IN THE
TENTH COURT OF APPEALS
No. 10-13-00109-CR
MICHAEL MCGRUDER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 11-05822-CRF-85
DISSENTING OPINION
At least six of our sister courts, based on Missouri v. McNeely, 133 S.Ct. 1552, 1556,
185 L.Ed.2d 696 (2013) and the Supreme Court’s treatment of Aviles v. State, 385 S.W.3d
110 (Tex. App.—San Antonio 2012, pet. ref’d), vacated, 134 S.Ct. 902, 187 L.Ed.2d 767
(2014), op. on remand, --- S.W.3d ---, 2014 WL 3843757 (Tex. App.— San Antonio Aug. 6,
2014, no pet. h.), have held that a warrantless, nonconsensual blood draw under
Transportation Code section 724.012(b), absent exigent circumstances, violates the
Fourth Amendment. Forsyth v. State, --- S.W.3d ---, ---, 2014 WL 3865777, at *8 (Tex.
App.—Eastland July 31, 2014, no pet. h.); Weems v. State, --- S.W.3d ---, ---, 2014 WL
2532299, at *8 (Tex. App.—San Antonio May 14, 2014, pet. filed); Holidy v. State, No. 06-
13-00261-CR, 2014 WL 1722171, at *4 (Tex. App.—Texarkana Apr. 30, 2014, pet. filed)
(mem. op., not designated for publication); Reeder v. State, 428 S.W.3d 924, 930 (Tex.
App.—Texarkana 2014, pet. filed); Sutherland v. State, --- S.W.3d ---, ---, 2014 WL
1370118, at *10 (Tex. App.—Amarillo Apr. 7, 2014, pet. filed); State v. Villareal, --- S.W.3d
---, ---, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted);
see also Douds v. State, --- S.W.3d ---, 2014 WL 2619863 (Tex. App.—Houston [14th Dist.]
June 5, 2014, pet. filed). But see Perez v. State, --- S.W.3d ---, ---, 2014 WL 943126, at *7
(Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet. h.) (mot. for reh’g and mot. for en
banc reh’g pending) (“We conclude that the warrantless taking of appellant’s blood
sample in compliance with Transportation Code section 724.012(b) did not violate his
Fourth Amendment rights by requiring him to submit to a warrantless blood test
without his consent.”); see id. (also holding that appellant failed to raise constitutionality
of statute in trial court).
While it appears that no court has explicitly passed on the facial constitutionality
of section 724.012(b),1 some have criticized the statute from a Fourth-Amendment
perspective with language that I believe indicates a facial problem with the statute:
1
The majority quotes two sentences in a footnote from Douds that appear to be dicta. See Douds, ---
S.W.3d at --- n.24, 2014 WL 2619863, at *15 n.24. In Sutherland, the appellant presented an apparent facial
challenge: “In the absence of exigent circumstances or consent[,] does Section 724.012(b)(3)(B) violate the
Texas and United States constitutional prohibitions against unreasonable searches and seizures where the
statute requires law enforcement officers to seize a specimen of a DWI arrestee’s blood without a search
warrant in all cases where the officer believes the arrestee has been previously convicted of DWI two or
more times.” Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *3. But the court did not make an explicit
McGruder v. State Page 2
Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *7 (“we decline to hold that
mandatory blood draws under the Texas Transportation Code are per se
reasonable and further decline to hold that an officer is not required to obtain a
warrant for the blood draw or show that the blood draw was conducted under a
recognized exception to the warrant requirement.”).
Holidy, 2014 WL 1722171, at *1 (“This appeal involves the sole question of the
constitutionality of taking and testing blood under the implied consent
provisions of Section 724.012(b)(3)(B)… . Because we are constrained by
principles recently enunciated by the United States Supreme Court, we reverse
the conviction herein based on the unconstitutionality of the statute and remand
this case for a new trial.”).
Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *10 (“To the extent that Section
724.012(b)(3)(B) can be read to permit, nonetheless, a warrantless seizure of a
suspect’s blood in the absence of such exigent circumstances or the suspect’s
consent, it runs afoul of the Fourth Amendment’s warrant requirement.”).
Section 724.012(b) does not explicitly require an officer to obtain a blood or
breath sample without a warrant, but it also does not instruct an officer to obtain a
warrant in the absence of exigent circumstances. And the common facts in our sister
courts’ opinions and in this case are that the officer did not obtain a warrant solely
because of section 724.012(b) and did compel or forcibly obtain a blood sample without
the defendant’s consent solely because of section 724.012(b):2
facial review of the statute. And in Forsyth, the appellant failed to assert a facial complaint in the trial
court. Forsyth, --- S.W.3d at --- n.1, 2014 WL 3865777, at *1 n.1.
2
In Beeman, the court of criminal appeals did state: “This does not give officers the ability to forcibly
obtain blood samples from anyone arrested for DWI.” Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim.
App. 2002). But the context of that sentence is important:
The dissent implies that we have given carte blanche to officers to draw blood in
every single DWI case. But we have given police officers nothing more than the
Constitution already gives them—the ability to apply for a search warrant and, if the
magistrate finds probable cause to issue that warrant, the ability to effectuate it. This does
not give officers the ability to forcibly obtain blood samples from anyone arrested for DWI.
Instead, it gives officers the ability to present an affidavit to a magistrate in every DWI
case, just like every other criminal offense. Whether any search ultimately occurs rests,
as always, in the hands of the neutral and detached magistrate.
McGruder v. State Page 3
Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *2 (“A criminal history check and
Appellant’s own admissions revealed that Appellant had two prior convictions
for DWI. Appellant refused to submit to a breath or blood test. Relying on
Section 724.012 of the Texas Transportation Code, Officer McDaniel transported
Appellant to Brackenridge Hospital for a mandatory blood draw. … Officer
McDaniel acknowledged that there were magistrates available to issue a search
warrant twenty-four hours a day, but stated that he could not have secured a
warrant because that ‘is not what you do according to law or policy.’”).
Weems, --- S.W.3d at ---, 2014 WL 2532299, at *1, 3 (“No warrant was procured for
the blood draw. … In this case, Officer Bustamante testified that the blood draw
was administered because a person other than Weems suffered bodily injury and
was transported to a hospital for medical attention. The State also points out that
the THP–51 form, which was admitted in evidence, indicates that the blood draw
was also ordered because Weems had two prior DWI convictions.”).
Douds, --- S.W.3d at ---, 2014 WL 2619863, at *1, 3 (“Officer Tran took the
appellant to a local medical center, Texas Emergency Care, for a mandatory
blood draw. Officer Tran testified his decision to obtain a blood draw was based
on his reasonable belief that section 724.012 of the Texas Transportation Code
had been satisfied and allowed him to do so. … Nothing in the record suggests
that any officer attempted to obtain a warrant authorizing the blood draw at any
point. Indeed, the evidence does not mention a warrant at all. … Officer Tran
testified that he ordered the mandatory blood draw under the authority of
section 724.012 of the Texas Transportation Code.”).
Holidy, 2014 WL 1722171, at *1 & n.2 (defendant, who had two prior DWI
convictions, “was told by officers that he had no choice, so he ‘didn't argue’ with
them about the blood draw”).
Reeder, 428 S.W.3d at 926 (after defendant, who had two prior DWI convictions,
“refused to give his consent to have his blood drawn and tested for alcohol, law
enforcement officials took a blood specimen anyway and tested it under the
authority of Section 724.012(b)(3)(B)”).
Id. (emphasis added). This statement is therefore inapplicable to the warrantless blood draw cases where
the officers have been forcibly obtaining blood samples without warrants under the alleged authority of
the statute. And because Beeman involved a warrant, its language about warrantless blood draws is dicta.
See Weems, --- S.W.3d at ---, 2014 WL 2532299, at *3-4. Moreover, as intimated by the San Antonio court in
Weems, the dicta in Beeman is likely not viable after McNeely. See id., --- S.W.3d at ---, 2014 WL 2532299, at
*4 (“[w]e relied on this dicta in Beeman in Aviles”); see also Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *4
(“court’s explanation of implied consent law in Beeman is dicta”); id. (“Furthermore, the implied consent
statute, at the time Beeman was issued, did not contain a provision directing officers to take the blood of a
DWI arrestee that had previously twice been arrested for DWI.”).
McGruder v. State Page 4
Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *1 (“[Officer] Housmans testified
that, as justification for the warrantless blood draw, he relied solely on the
provision in the Texas Transportation Code that requires him to obtain a sample
of a suspect’s blood whenever he learns that the individual has been convicted
two or more times of driving while intoxicated.”).
Id., --- S.W.3d at ---, 2014 WL 1370118, at *2 (“Housmans conceded, too, that he
did not seek out a magistrate the night appellant was arrested; it was
Housmans’s understanding of Section 724.012 that he was not required to do so.
In fact, Housmans testified that he understood Section 724.012 as placing upon
him a duty to take appellant for a mandatory blood draw under the
circumstances presented to him the night appellant was arrested: ‘I have no
discretion. The statute says I shall.’ To fail to do so, he testified, would mean
that he “would be violating the law.”).
Villareal, --- S.W.3d at ---, 2014 WL 1257150, at *11 (“The officer’s sole basis for not
getting a warrant was that the repeat offender provision of the mandatory blood
draw law required him to take a blood sample without appellee’s consent and
without the necessity of obtaining a search warrant.”).
Plainly, the statute’s silence on warrants explains the officers’ views that the
statute authorizes them to compel warrantless blood draws. See Forsyth, --- S.W.3d at ---
, 2014 WL 3865777, at *2 (“Officer McDaniel acknowledged that there were magistrates
available to issue a search warrant twenty-four hours a day, but stated that he could not
have secured a warrant because that ‘is not what you do according to law or policy.’”).
Because of the statute’s silence on warrants and the indisputable practice of
warrantless blood draws based solely on the silent statute, and based on the Texas
progeny of McNeely that border on a finding of facial unconstitutionality, I cannot agree
with the majority that McGruder’s facial challenge to section 724.012(b) fails. See Holidy,
2014 WL 1722171, at *1 (“we reverse the conviction herein based on the
unconstitutionality of the statute”); see also State v. Baker, No. 12-12-00092-CR, 2013 WL
McGruder v. State Page 5
5657649, at *4 (Tex. App.—Tyler June 5, 2013, pet. granted) (mem. op., not designated
for publication) (citing State v. Mosely, 348 S.W.3d 435, 442 (Tex. App.—Austin 2011, pet.
ref’d), for the proposition that “Chapter 724 does not authorize what the constitution
forbids and cannot authorize an involuntary draw when the constitution forbids it”).
Accordingly, I respectfully dissent.
REX D. DAVIS
Justice
Dissenting opinion delivered and filed August 14, 2014
Publish
McGruder v. State Page 6
Michael Anthony McGruder v. State
Combined Opinion