IN THE TENTH COURT OF APPEALS
No. 10-13-00109-CR
MICHAEL ANTHONY MCGRUDER, Appellant v.
THE STATE OF TEXAS, Appellee
From the 85th District Court Brazos County, Texas Trial Court No. 11-05822-CRF-85
OPINION
Michael Anthony McGruder was convicted of the offense of driving while
intoxicated, a felony offense, and sentenced to 30 years in prison. See TEX. PENAL CODE
ANN. § 49.04 (West 2011). Because section 724.012(b)(3)(B) of the Texas Transportation
Code is not unconstitutional, we affirm the trial court’s judgment.
BACKGROUND
In September of 2011, McGruder was stopped by a College Station police officer because McGruder’s pickup matched the description of a suspicious vehicle in the area.
After McGruder got out of his pickup, the officer who initially stopped McGruder and
another officer who had arrived at the scene noted that, even from a distance,
McGruder smelled of alcohol. McGruder responded to questioning by the officers and
gave “nonsensical” and conflicting answers. He also refused to perform any field
sobriety exercises. McGruder was arrested and refused to submit to a breath or blood
test. After McGruder’s pickup was inventoried and towed, McGruder was taken to the
police department where an officer began to prepare a search warrant to obtain a
sample of McGruder’s blood. During the process of preparing the warrant, the officer
learned that McGruder had two prior DWI convictions. At that time, the officer
discontinued preparing the warrant and began working on the “mandatory blood
draw” paperwork. The officer testified that a blood draw becomes mandatory when a
DWI suspect has two prior DWI convictions. McGruder was then taken to the hospital
and his blood was drawn.
OBJECTION AND ISSUE
At his trial in 2013, McGruder objected to the State’s introduction of the blood
draw kit and the blood draw vial on the basis that section 724.012 of the Texas
Transportation Code, the section which contains the mandatory blood draw provision,
McGruder v. State Page 2 is unconstitutional in that it allows for the seizure of evidence without a warrant.1 The
trial court overruled his objection. On appeal, McGruder contends in one issue that,
absent exigent circumstances or consent, section 724.012(b)(3)(B) of the Texas
Transportation Code violates the Texas and United States Constitutional provisions
against unreasonable searches and seizures. We construe McGruder’s argument to be a
facial challenge to the constitutionality of that portion of the statute.2
THE STATUTE
As it applies to this case, section 724.012(b) provides:
(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
1 McGruder later objected to the lab report which contained the blood alcohol content results of McGruder’s blood test by stating, “Renew my earlier objection.” He did not however, object to the chemist’s testimony prior to the introduction of the lab report that McGruder’s blood alcohol content was .09 grams per 100 milliliters. We note that there was no motion to suppress filed; only objections made to the various exhibits as they were introduced into evidence. The Amicus Curiae, presented by the Texas Criminal Defense Lawyers Association, argues the trial court erred in overruling the objections to the kit, vial, and lab report. The Amicus Curiae does not address the admission, without objection, of the blood alcohol content testimony. Nevertheless, this is not the issue that McGruder has presented on appeal. Rather, McGruder raises a direct challenge to the constitutional validity of the “mandatory” blood draw provision.
2McGruder does not argue that the Texas Constitution provides any greater or different protection than the United States Constitution; thus we treat them as the same in this context. See Luquis v. State, 72 S.W.3d 355, 364 (Tex. Crim. App. 2002).
McGruder v. State Page 3 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) (West 2011).
MCNEELY
Relying on the recent opinion from the United States Supreme Court in Missouri
v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), McGruder argues that
because section 724.012(b)(3)(B) does not require any exigent circumstance for a
warrantless blood draw, it impermissibly narrows the constitutional right to be free
from unreasonable searches and seizures and should be declared unconstitutional.
Generally speaking, drawing blood from a suspect is a search and seizure within
the scope of the Fourth Amendment to the United States Constitution. See Schmerber v.
California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). A warrantless seizure
of a blood sample, however, can be constitutionally permissible if officers have probable
cause to arrest a suspect, exigent circumstances exist, and a reasonable method of
extraction is available. Id. at 767-68.
In McNeely, the United States Supreme Court addressed the issue of whether the
Fourth Amendment required police to obtain a warrant before taking a blood sample
from a non-consenting driver suspected of driving while intoxicated. McNeely, 133 S.
Ct. at 1556. The Court concluded that the natural dissipation of alcohol in the
bloodstream did not present a per se exigency that justified an exception to the warrant
McGruder v. State Page 4 requirement for non-consensual blood testing in all DWI cases. Id. Instead, the Court
recognized that, sometimes, exigent circumstances, based in part on the rapid
dissipation of alcohol in the body, may allow law enforcement to obtain a blood sample
without a warrant but that courts must determine on a case-by-case basis whether
exigent circumstances exist, considering the totality of the circumstances. Id.
Prior to McNeely, at least one Texas appellate court had interpreted section
724.012(b) to be an exception to the Fourth Amendment warrant requirement; that is, no
warrant was necessary to draw the defendant’s blood if he refused to consent to the
blood draw and had two prior DWI convictions. See Aviles v. State, 385 S.W.3d 110, 112
(Tex. App.—San Antonio 2012, pet. ref'd), vacated, 134 S. Ct. 902, 187 L. Ed. 2d 767
(2014), op. on remand, ___ S.W.3d ___, 2014 Tex. App. LEXIS 8508 (Tex. App.—San
Antonio Aug. 6, 2014, no pet. h.). But the United States Supreme Court vacated that
court’s judgment and remanded the case to the court of appeals for further
consideration in light of McNeely. Aviles, 134 S. Ct. at 902. Since then, Texas appellate
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IN THE TENTH COURT OF APPEALS
No. 10-13-00109-CR
MICHAEL ANTHONY MCGRUDER, Appellant v.
THE STATE OF TEXAS, Appellee
From the 85th District Court Brazos County, Texas Trial Court No. 11-05822-CRF-85
OPINION
Michael Anthony McGruder was convicted of the offense of driving while
intoxicated, a felony offense, and sentenced to 30 years in prison. See TEX. PENAL CODE
ANN. § 49.04 (West 2011). Because section 724.012(b)(3)(B) of the Texas Transportation
Code is not unconstitutional, we affirm the trial court’s judgment.
BACKGROUND
In September of 2011, McGruder was stopped by a College Station police officer because McGruder’s pickup matched the description of a suspicious vehicle in the area.
After McGruder got out of his pickup, the officer who initially stopped McGruder and
another officer who had arrived at the scene noted that, even from a distance,
McGruder smelled of alcohol. McGruder responded to questioning by the officers and
gave “nonsensical” and conflicting answers. He also refused to perform any field
sobriety exercises. McGruder was arrested and refused to submit to a breath or blood
test. After McGruder’s pickup was inventoried and towed, McGruder was taken to the
police department where an officer began to prepare a search warrant to obtain a
sample of McGruder’s blood. During the process of preparing the warrant, the officer
learned that McGruder had two prior DWI convictions. At that time, the officer
discontinued preparing the warrant and began working on the “mandatory blood
draw” paperwork. The officer testified that a blood draw becomes mandatory when a
DWI suspect has two prior DWI convictions. McGruder was then taken to the hospital
and his blood was drawn.
OBJECTION AND ISSUE
At his trial in 2013, McGruder objected to the State’s introduction of the blood
draw kit and the blood draw vial on the basis that section 724.012 of the Texas
Transportation Code, the section which contains the mandatory blood draw provision,
McGruder v. State Page 2 is unconstitutional in that it allows for the seizure of evidence without a warrant.1 The
trial court overruled his objection. On appeal, McGruder contends in one issue that,
absent exigent circumstances or consent, section 724.012(b)(3)(B) of the Texas
Transportation Code violates the Texas and United States Constitutional provisions
against unreasonable searches and seizures. We construe McGruder’s argument to be a
facial challenge to the constitutionality of that portion of the statute.2
THE STATUTE
As it applies to this case, section 724.012(b) provides:
(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
1 McGruder later objected to the lab report which contained the blood alcohol content results of McGruder’s blood test by stating, “Renew my earlier objection.” He did not however, object to the chemist’s testimony prior to the introduction of the lab report that McGruder’s blood alcohol content was .09 grams per 100 milliliters. We note that there was no motion to suppress filed; only objections made to the various exhibits as they were introduced into evidence. The Amicus Curiae, presented by the Texas Criminal Defense Lawyers Association, argues the trial court erred in overruling the objections to the kit, vial, and lab report. The Amicus Curiae does not address the admission, without objection, of the blood alcohol content testimony. Nevertheless, this is not the issue that McGruder has presented on appeal. Rather, McGruder raises a direct challenge to the constitutional validity of the “mandatory” blood draw provision.
2McGruder does not argue that the Texas Constitution provides any greater or different protection than the United States Constitution; thus we treat them as the same in this context. See Luquis v. State, 72 S.W.3d 355, 364 (Tex. Crim. App. 2002).
McGruder v. State Page 3 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) (West 2011).
MCNEELY
Relying on the recent opinion from the United States Supreme Court in Missouri
v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), McGruder argues that
because section 724.012(b)(3)(B) does not require any exigent circumstance for a
warrantless blood draw, it impermissibly narrows the constitutional right to be free
from unreasonable searches and seizures and should be declared unconstitutional.
Generally speaking, drawing blood from a suspect is a search and seizure within
the scope of the Fourth Amendment to the United States Constitution. See Schmerber v.
California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). A warrantless seizure
of a blood sample, however, can be constitutionally permissible if officers have probable
cause to arrest a suspect, exigent circumstances exist, and a reasonable method of
extraction is available. Id. at 767-68.
In McNeely, the United States Supreme Court addressed the issue of whether the
Fourth Amendment required police to obtain a warrant before taking a blood sample
from a non-consenting driver suspected of driving while intoxicated. McNeely, 133 S.
Ct. at 1556. The Court concluded that the natural dissipation of alcohol in the
bloodstream did not present a per se exigency that justified an exception to the warrant
McGruder v. State Page 4 requirement for non-consensual blood testing in all DWI cases. Id. Instead, the Court
recognized that, sometimes, exigent circumstances, based in part on the rapid
dissipation of alcohol in the body, may allow law enforcement to obtain a blood sample
without a warrant but that courts must determine on a case-by-case basis whether
exigent circumstances exist, considering the totality of the circumstances. Id.
Prior to McNeely, at least one Texas appellate court had interpreted section
724.012(b) to be an exception to the Fourth Amendment warrant requirement; that is, no
warrant was necessary to draw the defendant’s blood if he refused to consent to the
blood draw and had two prior DWI convictions. See Aviles v. State, 385 S.W.3d 110, 112
(Tex. App.—San Antonio 2012, pet. ref'd), vacated, 134 S. Ct. 902, 187 L. Ed. 2d 767
(2014), op. on remand, ___ S.W.3d ___, 2014 Tex. App. LEXIS 8508 (Tex. App.—San
Antonio Aug. 6, 2014, no pet. h.). But the United States Supreme Court vacated that
court’s judgment and remanded the case to the court of appeals for further
consideration in light of McNeely. Aviles, 134 S. Ct. at 902. Since then, Texas appellate
courts have held that a non-consensual blood draw without a warrant pursuant to
section 724.012(b) and without evidence of exigent circumstances other than simply the
rapid dissipation of alcohol in the bloodstream violates a defendant’s Fourth
Amendment rights.3 See Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152
(Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish); Weems
3 This is not the issue we have been asked to decide and express no opinion regarding that issue.
McGruder v. State Page 5 v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109 (Tex. App.—San Antonio May
14, 2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS
4558 (Tex. App.—Texarkana April 29, 2014, pet. filed) (publish); Sutherland v. State, No.
07-12-00289-CR, 2014 Tex. App. LEXIS 3694 (Tex. App.—Amarillo, April 7, 2014, pet.
filed) (publish); Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex.
App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish). See also Baker v. State, No.
12-12-00092-CR, 2013 Tex. App. LEXIS 12818 (Tex. App.—Tyler Oct. 16, 2013, pet.
granted) (not designated for publication) (trial court could have reasonably concluded
State failed to show warrantless blood draw was supported by exigent circumstances).
Contra Perez v. State, No. 01-12-01001-CR, 2014 Tex. App. LEXIS 2681 (Tex. App.—
Houston [1st Dist.] Mar. 11, 2014, no pet. h.) (publish) (motion for rehearing filed;
response requested by the court; response filed).
FACIAL CONSTITUTIONAL CHALLENGE
But McGruder asks us to find that section 724.012(b)(3)(B) is unconstitutional. To
prevail on a facial challenge, a party must establish that the statute always operates
unconstitutionally in all possible circumstances. State v. Rosseau, 396 S.W.3d 550, 557
(Tex. Crim. App. 2013). A facial challenge to a statute is the most difficult challenge to
mount successfully because the challenger must establish that no set of circumstances
exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex.
Crim. App. 1992).
McGruder v. State Page 6 Whether a statute is facially constitutional is a question of law that we review de
novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality
of a statute is attacked, we begin with the presumption that the statute is valid and that
the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden
normally rests upon the person challenging the statute to establish its
unconstitutionality. Id. at 15. In the absence of contrary evidence, we will presume that
the legislature acted in a constitutionally sound fashion. Rodriguez v. State, 93 S.W.3d
60, 69 (Tex. Crim. App. 2002).
Section 724.012(b) merely requires an officer to take a blood or breath specimen
in certain circumstances. What makes the statute mandatory is that the officer has no
discretion in those situations to obtain either a blood or a breath specimen. It does not
mandate, nor does it purport to authorize, a specimen be taken without compliance
with the Fourth Amendment. And although the Court of Criminal Appeals has said
that the implied consent law, the body of law in which this particular statute is
contained, enables officers to draw blood in certain limited circumstances, a.k.a. exigent
circumstances, even without a search warrant, the Court also said that the law did not
give officers the ability to forcibly obtain blood samples from anyone just because they
were arrested for DWI. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002).
Further, the Court did not hold in Beeman, and has not yet held, that section 724.012(b)
is an exception to the Fourth Amendment’s warrant requirement such as the consent
McGruder v. State Page 7 exception or the exigent circumstances exception. See Villarreal v. State, No. 13-13-00253-
CR, 2014 Tex. App. LEXIS 645, *35 (Tex. App.—Corpus Christi Jan. 23, 2014, pet.
granted) (publish).
Further, as written, section 724.012(b) does not require a blood or breath
specimen to be taken contrary to the Fourth Amendment; that is, without a warrant or
without a recognized exception to the warrant requirement. See Forsyth v. State, No. 11-
12-00198-CR, 2014 Tex. App. LEXIS 8381, *22 (Tex. App.—Eastland July 31, 2014) (no
pet. h.) (publish) (“…Section 724.012 does not instruct an officer to take a person's blood
without a warrant or in violation of the Fourth Amendment,” citing Villarreal v. State,
No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex. App.—Corpus Christi Jan. 23, 2014,
pet. granted) (publish)).4 We agree with the Houston Court of Appeals when it aptly
noted, “We have no reason to fault the constitutionality of the mandatory blood draw
statute in this case because it did not require [the officer] to obtain a blood draw
without first securing a warrant. It is the officer's failure to obtain a warrant and the
State's failure to prove an exception to the warrant requirement, not the mandatory
nature of the blood draw statute, that violate the Fourth Amendment.” Douds v. State,
No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, *48-49 (Tex. App.—Houston [14th
Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish).
4Other courts of appeals agree with this interpretation. See Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, *46 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish); Weems v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109, * 24 (Tex. App.—San Antonio May 14, 2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS 4558, *14 n. 10 (Tex. App.—Texarkana April 29, 2014, pet. filed) (publish).
McGruder v. State Page 8 McGruder has failed to point us to anything else that would show the statute to
be unconstitutional. Thus, McGruder’s facial challenge to the statute must fail, and we
presume the statute to be constitutionally valid.
CONCLUSION
Accordingly, McGruder’s sole issue is overruled, and the trial court’s judgment
is affirmed.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Justice Davis dissenting) Affirmed Opinion delivered and filed August 14, 2014 Publish [CRPM]
McGruder v. State Page 9