TX4 follows TX7 and TX13 and holds warrantless blood draw violates McNeely

TX4 follows TX7 and TX13 and holds warrantless blood draw violates McNeely. Weems v. State, 2014 Tex. App. LEXIS 5109 (Tex. App.–San Antonio May 14, 2014):

We agree with both the Amarillo [Sutherland v. State, No. 07-12-00289-CR, 2014 Tex. App. LEXIS 3694, 2014 WL 1370118, at *1-2 (Tex. App.—Amarillo Apr. 7, 2014, no pet. h.)], and the Corpus Christi [State v. Villarreal, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan. 23, 2014, no pet. h.)] Court of Appeals that the implied consent and mandatory blood draw statutes are not exceptions to the Fourth Amendment’s warrant requirement. The State urges that we balance the public and private interests that are implicated in serious DWI cases and find that Texas’s mandatory blood draw statute, section 724.012(b), is a reasonable substitute for the Fourth Amendment’s warrant requirement. McNeely, however, clearly proscribed what it labeled categorical or per se rules for warrantless blood testing, emphasizing over and over again that the reasonableness of a search must be judged based on the totality of the circumstances presented in each case. See McNeely, 133 S. Ct. at 1560-63. Texas’s implied consent and mandatory blood draw statutes clearly create such categories or per se rules that the Supreme Court proscribed in McNeely. See Tex. Transp. Code Ann. §§ 724.011(a), 724.012(b). These statutes do not take into account the totality of the circumstances present in each case, but only consider certain facts. See id. Thus, we hold that the implied consent and mandatory blood draw statutory scheme found in the Transportation Code are not exceptions to the warrant requirement under the Fourth Amendment. To be authorized, the State’s warrantless blood draw of Weems must be based on a well-recognized exception to the Fourth Amendment.