TX4: Reverses self on remand from McNeely: warrant was required

On remand from SCOTUS after McNeely, the Texas Court of Appeals in San Antonio reverses itself and held that a warrant was required for defendant’s blood draw. Aviles v. State, 2014 Tex. App. LEXIS 8508 (Tex. App. – San Antonio August 6, 2014):

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 2014 WL 2532299, at *8. 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. 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.

Also following Weems: McNeil v. State, 2014 Tex. App. LEXIS 8519 (Tex. App. – San Antonio August 6, 2014).