Aviles v. State

Sitting: CATHERINE STONE

Reversed and remanded. Recognized as Invalid V.T.C.A., Transportation Code §§ 724.011(a), 724.012(b)(3)(B) Victor Manuel Valdes, Attorney at Law, San Antonio, TX, for Appellant.
Nathan E. Morey, Paul Elizondo Tower, San Antonio, TX, for Appellee.

Opinion by MARIALYN BARNARD, Justice.

On original submission, this court held the trial court did not err in denying appellant Antonio Aviles's motion to suppress the blood specimen drawn pursuant to section 724.012(b)(3)(B) of the Texas Transportation Code. Aviles v. State, 385 S.W.3d 110, 116 (Tex.App.-San Antonio 2012), vacated, ––– U.S. ––––, 134 S.Ct. 902, 187 L.Ed.2d 767 (2014). Relying upon Beeman v. State, 86 S.W.3d 613, 616 (Tex.Crim.App.2002), we held section 724.012(b)(3)(B) permits a police officer to take a blood specimen from DWI suspect without a warrant if the officer has credible information that the suspect has been previously convicted on at least two prior occasions of DWI. Id.

Aviles sought review in the Texas Court of Criminal Appeals, but that court refused his petition. Thereafter, Aviles filed a petition for writ of certiorari in the United States Supreme Court. The Supreme Court granted the petition, vacated our judgment, and remanded the matter to us for further consideration in light of the Court's opinion in Missouri v. McNeely, –––U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). Aviles v. Texas, –––U.S. ––––, 134 S.Ct. 902, 902, 187 L.Ed.2d 767 (2014). After reviewing the denial of the motion to suppress in light of McNeely, we reverse the trial court's judgment and remand the matter to the trial court for a new trial.

FN2. This court did not hold in Weems, and does not now hold, that sections 724.011(a) and 724.012(b)(3)(B) are unconstitutional. Rather, we merely held that under McNeely, these provisions did not create per se exceptions to the Fourth Amendment's warrant requirement. The statutes may, in fact, be used for other purposes.

Looking at the mandatory blood draw statute and the implied consent statute, we held in Weems these statutes clearly create categorical or per se rules the McNeely court held were not permissible exceptions to the Fourth Amendment's warrant requirement. Weems, 434 S.W.3d at 665–66; see Tex. Transp. Code Ann. §§ 724.011(a), 724.012(b)(3)(B). We concluded that because the statutes “do not take into account the totality of the circumstances present in each case, but only consider certain facts,” an approach rejected in McNeely, the statutes were not substitutes for a warrant or legal exceptions to the Fourth Amendment warrant requirement. Id.

In this case, as in Weems, the State urges us to adopt a balancing test—balancing the public interests (public safety on roads and DWI enforcement) and the defendant's “minimal” privacy interests—in DWI cases wherein the defendant has been convicted of two or more prior DWIs. This is the same approach we specifically rejected in Weems. See 434 S.W.3d at 665–66. The State also suggests that statutes such as the implied consent and mandatory blood draw statutes are permissible exceptions to the warrant requirement because they are searches pursuant to reasonable statutes or regulations. We hold this flies in the face of McNeely's repeated mandate that courts must consider the totality of the circumstances of each case. 133 S.Ct. at 1560–63. Thus, we reject the State's suggested balancing and regulatory approach.

It is undisputed that Officer Rios did not obtain a warrant prior to requiring Aviles to submit to a blood draw. Once Aviles established the absence of a warrant, it was incumbent upon the State to prove the warrantless blood draw was reasonable under the totality of the circumstances. See Amador, 221 S.W.3d at 666, 672–73. The State may satisfy this burden by proving the existence of an exception to the warrant requirement. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App.2007). Here the only exception to the warrant requirement proposed by the State was section 724.012(b)(3)(B), the mandatory blood draw statute. Because this is not a permissible exception to the warrant requirement, and the State has not argued or established a proper exception to the Fourth Amendment's warrant requirement, we hold the blood draw violated Aviles's rights under the Fourth Amendment, i.e., the blood draw was an unconstitutional search and seizure.

Based on the foregoing, we hold the warrantless blood draw violated Aviles's rights under the Fourth Amendment. Therefore, the trial court erred in denying his motion to suppress. We sustain Aviles's complaint and reverse the trial court's judgment and remand this matter for a new trial in accordance with this court's opinion.