Cara Dawn Gambini v. State

Opinion

Opinion issued August 29, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00395-CR ——————————— CARA DAWN GAMBINI, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 14 Harris County, Texas Trial Court Case No. 1772383

MEMORANDUM OPINION

A jury convicted appellant Cara Dawn Gambini of the class B misdemeanor

offense of driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West

Supp. 2012). The trial court sentenced Gambini to a fine of $500 and confinement for 180 days in the county jail, which was probated for 15 months on the condition

of her serving five days in jail. In a single issue on appeal, Gambini challenges the

trial court’s denial of her motion to suppress the results of a compelled blood test.

We affirm.

Background

Gambini was stopped for speeding. Although she denied having had

anything to drink, the police officer smelled alcohol on her breath and conducted

field sobriety tests. Based on the results of those tests, the officer concluded that

Gambini had been driving while intoxicated, and he arrested her. At the police

station, an officer took Gambini’s fingerprints, smearing ink on the top of her hand

in the process. Another officer gave Gambini the statutory warning informing her

of her right to refuse to provide a breath or blood specimen and the consequences

of such refusal.1 Then he asked for her consent to provide a breath or blood

sample. When Gambini refused to provide such samples, the officers obtained a

search warrant to compel her to submit to a blood draw. The officers showed her

1 See TEX. TRANSP. CODE ANN. § 724.015 (West Supp. 2012) (Information Provided by Officer Before Requesting Specimen). The officer also informed Gambini that she had the right to remain silent and to an attorney. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); see also TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005). Gambini told the officer that she wished to terminate the interview. Gambini’s invocation of her right to remain silent is not at issue in this appeal. 2 the search warrant, but she refused to cooperate. The officers then forced her to sit

in the blood draw chair and restrained her using straps on her arms and shoulders.

Jeff Carrico, a registered nurse, drew Gambini’s blood using a venipuncture

technique. Obtaining a quantity of blood sufficient for analysis required three

separate attempts: in her left arm, her left hand, and finally her right arm. Police

officers recorded the blood draw using cameras in the blood draw room. The

recording shows that Carrico wore gloves, cleaned each draw site using a gauze

pad to which a Betadine solution had been applied, and used a needle that had been

sealed and removed from its package for the purpose of the blood draw. In

addition, the recording shows Carrico taping Gambini’s hand to the arm of the

chair to keep it still.

However, the video also shows that at points before and during the

procedure, Carrico used his gloved hand or hands to touch: his nose, mouth, and

hair; Gambini’s calf; and the restraining straps on the chair. Carrico also placed

the glass end of the blood vials in his mouth. A police officer used his ungloved

hand to pass Carrico a gauze pad, which was placed over the venipuncture site on

Gambini’s right arm.

Before trial, Gambini filed a motion to suppress the results of the analysis of

the blood samples, arguing that the venipuncture blood draw was an unreasonable

search and seizure because the techniques, procedures, and actions used to draw

3 her blood were not in accordance with acceptable medical practices, exposed her to

an unreasonable risk of infection and pain, and were part of an assault. She did not

challenge the lawfulness of the search warrant or the reasonableness of the

venipuncture test as a means of obtaining a blood sample. Gambini later filed a

supplement to the motion to suppress, further arguing that the iodine pads and

“prep solution” used in her blood draw had been recalled, and thus exposed her to

a “risk of infection and pain above and beyond that normally associated with the

venipuncture blood” draws.

At the hearing on the motion to suppress, the judge reviewed the recording

of the blood draw. 2 The court heard arguments regarding a separate motion to

suppress Gambini’s statements invoking her right to remain silent, but the court

denied her motion to suppress the results of the blood sample analysis without

hearing any argument. Later at the hearing, Gambini made a record including still

images from the recording that showed Carrico using his gloved hand or hands to

touch his nose, his mouth, and his hair, Gambini’s calf, and the restraining straps

on the chair. Gambini also offered into evidence video stills of Carrico holding the

vials in his mouth and the officer touching the gauze pad, as well as her recorded

statement questioning whether the needle was sterile.

2 At trial only the video was played. Pursuant to a pretrial ruling on a separate motion to suppress evidence not challenged on appeal, the trial court ordered the audio portions of the recording redacted for the jury. 4 At trial, Carrico testified about the procedure he used to obtain a sample of

Gambini’s blood. He explained how the blood is collected into vials by way of

small tubes, connected to a “butterfly” needle with small handles that enable a

nurse to use the needle without touching it. He testified that the vials were under

vacuum pressure to assist with obtaining blood flow into the vial. He also said that

the vials contain a preservative and that it is his habit to verify the expiration date

before using one.

Carrico testified that there was nothing about Gambini’s blood draw process

that was not sanitary. He clarified that drawing blood is a clean but not sterile

procedure. Carrico testified that the room where Gambini’s blood was drawn was

a sanitary place, which was “actually set up for blood draws.” For example, he

testified that the desk used for the blood draw area is cleaned with a disinfectant.

Carrico also said that Gambini’s blood was drawn according to accepted

medical standards and practices. He testified that the protocol requires that the

skin be cleaned with antibacterial disinfectant, that the needle be held by the

handle and not touched, and that the stopper to the collection vial be kept clean.

He testified that all of those things were done in accordance with proper protocol.

Carrico wore gloves (primarily to protect himself), cleaned Gambini’s skin with a

disinfectant to protect her from the risk of infection, and made sure that the tip of

the needle stayed clean. He also explained that he rubs the skin with disinfectant

5 in a circular motion, so that dirt or “foreign debris is pushed to the outside,” away

from the venipuncture site.

On cross-examination, Carrico was questioned about having touched various

objects with his gloved hand. He could not recall touching his nose, mouth, or

hair, but he said, “[T]he end of the needle, which is the important part, is not

touched by the gloved hand because I would not take the risk of sticking myself.

That would be absurd.” He testified that he did not handle the needle at any time

during Gambini’s blood draws. When asked about having used his mouth to hold

the vials, he explained that it was the bottom of the vial that was in his mouth, that

he had nowhere to put the vials because he was drawing blood from the arm that

was not adjacent to the desk, and that he required two hands for the procedure,

especially because Gambini had been belligerent during the process. When

Gambini’s counsel questioned him about the propriety of holding the vials in his

mouth, he testified that the practice was commonplace.

Although Gambini’s counsel attempted to question Carrico about his

touching of her leg and the gauze pad used to cover the venipuncture site on her

right arm, the trial court limited this line of questioning, saying it was not relevant.

W. Arnold, the assistant director of the police crime laboratory, testified

after Carrico. He tested the blood samples that were taken from Gambini. After

explaining the testing procedure, he testified that the sample showed a blood

6 alcohol concentration of 0.133. Outside the presence of the jury, the court and

Gambini’s counsel questioned Arnold about factors relating to the cleanliness of

the blood draw that could have affected the result. The trial judge inquired

whether an ingredient in the body lotion that Gambini claimed she used on her leg

could have affected the result, in light of the fact that Carrico touched her leg with

his gloved hand during the blood draw procedure. The court stated, “[Y]ou did a

bill . . . on this stuff earlier; and I wanted to ask this gentleman about it just to

make sure that I didn’t rule the wrong way or that I’m ruling the right way.”

Arnold testified that it was not possible that lotion used on Gambini’s skin could

have affected her blood alcohol concentration.

The court further inquired about the effect on the blood alcohol

concentration of the nurse placing either the tip or the glass end of the vial in his

mouth, the presence of ink on the surface of the skin, and the use of recalled or

expired iodine. Arnold testified that none of these things would affect the

measured blood alcohol concentration. Gambini’s counsel then asked a series of

questions about how Carrico’s actions in touching his hair or the straps on the chair

may have affected the test results. The court then stated, “My motion to suppress

rulings stand.” The court also ruled that the questions asked outside the presence

of the jury, which related to the motion to suppress, were irrelevant to the question

7 of Gambini’s guilt or innocence, and her counsel would not be permitted to ask

those questions before the jury.

Gambini testified, denying that she had consumed any alcoholic beverages

on the night in question. She also said that she felt violated by the procedures used

in obtaining her blood samples. She said, “I was just terrified and traumatized. I

felt like I had just been invaded.”

After both sides rested, Gambini argued that there was insufficient evidence

to submit the charge to the jury because the blood test result was not based on a

reliable blood draw. Gambini also requested a special charge based on her motion

to suppress, arguing that the blood draw was not done in accordance with generally

accepted medical procedures. Her attorney argued, “it’s common knowledge that

when somebody draws your blood that it’s not correct procedure . . . for the person

who is withdrawing the blood to put their hands to their nose, hands in their mouth,

hand in their hair, to run their hand up a person’s leg. I think that’s quite obvious

that that’s the case.” The court denied Gambini’s requested special charge and,

finding the evidence legally sufficient, submitted the question of her guilt or

innocence to the jury. The jury found Gambini guilty, and the court assessed her

punishment.

8 Analysis

In one issue, Gambini challenges the court’s ruling on her motion to

suppress the results of the blood test, arguing in this court that the blood draw

subjected her to an unreasonable risk of pain and infection.

We review a ruling on a motion to suppress for an abuse of discretion.

Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost

total deference to a trial court’s determination of historical facts, especially if those

determinations turn on witness credibility or demeanor, and we review de novo the

trial court’s application of the law to facts not based on an evaluation of credibility

and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). At a

suppression hearing, the trial court is the sole and exclusive trier of fact and judge

of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.

App. 2002). Accordingly, a trial court may choose to believe or to disbelieve all or

any part the testimony of a witness. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000). When, as in this case, the trial court makes no explicit findings of

fact, we imply fact findings that support the trial court’s ruling so long as the

evidence supports the implied findings. See Gutierrez v. State, 221 S.W.3d 680,

687 (Tex. Crim. App. 2007). Although we generally limit our review to evidence

adduced at the suppression hearing, when the parties consensually relitigate the

issue at trial, we also consider relevant trial testimony. Rachal v. State, 917

9 S.W.2d 799, 809 (Tex. Crim. App. 1996). Therefore, we must determine if the

parties consensually relitigated the suppression issue at trial.

In Rachal, the defendant moved to suppress a pretrial statement on the

grounds that it was coerced. 917 S.W.3d at 808. The defendant argued that an

officer had threatened him while the two were alone. Id. The officer who

allegedly threatened the defendant did not testify at the suppression hearing, but he

did testify at trial. Id. at 808–09. At trial, the officer testified, without objection,

that the defendant had “offered his confession without duress, coercion, threat, or

unlawful inducement.” Id. at 809. The Court of Criminal Appeals held that the

parties had consensually relitigated the issue during trial. Id. The Court stated:

“[When] the State raises the issue at trial either without objection or with

subsequent participation in the inquiry by the defense, the defendant has made an

election to re-open the evidence, and consideration of the relevant trial testimony is

appropriate in our review.” Id.

Here, Nurse Carrico did not testify at the pretrial hearing on Gambini’s

motion to suppress, but the State called him during its case in chief, and he testified

that the blood draw was done in accordance with medical procedure and in a clean

manner. Gambini questioned him about the cleanliness of the blood draw

procedure on cross-examination. Thus, as in Rachal, it is appropriate for us to

10 consider the trial testimony in our review of the trial court’s ruling on the motion to

suppress. See id. 3

A compelled blood draw constitutes a search and seizure under the Fourth

Amendment. Schmerber v. California, 384 U.S. 757, 758–59, 86 S. Ct. 1826, 1829

(1966); see Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013). The United States

Supreme Court has adopted a two-part test for determining the legality of a blood

draw. See Schmerber, 384 U.S. at 768, 86 S. Ct. at 1834. A compelled blood draw

is permissible under the Fourth Amendment if the police were justified in requiring

the suspect to submit to a blood test, and if the means and procedures used to

obtain the suspect’s blood were reasonable Id.; see State v. Johnston, 336 S.W.3d

649, 658 (Tex. Crim. App. 2011). In Schmerber, the Supreme Court held that

blood extraction was a reasonable means of determining the defendant’s blood

alcohol level because it was commonplace, highly effective, and involved minimal

or “virtually no risk, trauma, or pain.” Id. at 771, 86 S. Ct. at 1836. Schmerber

3 The State argues on appeal that Gambini’s issue is not preserved because her written motion to suppress was general and she did not make the same arguments at the hearing on the motion to suppress as she does on appeal. Specifically, the State contends that there was no evidence the trial judge knew of or evaluated the facts pertaining to the cleanliness of the environment or the nurse’s actions in denying Gambini’s motion to suppress. In addition to our holding above that the State consensually relitigated the issue of the cleanliness of the blood draw and the nurse’s actions, we also observe that, outside the presence of the jury, the trial court asked searching questions of the laboratory manager pertaining to issues of cleanliness of the blood draw and the nurse’s actions. The court expressly stated its purpose for doing so was to verify that it had been correct in denying Gambini’s motion to suppress.

11 also held that the test was performed in a reasonable manner because the

defendant’s blood was drawn by a physician in a hospital environment and

according to accepted medical practices. Id.

In State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011), the Court of

Criminal Appeals held that “there is a presumption that venipuncture blood-draw

tests are reasonable under the Fourth Amendment,” and that “each suspect bears

the burden of showing that a venipuncture blood draw is not a reasonable means to

obtain a blood alcohol level assessment as to him or her, individually.” Id. at 659–

60. Johnston also held that a medical environment is not required to satisfy the

reasonable procedures test. Id. at 662. Nor is it required that the blood draw be

performed by a physician. Id. Rather, a blood draw may be conducted in

accordance with accepted medical practices in an environment that is a safe place

in which to draw blood. Id. at 662–63.

Gambini’s argument is that the procedures used to take her blood were

unreasonable, but this argument is not supported by the evidence. Gambini argues

that the fact that Carrico touched his nose, mouth, and hair, as well as Gambini’s

leg and the straps on the chair, rendered the procedure unclean and exposed her to

an unreasonable risk of pain and infection. At trial Carrico testified that the

procedure he used, which was shown in the video, was done in accordance with

standard medical practices. The blood draw was conducted in a clean, but not

12 sterile, room. Carrico wore gloves, cleaned Gambini’s skin with an antibacterial

disinfectant, held the needle by the handle, and kept the stopper side of the vial

clean. There was no evidence introduced that Carrico’s actions of touching things

with his gloved hands exposed Gambini to an unreasonable risk of pain or

infection. To the contrary, Carrico’s testimony refuted that defensive theory.

Accordingly, we hold that the trial court did not abuse its discretion by denying the

motion to suppress. We overrule Gambini’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Michael Massengale Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).