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 28th 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. BACKGROUND
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The relevant facts are undisputed. 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. 

Arredondo 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 TEX. TRANSP. CODE ANN. § 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 it 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. The 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 violates the Fourth 

Amendment). Finding no exigent circumstances, the trial court suppressed the 

warrantless blood sample. This appeal followed. 
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II. MOTION TO SUPPRESS 

By its sole issue, the State contends that the trial court erred when it 

suppressed evidence of the warrantless blood sample. 

A. APPLICABLE LAW AND STANDARD OF REVIEW 

The Fourth Amendment to the United States 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 probable 

cause. . .

U.S. CONST. amend IV. The taking of a blood sample by the government is a 

search that triggers the protections 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 occurred 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 

the exigencies of the situation make the needs of law enforcement so compelling 

that a warrantless search is objectively reasonable 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 imminent 
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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 cases violate the Fourth 

Amendment unless the State can show exigent circumstances or some other 

exception to the warrant requirement. Id. 

Another exception to the warrant requirement applies when the defendant 

consents 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 216, 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 review. 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 the 

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 (citing 
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Guzman, 995 S.W.2d at 89). We “review de novo ‘mixed questions of law and 

fact’ that do not depend upon credibility and demeanor.” Id. (quoting Montanez v. 

State, 195 S.W.3d 101, 107 (Tex. Crim. App. 2006)). 

B. DISCUSSION 

In this case, the State stipulated that Arredondo’s blood 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, the State relies on the implied-consent and 

mandatory-blood-draw provisions of the transportation code, which purport to 

establish implied consent for all drivers arrested on suspicion of driving while 

intoxicated. See TEX. TRANSP. CODE ANN. § 724.011. Read 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 id.; 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 that 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 intoxicated. 

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,
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that a warrantless blood draw taken pursuant to these implied-consent and 

mandatory-blood draw provisions does 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, 2014) 

(reh’g granted). In reaching its decision, the court 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. The court concluded: 

It 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 

refused to submit to the search. That explicit refusal to submit 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 search under those 

circumstances. To the extent the State suggests that the impliedconsent 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 squared 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 withdrawn at the 

time of the search. In other words, implied 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 id; see also

Forsyth, 438 S.W.3d at 222 (holding that implied consent under the transportation 

code is not the equivalent to voluntary consent as a recognized exception 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 the 
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same as it relates to an unconscious drunk-driving defendant under section 

724.014(a) of the transportation code). 

Accordingly, we 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 shows 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. CONCLUSION

We affirm the judgment of the trial court. 

/s/ Rogelio Valdez

ROGELIO VALDEZ

Chief Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

8th day of October, 2015.