## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 13 - 00315 - CR

JOSHUA ED BOWYER APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE 371ST DISTR ICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1283 996D

---------- 

### MEMORANDUM OPIN ION 1

---------- I. I NTRODUCTION Appellant Joshua Ed Bowyer appeals his conviction for driving while intoxicated (DWI) with a child passenger under the age of fifteen. See Tex. Penal Code Ann. § 49.045( a ) (2) (West Supp. 201 1 ). In a single issue, Bowyer argues that the trial court erred by denying his motion to suppress blood alcohol test results obtained using the mandatory

- blood

- draw procedure of the Texas

1 See Tex. R. App. P. 47.4.2

Transportation Code and without his consent or a valid search warrant. See Tex. Transp. Code Ann. §§ 724.011(a), 724.012(b), 724.013 (West 2011). Following the court of criminal appeals’s recent opinion in State v. Villarreal , No. PD

- 0306
- 14,
--- S.W.3d

--- , 2014 WL 6734178 , at *21 (Tex. Crim. App. Nov. 26, 2014), in which the court held that such a warrantless, nonconsensual draw of a DWI suspect’s blood does not categorically fall within any recognized exception to the Fourth Amendment’s warrant requirement, nor can it be justified under a general Fourth Amendment balancing test, we will reverse the trial court’s suppression order and judgment and remand the case to the trial court.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND The State indicted Bowyer for DWI with a child passenger. He filed a “MOTION TO SUPPRESS SEARCH WITHOUT WARRANT (MANDATORY BLOOD D RAW PURSUANT TO TRANSPORTATION CODE SECTION 724.012)

. ” At the suppression hearing, the State conceded that the officers in this case had time to secure a warrant to conduct a blood draw but did not do so because they were following Texas’s mandatory

- blood

- draw statute. See Tex. Transp. Code Ann. § 724.012(b)( 2 ). After the hearing, the trial court denied Bowyer’s motion to suppress. Bowyer then pleaded guilty pursuant to a plea bargain, and in accordance with the plea bargain, the trial court sentenced B owyer to two years’ confinement in the State jail and a $1,000 fine, suspended imposition of the confinement portion of the sentence, and placed Bowyer on community supervision for five years. This appeal followed.3 III. B LOOD D RAW V IOLATED F OURTH A MENDME NT Following the United States Supreme Court’s decision in Missouri v. McNeely , the court of criminal appeals recently held that the provisions in the Texas Transportation Code do not, taken by themselves, form a constitutionally valid alternative to the F ourth Amendment warrant requirement.

--- U.S.

--- , 133 S. Ct. 1552, 1563 (2013) ; Villarreal , --- S.W.3d at

--- , 2014 WL 6734178, at *10

– 16. Specifically, the court in Villarreal rejected the State’s arguments that (1) a warrantless, nonconsensual blood te st under the transportation code should be upheld as categorically reasonable under the consent exception

— applicable in the form of a prior waiver through implied consent, the automobile exception, the special

- needs exception, or the search

- incident

- to
- arr est exception, (2) a blood draw should be treated as a seizure instead of a search, and (3) such a search may be upheld on the basis that it is reasonable under a general Fourth Amendment balancing test. Id

. at
--- , 2014 WL 6734178, *10

– 17. The State rai ses these same arguments in this appeal. In this case, Bowyer did not consent to a blood draw, and a warrant to draw his blood was not obtained. The State does not rely on the exigent circumstances exception to the warrant requirement. And d espite having time to obtain a warrant, t he officers in this case relied exclusively on the “mandatory provisions” of transportation code section 724.012(b)( 2 ) for the warrantless blood draw. See Tex. Transp. Code Ann. § 724.012(b)( 2 ). W e hold that this warrantless, nonconsensual blood draw conducted pursuant to the mandatory

-4

blood

- draw and implied

- consent provisions of the Texas Transportation Code violated the Fourth Amendment. See Burks v. State , --- S.W.3d

--- , No. 02

- 13
- 00560
- CR, 2015 WL 115964, at *1

– 3 (Tex. Ap p. — Fort Worth Jan. 8, 2015, no pet.) (“Following Villarreal , we hold that this warrantless, nonconsensual blood draw conducted pursuant to the mandatory

- blood

- draw and implied

- consent provisions of the Texas Transportation Code violated the Fourth Amendmen t.”). We further hold that the trial court erred by denying Bowyer’s motion to suppress the blood alcohol test results, and we sustain his sole issue. IV. C ONCLUSION Having sustained Bowyer’s sole issue, we reverse the trial court’s order denying Bowyer’ s motion to suppress and the trial court’s judgment, and we remand this case to the trial court for further proceedings consistent with this opinion.

/s/ Bill Meier BILL MEIER JUSTICE PANEL: MEIER and GABRIEL, JJ. 2 DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: March 12, 2015

2 Justice McCoy was a member of the original panel but has retired in the interim.