TX: BAC testing not categorically subject to warrant exception; SW required here

After a few dozen appellate decisions on McNeely and Texas’s implied consent law, the Texas Court of Criminal Appeals takes one on the state’s petition for discretionary review and holds “the warrantless, nonconsensual testing of a DWI suspect’s blood does not categorically fall within any recognized exception to the Fourth Amendment’s warrant requirement, nor can it be justified under a general Fourth Amendment balancing test.” State v. Villarreal, 2014 Tex. Crim. App. LEXIS 1898 (November 26, 2014):

In this case, we are asked to decide whether the warrantless, nonconsensual drawing of blood from an individual suspected of driving while intoxicated, conducted pursuant to the implied-consent and mandatory-blood-draw provisions in the Texas Transportation Code, violates the Fourth Amendment. See U.S. Const. amend. IV; Tex. Transp. Code §§ 724.011(a), 724.012(b), 724.013. This question comes to us in the form of an interlocutory appeal filed by the State challenging the trial court’s order granting a motion to suppress in favor of David Villarreal, appellee, who was arrested for felony DWI and subjected to warrantless blood-specimen collection over his objection pursuant to the provisions in the Code. In its petition for discretionary review, the State challenges the trial court’s and the court of appeals’s conclusion that the warrantless search of Villarreal’s blood under statutory authority providing for implied consent and mandatory blood-specimen collection violated the Fourth Amendment. See State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150 (Tex. App.—Corpus Christi Jan. 23, 2014). It further challenges two specific aspects of the court of appeals’s analysis by contending that the court erred in concluding that (1) the State forfeited its implied-consent argument on appeal by stipulating to the fact that Villarreal did not consent to the blood draw, and (2) the mandatory-blood-draw statute, by its terms, does not dispense with the warrant requirement.

In addressing the merits of the State’s challenge to the trial court’s ruling, we conclude that the warrantless, nonconsensual testing of a DWI suspect’s blood does not categorically fall within any recognized exception to the Fourth Amendment’s warrant requirement, nor can it be justified under a general Fourth Amendment balancing test. Accordingly, we hold that the search in this case violated the Fourth Amendment. With respect to the State’s specific complaints regarding the court of appeals’s analysis, we conclude that, although the court of appeals erred by determining that the State forfeited its implied-consent argument on appeal through stipulation, remand is unnecessary in light of both the court of appeals’s implicit rejection of that argument and our express rejection of that argument in our analysis today. We further conclude that the court of appeals erred to address the constitutionality of the mandatory-blood-draw statute and, in light of our holding in this case, we decline to review the State’s complaint with respect to that matter. We affirm the trial court’s ruling suppressing the blood-test results.