PD-1263-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/30/2015 5:18:35 PM March 31, 2015 Accepted 3/31/2015 9:28:40 AM ABEL ACOSTA No. PD-1263-14 CLERK
IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS _____________________________________________________________
MICHAEL ANTHONY MCGRUDER
VS.
THE STATE OF TEXAS ____________________________________________________________
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS WACO, TEXAS COURT OF APPEALS NO. 10-13-00109-CR _____________________________________________________________
STATE'S BRIEF _____________________________________________________________
JARVIS PARSONS DISTRICT ATTORNEY BRAZOS COUNTY, TEXAS
Jessica Escue Assistant District Attorney 300 E. 26th Street, Suite 310 Bryan, Texas 77803 (979) 361-4320 (979) 361-4368 (Facsimile) jescue@brazoscountytx.gov State Bar No. 24059726 IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Michael McGruder
Trial Counsel: Bruno Shimek 218 North Main Bryan, Texas 77803
Appellate Counsel: Mary Jo Holloway 10222 Old Stagecoach Chappell Hill, Texas 77426 Mjholloway44@hotmail.com
THE STATE OF TEXAS: Jarvis Parsons District Attorney
Trial Counsel: Brian Baker & Jessica Escue Assistant District Attorney 300 E. 26th Street, Suite 310 Bryan, Texas 77803
Appellate Counsel: Jessica Escue Assistant District Attorney 300 E. 26th Street, Suite 310 Bryan, Texas 77803 jescue@brazoscountytx.gov
i TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................ i
TABLE OF CONTENTS .............................................................................................. ii
INDEX OF AUTHORITIES ........................................................................................ iii
STATEMENT OF THE CASE ..................................................................................... 1
STATEMENT OF FACTS ............................................................................................ 2
SUMMARY OF THE ARGUMENT ......................................................................... 11
STATE'S RESPONSE TO APPELLANT'S POINT OF ERROR ............................. 12
Tex. Transp. Code § 724.012(b)(3)(B) is facially constitutional, as a warrantless blood draw of a defendant who is validly arrested for driving while intoxicated and has at least two prior convictions for driving while intoxicated is reasonable under the Fourth Amendment.
PRAYER ...................................................................................................................... 22
CERTIFICATE OF SERVICE.................................................................................... 23
CERTIFICATE OF COMPLIANCE .......................................................................... 23
ii INDEX OF AUTHORITIES
CASES
Maryland v. King, 133 S.Ct. 1958 (2013) ................................................... 16-19, 21
United States v. Knights, 534 U.S. 112 (2001) ............................................ 17-18, 21
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) ............................................. 13
McGruder v. State, No. 10-13-00109-CR, ___S.W.3d ___, 2014 WL 3973089 (Tex. App.—Waco Aug. 14, 2014, pet. granted) ...................................................... 2
Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013) ................................... 16
State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) .............................. 13-14
Samson v. California, 547 U.S. 843 (2006) ................................................. 18-19, 21
New Jersey v. T.L.O., 469 U.S. 325 (1985) ............................................................. 21
Vernoia School Dist. 47J v. Acton, 515 U.S. 646 (1995) ..................................17, 21
STATUTES
Tex. Transp. Code § 724.012(b)(3)(B) ....................................... 2, 11, 15-17, 21-22
REPORTS / STUDIES
James Fell, Repeat DWI Offenders in the United States, in TRAFFIC TECH:
TECHNOLOGY TRANSFER SERIES (National Highway Traffic Safety Administration
1995 .......................................................................................................................... 20
LIANG Y. LIU, DWI RECIDIVISM IN TEXAS 1987-1990, 13 (Texas Commission on
Alcohol And Drug Abuse, 1993) ............................................................................. 20
iii NATHAN WARREN-KIGENYI & HEIDI COLEMAN, DWI RECIDIVISM IN THE UNITED
STATES: AN EXAMINATION OF STATE-LEVEL DRIVER DATA AND THE EFFECT OF
LOOK-BACK PERIODS ON RECIDIVISM PREVALENCE, 1 (National Highway Traffic
Safety Administration, 2014) ............................................................................... 9, 19
iv No. PD-1263-14
IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS _____________________________________________________________
THE STATE OF TEXAS ____________________________________________________________
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS WACO, TEXAS COURT OF APPEALS NO. 10-13-00109-CR _____________________________________________________________
STATE'S BRIEF _____________________________________________________________
TO THE HONORABLE COURT CRIMINAL OF APPEALS:
COMES NOW, the State of Texas, by and through its District Attorney, and
files this brief in response to the point of error alleged by Appellant, and would
respectfully show the Court the following:
STATEMENT OF THE CASE
On December 1, 2011, Appellant was indicted for the felony offense of
driving while intoxicated. (CR at 1). On March 21, 2013, Appellant waived his
right to a jury (2 RR 7) and entered a plea of not guilty. (2 RR 9). The trial court
found Appellant guilty of the offense. (3 RR 26). The trial court found the two
1 enhancement paragraphs to be true, and assessed punishment at 30 years in the
institutional division of the Texas Department of Criminal Justice. (4 RR 32).
Notice of Appeal was filed on April 1, 2013. (CR 7).
On August 14, 2014, the Tenth Court of Appeals affirmed Appellant’s
conviction in an opinion which held that Tex. Transp. Code § 724.012 is not
facially unconstitutional. McGruder v. State, No. 10-13-00109-CR, ___S.W.3d
___, 2014 WL 3973089 (Tex. App.—Waco Aug. 14, 2014, pet. granted). On
October 16, 2014, Appellant filed his Petition for Discretionary Review with this
Court. Petition for Discretionary Review was granted on January 28, 2015 by this
Court on the issue: “Did the Court of Appeals err in finding the Appellant’s facial
constitutional challenge to Texas Transportation Code Section 724.012(b)(3)(B)
failed and presumed the statute to be constitutionally valid?” (Appellant’s Brief, p.
4).
STATEMENT OF FACTS
Greg Silber (Investigator with the Brazos County District Attorney’s
Office) testified that, as a fingerprint expert, he took inked prints from Appellant.
(2 RR 18). He compared Appellant’s known fingerprints (State’s exhibits 32A)
with the fingerprints in State’s exhibit 32 (misdemeanor conviction for DWI; cause
no. 93-0719) and State’s exhibit 34 (felony conviction for DWI; cause no. 23.230-
2 361). He confirmed that Appellant’s prints were found in State’s exhibits 32 and
34. (2 RR 19).
Officer Jay Summers (College Station Police Department) stated that he
was on patrol the early morning hours of September 27, 2011. (2 RR 25, 46).
Around 12:19 a.m., there was a call to dispatch concerning a black male who had
frightened someone in the parking lot of the University Place Condominiums. (2
RR 25). The male was described as being heavy set, wearing gray shorts and
driving a red truck with a lot of junk in the back of it. (2 RR 25). Because
Summers was on another call, Officers Paris and Ingram initially responded (2 RR
25), and Paris was considered the primary officer. (2 RR 37).
After he finished his previous call, Summers saw the red truck, with junk in
the back, pass by him. (2 RR 28). He pulled in behind the truck; it continued a
short period of time before parking in the Southgate Village apartment complex. (2
RR 29). While following the red truck, Officer Fisher passed the truck head on. (2
RR 30). Summers never lost sight of the truck; he saw the truck park and saw the
driver (Appellant) get out of the vehicle. (2 RR 31, 34). Summers called over to
Appellant and told him to stop. (2 RR 35). Appellant complied. Because of the
earlier suspicious person call, Summers wanted to investigate why Appellant was
over at the University Place Condominiums. (2 RR 35). Summers noted that
Appellant smelled of alcohol. (2 RR 36).
3 Because Summers was not the primary officer, he called Officer Paris to
complete his investigation. (2 RR 38). Summers listened to Paris’ interview of
Appellant. (2 RR 38). Initially, Appellant was cooperative. As the interview went
on, Appellant stated that he had walked over to Southgate, not driven. (2 RR 38).
Summers said that Appellant’s responses did not make sense. Although Summers
was seven to ten feet away, he continued to smell alcohol, coming from Appellant,
while Appellant was being interviewed by Paris. (2 RR 39). State’s exhibit 5
(police car mobile video, with no audio) was admitted. (2 RR 41). The time of the
stop showed 12:32 a.m. on the video.
Appellant refused Officer Paris’ request to perform field sobriety tests. (2
RR 38). After the investigation was complete, Appellant was arrested. (2 RR 44).
Appellant had stated that he did not live at Southgate Village Apartments; he was
just visiting. (2 RR 45). Because he did not live at Southgate Village Apartments,
Appellant’s truck could not be legally parked in the parking lot. (2 RR 45).
Consequently, Appellant’s truck was inventoried prior to towing it. (2 RR 44).
State’s exhibit 14 was a photo of the front passenger seat area showing a unopened
can of Miller High Life beer. (2 RR 45). Summers stated that, based on his training
and experience, Appellant was without the normal use of his mental faculties due
to the introduction of alcohol. (2 RR 46).
4 On cross-examination, Summers estimated that Appellant was detained
approximately twenty to twenty-five minutes before his arrest. (2 RR 48). There
were four to five officers on the scene. (2 RR 48). Summers agreed that “there was
some heated confrontation” between Appellant and the officers. (2 RR 48).
Summers did not see the truck speed or make an improper turn. (2 RR 50). He
could not explain why his body microphone, that supplied audio for the mobile
video, did not turn on. (2 RR 52).
On redirect, Summers stated that he became frustrated with Appellant
because of the nonsensical answers he gave to Officer Paris’ questions and because
he had lied when he said that he wasn’t driving. (2 RR 54).
Officer Matthew Paris testified that, on September 27, 2011, he was still in
the “ghost phase” training; his supervising officer was Officer Ingram. (2 RR 62).
At 12:19 a.m., a call came in reporting a suspicious person. (2 RR 62). The person
was described as a black male wearing a gray T-shirt driving an older model red
Ford truck with furniture in the bed. (2 RR 63). He responded to the University
Place Condominiums and did not locate the red truck. (2 RR 64). He then drove to
Southgate Village Apartments. (2 RR 65). He saw Officer Summers’ and Fisher’s
patrol cars; he saw a black male wearing a gray t-shirt and gray shorts, later
identified as Appellant. (2 RR 67). Also located was the red truck with furniture. (2
RR 68). Paris asked Appellant if he had been over at the University Place
5 Condominium apartments; he said he had not. (2 RR 71). Appellant also said that
he had done nothing wrong and wanted to know why the officers were questioning
him. (2 RR 71). Paris noticed that Appellant was sweating, and he was not standing
still but shifting from foot to foot–possibly to conceal his swaying. (2 RR 72).
Appellant also smelled of alcohol. Appellant denied being at the University Place
Condominium apartments and said he was coming from his house. (2 RR 72). He
said that he had walked from his home at 1118 Phoenix to Southgate to visit his
girlfriend. (2 RR 74). When asked if he had been drinking, Appellant stated “I had
– paused for a minute and told me [Paris] no.” (2 RR 74). When confronted with
the fact that Paris could smell alcohol on Appellant’s breath, Appellant changed his
story and said that he had had one beer at 6:00 p.m. (2 RR 75). Paris stated that one
forty ounce King Cobra beer (2 RR 76), ingested six hours earlier, was not
consistent with the odor of alcohol and behavior that he was witnessing. (2 RR 75).
He asked Appellant to perform field sobriety tests to determine if Appellant was
safe to drive. (2 RR 75). Appellant refused. (2 RR 76). Appellant was asked how
drunk he was, on a scale of one to ten—with a ten being the most intoxicated he
had ever been. (2 RR 76). Appellant “rated himself a 10 or a 20.” Appellant was
placed under arrest for DWI. Paris then read the admonishments required in the
DIC 24 form, that let him know the consequences for failing to provide a breath or
blood sample. (2 RR 77).
6 State’s exhibit 18 (mobile video of Paris’ interaction with Appellant) was
admitted, in part, as to the portion covering the police’s initial interaction with
Appellant to determine if he was intoxicated. (2 RR 85). The trial court suppressed
any statement made by Appellant after he was arrested and placed into the squad
car until the police stopped questioning him. (2 RR 85). However, the trial court
held that all statements in State’s exhibit 18, that were volunteered by Appellant
while in the squad car after questioning had stopped, were admitted. (2 RR 85).
Paris stated that Appellant had a soda in his hand at the time of contact. (2
RR 88). He inventoried the truck; State’s exhibit 14 showed an unopened 32 ounce
Miller High Life beer, cool to the touch, in the interior of the truck. (2 RR 89).
After the truck was inventoried and the wrecker took possession of it, Paris
transported Appellant to the police department to write a search warrant for his
blood. (2 RR 90). He did not know, at that point, that Appellant had two prior
convictions for DWI. However, he later learned of Appellant’s two priors for DWI.
(2 RR 91). He then disregarded preparing the search warrant, filled out the
mandatory blood draw form and obtained a blood draw kit. (2 RR 91). He stated
that he abandoned obtaining the search warrant for blood because it takes time to
get a warrant and “every bit of time matters because his body is eliminating the
alcohol that’s in his system.” (2 RR 91).
7 State’s exhibit 19 (videotape of the blood draw) was admitted. (2 RR 94).
State’s exhibits 23 and 24 were still photos taken from the video. (2 RR 95). Paris’
initial contact with Appellant was at 12:32 a.m. (2 RR 95). Time of arrest was 1:02
a.m. (2 RR 100). State’s exhibit 24 and 28 showed the time of the blood draw to be
2:15 a.m.—approximately one hour and forty-five minutes later. (2 RR 96, 99,
100). (2 RR 99). State’s exhibits 20-22 were photos taken of the blood draw. (2 RR
94). State’s exhibits 25 (blood kit box) and 26 (blood vial) were admitted. (2 RR
99). After obtaining Appellant’s blood, he was released to the jail at 2:27 a.m.; the
blood evidence was put into the evidence drop box of the police department. (2 RR
101).
On cross-examination, Paris conceded that he had never contacted Appellant
before and did not know what his normal speech or voice was. (2 RR 102).
Appellant was already outside the truck when Paris arrived; he did not see
Appellant operate the truck. (2 RR 104). Paris stated that the following indicated
Appellant was intoxicated: admission to drinking; stating he did not drive when
two officers had seen him driving the truck; odor of alcohol; had trouble putting
his words together at times. (2 RR 104).
During the contact with Appellant, he wasn’t being cooperative and was
frustrated. (2 RR 105-106). It was possible that Appellant thought that the range of
intoxication was a 1 to 100 scale, but it was clearly stated that it was a one to ten
8 scale. (2 RR 106). Appellant appeared nervous because he was sweating and
stuttered at the beginning of his sentences. (2 RR 106). Officer Summers indicated
in his report that he did not note any problems with Appellant’s speech or balance.
(2 RR 108, 117). Before Paris activated his mobile video, Officer Summers had
dispatch run Appellant’s driver’s license; it had expired. (2 RR 112). Paris found
out that Appellant had two priors DWI convictions when he was back at the police
department preparing the search warrant. (2 RR 112-113).
Tomika Warren was a phlebotomist at the College Station Medical Center.
(2 RR 118). On September 27, 2011, she took blood from Appellant at 2:15 a.m. (2
RR 123, 124).
On cross-examination, she stated that Appellant cooperated during the blood
draw. (2 RR 126).
Anna Mudd (DPS forensic scientist) obtained the blood sample vial (State’s
exhibit 26) contained in the box (State’s exhibit 25). (2 RR 137). She tested the
blood for alcohol concentration on two different days. (2 RR 141). Her test on
October 27th resulted in values of .0985 and .0991 units of grams of alcohol per
100 milliliters of blood. (2 RR 145). The October 28 th test resulted in values of
.0983 and .0988. The reporting value was .09 at 2:15 a.m. on September 27, 2011.
(2 RR 146, 148). State’s exhibit 31 was the report she generated from her tests. (2
RR 146-147). The legal limit in Texas is .08. (2 RR 148).
9 Mudd testified that the body typically eliminates alcohol at a range of .01 to
.03 grams of alcohol per 100 milliliters of blood per hour. (2 RR 151). As soon as
alcohol is absorbed, the body is actively trying to eliminate it from the body.
Officer Michael Fisher (College Station Police Department) stated that, on
September 27, 2011, he initially responded to University Place Condominiums
concerning the suspicious person call. (2 RR 156). He had remembered seeing a
vehicle, that matched the suspect vehicle, at Southgate Village Apartments earlier
in the night. (2 RR 157). He went there to see if the truck was present. (2 RR 157).
He was leaving the Southgate Village Apartments when Appellant and Officer
Summers passed him. (2 RR 161). He turned around and located Summers talking
to Appellant, whom he had just seen driving the truck. (2 RR 162). Fisher opined
that Appellant was intoxicated because he was having a hard time remembering
statements he had made and continually repeated himself. He also initially said he
was driving and then said he was not. (2 RR 165). Fisher specifically asked
Appellant, on a scale of one to ten, if he was intoxicated. He said ten to twenty.
On cross-examination, Fisher stated that he did not see the truck commit any
traffic violations when it passed by. (2 RR 170). He did not know Appellant’s
normal speech patterns. (2 RR 172).
Officer William Snell (College Station Police Department) stated that he
was on patrol on January 25, 2013. (3 RR 5). He made contact with Appellant at
10 11:42 a.m. During that contact, Appellant provided a telephone number for
Appellant’s girlfriend (Sherri Stoval) of (979) 402-0684. (3 RR 5).
Sergeant Anna Sifuentes (Brazos County Jail custodian of records; 3 RR 7)
testified that she pulled all the booking records for Appellant. (3 RR 7). State’s
exhibits 36, 37, 38 and 40 were admitted. (3 RR 8).
Pursuant to subpoena, Sifuentes also retrieved all phone calls made from the
jail to (979) 402-0684. (3 RR 10). Twenty-two phone calls were made on
September 27, 2011 from the jail intake area. (3 RR 10). State’s exhibit 39
contained the phone calls to (979) 402-0684 and was admitted. (3 RR 12-13). Two
of the phone calls were played for the trial court. (3 RR 13).
SUMMARY OF THE STATE’S ARGUMENT
Appellant argues that the Tenth Court of Appeals erred in its opinion which
found Tex. Transp. Code § 724.012(b)(3)(B) facially constitutional, because (1)
Appellant was not making solely a facial challenge to the statute; and (2) the
statute is unconstitutional because it permits a “mandatory blood draw in the
absence of a warrant or a recognized exception to a warrant.” First, a clear reading
of the record reveals that Appellant was making only a facial challenge to the
statute, as his complaint was based on the statute’s allowance of a warrantless
blood draw for all defendants arrested for DWI with two or more prior convictions
-- not on the specific facts of Appellant’s case.
11 Second, the warrantless blood draw authorized under Tex. Transp. Code §
724.012(b)(3)(B) is facially constitutional because the search is reasonable under
the Fourth Amendment. The government has a substantial interest in protecting
the public against the dangers of repeat DWI offenders. Studies show individuals
who have been arrested at least twice for driving while intoxicated are significantly
more likely than the average law-abiding citizen to be arrested for DWI in the four
years following their arrest, more likely to refuse to submit a blood or breath
sample when arrested for a subsequent DWI, and more likely to be involved in a
fatal crash. The government’s substantial interest in protecting the public
outweighs the privacy interest of a defendant who (1) is arrested under valid
probable cause for driving while intoxicated, and (2) has at least two prior
convictions for driving while intoxicated. Consequently, since a warrantless blood
draw in these circumstances is reasonable under the Fourth Amendment, Tex.
Transp. Code § 724.012(b)(3)(B) is facially constitutional.
RESPONSE TO APPELLANT'S POINT OF ERROR
Tex. Transp. Code § 724.012(b)(3)(B) is facially constitutional, as a warrantless blood draw of a defendant who is validly arrested for driving while intoxicated and has at least two prior convictions for driving while intoxicated is reasonable under the Fourth Amendment.
Appellant argues that the Tenth Court of Appeals erred in its opinion which
found Tex. Transp. Code § 724.012(b)(3)(B) facially constitutional, because (1)
12 Appellant was not making solely a facial challenge to the statute; and (2) the
statute is unconstitutional because it permits a “mandatory blood draw in the
absence of a warrant or a recognized exception to a warrant.” However, a clear
view of the record demonstrates that Appellant was only making a facial challenge
to the statute when he objected at trial. Furthermore, it is clear that section
724.012(b)(3)(B) is not facially unconstitutional, as a warrantless blood draw of a
suspect who was arrested for DWI based on probable cause, and has previously
been convicted at least twice of DWI in the past, is reasonable under the Fourth
Amendment.
Standard of Review
Whether a statute is facially constitutional is a question of law that is
reviewed de novo. Ex parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2013). A
statute is presumed constitutionally valid, and the burden of showing its
unconstitutionality lies with the party challenging the statute. Id. at 15. In order to
prevail on a facial constitutional challenge, the party challenging the statute “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).
Objection at Trial
Although Appellant argues that the Tenth Court of Appeals erred in applying
“a ‘hyper-technical’ analysis in determining [that] McGruder was making only a
13 facial challenge,”1 it is clear from Appellant’s objection at trial that he was only
making a facial challenge to the statute. While a facial challenge alleges that the
statute is unconstitutional in all situations, an as-applied challenge depends “on
development of the specific facts of the case showing how the statute is being
applied to the defendant.” Rosseau, 398 S.W.3d at 778. The record from trial
clearly showed that Appellant was solely making a facial challenge:
Q. [By Ms. Escue] I'm going to show you state's Exhibits 25 and 26. Do you recognize these exhibits?
A. [Officer Paris] Yes, ma'am.
Q. What are they?
A. It's the sealed blood kit --
Q. Okay.
A. -- that we used.
Q. And how can you tell that it's the same one that you used?
A. Got my initials on it from where I sealed it and my name and handwriting on the end where I submitted it as evidence.
Q. Other than the testing does it look like it's been tampered with or altered with in any way since the last time you saw it?
A. No.
MS. ESCUE: Your Honor, I offer State's Exhibits 25 and 26 into evidence.
1 (Appellant’s brief at 5). 14 MR. SHIMEK: Judge, I'm going to object to State's Exhibit 25 and 26, first of all, on the basis that Section 724.012 of the Texas Transportation Code is unconstitutional in that it denies the defendant due process, allows for the collection of evidence without a search warrant, it's a violation of search and seizure; and for that reason I object to it under that basis.
Further I'd object in that there's been -- actually no probable cause established to draw the blood in the first place, and so this blood was seized without -- or drawn without adequate probable cause to -- without adequate probable cause that an offense even occurred. For that reason I'd object on that basis as well.
THE COURT: Why do you think the statute is unconstitutional and do you have any case law that --
MR. SHIMEK: Haven't found any cases to support it. I believe it's unconstitutional because I think it's a violation of due process and protection clause of both the U.S. and federal (sic) Constitutions. The -- essentially the basis is that it puts a person who's had two DWIs in a position to have items from his body seized, a search done without a warrant – a search done without a warrant and a search done -- it allows for wide abuse of the -- of a person who is in that position, abuse of that person's individual rights; and it does not afford that person the protection of a -- of an unbiased magistrate to review whether or not there's probable cause to think that an offense even because of the fact that under this statute it puts persons in Mr. McGruder's position in a different position than every other person in the state of Texas. And so he's denied equal protection under that -- he's denied equal protection, he's denied the right to have a fair and impartial magistrate review whether or not there's probable cause that exists for a search of his person to be even done; and a search of a person is so invasive that I believe that this statute would be unconstitutional. Have not been able to find any case law to support that, and I believe that it is unconstitutional.
THE COURT: Don't we deprive a lot of people of their Constitutional rights because they've been convicted?
15 MR. SHIMEK: We do; but we shouldn't in this case, Judge. It sets up a clear pattern -- clear ability for an officer without probable cause to submit -- make a person submit to a blood draw that a magistrate can't even review.
THE COURT: Objection overruled. The exhibits will be admitted -- or -- both of them are just one?
MS. ESCUE: Both. It's 25 and 26, 25 is the box and 26 is the actual vial.
THE COURT: 25 and 26 are admitted.
(2 RR 97-99).
Consequently, Appellant’s argument that the court of appeals erred in only
assessing his objection as a facial challenge is without merit.
Reasonableness
Appellant’s second argument -- that the court of appeals erred finding Tex.
Transp. Code § 724.012(b)(3)(B) facially constitutional -- is without merit, because
the warrantless blood draw of an individual who (1) is arrested under valid probable
cause for driving while intoxicated, and (2) has at least two prior convictions for
driving while intoxicated, is reasonable under the Fourth Amendment.
The Fourth Amendment to the United States Constitution states, “[t]he right of
the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated…” U.S. CONST. amend.
IV (emphasis added). A blood draw of a DWI suspect is undoubtedly a search
under the Fourth Amendment. See Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 16 1552, 1558 (2013). However, the Fourth Amendment only prohibits
unreasonable searches. Vernoia School Dist. 47J v. Acton, 515 U.S. 646, 652
(1995) (“As the text of the Fourth Amendment indicates, the ultimate measure of
the constitutionality of a governmental search is ‘reasonableness.’”). The Supreme
Court has held:
In some circumstances, such as when faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions or the like, the Court has found that certain general, or individual circumstances may render a warrantless search or seizure unreasonable. Those circumstances diminished the need for a warrant, either because the public interest is such that neither a warrant nor probable cause is required or because the individual is already on notice, for instance because of his employment, or the conditions of his release from government custody, that some reasonable police intrusion on his privacy is to be expected.
Maryland v. King, 133 S.Ct. 1958, 1969-70 (2013) (internal citations and quotations omitted).
Where the public interest is high and the defendant’s reasonable expectation
of privacy is low, the Supreme Court has often found that a search without a
warrant is not an “unreasonable search” under the Fourth Amendment. See United
States v. Knights, 534 U.S. 112, 119-21 (2001) (search of probationer’s home
based on reasonable suspicion and without a warrant was not prohibited by the
Fourth Amendment because the lesser degree of suspicion and lack of a warrant
“satisfies the Constitution when the balance of governmental and private interest
makes such a standard reasonable.”).
17 Samson v. California
In Samson v. California, the defendant was on parole when officers searched
his home and found the methamphetamine that was the basis for his conviction.
Samson v. California, 547 U.S. 843, 846-47 (2006). The search was solely based
on the defendant’s status as a parolee. Id. The Supreme Court, citing Knights,
upheld the warrantless search as reasonable. Id. at 857. The Supreme Court
found, that the defendant had a lesser expectation of privacy than normal, law
abiding citizens because of his status as a parolee. Id. at 852. Furthermore, the
State had a “substantial” interest in monitoring individuals on parole, as parolees
are more likely to commit crimes and a State has a valid interest in reducing
recidivism. Id. at 853. Therefore, “promoting reintegration and positive
citizenship among probationers and parolees warrant privacy intrusions that would
not otherwise be tolerated under the Fourth Amendment.” Id.
Maryland v. King
Similarly, in Maryland v. King, the defendant was arrested for assault and
booked into custody. King, 133 S.Ct. at 1966. When he was booked into custody,
detectives obtained a DNA sample from the defendant without a warrant and
placed the results into a DNA database. Id. The defendant’s DNA matched an
unsolved rape case. Id. As a result, the defendant was convicted of the unsolved
rape and sentenced to life in prison. Id. On appeal, the defendant claimed the
18 warrantless search, which obtained his DNA, was unreasonable under the Fourth
Amendment. Id.
The Supreme Court held that such a search was constitutional under the
Fourth Amendment because the governmental interest in obtaining the DNA – “the
need for law enforcement officers in a safe and accurate way to process and
identify the persons and possessions they must take into custody” – was high. Id.
at 1970. Furthermore, the legitimate expectations of privacy of someone who has
been arrested and is in the process of being booked into custody is low. Id. at
1978. Consequently, this combination rendered the search constitutional. Id. at
1980.
Government Interest in Warrantless Search
Like Samson and King, the governmental interest in allowing the warrantless
blood draw of a defendant who 1) has been validly arrested under probable cause
for driving while intoxicated and 2) has been twice convicted of driving while
intoxicated, is high. Nation-wide, thirty-one percent of fatal crashes involve an
alcohol-impaired driver. See NATHAN WARREN-KIGENYI & HEIDI COLEMAN, DWI
RECIDIVISM IN THE UNITED STATES: AN EXAMINATION OF STATE-LEVEL DRIVER
DATA AND THE EFFECT OF LOOK-BACK PERIODS ON RECIDIVISM PREVALENCE, 1
(National Highway Traffic Safety Administration, 2014) (attached as Appendix 1).
Fifty-five percent of individuals arrested for driving while intoxicated in Texas
19 have been arrested before for driving while intoxicated. See LIANG Y. LIU, DWI
RECIDIVISM IN TEXAS 1987-1990, 13 (Texas Commission on Alcohol And Drug
Abuse, 1993) (attached as Appendix 2). Thirty-one percent of individuals who
have been arrested two times for DWI will be arrested for an additional DWI
within four years. Id. That number increases to thirty-nine percent for individuals
who have been arrested at least three times. Id. Additionally, individuals who have
been arrested at least twice for driving while intoxicated are more likely to refuse
to submit a blood or breath sample when arrested for a subsequent DWI and more
likely to be involved in a fatal crash. James Fell, Repeat DWI Offenders in the
United States, in TRAFFIC TECH: TECHNOLOGY TRANSFER SERIES (National
Highway Traffic Safety Administration 1995) (attached as Appendix 3); Warrant-
Kigenyi, supra at 2-5; Liu, supra at 2-5, 12-13, 17-18. Consequently, the
government interest in finding and protecting the public from the danger posed by
repeat DWI offenders is high.
Reasonable Expectation of Privacy
Defendants who have been validly arrested for driving while intoxicated and
have two or more previous convictions for driving while intoxicated have a lesser
expectation of privacy in the alcohol content of their blood or breath. “Once an
individual has been arrested on probable cause for a dangerous offense that may
require detention before trial … his or her expectations of privacy and freedom
20 from police scrutiny are reduced.” King, 133 S.Ct. at 1970. The fact that these
defendants have also been previously convicted for driving while intoxicated at
least twice before further diminishes any reasonable expectation of privacy in their
blood or breath. See Samson, 547 U.S. at 848 (defendant on parole had a lesser
expectation of privacy in his home to justify officers’ warrantless search); Knights,
534 U.S. at 119 (“Just as other punishments for criminal convictions curtail an
offender’s freedoms, a court granting probation may impose reasonable condition
that deprive the offender of some freedoms enjoyed by law-abiding citizens.”);
Vernoia School Dist. 47J, 515 U.S. at 654 (“[T]he legitimacy of certain privacy
expectations vis-à-vis the State may depend upon the individual’s legal
relationship with the State.”). Just as the parolee in Samson and probationer in
Knights had a lesser expectation of privacy in their homes because of their criminal
history, a defendant with two or more convictions for driving while intoxicated has
a lesser expectation of privacy in the alcohol content of their blood.
Like King and Samson, when the substantial government interest in
protecting the public against the danger posed by repeat DWI offenders is weighed
against the privacy interests of a defendant in custody for DWI, who has at least
twice before been convicted of DWI, it is clear that a warrantless blood draw in
these circumstances does not offend the Fourth Amendment. See King, 133 S.Ct.
at 1978-80; Samson, 547 U.S. at 854; New Jersey v. T.L.O., 469 U.S. 325, 337
21 (1985) (“Although the underlying command of the Fourth Amendment is always
that searches and seizures be reasonable, what is reasonable depends on the context
within which a search takes place.”). Consequently, Tex. Transp. Code §
724.012(b)(3)(B) is facially constitutional, because the warrantless blood draw of an
individual who (1) is arrested under valid probable cause for driving while
intoxicated, and (2) has at least two prior convictions for driving while intoxicated, is
reasonable under the Fourth Amendment.
PRAYER
Wherefore, premises considered, the State of Texas respectfully prays that
this Court find that Appellant’s point of error be overruled, and that the conviction
be in all things affirmed.
Respectfully submitted,
_/s/ Jessica Escue Jessica Escue Assistant District Attorney State Bar No. 24059726
22 CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above and foregoing State's Brief was electronically served on Mary Jo Holloway, Attorney for Appellant at mjholloway44@hotmail.com, on this 30th day of March, 2015.
/s/ Jessica Escue Jessica Escue
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
I certify that the foregoing document has a word count of 4,928 based on the
word count program in Word 2010.
23 PD-1263-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/30/2015 5:15:30 PM Accepted 3/31/2015 9:29:45 AM ABEL ACOSTA CLERK