### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00503- CR

The State of Texas, App ellant

v. Elle Ob ering O’Brien, Appellee

F ROM TH E CO UNTY COURT AT LAW NO . 5 O F TRAVIS CO UNTY NO. C-1 -CR- 11- 2177 44 HO NORAB LE NANCY WRI GHT H OH ENGARTEN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Following her arr est for the misdemeanor offe nse of driving while intox icated, 1 appellee Elle Ober ing O’B rien’s blood was draw n without a war rant pursuant to section 724.012(b)
of the Texas Transpor

tation Code, commonly

known as the ma

ndatory -blood-dra

w statute. Prior

2

to trial, O’B rien filed a motion to suppress evidenc e rela ting to the results of the blood draw , which
the trial court g rante d follow i n g a hear ing. I n three points of err or on appea l, the State asser ts that the trial court abu s ed i ts discretion in g ranting the motion to suppress. We will aff irm the
trial court’ s order

.

See Tex. P enal Code §§ 49.04( b). 1
See Tex. Transp. Code § 724.012(b)

. 2BACK GR OUND
At the hear ing on the motion to suppress, the trial court hear d ev idence that

on October 23, 2011, at approximately 1:48 a.m., Austin Police Depa rtment (APD) Offic er Matthew Parede s and his partne r Gabr iel Vasque z had responde d to a call of a disturbance at a fastfood restaur ant i n South Austin. Offic er Parede s testified that when he and Vasque z arr ived at the restaur ant, they encounte red three women, later identified as O’B rien; O’B rien’s friend, Wy nonah Be arde n; and L idia Aviles-Mar tinez, a re s ta

u r a n t e mp lo y e e
. A c c o r d in g to Pa

r edes, AvilesMartinez was attempting to assist Be arde n, who was cry ing hy sterica lly and claiming that her fac e had bee n spray ed with mace or pepper spray
. After calling EMS and attempting to c alm Be arde n, Parede s spoke with O’B rien in order to asce rtain what had happene d. Parede s testified that O’B rien
told him that she and Be arde n had been at a club downtown when “some g roup spray ed them with
pepper spray ,” prompting them to leave the club. Acc ording to Parede s, during his conver sation with
O’B rien, she provided conflicting acc ounts of how she and Be arde n had arr ived at the restaur ant, inclu d i n g t hat they had driven there themselves, that O’B rien’s boy friend had driven them to the restaur ant and dropped them off there , and that they had walked to the restaur ant from a parking
lot d o wn t h e s t re et. Parede s added that O’B rien kept attempting to “wa lk awa y ” from him as he spoke with her.

Meanw hile, Parede s rec ounted, he and Vasque z had rec eived a call from dispa tch
that there had been a hit-and-r un acc ident downtown involving a p ed i ca b and a black BMW.
Parede s testified that Aviles-Mar tinez, the restaur ant employ ee, had told Vasque z that O’B rien and
Be arde n had arr ived at the restaur ant in a black BMW and that O’B rien had been driving the vehicle.
Aviles-Mar

tinez then direc ted the off i cer s to the vehicle, which was located in a parking space

2at the re staurant. Par edes testified that when he and Vasquez ex amined the B MW, i t matched the

descr iption of the vehicle that had been identified in the acc ident, including the license- plate number.
Parede s then called the pedica b driver an d re ceived more information conce rning the collision, including that it had involved an injury to the pedica b passe n ger , wh o had been transporte d

to a hospital for trea tment. Fr om that point forwa rd, Paredes re counted, he trea ted O’B rien as a DWI suspect. Parede s testified that during his interview with O’B rien, she ad m i t ted to having
“a few shots of whiskey ” that night. Parede s also testified t h at h e n o ticed an odor of alcohol on O’B rien’s breath. Parede s then proce eded to administer to O’B rien the standardized field sobriety

tests and, based on h er p er formanc e on those tests, came to the conclusion that O’B rien was in to xic ated. At approximately 2:34 a.m., Parede s arr ested O’B rien for driving while intox icat e d a n d 3 subsequently

reque sted a sample of

her br eath or

blood. Accor ding to Par edes, O ’B rien re fused. Following the arr est, Parede s did not immediately transport O’ Br i en to the
Travis County J ail. I nstead, Parede s testified, he an d Va s q u ez waited for Be arde n’s boy friend to

arr ive at the restaur ant to drive her home. As they waited, Parede s called the pedica b passeng er at the hospital and asked her to provide details conce rning the collision and the extent of her injuries.
Also as they waited, the office rs p ro cee ded to inventory the BMW, which, Parede s explained,
“took longe r than usual beca use there was pepper spray all along the passeng er side of the vehicle.”
After the inventory o f the vehicle was complete, Parede s rec ounted, Be arde n’s boy friend still

A video rec ording of the inves t i gat i on and arr est, taken from the dashboar d came ra of 3 Parede s’s patrol car , was admitted into evidenc e at the suppression hear ing. The rec ording ref lects 2:34 a.m. as the time of a rre st.

3had not arr ived at the restaur ant. Be g inning to suspe ct that the boy friend would not a rrive, but not wanting to leave Be arde n alone at the restaur ant beca use she too appea

red to be intox icated, Parede s
proce eded to arr est Be arde n for public intox ication and place d her in the back of his patrol car along
with O’B rien. The office rs then lef t the restaur ant at appr ox imately 3:08 a.m.
Pa re d es als o testified that, in addition to him and Vasque z, a third office r,
Br an don Bullock, was prese nt at the restaur ant during most of the investigation. Acc ord i n g t o Parede s, Offic er Bullock, who had arr ived at the restaur ant in his own patrol car , was capa ble of

m ak i n g arr ests, inventory ing a vehicle, and calling EMS to investiga te the collision. Pa re d es could not reme mber whether Bullock was still at the restau ra n t wh en h e and Vasque z depar ted for the ja il, but he believed that B ullock might have “lef t e ither while I

was still there or w e lef

t at the same time.”

Parede s and Vasquez arr ived at the Travis County J ail at approx imately 3:15 a.m. 4
Acc ording t o P ar ed es , once they arr ived, t he jail “wa s busy beca use i t was a Saturday night,” and they had to “wa it outside for a littl e bit ” before Parede s could get i n s i d e t h e j ail and complete the
paper work for obtaining a mandatory blood dra w
. Wh e n O ’ B r ien’s blood was finally draw n, Parede s

rec ounted, it was approximately 4:4 4 a. m
. Parede s testified that he did not seek a war rant in this

case beca use the Transpor

tation Code allowed him to proce ed without one. Howeve r, Parede s also
testified that he had on other occa sions obtained sear ch war rants for a person’ s blood. When asked
how long it takes him to obtain a blood-draw war rant in a “ty

pical DWI ” case , Parede s testified that
it usually takes him betwee n 60 and 90 minutes. Parede s ag ree d with the prosec utor that it takes him

Parede s testified that the distance betwee n the re staurant a nd the jail was 1.5 miles. 4
4“quite a bit long er” than that when there is a collision to investi g ate, a lthough he did not e labora te

on how much longe r. Acc ording to Parede s, the proce ss for obtaining a war rant involved contac ting

a detec tive or supervisor to “wr ite up the war rant” and then waiting at the jail while the detec tive

or supervisor “g oes to the judge and g ets it signe d.” On cross-e x amination, Parede s acknow ledg ed
that whether he seeks a blood draw with or wit hout a search w ar ra nt, he is require d to complete a
simil ar a mount of paper

work.
J udg e Ronald Mey erson, a mag istrate and associate judge with t h e City of Austin,
testified that there is a mag istrate available at the jai l 2 4 h o u rs p er day and that one of the
mag istrate’s duties is t o sign searc h war rants. Acc ording to J udg e Mey erson, it usually takes him
three to five minutes to reviewthe war rant prior to signingit.
After taking t h e m att er under advisement, the trial court g rante d the motion to suppress and ma de finding s of fa ct and c onclusions of law, including the following :

Offic er Parede s had probable cause to arr est Elle O’B rien for the offe nse of Driving Whil e I ntox icated.
There wer e no exigent circ umstances that preve nted Offic er Parede s from obtaining a sea rch w arr ant prior to the blood dra w. The blood draw from Elle O’B rien pursuant t o S ection 724.012 of the Texas Transpor

tation Code does not comply with the 4th Am en d m en t of the U.S. Constit ution and is there by inadmissible. Missouri v. McNee ly , 133 S. Ct. 1552 (2013).
This appea l by

the State followed.

5STANDARD OF REVIEW
W e re v i ew a trial court’s ruling on a motion to suppress for abuse of discretion. 5
We are to view the rec ord “in the light most favor able to the trial court’s deter mination, and the judgme nt will be reve rsed only if it is arbitra ry , unrea sonable, or ‘outsi de the zone of rea sonable disag ree ment.’” “We will sustain t h e lower court’s ruling if it is rea sonably supported by the 6

rec ord and is corr ect on any theory of law applicable to the case .” “The appellate court must apply 7

a bifurcated standar d of revie w, g iving almost total defe renc e to a trial court’s deter mination of
historic fac ts and mix ed ques t i o n s o f l aw and fac t that rely upon the cre dibilit y of a witness, but apply ing a de novo standard of revie w to pu re questions of law and mix ed questions that do not depend on cre dibilit y deter minations.” I n this case , we revie w de novo the trial court’s application

8
of the lawof sea

rch a nd seizure to the fa cts. 9

State v. Sto r

y , 4 4 5 S.W .3d 729, 732 (Tex. Crim. App. 2014) (citing State v. Dixon , 5 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)). Id

. (quoting Dixon , 206 S.W .3d at 590); see Montgomery v. State , 810 S.W .2d 372, 391-92 6 (Tex. Crim. App. 1991) (op. on re h’g )).
Dixon , 206 S.W .3d at 590 (citing Romero v. Sta t e , 8 0 0 S.W .2d 539, 543 (Tex. Crim. 7 App. 1990)).

Martinez v. State , 348 S.W .3d 919, 922-23 (Tex. Crim. App. 2011) (citing Guzman 8 v. State , 955 S.W .2d 85, 87-89 (Te x . Crim. App. 1997)). See Valtierra v

. State , 310 S.W .3d 442, 447 (Tex. Crim. App. 2011); Thompson v. State , 9 408 S.W .3d 614, 621 (Tex. App.—Austin 2013, no pet.); see also State v. Villarreal , 475 S.W .3d 7 8 4 , 798 (Tex. Crim. App. 2014) (“[B]eca use the fac ts are undisputed and the questions b ef o re us are matters of law, we apply a de novo standard of revie w.”) ; Kothe v. State , 152 S.W .3d 54, 62 (Tex. Crim. App. 2004) (“O n appea l, the question of whether a specific sear ch or seizu re i s ‘re asonable ’ under the Four th Amendment is subject to de novo re view. De spite its fact-se nsitive analy sis, ‘rea sonablene ss’ is ultim ately a question of substantive F ourth Amendment law .”). 6ANALYSIS

Exigent circum stances

We first addre ss the State’s third point of err or, in which it asser ts that the trial court

err ed in concluding that “[t] here wer e no exigent circ umstances that preve nted Offic er Parede s from obtaining a sear ch war rant prior to the blood draw .” The State contends that, contra ry to the trial court’s finding , there wer e exigent circ umstances in this case , incl uding what the State
char acte rizes as “unusual” circumstances surrounding the DW Iinvestigation at the restaur ant, the
rela ted investig ation of the c ollisi on downtown, and the de lay once the office rs ar

rived a t the jail.
The d raw ing of a person’ s blood is considere d a sear ch under the
Four th Amendment. Acc ording ly , a blood draw g ener ally require s a sear ch war rant, unless a 1 0
“re cog nized exception” to the war rant require ment applies. “‘O n e w e ll

- r e cog nized exception,’ and 1 1

t h e o n e at issue in this case , ‘applies when the exigenc ies of the situation make the needs o f
l aw en forc ement so compelling that a war rantless sear ch is objectively rea sonable under the
Fourth Amendment.’” One such exigent circumstance is preve nting the destruction of evidenc e 1 2

or contra band. I n DWI case s, the evidenc e that is at risk of destruction is a suspect’s blood-alcohol 1 3 content, which “beg ins to diminis h shortly afte r drinking stops, as the body functions to eliminate

See Sc hmerbe r v. Californi a , 384 U.S. 757, 769 (1966). 1 0
See M issouri v. McNee ly , 133 S. Ct . 1552, 1558 (2013). 1 1 Id . (quoting Kentucky

v. King , 563 U.S. 452, 460 (2011)). 1 2
See Gutierrez v. State , 221 S.W .3d 680, 685 (Tex

. C ri m
. App. 2007) (citing McNairy 1 3 v. State , 835 S.W .2d 101, 107 (Tex. Crim. App. 1991)).
7it from the sy stem.” Acc ording ly , the S u preme Court has held that the warrantless collection of 1 4
blood from a DWI suspect does not violate the Four th Amendment in case s “whe n t h e office r might re asonably have believed that he was confr onted with an emer g ency , in which the delay

nece ssary to obtain a war

rant, under the circ umstances, threa tened ‘the destruction of evidenc e.’” 1 5
More r ece ntly , howeve r, the Supreme Court ha s clar ified its holdi ng in Schme rber , reje cting the arg ument that “the n at u ra l metabolization of alcohol in the bloodstream prese nts a
per se exigenc y that justifies an exception to the Four th Amendment’s warrant require ment for

nonconsensua l blood testing in all drunk driving case s.” I nstead, the Court has held, “exige ncy in 1 6
this context must be deter

mined case by case based on the totality of the circ umstances.” Although 1 7
“some circ umstances will make obtaining a war rant impractica l such that the dissipation of alcohol
from t h e b l o odstream will support an exigenc y justify ing a proper ly conducte d war rantless blood test,” in other c ases, “ wher e police office rs can rea sonably obtain a war rant befor e a blood sa

mple

can be draw n without signific antly undermining the eff icac y of the sear ch, the Four th Amendment
mandates that they do so.” This is beca use “some delay betwee n the time of the arr est or acc ident 1 8
and the time of the test is inevitable reg ardle ss of whether police office rs are require d to obt ai n

Schme rber , 384 U.S. at 770. 1 4 Id

. (quo t i n g P r es t o n v. United States , 376 U.S. 364, 367 (1964))

. For example, in 1 5 Schme rber , “time had to be ta ken to bring the ac cused to a hospital a nd to inve stiga te the sce ne of the acc ident,” and “ther e was no time to seek out a mag istrate and secur e a war rant.” Id

. at 770-71.
McNee ly , 133 S. Ct . 1552 at 1556. 1 6 Id

. 1 7 Id .; see also McD onald v. United Sta t es , 3 3 5 U.S. 451, 456 (1948) (“We cannot

. . . 1 8 excuse the absence of a search warr ant wit hout a showing by those who s ee k exemption from the constitutional mandate that the e x ige ncies of the situation made [the searc h] i mpera tive.”) 8a war

rant.” I f, under the ci rc umstances of the case , “the war rant proce ss will not signific antly 1 9
incre ase the delay befor e the blood test is conducte d,” there can be “no plausible justification for an exception to the warr ant re quirement.” 2 0

As with other war

rantless sear ches, the burden is on the State to prove t h at t h e

war rantless blood draw was rea sonable under the totality of the circ umstances. “W e ap p l y an 2 1 objective standard of rea sonablene ss in deter mining whether a war

rantless sear ch is justified, taking
into account the f

acts a nd circ umstances known to the police at the time of the se arc h.” 2 2
I n this case , the rec ord supports the trial court’s conclusion that the war rantless blood
d raw was not justified by exigent circ umstances. Offic er Parede s testified that the rea son he did

not obtain a war

rant was beca

use the Transpor

tation Code and APD policy allowed him to proce ed
without one; he did not testify that he declined to pursue a war rant beca u s e o f an y ex i g ent circ umstances. Neve rtheless, the State claims that there wer e ex ige nt circ umstances in this case arising from what it char acte rizes as an “unusual” DWI investigation that delay ed the office rs at the

restaur ant, including the “uncoope rative” behavior of O’B rien and Be arde n during the investigation
and th e need to investigate the collision over the phone. Howeve r, the focus of the exigentcirc umstances analy sis is not on the delay attendant to an investigation but on “the delay nece ssary

McNee ly , 133 S. Ct . at 1561. 1 9 Id

. 2 0
See Amador v. State , 221 S.W .3d 666, 672-73 (Tex. Crim. App. 2007); Ford v. State , 2 1 158 S.W .3d 488, 492 (Tex. Crim. App. 2005).

Colburn v. State , 966 S.W .2d 511, 519 (Tex. Crim. App. 1998); State v. Anderson , 2 2 445 S.W .3d 895, 910 (Tex. App.—Be aumont 2014, no pet.). 9to o b t ai n a wa rrant.” Her e, the rec ord supports the trial court’s finding that the delay nece ssary 2 3

to obtai n a wa rr ant would not have “sig nificantly undermined the eff icac y ” of the blood draw

. O’B rien’s blood was draw n at the jail, wher e, acc ording t o t h e evidenc e prese nted, there is a
mag istrate available 24 hours per day who has the ability to revie w and sign sear ch war rants. Offic er
P ar ed es testified that the total amount of time it usually takes him to obtain a war rant at t h e j ai l
is betwee n 60 and 90 minutes. Although Parede s answe red in the aff irmative when the prosec utor asked him whether it takes “quite a bit longe r” to obtain a war rant when there is a collision involved,
Parede s did not specify how much longe r it would take, and there is nothing in the rec ord to sug g est that it would have taken him so much longe r t h at the blood draw would have been “sig nificantly delay ed.” I n fac t, Parede s testified that the paper work he would have been require d to complete in
order to obtain a war

rant in this case would h av e b een simil ar to the paper work he was alre ady require d to complete in orde r to obtain a wa rra ntless blood draw.
Moreove r, eve n without a war rant, O’B rien’s blood was not draw n until 4:44 a.m.,

over two hours afte r O’B rien had been arr ested. The trial court could have rea sonably inferr ed that
O’B rien’s blood c ould have be en dra wn in approximately

the same amount of time if Parede s had transporte d O’B rien to the jail immediately afte r her arr est at 2:34 a.m. (instead of wa i t i n g at the

restaur ant) and had beg un the proce ss for obtaining a war rant immediately upon his arr ival at the jail

Schme rber , 384 U.S. at 770; see McNee ly , 133 S. Ct. at 1563, (“[E]x ige nt circ umstances 2 3 justify i n g a wa rr antl ess blood sample may arise in the reg ular course of law enfor ceme nt due to delay s from the war rant applica t i o n p ro cess.” ); Cole v. State , 454 S.W .3d 89, 103 (Tex. App.—Texarkana 2014, pet. g rante d) (“A s in McNeely and Schme rber , our exigent circ umstances anal y s i s should focus on the delay attendant to obtaining a war rant, i.e., whether the State showed that, under the circ umstances, the police could not rea sonably obtain a war rant.” ); see also Turrubiat e v. State , 399 S.W .3d 147, 151 (Tex. Crim. App. 2013) (obser ving that State has burden to show “ exigent cir cumstance s . . . made obtaining a wa rra nt impractica

ble”)

. 10(instead of waiting outside the jail). This was not a case in which Parede s was acting alone and no

other office rs wer e available to a ssist him. Parede s testified that, in a ddition to hi s partner , there 2 4

was a third office r at the restaur ant d uring the investiga tion and that this office r was capa ble of making arr ests, inventory ing vehicles, and i n v es t i gating the collision over the phone as Parede s had been doing. Thus, the trial court could have rea sonably found that this other office r could have
inventoried the BMW, arr ested Be arde n for public intox ication or waited for her boy friend to arr ive,
and continued to investigate the collision, while Parede s and Vasque z transporte d O’B rien to the jail.
Once at the jail, the tri al court could have further found, Parede s could have beg un the proce ss for securing a warra

nt while Vasquez waited outsi de the jail with O’B rien. Additionally , Parede s testi fi ed t h at i t woul d have been possible for him to call the jail prior to his arr ival and notify jail officia ls that he wou l d b e re q u es ting a blood draw , which, the trial court could have

rea sonably inferr ed, cou l d have further reduc ed the delay once Parede s arr ived at the jail. Under
th es e ci rc umstances, the trial court could have rea sonably found, Parede s could have obtained a

war rant without “sig nificantly incre asing the delay ” in draw ing O’B rien’s blood. On this rec ord, the
trial court did not err in concluding that there we re no exigent circ umstances sufficie nt to justify dispensing w ith the warr ant re quirement. We overrule the State’s third point of er ror. 2 5

C f

. Pearson v. State , No. 13-11-00137- CR, 2014 Tex. App. L EXI S 2514, at *10-11 2 4 (Tex. App.—Corpus Christi Mar. 6, 2014, p et

. re f’ d ) (mem. op., not desig nated for publication) (conc luding that there wer e exigent circ umstances prese nt when office r testified t h at he was “the only office r on duty ,” was “solely responsible for secur ing the scene of the acc ident,” and had to wait “at lea st three hour s to obtain a war rant fr om a judg e”)

. See McNee ly , 133 S. Ct. at 1561; Roop v. State , ___ S.W .3d ___, No. 03-13-00141- CR, 2 5 2016 Tex. App. L EXI S 1541, at * 1 4 -15 (Tex. App.—Austin Fe b. 17, 2016, no pet. h.) (op., desig nated for publication) (explaining that burden is on State to prove that office r’s decision to n o t s ee k warrant was result of exigent circ umstances) ; Huff v. State , 467 S.W .3d 11, 33-34 11Constitutionali ty of w arrantle ss blood draw
We next addre ss the St at e’ s second point of err or, in which it asser ts that the
tri al court err ed in concluding that the war rantless blood draw did not comply with the
Four th Amendment. I n the S tate’s view, even in the absence of ex i gen t ci rcumstanc es, t he blood
draw was constitutional ly permissible beca use it was authorized by the mandatory -blood-dra w statute, section 724. 0 1 2 o f the Texas Transpor tation Code, and beca

use O’B rien “impliedly 2 6

consente d” to the blood dra w. 2 7

(Tex. App.—San Antonio 2015, pet. filed) (finding no exigent circ umstances when office r testified that he did not obtain war

rant beca use “it was simply not the prac tice of San Antonio police office rs t o obtain a war

rant under circ umstances such as those prese nted in this case ”); Cole , 454 S.W

. 3 d at 103 (conc luding that exigent-c ircumstance s exception did not apply when “no attempt was made to obtain war

rant, ” o t h er police office rs wer e available to assist arr esting office r, and obtaining war rant would not ha

ve signific antly delay ed blood draw ); Gore v. State , 451 S.W .3d 182, 197-98 ( T e x. A p p
. — H o u s to n [1 4 th D is t. ] 2 0 1 4 , p e t. r e f ’ d ) (conc luding that exigent-c ircumstance s exception did not apply when there wer e “a t least two office rs on the scene ,” arr esting office r testified that he did not believe war

rant was nece ssary , and there was no evidenc e of how lon g i t would have taken to o btain war

rant); Sutherland v. State , 436 S.W .3d 28, 40-41 (Tex. App.—Amar illo 2014, pet. ref ’d) (conc luding, in case transfe rre d from this Court, that exigent-c ircumstance s exception did not a pply when rec ord ref

lected that “the proce dures in pla ce at the Travis County centr al booking fac ility have been implem en t ed to streamline the war rant application proce ss” and observing that “the time to complete the war rant application proce ss is not overly burdensome” ); Forsyth v. State , 438 S.W .3d 216, 220 (Tex. App.—Eastland 2014, pet. ref ’d) (conc luding th a

t e xig e n t- circ umstances ex ception did not apply when, even though office r testified that war rant proce ss could t ak e 9 0 m inutes, “ther e was no evidenc e prese nted by the State in this particula r case of how lon g [officer] would have had to wait on a w arr ant”)

.

See Tex. Transp. Code § 724.012(b) (1)( C). 2 6
See id

. § 724.011(a) (“I f a person is arr ested for an o ff en s e ar ising out of acts alleg ed 2 7 to have been comm i t t ed while the person was operating a motor vehicle in a public place , . . the person is de emed to ha

ve consente d, subject to this chapte r, to submit to the taking of one or more specimens of the person’ s brea th or blood for analy sis to deter mine the alcohol conce ntration or the prese nce in the person’ s body of a controlled substance, drug , dang erous drug , or other substance.” ).
12After the parties filed their briefs, the Texas Court of C ri minal Appea ls

decide d S t a t e v. Villarreal , a case that addre ssed whether war rantless, mandatory blood draw s violate the Four

th Amendment. I n Villarreal , the Court of Criminal Appeal s held that “a 2 8

nonconsensua l se arc h of a DWIsuspect’s blood conduc ted pursuant to the mandatory -blood-dra w and implied-consent provisions in the T ra n s p ortation Code, when undertaken in the absenc e of a

war rant or any applicable exception to the war rant require ment, violates the Four th Amendment.” 2 9
The court explained that the Transpor tation Code provisions on which the State relied to excuse compliance with the war

rant require ment “do not, taken by themselves, form a constitutionally valid
alternative to the Four

th Amendment war

rant require ment,” and the court “re ject[ed] 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 to the war rant re quirement.” 3 0
The Villarreal court “fur ther reje ct[ed] the State’s sug g estion”—si m i l ar to the arg ument ra i s ed b y t he State here —“that such a sear ch may be upheld under a g ener al
Four th Amendment balanc ing test.” Although t h e court “ag ree [d] with the State’s contention 3 1

t h at t h e g overnme nt has a substantial interest in preve nting drunk driving ,” it “disag ree [d] that a balanc ing test is appropr iate g iven the context” of “an active criminal investigation , [ ] wh en t he primary g oal of law-e nforc ement activity is the g ather ing of evidenc e.” I n that context, the court 3 2

See 475 S.W .3d at 787. 2 8 Id . at 815. 2 9 Id . at 813. 3 0 Id

. 3 1 Id . at 808-09. 3 2
13observe d, the United States Supreme Court has repeat ed ly held that “a war rantless sear ch of a
person is unrea sonable unless it falls within an established exception to the war rant require ment.” 3 3
The court “dec line[d] to disreg ard this well-e stablished principle in favor o f a m o re g ener alized
balanc ing- of-inter ests test.” 3 4

The Villarreal court al so reje cted the State’s contention that a suspect’s “implied consent” to a blood dr aw obviate s the need to obta in a war rant. The court explained tha t
“to constitute a valid waiver of Four th Amendment rig hts throug h consent , a s uspect’s consent
to sear ch must be fre ely and v o l u ntarily g iven,” and the suspect must possess “the ability to limit

or revoke it.” Acc ording to t h e court, “[i] t would be wholly inconsistent with these principles

3 5

to uphold the war

rantless sear ch of a suspect’s blood on the basis of consent when a suspect has, as in the prese nt case , expressly and unequivoc ally

ref used to submit to the s ear ch.” “Tha t expl icit 3 6
ref usal to submit to blood testing,” the court conclude d, “over ri des the exis tence of any implied consent, and, unless some other justification for the sear ch applies, there rema ins no valid basis for conducting a wa

rra ntless searc h under those c ircumstance s.” 3 7

Id

. at 809 (citing Riley v. Calif ornia , 134 S. Ct. 2473, 2482 (2014); McNee ly , 133 S. Ct. 3 3 at 1558; Skinner v . Railway Labor Execs. Ass’n , 489 U.S. 602, 619 (1989)).

Id

. 3 4 Id . at 799. 3 5 Id . at 800. 3 6 Id

. 3 7
14This Court and oth e r s have repe atedly followed Villarreal and reje cted the arg uments

that the State raises here

. Consist ent with the prec edent established in these case s, we overr ule the 3 8
State’s sec ond point of err or.
Appli cability of

exclusionary rule Finally , we addre ss the State’s first point of err or, in which it assert s t h at, “[e]ven
i f t h e p o l i ce had violated O’B rien’s constitutional rig hts, the exclusionary rule does not apply

. ”
The State focuse s its arg ument almost entirely on the fede ral exclu s i o n ar y rule, which is a judicially cre ated reme dy that require s the sup p ression of evidenc e obtained in violation of the
Four th Amendment. As the State observe s, there are exceptions to the fede ral rule based on an 3 9
office r’s g ood-fa ith reliance on the law a s it ex isted at the time of the of fice r’s a ctions. 4 0

See State v. Molden , ___ S.W .3d ___, No. 03-14-00166- CR, 2016 Tex. App. L EXI S 1539, 3 8 at *4-9 (Tex. App.—Austin Fe b. 17, 2016, pet. filed) (op., desig nated for publication); State v. Hill ,

___ S.W .3d ___, No. 03-13-00834- CR, 2016 Tex. App. L EXI S 1540, at *3-8 (Tex. A pp.—Austin Fe b. 17, 2016, no pet. h.) (op., desig nated for publicat ion); Roop , 2016 Tex. App. L EXI S 1541, at *11-13; see also State v. Ayala , No. 03-14 -0 0651-CR, 2016 Tex. App. L EXI S 2166, at *6-10 (Tex. App.—Austin M ar
. 2 , 2016, pet. filed) (mem. op., not desig nated for publication); State v. Mu n o z , 474 S.W .3d 8, 13-14 (Tex. App.—El Paso 2015, pet. ref ’d); State v. Tercero , 467 S.W .3d 1, 6-9 (Tex. App.—Houston [1st Dist.] 2015, p et

. re f’d); Chidyausiku v. State , 457 S.W .3d 627, 630-31 (Tex. App.—For t Worth 2015, pet. filed) ; S t a t e v. Garcia , 457 S.W .3d 546, 547-48 (Tex. App.—San Antonio 2015, pet. filed); Lloyd v. State , 453 S.W .3d 544, 546-48 (Tex. App.—Dallas 2014, pe t. ref’ d).

See Arizona v. Evans , 514 U.S. 1, 10 (1995); United St a t es v. Leon , 468 U.S. 897, 906 3 9 (1984). See Davis v. United States , 1 3 1 S

. C t

. 2419, 2423–24 (2011) (holding that “[e]vidence

4 0 obtained during a sear ch conducte d in rea sonable relianc e on binding prec edent is not subject to the exclusionary rule” ); Illinois v. Krull , 480 U.S. 340, 360 ( 1987) (holding that evidenc e obtained by office r acting in g ood-fa ith r eliance on statute that is later dete rmined to be unc onstitut ional is not subject to exclusionary

rule). 15Howeve r, in her motion to suppress , O ’ B r ie n soug ht to exclude the evidenc e pursuant

to the Tex as ex clusionary rule, which provides that “[n]o evidence obta ined by an off icer or other
person in violation of any provisions of the Constit uti o n o r l aw s of the State of Texas, or of the
Constit ution or laws of the United States of Americ a, shall be ad m i t t ed in evidenc e ag ainst the

acc used on the trial of

any criminal ca se.” I t is well established that the Texas ex clusionary rule 4 1
is broade r in scope and p ro v i d es more protec tion to a suspect than its fede ral counter part. The 4 2
L eg islature has a

uthorized only

one ex ception to this rule: “I t is an exception to the provisions of
Subsection (a) of this Article that the evidenc e was obtained by a law enfor ceme nt office r acting in objective g ood faith relianc e upon a warrant issued by a neutra l mag istrate based on probable

cause .” There is no exception to the T ex as exclusionary rule based on an office r’s compliance

4 3
with the law as it exi s t ed at the time of the sear ch or his g ood-fa ith relianc e on any thing other
than a war

rant. I n this case , it is undisputed that there was no war rant. Consequently , the exception

to article 38.23 does not apply here , as this an d o t her Texas courts have repe atedly held in

Tex. Code Crim. P roc. a rt. 38.23(a)

. 4 1
See W ilson v. State , 311 S.W

. 3 d 4 5 2 , 458-59 (Tex. Crim. App. 2010); Miles v. State , 4 2 241 S.W .3d 28, 34 (Tex. Crim. App. 2007); Mele ndez v. State , 467 S.W .3d 586, 592 (Tex. App.—San Antonio 2015, no pet.); Tercero , 467 S.W .3d at 10; see also 40 Geor g e E. Dix & J ohn M. Schmolesky , Texas Practice Series: Criminal Practice and Procedur e § 7.10 (3d ed. 2011) (“A rticle 38.23 of the Code of Criminal Procedur e imposes what is probably the bro adest state exclusionary require ment of any Americ an jurisdiction.”); 1 C. McCormick & R. Ray , Texas L aw of Evidence , § 473 (2d ed. 1956) (“T h e Texas [ex clusionary ] statute lay s down a rule far broade r than that exist ing in a

ny other state a

nd g oes much be y ond the doctrine of the [fede ral] case s.”). Tex. Code Crim. P roc. a rt. 38.23(b) ( emphasis adde d). 4 3
16simil ar mandatory -blood-dra w case s. Be cause the blood-draw evidenc e in this case was obtained

4 4
in violation of the Four

th Amendment to the United States Constit ution, we cannot conclude that the
district court abused its discretion in suppressing the evidence pursuant to the Tex as ex clusionary
rule. We overrule the State’s first point of er ror. 4 5

See, e.g. , Molden , 2016 Tex. App. L EXI S 1539, at *12-14; Hill , 2016 Tex. App. L EXI S 4 4 1540, at *11-13; Roop , 2016 Tex. App. L EXI S 1541, at * 1 6 -1 7 ; Mu n o z , 474 S.W .3d at 16; Tercero , 467 S.W .3d at 10-11; Burks v. State , 454 S.W .3d 705, 709 (Tex. App.—For t Worth 2015, pet. re f’d) ; Anderson , 445 S.W .3d at 912; Forsyth , 438 S.W .3d at 224-25; see also State v. E sher , No. 05-14-00694- CR, 2015 Tex . App. L EXI S 7722, at *10-11 (T ex. App.—Dallas J uly 27, 2015, no pet.) (mem. op., not desig nated for publication); Gentry v. State , No. 12-13-00168- CR, 2014 Tex. App. L EXI S 9538, at *6-7 (Tex. App.—Ty ler Aug

. 27, 2014, pet. ref ’d) (mem. op., not desig nated for publication); Fitzgerald v. State , No. 04-13-00662- CR, 2014 Tex. App. L E XIS 8 2 0 8, at *6 (Tex. App.—San Antonio J uly 30, 2014, pet. re f’d) (mem. op., not desig nated f or publication).
We note that the applicability of the exclusio n ar y ru le to evidenc e obtained from a 4 5 war rantless, mandatory blood draw is an issue that is curr ently pending befor e the Court of Criminal Ap p eals. See Cole , 454 S.W .3d at 89. But unless and until that court instructs us otherwi s e, we adher e to the exception to the Texas exclusionary rule that the L eg islature has expressly authorized. See State v . Daugherty , 931 S.W .2d 268, 270 (Tex. Crim. App. 1996) (“B ut Article 38.23 a lrea dy contains one e x press e x ception, see Subsection (b) thereof, and according to the rules of st atutory construction, wher e a statute contains an exp re s s ex ce p t i on, its terms must apply in all case s not excepted.”) ; Garcia v. Stat e , 829 S.W .2d 796, 800 (Tex. Crim. App. 1992) (“Cer tainly , the L eg islature has the prer og ative to amend A rticle 38.23 to ena ct the spec ific exception to its rule if it c hooses. Until that time, howeve r, we must enfor ce the statute as written, excluding all illega lly obtained evidenc e, with the single exception as s et out in the statute.”); see also 67 Tex. J ur. 3d Statutes § 117 (2015) (“In construing a statute, it is not ordinarily permissible to imply an exception, proviso, or restric tion or to enlar g e an except i o n s o as to include case s not within its terms.”)

. Cf

. W ehrenbe rg v. State , 416 S.W .3d 458, 470-71 (Tex. Crim. App. 2013) (conc luding that “indepe ndent source doctrine” may be basis for admitting otherwise inadmissible evidenc e beca use that doctrine “is consistent with the plain terms of the Texas exclusionary rule” ); State v. Johnson , 8 7 1 S. W. 2 d 7 4 4 , 7 50-51 (Tex. Crim. App. 1994) (re aching simil ar conclusion reg arding “attenua ti o n of taint” doc trine). 17CONCLUSION
We affir m the trial court’ s order

g ranting the motion to suppress.

__________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Pemberton, F ield, and B ourland
Affir med Filed: Apr il 7, 2016
Do Not Publish

18