telecommunications innovations have, will, or should eliminate all 

delay from the warrant-application process.” Id. “Warrants inevitably take some time for police 

officers or prosecutors to complete and for magistrate judges to review.” Id. “But technological 

developments that enable police officers to secure warrants more quickly, and do so without 

undermining the neutral magistrate judge’s essential role as a check on police discretion, are 

relevant to an assessment of exigency.” Id. at 1562-63. “That is particularly so in this context, 

where BAC evidence is lost gradually and relatively predictably.” Id. at 1563. The Court concluded 

with the following: “In short, while the natural dissipation of alcohol in the blood may support a 

finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically.” Id.

(emphasis added). “Whether a warrantless blood test of a drunk-driving suspect is reasonable must 

be determined case by case based on the totality of the circumstances.” Id. (emphasis added).

In considering the totality of circumstances in its case, the McNeely Court noted that the 

State had relied on a per se, categorical approach and had not created a record supporting exigency 

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in this particular case. “In his testimony before the trial court, the arresting officer did not identify 

any other factors that would suggest he faced an emergency or unusual delay in securing a 

warrant.” Id. at 1567. “He testified that he made no effort to obtain a search warrant before 

conducting the blood draw even though he was ‘sure’ a prosecuting attorney was on call and even 

though he had no reason to believe that a magistrate judge would have been unavailable.” Id. “The 

officer also acknowledged that he had obtained search warrants before taking blood samples in the 

past without difficulty.” Id. “He explained that he elected to forgo a warrant application in this 

case only because he believed it was not legally necessary to obtain a warrant.” Id. The Court noted 

that factors present “such as the procedures in place for obtaining a warrant or the availability of a 

magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and 

therefore may establish an exigency that permits a warrantless search.” Id. at 1568. “The relevant 

factors in determining whether a warrantless search is reasonable, including the practical problems 

of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable 

evidence, will no doubt vary depending upon the circumstances in the case.” Id.

The Court reasoned that “[b]ecause this case was argued on the broad proposition that 

drunk-driving cases present a per se exigency, the arguments and the record do not provide the 

Court with an adequate analytic framework for a detailed discussion of all the relevant factors that 

can be taken into account in determining the reasonableness of acting without a warrant.” Id. The 

Court concluded with its holding that “in drunk-driving investigations, the natural dissipation of 

alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify 

conducting a blood test without a warrant.” Id.

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C. In light of McNeely, Texas’s implied consent and mandatory blood draw statutory 

scheme cannot be considered an exception to the Fourth Amendment’s warrant 

requirement. 

We must now consider the effect the Supreme Court’s decision to remand Aviles in light 

of McNeely has on our holding in Aviles that a warrantless blood draw of a DWI suspect, which 

was conducted according to the prescriptions of the Transportation Code, does not violate the 

suspect’s rights under the Fourth Amendment. This determination necessarily affects the result in 

this case. 

The State urges that the facts of McNeely differ from those presented in Aviles. Indeed, 

there are factual distinctions to be made between Aviles and McNeely. Aviles concerned Texas’s 

implied consent and mandatory blood draw statutes while McNeely concerned the exigency 

exception to the warrant requirement. And, before Aviles was vacated and remanded in light of 

McNeely, many courts of appeal had made such a factual distinction, holding that because McNeely

concerned the exigency exception, it was not applicable to the implied consent and mandatory 

blood draw statutes. See Reeder v. State, No. 06-13-00126-CR, 2014 WL 60162 (Tex. App.—

Texarkana Jan. 8, 2014, reh’g granted) (reasoning that McNeely did not apply to mandatory blood 

draw statute because McNeely dealt with the exigent circumstances exception to the warrant 

requirement); Smith v. State, No. 13-11-00694-CR, 2013 WL 5970400 (Tex. App.—Corpus 

Christi Oct. 13, 2013, op. withdrawn & appeal resubmitted) (reasoning McNeely did not invalidate 

Texas’s implied consent statute but merely clarified the exigency exception). Once Aviles was 

remanded in light of McNeely, these courts decided to reconsider their previous opinions. See 

Reeder, 2014 WL 60162 (motion for rehearing granted); Smith, 2013 WL 5970400 (opinion 

withdrawn and appeal resubmitted). We conclude that McNeely’s prohibition on per se, 

categorical exceptions to the Fourth Amendment’s warrant requirement did not solely apply to the 

exigency exception, but also applies to the facts presented in Aviles. 

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One of our sister courts has recently come to the same conclusion. In Sutherland v. State, 

No. 07-12-00289-CR, 2014 WL 1370118, at *1-2 (Tex. App.—Amarillo Apr. 7, 2014, no pet. h.), 

the appellant was arrested for DWI and taken for a warrantless blood draw pursuant to section 

724.012(b)(3)(B) of the mandatory blood draw statute. The appellant argued that regardless of 

section 724.012(b)(3)(B)’s mandatory language, the Fourth Amendment requires that a 

warrantless search be supported by an established exception to the warrant requirement. Id. at *2. 

The Amarillo Court of Appeals noted that some courts of appeal “had relied on the implied-consent 

principles in Aviles to distinguish the exigent-circumstances principles of McNeely from those 

cases at bar examining mandatory blood draws under section 724.012(b)(3)(B).” Id. at *8. It 

emphasized that such reliance on Aviles ended when it was vacated and remanded for further 

consideration in light of McNeely. Id. From the Supreme Court’s action, the Amarillo Court of 

Appeals concluded that distinguishing McNeely based on the fact that it involved exigent 

circumstances and not a mandatory blood draw statute was no longer a viable position. Id. The 

court of appeals reasoned that “[b]y vacating and remanding Aviles, it would seem that the United 

States Supreme Court has rejected any position that would treat section 724.012(b)(3)(B) as an 

exception to the Fourth Amendment, separate and apart from the traditional, well-established 

exceptions.” Id. The court concluded that “regardless of the mandatory tone of section 

724.012(b)(3)(B)’s directive to officers, it appears there must still be exigent circumstances that 

would justify a warrantless search of the suspect’s blood.” Id.

Similarly, the Corpus Christi Court of Appeals held in State v. Villarreal, No. 13-13-00253-

CR, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan. 23, 2014, no pet. h.), that while 

the mandatory blood draw statute “required the officer to obtain a breath or blood sample, it did 

not require the officer to do so without first obtaining a warrant.” The court noted that the 

mandatory blood draw statute “does not address or purport to dispense with the Fourth 

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Amendment’s warrant requirement for blood draws.” Id. The court further stressed that neither the 

Supreme Court nor the Texas Court of Criminal Appeals had “recognized the repeat offender 

provision of the mandatory blood draw law . . . as a new exception to the Fourth Amendment’s 

warrant requirement separate and apart from the consent exception and the exception for exigent 

circumstances.” Id. Thus, the court concluded “that the constitutionality of the repeat offender 

provision of the mandatory blood draw law must be based on the previously recognized exceptions 

to the Fourth Amendment’s warrant requirement.” Id.

We agree with both the Amarillo and the Corpus Christi Court of Appeals that the implied 

consent and mandatory blood draw statutes are not exceptions to the Fourth Amendment’s warrant 

requirement. The State urges that we balance the public and private interests that are implicated in 

serious DWI cases and find that Texas’s mandatory blood draw statute, section 724.012(b), is a 

reasonable substitute for the Fourth Amendment’s warrant requirement. McNeely, however, 

clearly proscribed what it labeled categorical or per se rules for warrantless blood testing, 

emphasizing over and over again that the reasonableness of a search must be judged based on the 

totality of the circumstances presented in each case. See McNeely, 133 S. Ct. at 1560-63. Texas’s 

implied consent and mandatory blood draw statutes clearly create such categories or per se rules 

that the Supreme Court proscribed in McNeely. See TEX. TRANSP. CODE ANN. §§ 724.011(a), 

724.012(b). These statutes do not take into account the totality of the circumstances present in each 

case, but only consider certain facts. See id. Thus, we hold that the implied consent and mandatory 

blood draw statutory scheme found in the Transportation Code are not exceptions to the warrant 

requirement under the Fourth Amendment. To be authorized, the State’s warrantless blood draw 

of Weems must be based on a well-recognized exception to the Fourth Amendment.

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D. Did exigent circumstances justify the warrantless blood draw?

As an alternative argument, the State also argues that exigent circumstances existed in this 

case to support the warrantless blood draw under the totality of the circumstances. We disagree. 

As in McNeely, this record does not support exigent circumstances, as this record was based on 

the officer relying on the mandatory blood draw and implied consent statutes to authorize the blood 

draw. See McNeely, 133 S. Ct. at 1567 (explaining because the State had relied on a per se

approach, “the arresting officer did not identify any other factors that would suggest he faced an 

emergency or unusual delay in securing a warrant”). The State argues that because this case 

involved an accident, these facts are like those found permissible in Schmerber. However, as noted 

in McNeely, much technological advancement has occurred since Schmerber was decided in 1966.

See McNeely, 133 S. Ct. at 1561-62. In this case, the arresting officer testified that (1) he made no 

effort to obtain a warrant; (2) there were other officers present at the scene; (3) there was an 

accident, (4) the passenger was injured and taken to the hospital, and (5) the driver also complained 

of being injured and was taken to the hospital. The officer testified that because the hospital was 

busy with accident victims that night, it took three hours for blood to be drawn from Weems. The 

record also reflects that Weems was arrested in San Antonio, a large city. The record, however, 

does not reflect other factors that would be relevant under the totality of the circumstances, 

including “procedures in place for obtaining a warrant or the availability of a magistrate judge”

and “the practical problems of obtaining a warrant within a timeframe that still preserves the 

opportunity to obtain reliable evidence.” McNeely, 133 S. Ct. at 1568. Therefore, this record does 

not show that under the totality of the circumstances, the warrantless blood draw was justified by 

the exigency circumstances exception to the Fourth Amendment’s warrant requirement. 

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E. Good Faith of Officer

Finally, the State argues that the evidence should not be excluded pursuant to the federal 

exclusionary rule or pursuant to article 38.23 of the Texas Code of Criminal Procedure because 

the arresting officer relied on the implied consent statute and mandatory blood draw statute in good 

faith. Under the federal exclusionary rule, if a law enforcement officer relies in good faith on a 

statute authorizing his warrantless search and the statute is later determined to be unconstitutional, 

the exclusionary rule does not apply. Illinois v. Krull, 480 U.S. 340, 342, 355 (1987). However, 

constraints do apply to the exception to the exclusionary rule. “A statute cannot support objectively 

reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to 

enact constitutional laws.” Id. at 355. “Nor can a law enforcement officer be said to have acted in 

good-faith reliance upon a statute if its provisions are such that a reasonable officer should have 

known that the statute was unconstitutional.” Id.

First, we note that the implied consent and mandatory blood draw statutes do not explicitly 

provide for a warrantless search. See Villarreal, 2014 WL 1257150, at * 11 (explaining that the 

mandatory blood draw statute “does not address or purport to dispense with the Fourth 

Amendment’s warrant requirement for blood draws”). Second, we note that there is no such good 

faith exception found in Texas’s exclusionary rule – and Texas can provide more protection to a 

suspect than federal law. Article 38.23 provides for an exception to the exclusionary rule only 

when an officer relies in good faith upon a warrant issued by a neutral magistrate based on 

probable cause. See TEX. CODE CRIM. PROC. ANN. art. 38.23(b) (West 2005). It says nothing about 

an officer’s reliance in good faith on a statute. Therefore, we hold that the exclusionary rule applies 

in this case.

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04-13-00366-CR

F. Harm

Because the warrantless mandatory blood draw violated Weems’s rights under the Fourth 

Amendment, we must reverse the judgment unless we determine beyond a reasonable doubt that 

the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a). The jury was 

instructed the following in this case:

“Intoxicated” means not having the normal use of mental or physical faculties by 

reason of the introduction of alcohol, a controlled substance, a drug, a dangerous 

drug, a combination of two or more of those substances, or any other substance into 

the body; or having an alcohol concentration of 0.08 or more.

(emphasis added). Veronica Hargrove of the Bexar County Medical Examiner’s Office testified 

that Weems’s blood ethanol concentration was 0.18 grams per deciliter at 2:30 a.m. According to 

Hargrove, on average, a person who was at 0.18 at 2:30 a.m. and did not drink any more alcohol 

would have a blood ethanol concentration of 0.24 at 11:30 p.m. Hargrove testified that because 

Weems took his last drink at around 11:30 p.m. and his blood was drawn at 2:30 a.m., if he “only 

had a couple of drinks at 11:30 p.m., it would be unlikely that [he was] below 0.08” at the time of 

the accident. Given this testimony and the jury’s instruction, we cannot determine beyond a 

reasonable doubt that the error did not contribute to Weems’s conviction. 

CONCLUSION

Because the warrantless blood draw violated Weems’s rights under the Fourth Amendment 

and because we cannot determine beyond a reasonable doubt that the erroneous admission of the 

results of the blood draw did not contribute to his conviction, we reverse the judgment of the trial 

court and remand the cause for a new trial.

Karen Angelini, Justice

PUBLISH

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