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 DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1283996D

----------

MEMORANDUM OPINION1

----------

I. INTRODUCTION 

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. 2011). 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 

 

1See 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. FACTUAL AND PROCEDURAL BACKGROUND

The State indicted Bowyer for DWI with a child passenger. He filed a 

“MOTION TO SUPPRESS SEARCH WITHOUT WARRANT (MANDATORY 

BLOOD DRAW 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 

Bowyer 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. BLOOD DRAW VIOLATED FOURTH AMENDMENT

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 Fourth 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 test 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-arrest 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 

raises 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 despite having time to 

obtain a warrant, the 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). We 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. App.—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 Amendment.”). 

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. CONCLUSION

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.