COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00315-CR
JOSHUA ED BOWYER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1283996D
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MEMORANDUM OPINION1
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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
1
See Tex. R. App. P. 47.4.
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.
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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-
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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.
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