Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00764-CR
Dorothy MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR2599
Honorable Sid L. Harle, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: November 12, 2014
REVERSED AND REMANDED
After the trial court denied Dorothy Martinez’s motion to suppress, she entered into a plea
agreement with the State. Martinez pled no contest to one count of operating a motor vehicle while
intoxicated with a child passenger, and the trial court imposed sentence pursuant to the plea
agreement. On appeal, Martinez argues the trial court erred in denying her motion to suppress
evidence obtained from a warrantless blood draw. We agree with Martinez and therefore reverse
the judgment and remand the case for a new trial.
04-13-00764-CR
BACKGROUND
San Antonio Police Officer Carlos Ortiz testified at the hearing on the motion to suppress
that he was on patrol the evening of December 1, 2012. At around 7:20 p.m., he saw Martinez
commit several traffic violations and he initiated a traffic stop. Officer Ortiz immediately saw that
there were three unbelted young children in the back seat and an open beer container in the center
console of the car. Officer Ortiz testified Martinez was slow to respond, had a slight smell of
intoxicants on her breath, and her eyes were glassy. Officer Ortiz called his partner Officer
Humberto Rios for assistance in conducting a DWI examination.
Officer Rios asked Martinez to get out of the car. He testified that Martinez told him she
had consumed five beers and admitted the open can of beer in the car belonged to her. She told
him she had started drinking several hours earlier and stopped drinking when Officer Ortiz pulled
her over. He testified he performed the standard field sobriety tests on Martinez and concluded
that she was impaired. At that time he decided to arrest her for driving while intoxicated with
passengers under the age of fifteen. 1
When Officer Rios and Martinez arrived at the magistrate’s office, Officer Rios asked if
she would voluntarily provide a specimen of her breath or blood and she refused. Officer Rios
told Martinez he was going to take a blood specimen regardless of her consent, and testified he
was authorized to do so by section 724.012 of the Transportation Code. On cross-examination,
Officer Rios testified that when a person arrested for driving while intoxicated refuses to provide
a breath or blood specimen, department policy is for the officer to prepare a warrant affidavit, take
it to an assistant district attorney, and then present it to the magistrate, who issues a warrant.
Officer Rios testified this is something he does on a regular basis and the procedures are set up so
1
The children were released to another adult who had been in the car with Martinez.
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that a warrant may be obtained fairly quickly. He testified he has obtained more than one hundred
such warrants and, depending on how busy it is, it generally takes between thirty minutes and one
hour. Officer Rios testified that in none of those cases has the arrestee “become unintoxicated”
during the time it took to obtain a warrant. Officer Rios testified that he could have obtained a
warrant in this case, but did not do so because, due to the offense Martinez was being charged
with, “it’s automatically a blood draw.” Officer Rios testified there were no circumstances in this
case that caused him to fear that obtaining a warrant would take too long and might result in the
specimen not accurately showing the alcohol in Martinez’s system.
At the conclusion of the hearing, the State argued that the following facts showed exigent
circumstances justifying the warrantless blood draw: that there were three young children in the
car; that one hour and twenty-five minutes elapsed between the stop and the time Martinez’s blood
was drawn; and that it would have taken thirty minutes to an hour more for Officer Rios to obtain
a warrant. The State argued alternatively that the warrantless blood draw is authorized by section
724.012(b)(2) of the Transportation Code and that Officer Rios acted in good faith in reliance on
the statute. The trial court denied the motion to suppress.
DISCUSSION
Section 724.012(b)(2) of the Transportation Code provides that a peace officer “shall
require the taking of a specimen of the person’s breath or blood” if the officer arrests the person
for an offense under section 49.045 of the Penal Code and the person refuses to voluntarily submit
to the taking of a specimen. TEX. TRANSP. CODE ANN. § 724.012(b)(2) (West 2011). Section
49.045 of the Penal Code provides it is a state jail felony offense to operate a vehicle in a public
place while intoxicated with a passenger who is younger than fifteen. TEX. PENAL CODE ANN.
§ 49.045 (West 2011).
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Martinez contends that obtaining a specimen of her blood without a warrant violated her
rights under the Fourth Amendment to the United States Constitution. She argues the court erred
in denying her motion to suppress because she did not consent to the draw, there were not exigent
circumstances or any other valid exception to the warrant requirement present, and section
724.012(b)(2) of the Transportation Code is not a constitutional exception to the Fourth
Amendment warrant requirement. The State’s brief does not discuss any of the facts of this case
and does not argue that any well-recognized exception to the warrant requirement applies in this
case. The State’s brief is identical to the brief it filed in this court on remand in Aviles v. State,
No. 04-11-00877-CR, 2014 WL 3843756 (Tex. App.—San Antonio Aug. 6, 2014, pet. filed), and
argues that a warrantless, nonconsensual blood draw taken solely on the authority of section
724.012(b)(2) is constitutional, even in the absence of exigent circumstances.
In Weems v. State, 434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted), we held
Texas’s implied consent and mandatory blood draw statutes fail to consider the totality of the
circumstances present in each case and create categorical or per se exceptions to the Fourth
Amendment warrant requirement that the United States Supreme Court rejected in Missouri v.
McNeely, 133 S.Ct. 1552 (2013). Weems, 434 S.W.3d at 665-66; see TEX. TRANSP. CODE ANN.
§§ 724.011(a), 724.012(b)(2), 724.013 (2011). We concluded that section 724.012(b) is not a valid
exception to the Fourth Amendment’s warrant requirement, and that a warrantless blood draw must
be based on a well-recognized exception to the Fourth Amendment. Weems, 434 S.W.3d at 665.
For the reasons we expressed in Weems and Aviles, we hold section 724.012(b)(2) is not a valid
exception to the Fourth Amendment warrant requirement, and results of a nonconsensual blood
draw obtained without a warrant may not be admitted based solely on the statute or on the officer’s
“good faith” reliance on the statute. See Aviles, 2014 WL 3843756, at *2-3; Weems, 434 S.W.3d
at 665-67. We hold the State did not establish exigent circumstances or any other valid exception
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to the warrant requirement, and conclude the blood draw violated Martinez’s rights under the
Fourth Amendment. The trial court therefore erred in denying her motion to suppress.
Because the erroneous denial of the motion to suppress “contributed in some measure to
the State’s leverage in the plea bargaining process,” we cannot say beyond a reasonable doubt that
the trial court’s error in denying the motion to suppress did not contribute to Martinez’s decision
to plead no contest and to her conviction. See McKenna v. State, 780 S.W.2d 797, 800 (Tex. Crim.
App. 1989); TEX. R. APP. P. 44.2(a).
We therefore reverse the trial court’s judgment and remand the case to the trial court for a
new trial.
Luz Elena D. Chapa, Justice
Do not publish
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