### NUMBER 13 - 13 - 00589 - CR 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

THE STATE OF TEXAS , Appellant,

v. JAIME ARREDONDO , Appellee.

On appeal from the 2 8 th District Court of Nueces County, Texas.


## MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Longoria

Memorandum Opinion by Chief Justice Valdez In this appeal , the State challenges the trial court's granting of appellee Jaime Arredondo ’s motion to suppress blood

- alcohol test results that police seized following his arrest for driving while intoxicated. We affirm.
I. B ACKGROUND2 T he relevant facts are un dispute d

. A police officer pulled Arredondo over for driving illegally on the center dividing line of a street. During the traffic stop, Arredondo showed signs of intoxication

. Believing Arredondo to be intoxicated beyond the legal limit, the police officer arrested him for driving while intoxicated

. Arre dondo had been convicted of driving while intoxicated two times before . After being arrested , Arredondo was asked to provide a sample of his blood for testing

. Arredondo refused. Nevertheless, the police officer obtained a sample of Arredondo’s blood without a warrant and without his consent , believing the search to be authorized under Texas’ mandatory blood

- draw statute for repeat DWI offenders

. See T EX

. T RANSP

. C ODE A NN . § 724.012(b)(3)(B) (West, Westlaw through 2015 R.S.) ( authorizing mandatory blood draws for drunk

- driving arrestees who, prior to their arrest, had been convicted of drunk

- driving two or more times before ). Although the police officer did not attempt to secure a warrant before drawing a sample of Arredondo’s blood, the testimony showed that i t would have taken approximately fifteen to twenty minutes to get one. Based on these facts, Arredondo filed a motion to suppress evidence of the blood sample under the Fourth Amendment . T he State stipulated that Arredondo’s blood was drawn without a warrant. Citing Missouri v. McNeely , Arredondo argued that the police officer lacked exigent circumstances to obtain the warrantless blood sample and therefore conducted an illegal search. See 133 S. Ct. 1552 (2013) (holding that, absent exigent circumstances or some other exception to the warrant requirement , a warrantless blood draw in a drunk

- driving case violate s the Fourth Amendment). Finding no exigent circumstances, the trial court suppressed the warrantless b lood sample

. T his appeal followed.3 II. M OTION TO S UPPRESS By its sole issue, the State contends that the trial court erred when it suppressed evidence of the warrantless blood sample.
A. A PPLICABLE L AW AND S TANDARD OF R EVIEW The Fourth Amendment to the United Sta tes Constitution provides that: The 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 p robable cause.

. . U.S. C ONST

. amend IV

. The taking of a blood sample by the government is a search that triggers the prote ctions of the Fourth Amendment. See Schmerber v. California , 384 U.S. 757, 770 (1966). “To suppress evidence on an alleged Fourth Amendment violation , the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct.” Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “A defendant satisfies this burden by establishing that a search or seizure o ccurred without a warrant.” Id . Once a defendant establishes that there was no warrant, the burden shifts to the State to prove the warrantless search was reasonable under the totality of the circumstances. Amador v. State , 221 S.W.3d 666, 672

– 73 (Tex. Crim. App. 2007)

. The State satisfies this burden if it proves an exception to the warrant requirement. See Gutierrez v. State , 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). One well

- recognized exception to the warrant requirement applies “when th e exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonabl e under the Fourth Amendment.” McNeely , 133 S. Ct. at 1558. A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including the imminent4

destruction of evidence. Id . Courts look to the “totality of circumstances” to determine whether a law enforcement officer faced an emergency that justified acting without a warrant. Id . at 1559. In McNeely , the United States Supreme Court held that warrantless blood draws in drunk

- driving cas es violate the Fourth Amendment unless the State can show exigent circumstances or some oth er excep tion to the warrant requirement

. Id

. Another exception to the warrant requirement applies when the defendant
consent s to the particular search at issue

. Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973)

. “ For consent to search to be valid as an exception to the warrant requirement, the consent must be given voluntarily, without coercion by threats or force and not as the result of duress. ” Forsyth v. State , 438 S.W.3d 21 6, 222 (Tex. App.

— Eastland 2014, pet. ref’d). Additionally, a person who consents to a search may also specifically limit or revoke such consent. See Miller v. State , 393 S.W.3d 255, 266 (Tex. Crim. App. 2012)

. The State must prove valid consent by clear and convincing evidence

. See Fienen v. State , 390 S.W.3d 328, 333 (Tex. Crim. App.
2012 )

. We review a trial court’s decision on a motion to suppress for an abuse of discretion. Crain v. State , 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse of discretion analysis, we use a bifurcated standard of re view. State v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc) (citing Guzman v. State , 955 S.W.2d 85, 88 (Tex. Crim. App. 1997) (en banc)). We give almost total deference to the trial court’s findings of historical fact that are supported by t he record and to its resolution of mixed questions of law and fact that turn on an evaluation of credibility and demeanor. See Amador , 221 S.W.3d at 673 (citing5

Guzman , 995 S.W.2d at 89). We “review de novo ‘mixed questions of law and fact’ that do not d epend upon credibility and demeanor.” Id . (quoting Montanez v. State , 195 S.W.3d 101, 107 (Tex. Crim. App. 2006)).
B. D ISCUSSION In this case, the State stipulated that Arredondo’s blo od was drawn without
a warrant. Therefore, the burden shifted to the State to prove that the warrantless blood draw was reasonable. See id. On appeal, the State does not argue that an exigent circumstance existed to justify the warrantless blood draw. Instead, the State argues that the warrantless blood draw should be upheld as reasonable under the consent exception to the warrant requirement. To support this argument, t he State relies on the implied

- consent and mandatory

- blood

- draw provision s of the transportation c ode , which purport to establis h implied consent for all drivers arrested on suspicion of driving while intoxicated. See T EX

. T RANSP

. C ODE A NN . § 724.011

. R ead together, these provisions provide that a person arrested for driving while intoxicated “is deemed to have consented” to the taking of a blood sample , see i d

. ; and consent “deemed” to have been given under section 724.011(a) may not be withdrawn or revoked if, among other things, the arrestee has two prior convictions for driving while intoxicated. Id

. § 724.012(b)(3)(B)

. Relying on this statutory scheme, the State
argues tha t by getting arrested for driving while intoxicated, Arredondo impliedly consented to the blood sample and could not withdraw that consent because of his two previous convictions for driving while intox icated. After the State filed its appellate brief in this case, the court of criminal appeals affirmed our decision in State v. Villarreal and held , among other things,6

that a w arrantless blood draw taken pursuant to the se implied

- consent and mandatory

- blood draw provisions do es not fall within the consent exception to the warrant requirement when, as here, the suspect refuses to consent to the search

. See No. PD

– 0306

– 14, 2014 WL 6734178, at *11 (Tex. Crim. App. Nov. 26, 2 014) (reh’g granted)

. In reaching its decision, the c ourt observed that a suspect's consent to search must be freely and voluntarily given, and a necessary element of consent is the ability to limit or revoke it. Id

. T he c ourt concluded:
I t would be wholly inconsistent with these principles to uphold the warrantless search of a suspect's blood on the basis of consent when a suspect has, as in the present case, expressly and unequivocally r efused to submit to the search. That explicit refusal to submi t to blood testing overrides the existence of any implied consent, and, unless some other justification for the search applies, there remains no valid basis for conducting a warrantless se arch under those circumstances. To the extent the State suggests th at the implied

consent and mandatory

- blood

- draw provisions in the Transportation Code categorically extinguish a DWI suspect's right to withdraw consent when [he or she has two prior convictions for driving while intoxicated ] , that suggestion cannot be squ ared with the requirement that, to be valid for Fourth Amendment purposes, consent must be freely and voluntarily given based on the totality of the circumstances, and must not have been revoked or withd rawn at the time of the s earch. In other words, impl ied consent that has been withdrawn or revoked by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires. Id

. (citations omitted) . Thus, the Fourth Amendment requires “actual” consent; statutorily “implied” consent does not obviate the need for a warrant and does not trump a suspect’s actual refusal to consent to a blood draw

. See i d ; see also Forsyth , 438 S.W.3d at 222 (holding that implied consent under the transportation

c ode is not the equivalent to voluntary consent as a recognized except ion to the warrant requirement); State v. Ruiz , No. 13

- 13

- 00507

- CR, 2015 WL 5626252, at *3 (Tex. App.

— Corpus Christi Aug. 27, 2015, no. pet. h.) (mem. op.) (holding the7

same as it relates to an unco nscious drunk

- driving defendant under section 724.014(a) of the transportation code ). Accordingly, w e conclude that the State did not meet its burden to establish that Arredondo consented to the warrantless blood draw in this case because the evidence undisputedly s hows that he refused the police officer’s request to obtain

a sample of his blood

. See Ford , 158 S.W.3d at 492; see also Villarreal , 2014 WL 6734178, at *11. We therefore overrule the State’s sole issue.
III. C ONCLUSION We affirm the judgment of the trial court. /s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice Do not publish. T EX

. R. A PP

. P. 47.2(b). Delivered and filed the 8th day of October , 2015.