# State v. Villarreal, David > Court of Criminal Appeals of Texas · November 26, 2014 · 475 S.W.3d 784 URL: https://www.frixlaw.com/law-library/cases/9812313 ## Case - **Full name:** The STATE of Texas v. David VILLARREAL, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** November 26, 2014 - **Citations:** 475 S.W.3d 784; 2014 Tex. Crim. App. LEXIS 1898; 2014 WL 6734178 - **Precedential status:** Published - **Opinion:** Dissent by Keller - **Judges:** Alcala, Yeary, Price, Womack, Johnson, Cochran, Keller, Meyers, Keasler, Richardson, Newell, Keaslér, Hervey - **Cited by:** 242 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9812313 ## How later opinions describe it (automated extraction) - concluding that “a DWI suspect’s privacy interest outweighs the State’s interest in preventing drunk driving through warrantless searches” and quoting the McNeely plurality in “stating that ‘the general importance of the government’s interest in this area does not justify depa… - holding that implied con- give a blood sample. He refused, so blood-draw sent statutes, “taken by themselves, [do technician Adam Tomlinson performed the blood not] form a constitutionally valid alternat- draw without Appellant's consent while Officer ive to the Fourth Amendme… - explaining that “necessary element of valid consent is the ability to limit or revoke it” and that “[i]t would be wholly inconsistent with these principles to uphold the warrantless search of a suspect’s blood on the basis of consent when a suspect has . . . expressly and uneq… - holding that “a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates … - holding that Zap did not “stand for the proposition that the government may exact from a citizen a generalized irrevocable waiver of Fourth Amendment rights in exchange for the enjoyment of everyday privileges, such as driving on the States roadways” ## Opinion text KELLER, P. J., filed a dissenting opinion in which HERVEY, J., joined. The Supreme Court has created a continuum of exceptions to the warrant requirement that inform the analysis in the present case. (1) Parolees are subject to warrantless, suspicionless, intrusive searches. 1 (2) Probationers are subject to warrantless intrusive searches if there is reasonable suspicion to believe they have committed an offense. 2 (3) People arrested on probable cause for serious offenses are subject to warrantless searches by the collection of DNA from a buccal swab. 3 I believe that the search in this case falls between the second and third categories of cases. I respectfully dissent, In King, the Supreme Court relied in part on an arrestee’s reduced expectation of privacy where the arrestee was “already in valid, police custody for a serious offense supported by probable cause.” 4 The search was analyzed by reference to “reasonableness, not individualized suspicion.” 5 Reasonableness is determined by weighing “ ‘the promotion of legitimate governmental interests’ against ‘the degree to which [the search] intrudes upon an individual’s privacy:’ ” 6 The fact that the biiccal swab was minimally intrusive weighed heavily in the Court’s decision. 7 The search in the present case was more intrusive than the search in King, but ap-pellee was more than simply an “arrestee.” He had at least two prior convictions for DWI, and that is the precise reason that he was subject to the mandatory-blood-draw statute. The fact of his prior convictions is what put this case between King and Knights. In Knights, the Supreme Court considered the “totality of the circumstances” to decide whether the warrantless search of a probationer’s apartment violated the Constitution. 8 Among other things, the Court took into account the .high recidivism rate of probationers. 9 The relevant provision of the Texas statute requires not just the possibility of recidivism, but recidivism in fact, in that it requires a person to have been convicted of or placed on probation in two prior DWI cases. And the offense for *816 which the person is under arrest must be an intoxication offense. In Knights, the Court «said, “[The State’s] interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen.”- 10 The question boils down to whether a person with two prior DWI convictions is similar enough to a probationer that the totality of the circumstances allows- a search that would not be allowed for.someone without that criminal record. Before. King, that would have been a difficult position to defend. Now that the Supreme Court has held that the mere fact that a person is arrested for a serious offense justifies a warrantless, standardized, minimally intrusive search, there appears to be room for a statute that permits a warrant-less, standardized, more intrusive .search of a person arrested for DWI who has two prior convictions for DWI. The touchstone of the Fourth Amendment is reasonableness. Under the totality of the circumstances, what happened in this case does not strike me as unreasonable. Therefore, I respectfully dissent. . Samson v. California, 547 U.S. 843 , 126 S.Ct. 2193 , 165 L.Ed,2d 250 (2006) (search of shirt pocket). . United States v. Knights, 534 U.S. 112 , 122 S.Ct, 587 , 151 L.Ed.2d 497 (2001) (search of apartment). . Maryland v. King, — U.S. —-, 133 S.Ct. 1958 , 186 L.Ed.2d 1 (2013), . Id. at 1970 . . Id. . Id. (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999)) (bracketed material in King). . Id. at 1969. . Knights, 534 U.S. at 118 , 122 S.Ct. 587 . .Id. at 120, 122 S.Ct. 587 . . Id. at. 121, 122 S.Ct. 587. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9812313. Public record. Not legal advice.