
    The STATE of Texas, Appellant v. Irma Claudio GARCIA, Appellee
    No. 04-14-00101-CR
    Court of Appeals of Texas, San Antonio.
    Delivered and Filed: February 4, 2015
    Nathan E. Morey, Paul Elizondo Tower, San Antonio, TX, for Appellant.
    Megan Roper, San Marcos, TX, for Ap-pellee.
    Sitting: Sandee Bryan Marion, Chief Justice, Karen Angelini, Justice, Marialyn Barnard, Justice
   OPINION

Opinion by:

Marialyn Barnard, Justice

The State appeals from the trial court’s order granting appellee Irma Claudio Garcia’s motion to suppress. The State contends the trial court erred in granting the motion to suppress because the Supreme Court’s decision in Missouri v. McNeely, — U.S. -, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) does not require the existence of exigent circumstances before a police office can require a warrantless, noncon-sensual blood draw pursuant to section 724.012(b) of the Texas Transportation Code. We affirm the trial court’s order granting the motion to suppress.

Background

A detailed rendition of the facts is unnecessary given the issue and our disposition. We therefore provide only a brief factual and procedural background.

The record from the hearing on Garcia’s motion to suppress establishes that Officer Christopher Dech of the San Antonio Police Department was dispatched to an automobile collision. When the officer arrived, two individuals told him that a pickup truck driven by Garcia crashed into the back of their vehicle as both vehicles were traveling along the roadway. Officer Dech testified he smelled a strong odor of alcohol coming from Garcia, and that she had blood shot eyes and was unsteady on her feet. Garcia admitted to consuming intoxicants at a party. The office administered the HGN test and noted signs of intoxication. Thereafter, Officer Dech arrested Garcia and took her to the magistrate’s office for booking.

Garcia declined to provide a breath or blood specimen, but according to Officer Dech, she admitted she had two prior DWI convictions from Harris County, Texas. As a result of these admissions, the officer requested Garcia’s criminal history and verified the prior convictions. Based on the verified, prior convictions, Officer Dech mandated that Garcia provide a blood specimen pursuant to section 724.012(b) of the Transportation Code. Officer Dech did not obtain a warrant nor did Garcia consent to the blood draw. There was no evidence presented at the suppression hearing regarding any possible exigent circumstances — or other exception to the warrant requirement — that would, have permitted the officer to take the blood draw without first obtaining a warrant.

Garcia was indicted and prior to trial filed a motion to suppress the results of the blood draw, arguing that the Supreme Court’s decision in Missouri v. McNeely mandated that in the absence of a warrant, the State demonstrate the existence of exigent circumstances prior to obtaining a nonconsensual blood draw. After hearing the evidence and considering the arguments of counsel, the trial court agreed and granted Garcia’s motion to suppress. The State then perfected this appeal.

Analysis

As noted above, the State contends the Supreme Court’s decision in Missouri v. McNeely did not require the trial court to grant Garcia’s motion to suppress. More specifically, the State contends the Supreme Court’s decision does not require the existence of exigent circumstances before a blood draw may be compelled when law enforcement has failed to obtain a warrant or consent. Rather, the State contends section 724.012(b), specifically subsection (3)(B) — which states that an officer shall take a blood draw if a person arrested for DWI has two prior DWI convictions — permits a warrantless blood draw whether exigent circumstances exist or not. See Tex. Transp. Code Ann. § 724.012(b)(3)(B) (West 2011).

In several, cases, this court analyzed McNeely and concluded section 724.012(b) does not constitute a valid exception to the warrant requirement of the Fourth Amendment. See, e.g., Aviles v. State, 443 S.W.3d 291, 294 (Tex.App.-San Antonio 2014, pet. filed); McNeil v. State, 443 S.W.3d 295, 300 (Tex.App.-San Antonio 2014, pet. filed); Weems v. State, 434 S.W.3d 655, 665 (Tex.App.-San Antonio 2014, pet. granted). Moreover, the Texas Court of Criminal Appeals has now addressed the issue, reaching the same conclusion. See State v. Villarreal, No. PD-0306-14, — S.W.3d -, 2014 WL 6734178 (Tex.Crim.App. Nov. 26, 2014).

In Villarreal, the court held the provisions in the Texas Transportation Code— including section 724.012(b) — do not provide a constitutionally valid exception to the warrant requirement of the Fourth Amendment. Id. at -, 2014 WL 6734178, at *20. The court explained that the McNeely holding made it clear that drawing an individual’s blood in a DWI case without a warrant “ ⅛ reasonable only if it falls within a recognized exception’ to the warrant requirement.” Id. (quoting McNeely, 133 S.Ct. at 1558) (emphasis added). Accordingly, based on its interpretation of McNeely, the court rejected the State’s contention that a war-rantless, nonconsensual blood draw conducted pursuant to the provisions of the Texas Transportation Code falls under a “recognized” exception to the Fourth Amendment’s warrant requirement. Villarreal, — S.W.3d at -, 2014 WL 6734178, at *20. The court likewise rejected the State’s contention that a search pursuant to the mandates of the Transportation Code could be upheld under a general Fourth Amendment balancing test. Id.

Accordingly, based on the analysis and holding in Villarreal, as well as the analy-ses and holdings in our prior opinions, we hold the trial court did not err in granting Garcia’s motion to suppress. See Villarreal, -S.W.3d at -, 2014 WL 6734178, at *20; Aviles, 443 S.W.3d at 294; McNeil, 443 S.W.3d at 300; Weems, 434 S.W.3d at 665. Contrary to the State’s sole assertion, McNeely requires the existence of exigent circumstances or some other recognized exception to the warrant requirement before a police officer can order a warrantless, nonconsensual blood draw pursuant to the provisions of the Texas Transportation Code, including section 724.012(b). See Villarreal, — S.W.3d at -, 2014 WL 6734178, at *20 (quoting McNeely, 133 S.Ct. at 1558) (emphasis added). Here, the State did not attempt to establish a recognized exception to the warrant requirement of the Fourth Amendment, relying only on section 724.012(b). We therefore overrule the State’s issue and- affirm the trial court’s order. 
      
      . In Flores v. State, 04-13-00754-CR, 2014 WL 7183481, at *2 (Tex.App.-San Antonio Dec. 17, 2014, no pet. h.) (mem.op.) (not designated for publication) (citing Villarreal, — S.W.3d at -, 2014 WL 6734178, at *2), this court first recognized that the court in Villarreal held the provisions in the Texas Transportation Code do not provide a valid exception to the warrant requirement.
     