PD-1459-15
PD-1459-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 11/9/2015 8:52:12 AM Accepted 11/10/2015 3:58:55 PM ABEL ACOSTA
CLERK
PD-____________
Court of Criminal Appeals of Texas
THE STATE OF TEXAS,
Petitioner
v.
JAIME ARREDONDO,
Respondent
State’s Petition from the 13th District Court of Appeals (Cause #13-13-00589-CR), on State’s Appeal from the 28th District Court of Nueces County (Cause #11-CR-2971-A)
STATE’S PETITION FOR DISCRETIONARY REVIEW
A. Cliff Gordon
Tex. Bar #00793838
Asst. Dist. Atty., 105th Dist.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
361.888.0410 phone
361.888.0399 fax
November 10, 2015 cliff.gordon@nuecesco.com
Attorney for Petitioner
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
Trial Court Judge: Honorable Nanette Hasette, Presiding Judge of the 28th District Court of Nueces County
Petitioner: The State of Texas, District Attorney for the 105th Judicial District, represented by
Appellate counsel:
A. Cliff Gordon, Asst. Dist. Atty.
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
Trial and appellate counsel:
Mark Skurka, District Attorney Eduardo Flores Jr., Asst. Dist. Atty.
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
Respondent: Jaime Arrendondo, represented by Trial and Appellate Counsel:
Lisa Greenberg
John Gilmore
622 S. Tancahua St.
Corpus Christi, TX 78401
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TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES, AND COUNSEL ......................................... i INDEX OF AUTHORITIES .................................................................................. iii STATEMENT REGARDING ORAL ARGUMENT .......................................... iv STATEMENT OF THE CASE .............................................................................. iv STATEMENT OF PROCEDURAL HISTORY ................................................... iv QUESTION PRESENTED FOR REVIEW ........................................................... v 1. Whether the implied consent and mandatory blood draw provisions of the Texas Transportation Code are a constitutionally valid alternative to the warrant requirement ........... v ARGUMENT ............................................................................................................1 PRAYER ....................................................................................................................1 CERTIFICATE OF COMPLIANCE ......................................................................2 CERTIFICATE OF SERVICE .................................................................................3 APPENDIX ...............................................................................................................4 1. Opinion of the 13th Court of Appeals .....................................................4
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INDEX OF AUTHORITIES
Cases State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App.
Nov. 26, 2014), reh’g granted (Feb. 25, 2015) ............................................1 Rules Tex. R. App. P. 66.3 .................................................................................................1
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STATEMENT REGARDING ORAL ARGUMENT The State does not believe that oral argument would be helpful to determine this appeal because the issue has already been argued in State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014), reh’g granted (Feb. 25, 2015).
STATEMENT OF THE CASE
A grand jury indicted Jaime Arredondo for Felony Driving While Intoxicated. Opinion at 2. The trial court granted his motion to suppress evidence relating to the warrantless draw of his blood pursuant to TEX. TRANSP. CODE § 724.012(b). Opinion at 2. The 13th Court of Appeals affirmed, holding that § 724.012 is not a constitutionally recognized alternative to the warrant requirement. Opinion at 5-6.
STATEMENT OF PROCEDURAL HISTORY Date court of appeals’ Opinion handed down October 8, 2015 Date State filed Motion for Rehearing n/a Date Motion for Rehearing overruled n/a
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QUESTION PRESENTED FOR REVIEW 1. Whether the implied consent and mandatory blood draw provisions of the Texas Transportation Code are a constitutionally valid alternative to the warrant requirement.
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ARGUMENT
Although this issue was initially decided against the State in State v.
Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014), reh’g granted (Feb. 25, 2015), the Court has yet to issue a final decision. Thus, the State respectfully requests that cases like the present one, with similar or identical issues, be held under consideration until Villarreal does become final and binding.
The State continues to argue that the implied consent and mandatory blood draw provisions of the Texas Transportation Code are a constitutionally valid alternative to the warrant requirement, and that the decision of the Thirteenth Court of Appeals to the contrary decides an important question of federal law that has not been, but should be, settled by the Court of Criminal Appeals. See Tex. R. App. P. 66.3(b).
PRAYER
For these reasons, the State requests that the Court grant this petition for discretionary review, reverse the court of appeals’ judgment, and grant the State all other proper relief.
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Respectfully Submitted,
/s/ A. Cliff Gordon
A. Cliff Gordon
Tex. Bar #00793838
Asst. Dist. Atty., 105th Dist.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
361.888.0410 phone
361.888.0399 fax
cliff.gordon@nuecesco.com
CERTIFICATE OF COMPLIANCE
According to the word count of the computer program used to prepare this document, it contains 730 words.
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CERTIFICATE OF SERVICE
On November 9, 2015, a true copy of the foregoing was served via eServe on the following:
Ms. Lisa Greenberg lisagreenberglaw@gmail.com Mr. John Gilmore gilmorelaw@msn.com 622 S. Tancahua St.
Corpus Christi, TX 78401 Appellate Counsel for Appellee
/s/ A. Cliff Gordon_______________ A. Cliff Gordon
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APPENDIX
1. Opinion of the 13th Court of Appeals
NUMBER 13-13-00589-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG THE STATE OF TEXAS, Appellant, v.
JAIME ARREDONDO, Appellee.
On appeal from the 28th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria Memorandum Opinion by Chief Justice Valdez In this appeal, the State challenges the trial court's granting of appellee
Jaime Arredondo’s motion to suppress blood-alcohol test results that police seized following his arrest for driving while intoxicated. We affirm.
I. BACKGROUND
The relevant facts are undisputed. A police officer pulled Arredondo over for driving illegally on the center dividing line of a street. During the traffic stop, Arredondo showed signs of intoxication. Believing Arredondo to be intoxicated beyond the legal limit, the police officer arrested him for driving while intoxicated. Arredondo had been convicted of driving while intoxicated two times before. After being arrested, Arredondo was asked to provide a sample of his blood for testing. Arredondo refused. Nevertheless, the police officer obtained a sample of Arredondo’s blood without a warrant and without his consent, believing the search to be authorized under Texas’ mandatory blood-draw statute for repeat DWI offenders. See TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West, Westlaw through 2015 R.S.) (authorizing mandatory blood draws for drunk-driving arrestees who, prior to their arrest, had been convicted of drunk-driving two or more times before). Although the police officer did not attempt to secure a warrant before drawing a sample of Arredondo’s blood, the testimony showed that it would have taken approximately fifteen to twenty minutes to get one.
Based on these facts, Arredondo filed a motion to suppress evidence of the blood sample under the Fourth Amendment. The State stipulated that Arredondo’s blood was drawn without a warrant. Citing Missouri v. McNeely, Arredondo argued that the police officer lacked exigent circumstances to obtain the warrantless blood sample and therefore conducted an illegal search. See 133 S. Ct. 1552 (2013) (holding that, absent exigent circumstances or some other exception to the warrant requirement, a warrantless blood draw in a drunk-driving case violates the Fourth Amendment). Finding no exigent circumstances, the trial court suppressed the warrantless blood sample. This appeal followed.
II. MOTION TO SUPPRESS
By its sole issue, the State contends that the trial court erred when it suppressed evidence of the warrantless blood sample.
A. APPLICABLE LAW AND STANDARD OF REVIEW The Fourth Amendment to the United States Constitution 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, and no Warrants shall issue, but upon probable cause. . .
U.S. CONST. amend IV. The taking of a blood sample by the government is a search that triggers the protections of the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 770 (1966). “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). “A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant.” Id. Once a defendant establishes that there was no warrant, the burden shifts to the State to prove the warrantless search was reasonable under the totality of the circumstances. Amador v. State, 221 S.W.3d 666, 672–73 (Tex. Crim. App. 2007). The State satisfies this burden if it proves an exception to the warrant requirement. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).
One well-recognized exception to the warrant requirement applies “when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” McNeely, 133 S. Ct. at 1558. A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including the imminent
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destruction of evidence. Id. Courts look to the “totality of circumstances” to determine whether a law enforcement officer faced an emergency that justified acting without a warrant. Id. at 1559. In McNeely, the United States Supreme Court held that warrantless blood draws in drunk-driving cases violate the Fourth Amendment unless the State can show exigent circumstances or some other exception to the warrant requirement. Id.
Another exception to the warrant requirement applies when the defendant consents to the particular search at issue. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). “For consent to search to be valid as an exception to the warrant requirement, the consent must be given voluntarily, without coercion by threats or force and not as the result of duress.” Forsyth v. State, 438 S.W.3d 216, 222 (Tex. App.—Eastland 2014, pet. ref’d). Additionally, a person who consents to a search may also specifically limit or revoke such consent. See Miller v. State, 393 S.W.3d 255, 266 (Tex. Crim. App. 2012). The State must prove valid consent by clear and convincing evidence. See Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012).
We review a trial court’s decision on a motion to suppress for an abuse of discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse of discretion analysis, we use a bifurcated standard of review. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim. App. 1997) (en banc)). We give almost total deference to the trial court’s findings of historical fact that are supported by the record and to its resolution of mixed questions of law and fact that turn on an evaluation of credibility and demeanor. See Amador, 221 S.W.3d at 673 (citing
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Guzman, 995 S.W.2d at 89). We “review de novo ‘mixed questions of law and fact’ that do not depend upon credibility and demeanor.” Id. (quoting Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App. 2006)).
B. DISCUSSION In this case, the State stipulated that Arredondo’s blood was drawn without a warrant. Therefore, the burden shifted to the State to prove that the warrantless blood draw was reasonable. See id. On appeal, the State does not argue that an exigent circumstance existed to justify the warrantless blood draw. Instead, the State argues that the warrantless blood draw should be upheld as reasonable under the consent exception to the warrant requirement.
To support this argument, the State relies on the implied-consent and mandatory-blood-draw provisions of the transportation code, which purport to establish implied consent for all drivers arrested on suspicion of driving while intoxicated. See TEX. TRANSP. CODE ANN. § 724.011. Read together, these provisions provide that a person arrested for driving while intoxicated “is deemed to have consented” to the taking of a blood sample, see id.; and consent “deemed” to have been given under section 724.011(a) may not be withdrawn or revoked if, among other things, the arrestee has two prior convictions for driving while intoxicated. Id. § 724.012(b)(3)(B). Relying on this statutory scheme, the State argues that by getting arrested for driving while intoxicated, Arredondo impliedly consented to the blood sample and could not withdraw that consent because of his two previous convictions for driving while intoxicated.
After the State filed its appellate brief in this case, the court of criminal appeals affirmed our decision in State v. Villarreal and held, among other things,
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that a warrantless blood draw taken pursuant to these implied-consent and mandatory-blood draw provisions does not fall within the consent exception to the warrant requirement when, as here, the suspect refuses to consent to the search. See No. PD–0306–14, 2014 WL 6734178, at *11 (Tex. Crim. App. Nov. 26, 2014) (reh’g granted). In reaching its decision, the court observed that a suspect's consent to search must be freely and voluntarily given, and a necessary element of consent is the ability to limit or revoke it. Id. The court concluded:
It 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, as in the present case, expressly and unequivocally refused to submit to the search. That explicit refusal to submit to blood testing overrides the existence of any implied consent, and, unless some other justification for the search applies, there remains no valid basis for conducting a warrantless search under those circumstances. To the extent the State suggests that the implied-
consent and mandatory-blood-draw provisions in the Transportation Code categorically extinguish a DWI suspect's right to withdraw consent when [he or she has two prior convictions for driving while intoxicated], that suggestion cannot be squared with the requirement that, to be valid for Fourth Amendment purposes, consent must be freely and voluntarily given based on the totality of the circumstances, and must not have been revoked or withdrawn at the time of the search. In other words, implied consent that has been withdrawn or revoked by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires.
Id. (citations omitted). Thus, the Fourth Amendment requires “actual” consent; statutorily “implied” consent does not obviate the need for a warrant and does not trump a suspect’s actual refusal to consent to a blood draw. See id; see also Forsyth, 438 S.W.3d at 222 (holding that implied consent under the transportation code is not the equivalent to voluntary consent as a recognized exception to the warrant requirement); State v. Ruiz, No. 13-13-00507-CR, 2015 WL 5626252, at *3 (Tex. App.—Corpus Christi Aug. 27, 2015, no. pet. h.) (mem. op.) (holding the
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same as it relates to an unconscious drunk-driving defendant under section 724.014(a) of the transportation code).
Accordingly, we conclude that the State did not meet its burden to establish that Arredondo consented to the warrantless blood draw in this case because the evidence undisputedly shows that he refused the police officer’s request to obtain a sample of his blood. See Ford, 158 S.W.3d at 492; see also Villarreal, 2014 WL 6734178, at *11. We therefore overrule the State’s sole issue.
III. CONCLUSION
We affirm the judgment of the trial court.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 8th day of October, 2015.