PD-0097-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/2/2015 10:52:18 AM
Accepted 3/2/2015 2:19:11 PM
ABEL ACOSTA
No. PD-0097-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
NICHOLAS STEPHEN LLOYD,
Appellant
v.
March 2, 2015
THE STATE OF TEXAS,
Appellee
FROM THE COURT OF APPEALS FOR THE
FIFTH JUDICIAL DISTRICT AT DALLAS
Cause number 05-13-01004-CR
_____________________________________________________________
STATE’S PETITION FOR DISCRETIONARY REVIEW
_____________________________________________________________
APPEAL FROM THE 401ST JUDIDICAL DISTRICT COURT OF COLLIN
COUNTY, THE HONORABLE MARK RUSCH, JUDGE PRESIDING
GREG WILLIS JOHN R. ROLATER, JR.
Criminal District Attorney Asst. Criminal District Attorney
Collin County, Texas Chief of the Appellate Division
ZEKE FORTENBERRY ANDREA L. WESTERFELD
GEETA SINGLETARY Asst. Criminal District Attorney
CALLI BAILEY 2100 Bloomdale Rd., Ste. 200
Asst. Criminal District Attorneys McKinney, Texas 75071
State Bar No. 24042143
(972) 548-4323
FAX (214) 491-4860
awesterfeld@co.collin.tx.us
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................ i
IDENTITY OF PARTIES AND COUNSEL ....................................................... iii
INDEX OF AUTHORITIES .................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT........................................... vi
STATEMENT OF THE CASE ............................................................................ vii
STATEMENT OF PROCEDURAL HISTORY .................................................. vii
STATEMENT OF FACTS .................................................................................. vii
QUESTIONS PRESENTED FOR REVIEW .........................................................1
REASONS FOR REVIEW .....................................................................................1
ARGUMENT ..........................................................................................................2
1. Is a warrantless, mandatory blood draw conducted pursuant to
Section 724.012(b)(3)(B) with the implied consent of the subject
reasonable under the Fourth Amendment? .........................................................2
Consent is a long-recognized exception to the Fourth Amendment
requirement to obtain a warrant before conducting a search. Section
724.012(b) of the Texas Transportation Code implies a subject’s
consent under certain circumstances. This Court should reconsider its
recent opinion in State v. Villarreal and conclude that this implied
consent is sufficient to dispense with the warrant requirement.
2. Did the court of appeals err in failing to address one of the State’s
arguments that would justify the warrantless blood draw? .................................4
3. Did the court of appeals err in finding there were not exigent
circumstances sufficient to justify a warrantless blood draw? ...........................4
An appellate court is required to address every issue necessary to the
resolution of the appeal. The Fifth Court of Appeals failed to address
the State’s argument that exigent circumstances justified the
i
warrantless blood draw in the instant case. Further, even if its opinion
can be considered to have addressed the issue, it erred in concluding
that exigent circumstances did not exist. The length of time in
investigating a major accident, the late hour of the investigation, and
Appellant’s attempts to impede the investigation all amounted to
exigent circumstances that justified a warrantless blood draw.
PRAYER FOR RELIEF..........................................................................................8
CERTIFICATE OF SERVICE ...............................................................................9
CERTIFICATE OF COMPLIANCE ......................................................................9
APPENDIX
ii
IDENTITY OF PARTIES AND COUNSEL
Trial Court HONORABLE MARK RUSCH
401st Judicial District Court
2100 Bloomdale Road
McKinney, Texas 75071
Appellant/Respondent NICHOLAS STEPHEN LLOYD
STEPHANIE HUDSON
Counsel for Appellant
1333 W. McDermott Dr.
Suite 200
Allen, Texas 75013
smdhudson@gmail.com
Appellee/Petitioner COLLIN COUNTY CRIMINAL
DISTRICT ATTORNEY’S OFFICE
GREG WILLIS
Criminal District Attorney
JOHN R. ROLATER, JR.
Assistant Criminal District Attorney
Chief of the Appellate Division
ZEKE FORTENBERRY
GEETA SINGLETARY
CALI BAILEY
Assistant Criminal District Attorneys
ANDREA L. WESTERFELD
Assistant Criminal District Attorney
Attorney of Record
2100 Bloomdale Road, Suite 200
McKinney, Texas 75071
awesterfeld@co.collin.tx.us
iii
INDEX OF AUTHORITIES
Statutes, Codes, and Rules
TEX. R. APP. P. 47.1 ...................................................................................................5
TEX. R. APP. P. 66.3(c) ..............................................................................................1
TEX. R. APP. P. 66.3(f) ...............................................................................................1
TEX. R. APP. P. 68.2(c) ............................................................................................. vi
TEX. TRANSP. CODE § 724.012........................................................... vi, vii, 2, 3, 4, 5
TEX. TRANSP. CODE § 724.012(b)(3)(B) ................................................................1, 2
Cases
Cheek v. United States,
498 U.S. 192 (1991) ................................................................................................3
Douds v. State, No. PD-0857-14
(granted Sep. 17, 2014) ........................................................................................... 3
Flores v. State, No. PD-0071-15
(filed Feb. 17, 2015) ................................................................................................ 3
Holidy v. State, No. PD-0622-14
(granted Aug. 20, 2014; argued and submitted Jan. 14, 2015) ............................... 3
Keehn v. State,
233 S.W.3d 348 (Tex. Crim. App. 2007)................................................................5
Kentucky v. King,
131 S.Ct. 1849 (2011) .............................................................................................5
iv
Lloyd v. State,
No. 05-13-01004-CR, 2014 WL 7249747
(Tex. App.—Dallas Dec. 22, 2014)
(not designated for publication) ...................................................... vi, vii, 2, 4, 5, 6
McNeil v. State, No. PD-1171-14
(filed Sep. 2, 2014)..................................................................................................3
Missouri v. McNeely,
133 S.Ct. 1552 (2013) .................................................................................... 5, 6, 7
Reeder v. State, No. PD-0601-14
(granted Aug. 20, 2014; argued and submitted Jan. 15, 2015) ............................... 3
Reeves v. State, No. PD-1048-14
(filed Aug. 20, 2014) ............................................................................................... 3
Schneckloth v. Bustamonte,
412 U.S. 218 (1973) ................................................................................................2
Schmerber v. California,
384 U.S. 757 (1966) ............................................................................................5, 6
State v. Villarreal,
No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014)................2
United States v. Biswell,
406 U.S. 311 (1972) ................................................................................................2
Zap v. United States,
328 U.S. 624 (1946) ................................................................................................2
Other Authorities
Texas Driver’s Handbook,
p.60 (rev. July 2012) ............................................................................................... 3
v
No. PD-0097-15
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
NICHOLAS STEPHEN LLOYD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
___________________________________________________
STATE’S PETITION FOR DISCRETIONARY REVIEW
___________________________________________________
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now, the State of Texas, by and through its Criminal District
Attorney, Greg Willis, and respectfully urges this Court to grant discretionary
review of the above-named cause.
STATEMENT REGARDING ORAL ARGUMENT
The State requests oral argument. The constitutionality of the mandatory
blood draw statute in light of Missouri v. McNeely is a complex issue, and oral
argument will help develop the issue more fully before this Court.
vi
STATEMENT OF THE CASE
Nicholas Lloyd was charged by indictment with Driving While Intoxicated,
third or more, a third-degree felony. CR 10. Following the denial of his motion to
suppress, he pleaded not guilty before a jury. 2 RR 226. The jury convicted him
and sentenced him to 8 years in prison and a $2,000 fine. CR 72, 78.
STATEMENT OF PROCEDURAL HISTORY
The Fifth District Court of Appeals in Dallas held that the trial court should
have granted Lloyd’s motion to suppress and reversed the judgment. Lloyd v.
State, No. 05-13-01004-CR, 2014 WL 7249747, at *1 (Tex. App.—Dallas Dec. 22,
2014) (not designated for publication). The State timely filed a motion for
extension of time to file a petition for discretionary review on January 23, 2015.
Tex. R. App. P. 68.2(c). The State’s petition for discretionary review is timely,
being filed within the time granted by this Court.
STATEMENT OF FACTS
The court of appeals summarized the facts as follows:
Around 1:00 a.m. on April 27, 2012, Officer Jon Conduti of the Frisco
Police Department responded to a call about a “major vehicle
accident” at a residence. When he arrived, he saw appellant’s red
Mercedes sitting in the yard, where it had crashed into the corner of
the house. Conduti spoke with appellant, who had “a strong odor of
alcoholic beverage on his breath” and bloodshot eyes. Appellant said
something about making a mistake but then declined to talk further.
Appellant also refused to perform any standardized field sobriety tests
without an attorney present. Conduti arrested appellant for driving
vii
while intoxicated and took him to the Frisco jail for a DWI interview.
At the jail, appellant refused to give a blood sample. Conduti began
completing paperwork for a search warrant for a blood draw;
however, when he discovered appellant had been convicted two
previous times for driving while intoxicated, he stopped processing
the search warrant and took appellant to the hospital for a mandatory
blood draw under the authority of section 724.012 of the Texas
Transportation Code. Appellant’s blood was drawn around 3:00 a.m.,
and he was charged with felony DWI third offense.
Before trial, appellant filed a motion to suppress, alleging the
warrantless, nonconsensual blood draw was a violation of his Fourth
Amendment rights. The State conceded the officer had no warrant but
argued (1) implied consent and (2) appellant had a reduced
expectation of privacy because driving is a highly regulated activity
and, under the totality of the circumstances, the search was
reasonable. After the hearing, the trial court denied appellant’s motion
to suppress and admitted the evidence at trial.
Lloyd, 2014 WL 7249747, at *1.
viii
QUESTIONS PRESENTED FOR REVIEW
1. Is a warrantless, mandatory blood draw conducted pursuant to Section
724.012(b)(3)(B)—the repeat offender provision—reasonable under the Fourth
Amendment?
2. Did the court of appeals err in failing to address one of the State’s arguments
that would justify the warrantless blood draw?
3. Did the court of appeals err in finding there were not exigent circumstances
sufficient to justify a warrantless blood draw?
REASONS FOR REVIEW
1. The Fifth Court of Appeals has decided an important question of federal law in
a way that conflicts with the applicable decisions of the Supreme Court of the
United States. See Tex. R. App. P. 66.3(c).
2. The Fifth Court of Appeals has decided an important question of state law in a
way that conflicts with the applicable decisions of this Court. See Tex. R. App.
P. 66.3(c).
3. The Fifth Court of Appeals has so far departed from the accepted and usual
course of judicial proceedings as to call for an exercise of the Court of Criminal
Appeals’ power of supervision. See Tex. R. App. P. 66.3(f).
1
ARGUMENT
1. Is a warrantless, mandatory blood draw conducted pursuant to Section
724.012(b)(3)(B)—the repeat offender provision—reasonable under the
Fourth Amendment?
The warrantless blood draw in this case pursuant to Section
724.012(b)(3)(B) of the Texas Transportation Code was reasonable under Fourth
Amendment jurisprudence and should not have been suppressed. The Fifth Court
of Appeals relied on this Court’s ruling in State v. Villarreal, No. PD-0306-14,
2014 WL 6734178, at *1 (Tex. Crim. App. Nov. 26, 2014), in holding that a
mandatory blood draw violated the Fourth Amendment because the implied
consent statute does not provide a valid waiver of Fourth Amendment rights.
Lloyd, 2014 WL 7249747, at *2-3. But this Court should reconsider its holding in
Villarreal and hold that a Section 724.012 mandatory blood draw is constitutional.
Although this Court noted in Villarreal that the consent exception had not
previously been applied in these precise circumstances, consent itself has long
been a “well recognized exception” to the warrant requirement. See, e.g.,
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). And the Supreme Court has
recognized that a person may consent via participation in a highly regulated
activity without the ability to revoke that consent. United States v. Biswell, 406
U.S. 311, 316 (1972); Zap v. United States, 328 U.S. 624, 626-27 (1946). Driving
on public roads is such a highly regulated activity, and the courts have long
2
recognized the government’s ability to impose certain restrictions in return for the
privilege of driving. And while Villarreal relied heavily on the fact that it was not
shown that the defendant was personally aware of the implied consent requirement,
a person is presumed to have knowledge of the law. Cheek v. United States, 498
U.S. 192, 199 (1991) (holding every person is presumed to know the law).
Additionally, the Texas Driver’s Handbook expressly informs both present and
prospective drivers of the implied consent law. See Texas Driver’s Handbook, p.60
(rev. July 2012). Because the consent implied under Section 724.012 provides a
valid exception to the warrant requirement, Lloyd’s motion to suppress was
properly denied.
Review should be granted in this case because the same issue is pending
before this Court in numerous other cases. The State’s motion for rehearing in
Villarreal remains pending. Additionally, this Court has already granted review on
similar issues in Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued
and submitted Jan. 14, 2015); Reeder v. State, No. PD-0601-14 (granted Aug. 20,
2014; argued and submitted Jan. 15, 2015); and Douds v. State, No. PD-0857-14
(granted Sep. 17, 2014). Petitions for discretionary review are pending before this
Court in other cases, including Flores v. State, No. PD-0071-15 (filed Feb. 17,
2015); McNeil v. State, No. PD-1171-14 (filed Sep. 2, 2014); and Reeves v. State,
3
No. PD-1048-14 (filed Aug. 20, 2014). Lloyd’s conviction here should not be
reversed while the law at issue remains under consideration by this Court.
2. Did the court of appeals err in failing to address one of the State’s
arguments that would justify the warrantless blood draw?
3. Did the court of appeals err in finding there were not exigent
circumstances sufficient to justify a warrantless blood draw?
The court of appeals also erred in rejecting the State’s argument that exigent
circumstances justified the blood draw even without regard to Section 724.012. In
its opinion, the court of appeals discussed the arguments raised in Section III of the
State’s brief, which argued that “sufficient aggravating factors” such as Lloyd’s
prior convictions and refusal to consent to field sobriety tests or a breath test
justified the blood draw. Lloyd, 2014 WL 7249747, at *3-4. But that section was
an extension of the State’s argument that the Section 724.012 mandatory blood
draw was constitutional. The State also, however, raised an independent exigent
circumstances argument in Section IV of its brief. State’s Brief at 23-28. The
exigent circumstances raised included the length of time the officer was required to
investigate a “major vehicle accident” before transporting Lloyd to the hospital, the
difficulty in obtaining a warrant in the early morning hours, and the additional time
involved in obtaining a warrant. The court of appeals never addressed the State’s
arguments on this matter and accordingly never determined whether the facts
raised in this case amounted to exigent circumstances. An appellate court is
4
required to address “every issue raised and necessary to final disposition of the
appeal.” Tex. R. App. P. 47.1; Keehn v. State, 233 S.W.3d 348, 349 (Tex. Crim.
App. 2007). Because the State raised an independent argument that would support
the trial court’s decision regardless of the applicability of Section 724.012, the
appellate court was required to address that ground in its opinion. Because it did
not, this case should be reversed and remanded to the Fifth Court of Appeals for
consideration of that issue.
Furthermore, to the extent that the court of appeals addressed the exigent
circumstances argument, it erred in finding that no exigent circumstances existed.
Although not addressing the State’s arguments on the issue, the court of appeals
broadly held that “no exigent circumstances existed which would justify a
warrantless search.” Lloyd, 2014 WL 7249747, at * 3. A warrantless search may be
conducted where “the exigencies of the situation make the needs of law
enforcement so compelling that a warrantless search is objectively reasonable
under the Fourth Amendment.” Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013),
quoting Kentucky v. King, 131 S.Ct. 1849, 1856 (2011). One such exigency is to
prevent the imminent destruction of evidence. McNeely, 133 S.Ct. at 1559.
The natural dissipation of alcohol in the bloodstream is a relevant, though
not dispositive, factor in determining exigent circumstances. In Schmerber v.
California, the Supreme Court held that the dissipation of alcohol in a
5
circumstance where the officer had already been significantly delayed in
investigating the scene of an accident and transporting the defendant to the hospital
was a reasonable exigent circumstance. 384 U.S. 757, 770 (1966). In McNeely, the
Supreme Court concluded that the natural dissipation of alcohol in the bloodstream
was not an exigent circumstance per se. 133 S.Ct. at 1562, 1568. But the McNeely
court nonetheless recognized that other factors, such as the inability to secure a
magistrate to obtain a warrant following a late-night arrest and “time-consuming
formalities” in obtaining a warrant, may still provide exigencies. Id. at 1562-63.
In the instant case, there were exigent circumstances that justified a
warrantless blood draw. As in Schmerber and unlike McNeely, this case involved a
major accident—Appellant crashed his vehicle into the corner of a house—that
required significant investigation by the officer. Lloyd, 2014 WL 7249747, at *1.
Indeed, the trial court expressly found that the case was not a “typical DWI” and
spoke at length about its distinguishing features. 2 RR 222-27. This case involved a
greater passage of time at the scene than in McNeely. Even acting without a
warrant, Lloyd’s blood was not drawn until more than two hours after the officer
was dispatched. Id. Additionally, the accident occurred in the early morning hours
when a judge would less likely be available. See McNeely, 133 S.Ct. at 1562.
Furthermore, Appellant initially fled the scene following the accident, refused to
participate in field sobriety tests, and refused to provide a blood sample. 2 RR 73,
6
77-78; 3 RR 33, 44, 48. The trial court expressly found that these were “extra
circumstances that [were] thwarting the police investigation” and added to the
exigency of the situation. 2 RR 225. These are precisely the “practical problems of
obtaining a warrant within a timeframe that still preserves the opportunity to obtain
reliable evidence” discussed in McNeely. McNeely, 133 S.Ct. at 1568. The court of
appeals erred in finding there were not exigent circumstances sufficient to support
a warrantless blood draw.
7
PRAYER FOR RELIEF
The State prays that the Court grant the State’s petition and set the case for
submission, reverse the judgment of the Fifth Court of Appeals, and affirm the
judgment of the trial court, or alternatively, remand the case for consideration of
the State’s exigent circumstances argument.
Respectfully submitted,
GREG WILLIS
Criminal District Attorney
Collin County, Texas
JOHN R. ROLATER, JR.
Assistant Criminal District Attorney
Chief of the Appellate Division
/s/ Andrea L. Westerfeld
ANDREA L. WESTERFELD
Assistant Criminal District Attorney
2100 Bloomdale Rd., Ste. 200
McKinney, Texas 75071
State Bar No. 24042143
(972) 548-4323
FAX (214) 491-4860
awesterfeld@co.collin.tx.us
8
CERTIFICATE OF SERVICE
A true copy of the State’s Petition for Discretionary Review has been
electronically served on counsel for Appellant, Stephanie Hudson, and a courtesy
copy emailed to smhudson@gmail.com, and a true copy served on the Honorable
Lisa McMinn, State Prosecuting Attorney, P.O. Box 13046, Capitol Station,
Austin, Texas 78711-3046, Lisa.McMinn@spa.state.tx.us, on this, the 20th day of
February, 2015.
/s/ Andrea L. Westerfeld
Andrea L. Westerfeld
CERTIFICATE OF COMPLIANCE
This brief complies with the word limitations in Texas Rule of Appellate
Procedure 9.4(i)(2). In reliance on the word count of the computer program used to
prepare this brief, the undersigned attorney certifies that this brief contains 1,814
words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).
/s/ Andrea L. Westerfeld
Andrea L. Westerfeld
9
APPENDIX
Opinion of the Fifth Court of Appeals
REVERSE and REMAND; and Opinion Filed December 22, 2014.
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-13-01004-CR
NICOLAS STEPHEN LLOYD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-81624-2012
OPINION
Before Justices Francis, Lang, and Stoddart 1
Opinion by Justice Francis
Nicolas Stephen Lloyd appeals the trial court’s order denying his motion to suppress the
results of a warrantless, nonconsensual blood draw. At trial, appellant stipulated to having been
convicted twice previously of driving while intoxicated, and the evidence of his blood alcohol
concentration was admitted. A jury convicted him of driving while intoxicated third offense,
found he used or exhibited a deadly weapon (a motor vehicle), and assessed punishment at eight
years in prison and a $2000 fine. In a single issue, appellant claims the trial court erred by
denying his motion to suppress because the warrantless, nonconsensual blood draw constituted
an unconstitutional search and seizure and violated his Fourth Amendment rights. We agree
1
The Honorable Justice Craig Stoddart succeeded the Honorable Jim Moseley, a member of the original panel. Justice Stoddart has
reviewed the briefs and record before the Court.
with appellant. We reverse the trial court’s judgment and remand this case for further
proceedings.
Around 1:00 a.m. on April 27, 2012, Officer Jon Conduti of the Frisco Police Department
responded to a call about a “major vehicle accident” at a residence. When he arrived, he saw
appellant’s red Mercedes sitting in the yard, where it had crashed into the corner of the house.
Conduti spoke with appellant, who had “a strong odor of alcoholic beverage on his breath” and
bloodshot eyes. Appellant said something about making a mistake but then declined to talk
further. Appellant also refused to perform any standardized field sobriety tests without an
attorney present. Conduti arrested appellant for driving while intoxicated and took him to the
Frisco jail for a DWI interview. At the jail, appellant refused to give a blood sample. Conduti
began completing paperwork for a search warrant for a blood draw; however, when he
discovered appellant had been convicted two previous times for driving while intoxicated, he
stopped processing the search warrant and took appellant to the hospital for a mandatory blood
draw under the authority of section 724.012 of the Texas Transportation Code. Appellant’s
blood was drawn around 3:00 a.m., and he was charged with felony DWI third offense.
Before trial, appellant filed a motion to suppress, alleging the warrantless, nonconsensual
blood draw was a violation of his Fourth Amendment rights. The State conceded the officer had
no warrant but argued (1) implied consent and (2) appellant had a reduced expectation of privacy
because driving is a highly regulated activity and, under the totality of the circumstances, the
search was reasonable. After the hearing, the trial court denied appellant’s motion to suppress
and admitted the evidence at trial. While this appeal was pending, the court of criminal appeals
issued its opinion in State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App.
Nov. 26, 2014), addressing involuntary blood draws taken under the authority of the Texas
Transportation Code.
–2–
In a single issue, appellant claims the trial court erred by denying his motion to suppress.
He claims that, because he did not consent to the blood draw and the State did not have a warrant
to draw his blood, the search was reasonable only if the State could show exigent circumstances.
Because the State did not do so, appellant claims the search violated his Fourth Amendment
rights, the motion should have been granted, and the blood alcohol concentration evidence
should have been suppressed.
We review a trial court’s ruling on a motion to suppress evidence under a bifurcated
standard. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). We grant almost total
deference to the trial court’s determinations of historical facts and mixed questions of law and
fact that rely on credibility when supported by the record. Id. But when mixed questions of law
and fact do not depend on the evaluation of credibility and demeanor, we review the trial court’s
ruling de novo. Id.
The Texas Court of Criminal Appeals recently addressed whether a warrantless,
nonconsensual testing of a DWI suspect’s blood violates the suspect’s Fourth Amendment rights.
Villarreal, 2014 WL 6734178. In that case, a police officer stopped Villarreal for a traffic
violation. Id. at *1. When Villarreal displayed signs of intoxication, the officer asked him to
perform standardized field sobriety tests, but Villarreal refused. Id. The officer then arrested
Villarreal on suspicion of DWI and gave him written statutory warnings requesting a blood
specimen. Again, Villarreal refused. Id. After a criminal history check revealed Villarreal had
been previously convicted of DWI several times, the officer took Villarreal to a hospital for a
mandatory blood draw under section 724.012 of the transportation code. Id. at *2.
After he was indicted for felony DWI, Villarreal filed a motion to suppress stating there
was no deemed consent to the taking of a blood specimen. Id. The trial court conducted an
evidentiary hearing; the officer, the sole witness at the hearing, testified he “could have”
–3–
obtained a warrant, but believed he “did not statutorily have to” in light of the mandatory-blood-
draw provision in the code. Id. He said his decision to require the blood draw was based solely
on the statutory authorization and not on any emergency at the scene or the existence of exigent
circumstances. Id. The trial court granted Villarreal’s motion to suppress, and the court of
appeals affirmed. Id. at *1. The State filed a petition for discretionary review, alleging the trial
court and the court of appeals erred by concluding the warrantless search of Villarreal’s blood
violated the Fourth Amendment and that the mandatory blood draw statute does not dispose of
the warrant requirement. Id.
On petition for discretionary review, the court of criminal appeals noted that, as a general
rule, to comply with the Fourth Amendment, a search of a person in a criminal investigation
(1) requires a search warrant or a recognized exception to the warrant requirement and (2) must
be reasonable under the totality of the circumstances. Id. at *8. The Fourth Amendment is
implicated in DWI cases because the collection of a suspect’s blood invades a substantial privacy
interest, and the exigent circumstances exception to the search-warrant requirement is not
established merely by the natural dissipation of alcohol. Id. The court of criminal appeals then
concluded that, because Villarreal did not consent and the warrantless blood draw under section
724.012 did not fall under any of the proffered exceptions to the warrant requirement, the search
violated his Fourth Amendment rights. Id.
In reaching this conclusion, the court rejected the State’s argument that, with respect to a
roadside DWI stop, a driver:
impliedly agrees ahead of time that, in exchange for the privilege of driving on
our roads, he is willing to waive the right to a warrant in these limited
circumstances. The deal is sealed when he gets behind the wheel, and it can’t
later be revoked when he gets caught driving in an impaired condition.
Id. at *11. The court stated that to constitute a valid waiver of Fourth Amendment rights through
consent, a suspect’s consent to search must be freely and voluntarily given; an “additional
–4–
necessary element of valid consent is the ability to limit or revoke it.” Id. Implied consent that
has been withdrawn or revoked is not a substitute for the voluntary consent required by the
Fourth Amendment. Id. The record clearly showed Villarreal refused consent. The court
concluded an “explicit refusal to submit to blood testing overrides the existence of any implied
consent.” Id.
The court of criminal appeals then considered whether any “other justification for the
search applie[d].” Addressing known exceptions to the warrant requirement, including the
automobile exception and search incident to arrest, the court concluded the blood draw did not
fall under any recognized exception to the warrant requirement. Id. at *12−16. The court also
rejected the State’s argument that the search could be upheld as reasonable under a general
Fourth Amendment balancing test. Id. at *16−19. In sum, the court concluded “the provisions
in the Transportation Code do not, taken by themselves, form a constitutionally valid alternative
to the Fourth Amendment warrant requirement.” Id. at *20. The court of criminal appeals
affirmed the trial court’s granting of Villarreal’s motion to suppress the blood alcohol
concentration evidence. Id. at *21.
In our case, appellant refused to perform standardized field sobriety tests and refused to
consent to a blood sample. Although Conduti began completing a search warrant affidavit for a
blood draw, he abandoned the search warrant upon discovering appellant had been convicted two
previous times for DWI. The officer estimated it usually took about one and one-half hours to
complete a warrant and get it signed. During that time, they “would have lost some of the
evidence of the alcohol in the Defendant’s body.” Conduti said the only reason he stopped
processing the warrant was because he discovered appellant’s prior convictions and, under the
transportation code, he did not need a warrant. The reasons he thought he could bypass the
–5–
warrant process were because (1) the transportation code allowed him to and (2) “the alcohol
was dissipating.”
On appeal, the State argues appellant gave “implied consent” which was irrevocable “as a
person twice previously convicted of driving while intoxicated” and sufficient aggravating
factors were present to satisfy the exigent circumstances requirement. With respect to the first
argument, the court of criminal appeals already considered and rejected this precise argument.
See Villarreal, 2014 WL 6734178, at *11 (“To the extent the State suggests that the implied-
consent and mandatory-blood-draw provisions in the Transportation Code categorically
extinguish a DWI suspect’s right to withdraw consent when some aggravating circumstance is
present, 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.”). We
reject this portion of the State’s argument.
Next, the State argues “sufficient aggravating factors,” specifically appellant’s two prior
convictions, his refusal to engage in sobriety tests, and his refusal to consent to a voluntary blood
draw, satisfied the exigent circumstances requirement. These factors are not exigent
circumstances that provide an exception to the warrant requirement; exigent circumstances are
those “exigencies of the situation” that “make the needs of law enforcement so compelling that
[a] warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v.
Arizona, 437 U.S. 385, 394 (1978). These include, for example, the threat of imminent removal
or destruction of evidence, threat to human life, rendering emergency assistance to injured
occupants, or hot pursuit of a fleeing suspect. See Kentucky v. King, 131 S. Ct. 1849, 1856
(2011). However, as a general rule, the “context of blood testing is different in critical respects
from other destruction-of-evidence cases in which police are truly confronted with a ‘now or
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never’ situation.” Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013). Such cases should be
considered on a case-by-case assessment of exigency, not a categorical rule. Id. In fact, in
“those drunk-driving investigations where police officers can reasonably obtain a warrant before
a blood sample can be drawn without significantly undermining the efficacy of the search, the
Fourth Amendment mandates that they do so.” Id. The factors the State relies on are simply
those factors that invoke the mandatory blood draw statute. See TEX. TRANSP. CODE
ANN. § 724.012 (West 2011). Because no exigent circumstances existed which would justify a
warrantless search, we reject this argument as well.
Appellant did not consent to the draw and the taking of his blood did not fall under
another recognized exception to the warrant requirement. We therefore conclude the
warrantless, nonconsensual blood draw violated appellant’s Fourth Amendment rights. See
McNeely, 133 S. Ct at 1561−63; Villarreal, 2014 WL 6734178, at *20. The trial court abused its
discretion by denying appellant’s motion. We reverse the trial court’s judgment and remand this
case for further proceedings consistent with this opinion.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
Publish
TEX. R. APP. P. 47
131004F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NICOLAS STEPHEN LLOYD, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-13-01004-CR V. Trial Court Cause No. 401-81624-2012.
Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee Justices Lang and Stoddart participating.
Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.
Judgment entered this 22nd day of December, 2014.
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