Welcome to The Defense File where we examine the criminal cases of public figures through the lens of Texas criminal law. Each entry looks at what happened in court, what the defense argued, and what a defendant would have faced (and how they might have been defended) if the same facts had occurred in Texas.

Few NFL careers track the long-term cost of repeat DWI more directly than Michael Floyd Jr.. Born November 27, 1989, in Saint Paul, Minnesota, he was a five-star recruit out of Cretin-Derham Hall High School before setting career records at Notre Dame with 271 receptions, 3,686 yards, and 37 touchdowns. The Arizona Cardinals took him 13th overall in the 2012 NFL Draft. His best season was 2013, when he caught 65 passes for 1,041 yards.

And then, on the morning of December 12, 2016 (a few hours after the Cardinals’ team plane returned from a road loss to the Dolphins) Scottsdale police found him passed out behind the wheel of a running Cadillac Escalade in the left-turn lane of a Scottsdale intersection at 2:48 a.m. His blood alcohol concentration was 0.217. Within 48 hours, the Cardinals released him. Within nine weeks, he had pleaded guilty in Arizona to second-offense extreme DUI which was his second DUI conviction (the first had been at Notre Dame in 2011). His NFL career limped through the 2017–2019 seasons with stops in New England, Minnesota, New Orleans, Washington, and Baltimore. He was out of the league by August 2019.

Floyd’s 2016 arrest was not his first alcohol-related contact with law enforcement. Three earlier incidents during his Notre Dame years set the legal posture for what came later:

  • 2010 — Underage drinking citation. Cited for consuming alcohol as a minor. Treated as a campus disciplinary matter and a misdemeanor citation; no significant criminal penalty.
  • March 20, 2011 — DUI arrest, South Bend, Indiana. Floyd was 21 by then but was found driving with a BAC of 19. Notre Dame head coach Brian Kelly indefinitely suspended him from the football team after the arrest; the suspension was lifted in August 2011 after he completed the team’s and the court’s requirements. This conviction is the prior offense that mattered in 2016.
  • Third alcohol-related Notre Dame incident. Reported by ESPN at the time as one of three alcohol-related incidents involving police during Floyd’s Notre Dame career, the third does not appear to have produced a charged offense.

By the time the Cardinals drafted him in April 2012, Floyd already had a documented criminal history involving alcohol. That history would become the central prior-conviction issue in the 2016 Arizona case.

The 2016 Scottsdale Arrest

At approximately 2:48 a.m. on December 12, 2016, Scottsdale officers responded to a 911 call about a black Cadillac Escalade sitting through repeated green-light cycles in the left-turn lane of an Old Town Scottsdale intersection. They found Floyd asleep at the wheel with his head back, eyes closed, mouth open, engine running and foot on the brake. Officers had to position two cruisers, front and rear, before approaching the vehicle. When Floyd briefly took his foot off the brake, the Escalade rolled into one of the cruisers.

After officers knocked on the window, then pounded on it, Floyd awoke disoriented. He had “great difficulty responding and complying” to the officers’ commands, according to the police report. His speech was slurred. His eyes were bloodshot. An alcohol odor was apparent. His story about where he had been drinking shifted multiple times. First he said he had not been drinking, then one drink, then two, alternating between the team plane and the W Scottsdale hotel before “settling” on house cabernet on the team plane returning from Miami.

Floyd refused field sobriety testing and refused a blood draw. Officers obtained a search warrant for a blood draw. The result:

  • BAC of 0.217 — nearly three times Arizona’s 0.08% legal limit, and above Arizona’s “extreme DUI” threshold of 0.15% and “super extreme” threshold of 0.20%.

Floyd was charged with seven offenses:

  • DUI impaired to the slightest degree;
  • DUI BAC 0.08 or above;
  • Extreme DUI (BAC 0.15–0.19);
  • Extreme DUI (BAC 0.20 or greater) — “super extreme” in Arizona usage;
  • Obstructing a public roadway;
  • Failure to obey a police officer; and
  • A related count tied to the obstruction.

What Happened Next: A Two-Month Cascade

  • December 14, 2016 — Cardinals release Floyd. Two days after the arrest. Team president Michael Bidwill called it “a statement” announced from the NFL owners’ meetings in Irving, Texas, with head coach Bruce Arians and GM Steve Keim concurring unanimously.
  • December 15, 2016 — Patriots claim Floyd off waivers. New England added him for the final games of the regular season and the playoffs.
  • February 5, 2017 — Super Bowl LI. Floyd was inactive for the game but technically a member of the Super Bowl-winning roster. He received a championship ring.
  • February 16–17, 2017 — Guilty plea in Scottsdale City Court. Floyd pleaded guilty to one count of second-offense extreme DUI (BAC 0.15–0.19). The other six counts were dismissed as part of the plea agreement.

The Sentence

Scottsdale City Court imposed the following:

  • 120 days. 24 in Maricopa County Jail (the first 48 hours mandatory under Arizona law, with the remainder on a work-release structure of 12 hours in, 12 hours out, Saturday–Thursday, with 24-hour Friday confinement); 96 days on home detention with GPS and alcohol monitoring.
  • $5,115.99 in fines and fees.
  • 30 hours of community service.
  • Court-directed alcohol education and counseling.
  • 1-year Arizona driver’s license suspension.
  • Mandatory ignition interlock device.

The Kombucha Violation

In May 2017, the Vikings signed Floyd to a one-year, non-guaranteed contract, and his Arizona house arrest was transferred to Minnesota so he could participate in the team’s offseason program. On the morning of June 11–12, 2017, Floyd’s self-administered alcohol monitoring registered three positive tests (BAC of 0.055, 0.045, and 0.044) and one missed test. Under the conditions of his house arrest, those readings were violations regardless of the source. Floyd attributed the readings to having drunk several bottles of kombucha (a fermented tea that can contain trace amounts of alcohol) while watching movies overnight with teammate Kyle Rudolph. The Vikings’ chief operating officer wrote a letter of support attesting that kombucha was a probiotic readily available at the team facility.

The Scottsdale judge nevertheless found Floyd in violation on June 26, 2017, imposing one additional day in jail and five additional days of house arrest. She held that any alcohol in the testing system was a violation of the terms regardless of source. The case is the cleanest illustration in this series of how strict-liability “absolutely no alcohol” pretrial-release and probation conditions actually work in practice.

The NFL Suspension

On top of the criminal disposition, the NFL suspended Floyd for four games under the substance abuse policy in advance of the 2017 season. The Vikings released him in October 2017, and the rest of his NFL career (New Orleans, Washington, and Baltimore) consisted of short stints. He was released by the Ravens in August 2019 and has not played in the NFL since.

The Texas Analysis

Texas would have likely charged the 2016 Scottsdale facts under Texas Penal Code §49.04 / §49.09(a) as a Class A misdemeanor DWI 2nd. Floyd’s 2011 Indiana DUI is arguably a substantially-similar offense that would count as a prior.

Operating Element: Asleep at the Wheel of a Running Vehicle

Texas DWI requires that the defendant be “operating” a motor vehicle. The Texas Court of Criminal Appeals construed “operating” broadly in Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995): a person “operates” a vehicle when the totality of the circumstances shows the person took action to affect the functioning of the vehicle in a manner that would enable its use. Subsequent Texas appellate decisions have repeatedly applied Denton to passed-out-driver cases:

  • Engine running.
  • Driver in the driver’s seat.
  • Foot on the brake or vehicle in gear.
  • Vehicle stopped in the lane of travel or partially in the lane.

Every one of those facts is present in the Floyd record. However, the term “operating” is not defined under Texas law so it is up to a jury to decide what facts constitute operating for purposes of a DWI charge.

Class Level: DWI 2nd Under §49.09(a), Class A Misdemeanor

Texas DWI is a Class B misdemeanor at the base level under §49.04(b). Two enhancement paths apply on the Floyd facts:

  • 49.04(d) — Class A misdemeanor for BAC 0.15 or greater. Floyd’s 0.217 is well above that threshold. Standing alone, this is a Class A misdemeanor. Maximum: 1 year county jail, $4,000 fine. Mandatory ignition interlock as a condition of bond under CCP Art. 17.441. HB 3582 deferred adjudication is unavailable above the 0.15 line under CCP Art. 42A.102.
  • 49.09(a) — Class A misdemeanor for DWI 2nd. With one prior DWI conviction, the offense is a Class A misdemeanor regardless of BAC.

Under §49.09(c), an out-of-state DUI conviction qualifies as a Texas DWI prior if the offense “involves the operation of a motor vehicle while intoxicated.” An Indiana operating-while-intoxicated conviction is substantially similar; it would count. (The 2010 underage-drinking citation is a different offense and would not.) On a third Texas DWI, §49.09(b)(2) elevates the charge to a third-degree felony.

Refusal and the Blood Warrant

Floyd refused both field sobriety testing and a blood draw. Arizona officers obtained a search warrant and drew blood. Texas handles refusal the same way. Under Transportation Code §724.012, a DWI suspect may refuse a breath or blood test, but the refusal triggers an Administrative License Revocation (ALR) suspension and (since Missouri v. McNeely, 569 U.S. 141 (2013)) the State typically obtains a search warrant for a forced blood draw. McNeely rejected the argument that the natural metabolism of alcohol creates a categorical “exigency” dispensing with the warrant requirement. Texas warrant procedure for DWI blood draws is governed by CCP Chapter 18, and most large Texas counties (Dallas, Tarrant, Collin, Denton, Harris, Bexar) have 24-hour-on-call magistrates who can issue warrants by telephone, electronic submission, or in-person within minutes.

Defense work on the resulting blood evidence focuses on:

  • The four-corners review of the warrant affidavit for probable cause sufficiency under Franks v. Delaware and Texas precedent.
  • The chain of custody on the blood vial from collection through laboratory analysis.
  • The laboratory’s lab discovery for the headspace GC-FID methodology used to quantify ethanol.
  • The phlebotomist’s qualifications, the timing between the alleged operation and the draw, and any application of retrograde extrapolation by the State to establish BAC at the time of driving as opposed to at the time of the draw.

The Kombucha Issue Under Texas Conditions of Release

Texas pretrial and probation conditions in DWI cases routinely include:

  • Total prohibition on alcohol consumption (a “test” rather than a “use” standard);
  • Continuous remote alcohol monitoring (SCRAM bracelet);
  • Periodic random breath testing;
  • Ignition interlock device with retrograde rolling tests; and
  • Self-administered breath devices in some counties.

Under CCP Art. 17.441, ignition interlock is mandatory as a condition of bond for DWI 2nd or for any DWI where the BAC was 0.15% or higher. The interlock’s sensitivity is calibrated to detect alcohol in any concentration, including the trace amounts present in fermented beverages like kombucha and certain mouthwashes. Texas judges and probation officers treat positive readings as violations regardless of subjective source. The judge in Scottsdale’s ruling (that any alcohol in the testing system is a violation regardless of source) is likely how a Texas court would treat the same facts.

Practical takeaway for Texas defendants on bond or probation:

  • No kombucha, no non-alcoholic beer (which can contain up to 0.5% alcohol by volume), no fermented foods or beverages where alcohol content is unknown, no alcohol-based mouthwash, no hand sanitizer used immediately before a breath test, and no fragrance products containing ethanol used near the interlock device.
  • The “I didn’t know” defense is rarely successful. Strict-liability conditions of release mean that the source of the alcohol does not matter — only the result of the test does.

What This Case Illustrates: The Cost of Two-DUI Status

The Floyd case is the cleanest study in this series of what a second DUI does to a career (in the league and in the courtroom) even when the first DUI happened in college:

  • Out-of-state college DUIs do not stay in college. Floyd’s 2011 Notre Dame DUI was a misdemeanor in Indiana, prosecuted through South Bend’s local courts, resolved with a team suspension and standard first-offender treatment. Five years later, it was the prior conviction that turned an Arizona first-offense extreme DUI into a second-offense extreme DUI plea. Texas does the same thing under §49.09(c). Defense lawyers handling Texas DWI intakes need to ask about every prior alcohol-related arrest in every jurisdiction.
  • 15 is the line that matters everywhere. Floyd’s 0.217 BAC put him above Arizona’s extreme DUI threshold, above the Texas Class A enhancement line, and above the HB 3582 deferred adjudication cutoff. The same number triggers separate enhancement mechanisms in every state with a tiered DWI structure.
  • Operating-while-asleep is not a defense; it is the prosecution’s opening argument. Texas case law on “operating” treats running-engine-foot-on-brake-asleep-in-driver’s-seat facts as among the strongest “operating” fact patterns. However, it is up to a jury to decide what actions qualify as “operating”.
  • Pretrial and probation conditions are strict-liability. The kombucha incident is a national cautionary tale because the alcohol concentration in fermented tea is small, the violation was unintentional, the team supported the defense, and the result still cost Floyd an additional day in jail and five additional days of house arrest. Texas judges treat the same facts the same way. “Any alcohol” conditions of release mean any alcohol whatever the source.
  • Parallel forums move independently. Floyd lost his Cardinals job within 48 hours of the arrest. The Patriots claimed him within 24 hours after. The NFL imposed a four-game suspension. The Vikings released him mid-season after the kombucha violation and his on-field role had declined. The criminal disposition, the team response, the league response, and the trajectory of free-agency interest all moved on independent clocks. None of them were determined by the criminal verdict.

How a Texas Defense Team Would Have Approached This

  • Forensic blood-result audit. 217 is a high number, but the difference between 0.217 and 0.149 (the line below which HB 3582 deferred adjudication reopens, and below which the Class A becomes a Class B at the base level) is the difference between a permanent record and a path to deferred adjudication on a first DWI. The audit examines headspace GC-FID calibration, internal standards, chain of custody, vial preservation, hematocrit-related variability, and any retrograde-extrapolation calculation the State plans to use at trial.
  • Out-of-state prior workup. Indiana criminal records, the certified judgment-and-sentence from the South Bend case, the specific Indiana statute of conviction, and the substantial-similarity analysis under §49.09(c). A reduction to reckless driving or a conviction under a non-substantially-similar Indiana statute could disqualify the prior.
  • ALR hearing. Under Transportation Code Chapter 524 and Chapter 724, a Texas defendant has 15 days from the date of notice of suspension to request an Administrative License Revocation (ALR) hearing. The hearing is a separate civil proceeding from the criminal case, but cross-examining the arresting officer at ALR is one of the highest-value opportunities for early defense discovery.
  • DWI court entry where available. Under Government Code Chapter 123, counties of 200,000 or more must establish a DWI court program (Dallas, Tarrant, Collin, Denton, McLennan all have them). Structured probation with treatment, frequent testing, and judicial monitoring is the better long-term outcome for repeat-DWI defendants when the underlying conduct is addiction-driven.
  • Counsel the client on what “no alcohol” actually means. This is the kombucha lesson, transposed. From the moment a bond is posted with alcohol conditions, the client should not have any kombucha, non-alcoholic beer, fermented foods, alcohol-based mouthwash, hand sanitizer near the interlock device, or fragrance products containing ethanol. The single most common cause of bond violations and probation revocations in Texas DWI cases is not relapse — it is misunderstanding what “no alcohol” requires. Clients of DGL are encouraged to complete the MyCam program to try and avoid inadvertent interlock violations.

Where Are They Now

Floyd has not played in the NFL since the Ravens released him in August 2019. He has maintained a relatively low public profile in the years since. Recent reporting on his post-football life is sparse, and the focus of his public presence has been outside the sports media cycle. The criminal record from the 2016 case remains as a matter of Arizona public record.

What This Case Tells Us

Floyd’s case is the cleanest illustration in this series of two things Texas DWI defense lawyers see in nearly every repeat-offender intake. First: an out-of-state misdemeanor DUI from a defendant’s college years does not stay in college. Five years later, in a different state, it shows up as a prior that turns a misdemeanor into an enhanced misdemeanor or a misdemeanor into a felony. Substantial-similarity analysis under §49.09(c) is the gatekeeping doctrine, and defense workups need to obtain certified judgment-and-sentence records from every prior jurisdiction at intake. Second: pretrial and probation conditions are strict-liability. Any alcohol means any alcohol, and the source does not matter. Kombucha, non-alcoholic beer, alcohol-based mouthwash, hand sanitizer, fragrance products — every single one of them has cost a Texas defendant a bond revocation or a probation violation. The work the defense does at the intake stage to educate the client about what “no alcohol” actually requires is some of the most consequential work in any DWI case.

And the on-field career arc (13th overall pick, school records at Notre Dame, a 1,000-yard season, free agency after a contract year that ended in a Maricopa County jail cell) is the parallel reputational consequence that runs on its own clock alongside the criminal case. Floyd had a Super Bowl ring on his finger before he had a guilty plea on his record. He had four NFL stints after the plea. None of those things resolved the criminal case, and the criminal case did not resolve any of them. In Texas as in Arizona, the criminal forum is the highest-stakes forum but rarely the only one.

Sources

 

The Defense File is an educational series. All Texas analysis is hypothetical and does not constitute legal advice about any specific case.

 

If you are facing a DWI second offense or a DWI with a BAC of 0.15% or greater in Texas, call (214) 225-7117 for a free, confidential consultation. Or schedule online at texasdwisite.com.