1. The Court concludes that the Defendant’s blood was illegally obtained without a warrant and in the absence of a recognized exception to the warrant requirement, and that the statutory blood draw was invalid and unconstitutional without exigent circumstances to support the absence of a warrant.
II. Analysis
In one issue, the State contends that the trial court erred in granting appellee’s motion to suppress because the police officer’s compliance with the “repeat offender” provision of the “mandatory blood draw law, ” Section 724.012(b)(3)(B) of the Texas Transportation Code, precluded the involuntary, warrantless blood draw in this case from violating the Fourth Amendment to the United States Constitution. See U.S. Const, amend. IV; Tex. Trans. Code Ann. § 724.012(b)(3)(B) (West 2011).
A. Applicable Law
The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV. “The Fourth Amendment protects people, not places.” Terry v. Ohio, 392 U.S. 1, 9 (1968) (quotations omitted).
“This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.” Id. at 8-9. “[W]herever an individual may harbor a reasonable expectation of privacy, he is entitled to be free from unreasonable governmental intrusion.” Id. at 9. “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Id. (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891)). The United States Supreme Court has recognized “[t]he security of one’s privacy against arbitrary intrusion by the police as being ‘at the core of the Fourth Amendment’ and ‘basic to a free society.’” Schmerber v. California, 384 U.S. 757, 766 (1966) (quoting Wolf v. Colorado, 338 U.S. 25, 27 (1948)). “Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted.” Terry, 392 U.S. at 9. “For what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” Id.
“In this case, as will often be true when charges of driving under the influence of alcohol are pressed, these [Fourth Amendment issues] . . . arise in the context of an arrest made by an officer without a warrant.” Schmerber, 384 U.S. at 768. Here, there is no dispute that there was “probable cause for the officer to arrest . . . [appellee] and charge him with DWI.” Id. The trial court specifically found “credible Officer Williams’ testimony that the Defendant appeared to be intoxicated based on his red watery eyes, slurred speech, and swaying back and forth.” The trial court also found “that the Defendant conceded at the suppression hearing that the arresting officer did nothing wrong in connection with the arrest.”
“[E]arly cases suggest that there is an unrestricted ‘right on the part of the government always recognized under English and American law, to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime.’” Id. at 769 (quoting Weeks v. United States, 232 U.S. 383, 392 [1913]) (citing People v. Chiagles, 142 N.E. 583, 584 (1923) (Cardozo, J.)). “The mere fact of a lawful arrest does not end our inquiry.” Id. “The suggestion of these cases apparently rests on two factors. Id. “[F]irst, there may be more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused.” Id. (citing United States v. Rabinowitz, 339 U.S. 56, 72-73 (1950) (Frankfurter, J., dissenting)). “Second, once a search of the arrested person for weapons is permitted, it would be both impractical and unnecessary to enforcement of the Fourth Amendment’s purpose to attempt to confine the search to those objects alone.” Id. (citing Chiagles, 142 N.E. at 584). “Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body’s surface.” Id.
“[C]ompulsory administration of a blood test . . . plainly involves the broad conceived reach of a search and seizure under the Fourth Amendment.” Id. at 767. “The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.” Id. at 769-70. “In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” Id. at 770.
“It could not reasonably be argued, and indeed . . . [the State] does not argue, that the administration of the blood test in this case was free of the constraints of the Fourth Amendment.” Id. at 767. “Such testing procedures plainly constitute searches of ‘persons, ‘ and depend antecedently upon seizures of ‘persons, ‘ within the meaning of that Amendment.” Id. “Because we are dealing with intrusions into the human body rather than with state interferences with property relationships or private papers— ‘houses, papers, and effects’—[the United States Supreme Court has] . . . writ[t]e[n] on a clean slate.” Id. at 767-68. “[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Id. at 767.
Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of appellee’s blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Id. “Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned.” Id. “The requirement that a warrant be obtained is a requirement that inferences to support the search be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Id. (quotations omitted). “The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” Id.
“[S]earches conducted pursuant to a warrant will rarely require any deep inquiry into reasonableness.” Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002). The Texas Court of Criminal Appeals has “made clear that drawing the suspect’s blood pursuant to a search warrant [does]. . . not. . . offend[] the Constitution.” Id. at 616. “A warrant assures the citizen that the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope.” Skinner v. Railway. Labor Executives’ Ass’n, 489 U.S. 602, 622 (1989). “A warrant also provides the detached scrutiny of a neutral magistrate, and thus ensures an objective determination whether an intrusion is justified in any given case.” Id.
In this case, there was no warrant; however, “the warrant requirement is subject to exceptions.” Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013).[2] The United States Supreme Court has recognized only certain limited exceptions that trump the freedom and liberty of an individual to “[t]he integrity of an individual’s person”—”a cherished value of our society.” Schmerber, 384 U.S. at 772. “Such an invasion of bodily integrity implicates an individual’s ‘most personal and deep-rooted expectations of privacy.’” McNeely, 133 S.Ct. at 1558 (quoting Winston v. Lee, 470 U.S. 753, 760 (1985)). Yet, “[n]o one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.” Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451 (1990). “Certainly we do not.” McNeely, 133 S.Ct. at 1565. “While some progress has been made, drunk driving continues to exact a terrible toll on our society.” Id. “But the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.” Id.
“Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id. at 1563. In Schmerber, the United States Supreme Court held that a police officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” Schmerber, 384 U.S. at 770. The officer might believe that the “there are special circumstances . . . [and] no time to seek out a magistrate and secure a warrant.” Id. at 771. If so, then under the precedent of the United States Supreme Court, the Court would be “satisfied that the test chosen to measure . . . appellee’s blood-alcohol level was a reasonable one.” Id. Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. Id. However, it bears repeating “[t]hat . . . [the United States Supreme Court has held] that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” Id.
B. Burden of Proof
“To suppress evidence on an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (footnote omitted).[3] “A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant.” Id.; see also State v. Kelly, 204 S.W.3d 808, 819 n.22 (Tex. Crim. App. 2006) (stating in the context of a case alleging assault in a blood draw that “[i]t is important to note that appellee had the initial burden to produce evidence to support a finding that she did not consent to . . . [the] blood draw”).
As noted above, the State stipulated that there was “no consent” and no warrant for the blood draw in this case. Therefore, the burden of proof shifted to the State to establish that the involuntary blood draw was reasonable under a recognized exception to the Fourth Amendment’s warrant requirement. See Kelly, 204 S.W.3d at 819 n.22 (“[Once] appellee carried this initial burden, … the prosecution . . . assumed the burden of proof with the risk of nonpersuasion.”); Ford, 158 S.W.3d at 492.
C. Standard of Review
“We review a trial court’s ruling on a motion to suppress evidence for an abuse of discretion.” Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). “In this review we give almost total deference to the trial court’s determination of historical facts and review the court’s application of search and seizure law de novo.” Id. (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)).
“In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.” State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). “Accordingly, the judge may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted.” Id. “This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record.” Id. “When a trial court makes explicit fact findings, the appellate court determines whether the evidence (viewed in the light most favorable to the trial court’s ruling) supports these fact findings.” Kelly, 204 S.W.3d at 818.
“Whether we infer the fact findings or consider express findings, we uphold the trial court’s ruling under any applicable theory of law supported by the facts of the case.” Alford v. State, 400 S.W.3d 924, 929 (Tex. Crim. App. 2013). “Similarly, regardless of whether the trial court has made express conclusions of law, we uphold the trial court’s ruling under any theory supported by the facts because an appellate court reviews conclusions of law de novo.” Id. “Even if the trial court had limited its conclusion of law to a particular legal theory, an appellate court would not be required to defer to that theory under its de novo review.” Id. This “rule holds true even if the trial court gave the wrong reason for its ruling.” Armendariz v. State, 123 S.W.3d 401, 403 (Tex. Crim. App. 2003).
D. Discussion
In this appeal, the State argues that it met its burden and that the trial court erred in granting appellee’s motion to suppress because, at the hearing on the motion to suppress, it established that the blood draw was performed pursuant to the repeat offender provision of the mandatory blood draw law, Section 724.012(b) of the Texas Transportation Code, which provides in relevant part as follows:
(b) A peace officer shall require the taking of a specimen of the person’s breath or blood under any of the following circumstances If the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer’s request to submit to the taking of a specimen voluntarily:
(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person . . . (B)on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections. Tex. Transp. Code Ann. § 724.012(b)(3)(B) (emphasis added).
To hold that the Fourth Amendment is applicable to the drug and alcohol testing prescribed by the repeat offender provision of the mandatory blood draw law “is only to begin the inquiry into the standards governing such intrusions.” Skinner, 489 U.S. at 618-19. “For the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.” Id. at 619. “What is reasonable, of course, ‘depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.’” Id. (citing United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)). “Thus, the permissibility of a particular practice ‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Id. (quoting Delaware v. Prouse, 440 U.S. 648, 654(1979)).
“In most criminal cases, we strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment.” Id. “Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause.” Id. The United States Supreme Court has “recognized exceptions to this rule, however, “when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’” Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). “When faced with such special needs, . . . [the Court has] not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context.” Id. The government’s interest in regulating the operation of motor vehicles on public roadways to ensure safety, like its interest in the supervision of railroad employees, probationers, regulated industries, and its operation of a government office, school, or prison, “likewise presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.” Id. at 620.
Another “one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Thus, the Texas Court of Criminal Appeals has recognized that “[t]he implied consent law … is another method of conducting a constitutionally valid search.” Beeman, 86 S.W.3d at 615. “The implied consent law expands on the State’s search capabilities by providing a framework for drawing DWI suspects’ blood in the absence of a search warrant.” Id. at 616. “It gives officers an additional weapon in their investigative arsenal, enabling them to draw blood in certain limited circumstances even without a search warrant.” Id. In relevant part, the implied consent statute provides as follows:
If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.
Tex. Transp. Code Ann. § 724.011(a) (West 2011) (emphasis added). As the Texas Court of Criminal Appeals has explained, “[t]he implied consent law does just that—it implies a suspect’s consent to a search in certain instances.” Beeman, 86 S.W.3d at 615.
The statute implies consent in every instance in which a person is arrested for DWI. See Tex. Transp. Code Ann. § 724.011(a). However, it “does not give officers the ability to forcibly obtain blood samples from anyone arrested for DWI.” Beeman, 86 S.W.3d at 616. The statute specially states that “[e]xcept as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.” Tex. Transp. Code Ann. § 724.013 (West 2011). The relevant language in Section 724.012(b) authorizes and, in fact, requires an officer to take a breath or blood sample if a person is arrested for DWI, has two or more prior convictions, and refuses to voluntarily consent to the officer’s request to take a breath or blood sample. Id. § 724.012(b)(3)(B).[4]
As noted above, the trial court ruled that appellee had waived all his complaints except as to the constitutionality of the repeat offender provision of the mandatory blood draw law, as applied to him.[5] See Tex. R. App. P. 47.1; Curry v. State, 910 S.W.2d 490 (Tex. Crim. App. 1995) (holding points of error that statute was “unconstitutional as applied to appellant . . . were [not] properly preserved for appellate review”). “[A]n ‘as applied’ challenge to the constitutionality of a statute requires the challenger to demonstrate that the statute has operated unconstitutionally when applied to his particular circumstances.” Lykos, 330 S.W.3d at 915. “Because a statute may be valid as applied to one set of facts and invalid as applied to another, it is incumbent upon the challenger to first show that, in its operation, the statute is unconstitutional as to him in his situation; that it may be unconstitutional as to others is not sufficient.” Id. “Therefore, any court considering an ‘as applied’ challenge to a statute must look at the challenger’s conduct alone to determine whether the statute operated unconstitutionally.” Id. In this case, we agree with the State in part and with appellee in part.
First, we recognize that “the constitutionality of a statute is not to be determined in any case unless such a determination is absolutely necessary to decide the case in which the issue is raised.” Id. In this case, the constitutionality of the repeat offender provision of the mandatory blood draw law as applied to appellee is properly before this Court and necessary to final disposition of the appeal. See Tex. R. App. P. 47.1.
Second, the record supports the trial court’s findings and conclusions to the effect that there was probable cause for appellee’s arrest for DWI. See Tex. Penal Code Ann. § 49.01(2) (“‘Intoxicated’ means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.”); State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999) (“It is established in the case law that an officer must have probable cause to arrest a defendant without a warrant.”).[6]In any event, appellee waived any challenge to the existence of probable cause when he “conceded at the suppression hearing that the arresting officer did nothing wrong in connection with the arrest and blood draw, except to the extent of Defendant’s constitutional challenge to the mandatory blood draw statute.” Therefore, the arrest was valid. See Beck v. Ohio, 379 U.S. 89, 91 (1964).
Third, based on the police officer’s description of appellee’s physical condition at the time of his arrest, which the trial court found credible and ostensibly accepted as true, a neutral and detached magistrate could have found probable cause to issue a warrant for a blood draw. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010). Under the circumstances, obtaining a warrant was a formality that should have been, but was not, observed even though it appears a foregone conclusion that a warrant could have been obtained from any rational magistrate. See Illinois v. Gates, 462 U.S. 213, 236 (1983) (“Under that standard of review, we uphold the probable cause determination so long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing.”) (quotations omitted); Roberts v. State, 963 S.W.2d 894, 903 (Tex. App.— Texarkana 1998, no pet.) (“[T]he two objectives of the law concerning search warrants are to ensure that there is adequate probable cause to search and to prevent a mistake in the execution of the warrant against an innocent third party.”).
Fourth, under the circumstances of this case, Texas law provides that a police officer who arrests someone for DWI—knowing that the individual has two or more prior convictions and is refusing to voluntarily consent to the officer’s request to provide a blood or breath sample—“shall require the taking of a blood or breath sample.” Tex. Transp. Code Ann. § 724.012(b)(3)(B) (emphasis added). Our analysis of the reasonableness of the police officer’s conduct cannot ignore that Texas law required the taking of a blood or breath specimen. See id. This was not an arbitrary act by a police officer. Rather, the officer faithfully followed the no-refusal statutory framework that has been enacted by the Legislature. See id. As the trial court found, “the Defendant conceded at the suppression hearing that the arresting officer did nothing wrong in connection with the arrest and blood draw, except to the extent of Defendant’s constitutional challenge to the mandatory blood draw statute.”
Fifth, the State concedes there was no consent.[7] Instead, the State invokes its compliance with the repeat offender provision of the mandatory blood draw law as an exception to the Fourth Amendment’s warrant requirement. See id. However, there is a distinction between a consensual blood draw and an involuntary, mandatory blood draw. The implied consent law is premised on consent. See id. § 724.011(a); Beeman, 86 S.W.3d at 615 (“The implied consent law does just that—it implies a suspect’s consent to a search in certain instances.”). In contrast, the mandatory blood draw law is premised on refusal to consent. See Tex. Transp. Code Ann. § 724.012(b)(3)(B) (requiring a blood draw if “the person refuses the officer’s request to submit to the taking of a specimen voluntarily’) (emphasis added).
Sixth, after stipulating that there was “no consent, ” the State argues that Chapter 724 creates a legislative consent or essentially a statutory waiver of the Fourth Amendment—one that cannot be withdrawn or withheld by certain individual suspects, such as appellee, who have two or more prior convictions for DWI. See id[8] According to the State, the Legislature has the ultimate control over an individual’s ability to consent to a warrantless blood draw, and it has made a decision categorically and conclusively on behalf of all those individuals who have two or more prior convictions for DWI such that those individuals have no right to refuse to consent. But see Bumper v. North Carolina, 391 U.S. 543, 548 (1968) (“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.”); Kolb v. State, 532 S.W.2d 87, 89 (Tex. Crim. App. 1976) (“[T]he protections afforded by the Fourth Amendment . . . may be waived by an individual consenting to a search.”). This might be compared to the implied consent law in Minnesota, which “makes it a crime to refuse testing.” Minnesota v. Brooks, 838 N.W.2d 563, 570 (Min. 2013). “But if someone suspected of driving while impaired does not agree to take a test, the police [in Minnesota] may not administer one.” Id. at 569. Thus, the law in Minnesota “makes clear that drivers have a choice of whether to submit to testing.” Id. at 570. However, in this case, the police officer “effectively announced] that appellee had no right to resist the blood draw.” Kelly, 204S.W.3dat821.
Seventh, we recognize that the drunk driving problem is a national epidemic, and the legal tools in the police’s crime-fighting arsenal must keep pace with the danger posed to the public.[9] The repeat offender provision of the mandatory blood draw allows police to obtain scientific evidence that can be of tremendous value to law enforcement and to the State in establishing the guilt of the accused. Tex. Transp. Code Ann. §§ 724.063-.64 (West 1999). “But the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.” McNeely, 133 S.Ct. at 1565.
In sum, we reiterate that, in this case, there were the usual signs of intoxication, such as unsteady feet, smelling strongly of intoxicants, and slurred speech, from which a reasonable officer could have inferred intoxication and the offense of DWI. Dyar v. State, 59 S.W.3d 713, 716 n.1 (Tex. App.—Austin 2001), aff’d, 125 S.W.3d 460 (Tex. Crim. App. 2003). There was probable cause, but the trial court also found “credible Officer Williams’ testimony that he could have gotten a warrant for the blood draw and there were no exigent circumstances that would have prevented him from getting a warrant.” See McNeely, 133 S.Ct. at 1561 (“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.”).
The officer’s sole basis for not getting a warrant was that the repeat offender provision of the mandatory blood draw law required him to take a blood sample without appellee’s consent and without the necessity of obtaining a search warrant. See Tex. Transp. Code Ann. § 724.012(b)(3)(B). Although we agree that the statute required the officer to obtain a breath or blood sample, it did not require the officer to do so without first obtaining a warrant. See id. In fact, the statute does not address or purport to dispense with the Fourth Amendment’s warrant requirement for blood draws. Furthermore, to the extent that the State argues that there was valid “consent” under the Fourth Amendment—whether by the mandatory blood draw law or the implied consent law—it is barred from doing so in this appeal by its stipulation before the trial court that in this case “[t]here was no consent, no warrant.”[10]
To date, neither the United States Supreme Court nor the Texas Court of Criminal Appeals has recognized the repeat offender provision of the mandatory blood draw law, quoted above, as a new exception to the Fourth Amendment’s warrant requirement separate and apart from the consent exception and the exception for exigent circumstances.[11] In fact, in Beeman, the Texas Court of Criminal Appeals recognized that these laws do not give police officers anything “more than [what] the Constitution already gives them.” Beeman, 86 S.W.3d at 616. Accordingly, we conclude that the constitutionality of the repeat offender provision of the mandatory blood draw law must be based on the previously recognized exceptions to the Fourth Amendment’s warrant requirement.[12]
Here, by the State’s stipulation, “there was no consent.” There was nothing stopping the officer from obtaining a warrant. There were no exigent circumstances. We believe these are key distinctions between this case and other cases involving warrantless blood draws.[13]
Given the absence of a warrant, the absence of exigent circumstances, and the absence of consent, we agree with the trial court’s conclusion that the State failed to demonstrate that the involuntary blood draw was reasonable under the Fourth Amendment or that an exception to the Fourth Amendment’s warrant requirement is applicable to this case, as was its burden. See U.S. Const, amend. IV; Ford, 158 S.W.3d at 492. Accordingly, we overrule the State’s sole issue.[14]
III. Conclusion
We affirm the order of the trial court.
———