ACCEPTED 03-14-00588-CR 3629106 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/31/2014 1:29:51 PM JEFFREY D. KYLE CLERK
No. 03-14-00588-CR FILED IN 3rd COURT OF APPEALS In the AUSTIN, TEXAS Court of Appeals 12/31/2014 1:29:51 PM Third District JEFFREY D. KYLE Austin, Texas Clerk
The State of Texas, Appellant
v.
Hector Martinez, Appellee
Appeal from the 42th Judicial District Court Travis County, Texas Cause Number D-1-DC-13-900228
STATE’S BRIEF
Rosemary Lehmberg District Attorney Travis County
Angie Creasy Assistant District Attorney State Bar No. 24043613 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax (512) 854-4206 Angie.Creasy@traviscountytx.gov AppellateTCDA@traviscountytx.gov
Oral argument is requested Identity of Parties and Counsel
Trial Judge: Jim Coronado 427th Judicial District Court P.O. Box 1748 Austin, Texas 78767
Leon Grizzard Magistrate Judge P.O. Box 1748 Austin, Texas 78767
Trial Counsel for State: Kelly Gier and Willis Chambers Travis County District Attorney’s Office P.O. Box 1748 Austin, Texas 78767
Appellate Counsel for State: Angie Creasy Travis County District Attorney’s Office P.O. Box 1748 Austin, Texas 78767
Defendant/Appellee: Hector Martinez
Counsel for John de la Vina Defendant/Appellee: 1108 Lavaca Street, Suite 110 Austin, Texas 78701
i Table of Contents
Identity of Parties and Counsel ............................................................ i Index of Authorities............................................................................ iii Statement of the Case ...........................................................................v Statement of Facts ................................................................................1 Summary of the State’s Argument....................................................... 7 Standard of Review.............................................................................. 8 Argument............................................................................................. 8 Point One: The blood draw evidence is admissible under the exigent circumstances exception to the warrant requirement. ..................... 9 Point Two: Alternatively, the evidence is admissible because the blood draw was mandated by statute, and the statute is constitutionally reasonable under the Fourth Amendment. ...........14 Point Three: Alternatively, the blood draw evidence is admissible because the defendant is deemed to have consented to the taking of a specimen, per Tex. Transp. Code § 724.011(a)............................. 20 Point Four: Assuming, arguendo, that the blood draw is unconstitutional, the Texas exclusionary rule still does not bar admission of the evidence................................................................21 Point Five: The federal exclusionary rule does not bar admission of the evidence either.......................................................................... 25 Prayer ................................................................................................ 28 Certificate of Compliance and Service............................................... 29
ii Index of Authorities
Cases Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) .................22, 27 Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957)...............................................................................................18 Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 180 L. Ed. 285 (2011).............................................................................................. 27 Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987) ........................................................................................................ 25 Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002).....................19 Maryland v. King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013) .........................................................................................................15 McCambridge v. State, 778 S.W.2d 70 (Tex. Crim. App. 1989)........ 20 Missouri v. McNeely, 569 U.S. __, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) .................................................................................. 13, 24, 27 Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) ....................15 Neesley v. State, 239 S.W.3d 780 (Tex. Crim. App. 2007)........... 16, 17 People v. Youn, 2014 Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15, 2014)............................................................................................... 27 Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d. 250 (2006).......................................................................................15 Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008) .................15 Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) ............... 8 South Dakota v. Neville, 459 U.S. 553, 103 s. Ct. 916, 74 L. Ed. 2d 748 (1983) ..............................................................................................18 State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680 (App. Div. Dec. 20, 2013)............................................................................................... 24 State v. Johnson, 871 S.W.2d. 744 (Tex. Crim. App. 1994)............... 23 State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ............... 17 State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000, pet. ref’d) . 27 State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref’d) ............................................................................................... 22 State v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d) .........................................................................................................18 State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014).............................. 9, 15, 19, 21 te v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d) .... 17
iii United States v. Brooks, No. PWG-14-0053, 2014 U.S. Dist. LEXIS 67417 (D. Md. May 16, 2014) (mem. op.) ....................................... 27 United States v. De Angelo, 584 F.2d 46 (4th Cir. 1978) ...................21 United States v. Herzbrun, 723 F.2d 773 (11th Cir. 1984) ................ 20 United States v. Spriggs, 827 F. Supp. 372 (E.D. Va. 1993) ..............21 Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013)......... 23 Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985) .........................................................................................................18 Statutes Tex. Code Crim. Proc. art. 38.23 ........................................................21 Tex. Penal Code § 49.04 .......................................................................v Tex. Penal Code § 49.09 .......................................................................v Tex. Transp. Code § 724.011 .............................................................. 20 Tex. Transp. Code § 724.012.........................................................14, 26 Tex. Transp. Code § 724.017...............................................................18
iv Statement of the Case
A grand jury indicted the defendant for driving while intoxicated
with two prior convictions. CR 3-4; Tex. Penal Code § 49.04,
49.09(b)(2). The trial court granted the defendant’s motion to
suppress the blood test results, and the State gave notice of appeal.
CR 61-70.
v No. 03-14-00588-CR
In the Court of Appeals Third District Austin, Texas
Appeal from the 42th Judicial District Court Travis County, Texas Cause Number D-1-DC-13-900228
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief, and in support
thereof respectfully shows the following:
Statement of Facts
Around 12:25 a.m. on March 15, 2013, a 911 caller reported that an
unknown man was banging on her front door. 2RR 9, 12, 29. Officer
Johnson arrived at the caller’s home about 10 minutes later, and he
saw the defendant backing his truck out of the driveway. 2RR 13-14,
1 21, 48, 74; 3RR 8. Officer Johnson detained the defendant in
handcuffs. 2RR 15. The defendant explained that he had made a
mistake, that he thought his friend lived at the caller’s house. 2RR 17,
19-20, 74.
Officer Johnson testified that the defendant had glassy bloodshot
eyes, he swayed, he had a strong odor of an alcoholic beverage on his
breath, he thought it was 3 a.m., he admitted drinking two or three
beers at a concert event for South by Southwest, and he said “I’m
fucked up, I’m not going to lie.” 2RR 17-18, 21-23. Officer Johnson
began a DWI investigation around 12:41 a.m. 2RR 21. For the
standardized field sobriety tests, the defendant exhibited all six
possible clues on the horizontal gaze nystagmus test, four clues on the
walk and turn test, and two clues on the one leg stand test. 2RR 25-
28.
Officer Johnson arrested the defendant for driving while
intoxicated around 1 a.m. 2RR 29, 38. Officer Johnson read the DIC-
24 statutory warnings to the defendant, and the defendant refused to
provide a sample of his breath or blood. 2RR 61, 75, 79. After making
arrangements for the defendant’s vehicle, Officer Johnson
2 transported the defendant to the “BAT bus,” in order to turn him over
to the “DWI unit” for transport to the jail. 2RR 60-61; 3RR 8.
They arrived at the BAT bus at 1:45 a.m. 2RR 63-64, 67. Once
there, Officer Johnson learned that the defendant had prior
convictions for driving while intoxicated, which meant the officer had
to get a mandatory blood draw pursuant to state law. 2RR 37, 64.
Officer Johnson then transported the defendant to the jail, where
there was a phlebotomist who could take the mandatory blood draw.
2RR 64.
They arrived at the jail around 2:15 a.m. 2RR 67, 71. Once at the
jail, Officer Johnson saw that the defendant’s eyes were open but he
was nonresponsive. 2RR 65. Then the defendant was “trying to
hyperventilate.” 2RR 30.
Officer Johnson called EMS, who arrived 5 to 10 minutes later.
The defendant fought EMS, flailing and kicking his legs. EMS tried to
strap him down but he was still kicking. Officer Johnson had to hold
his legs down. On the way to the hospital, EMS had to stop on the
street to sedate the defendant because he was still fighting and
kicking. Officer Johnson testified that the defendant fought for about
3 30 minutes or so. 2RR 66-67. Officer Johnson testified that the entire
medical intervention (calling EMS, fighting with and subduing the
defendant, and transporting him to the hospital) added
approximately an hour to the investigation. 2RR 71.
Officer Johnson did not recall exactly what time they arrived at
the hospital, but dispatch showed that they were en route to the
hospital at 3 a.m., and the defendant’s blood was drawn at the
hospital at 3:34 a.m. 2RR 31, 67, 71.
Officer Johnson did not get, or attempt to get, a search warrant.
2RR 36-37. Officer Johnson testified that he had never gotten a
search warrant before this arrest, but he has gotten search warrants
since that time, and it usually takes 45 minutes to an hour to obtain.
2RR 38-41.1 The process entails printing out a form and calling a
corporal to review the form, and the corporal fills outs some more
paperwork and takes it all to the magistrate at the jail. 2RR 64-65.
1 When asked on cross examination, Officer Johnson said it takes about 20 to 30 minutes to get a warrant on a “no refusal” weekend, but he did not know whether it was a “no refusal” weekend on the night that the defendant was arrested, and no evidence was admitted to show that it was. 2RR 68, 76-77.
4 The process, however, was put in place after the arrest in this case.2
2RR 36-41.
The defendant filed a motion to suppress the blood draw evidence,
arguing that the blood draw violated the Fourth Amendment because
there was no warrant and no warrant exception. Supp CR 4-6.3 He
argued at the hearing that the police officer should have gotten a
warrant, that he had ample time to do so, and that the implied
consent statute runs afoul of the Fourth Amendment. 3RR 7-8.
The State countered that the blood draw was justified under the
exigent circumstances exception to the warrant requirement. CR 45;
3RR 7.
Additionally, the State argued that the evidence is admissible
because the blood draw was mandated by Tex. Transp. Code §
724.011(b), and the statute is constitutionally reasonable under the
Fourth Amendment. CR 40-44.
2 The officer testified that the search warrant policy changed because of “case law.” He was likely referring to the Supreme Court’s decision in Missouri v. McNeely, 569 U.S. __, 133 S. Ct. 1552, 1561, 185 L. Ed. 2d 696 (2013). 3 The motion to suppress was filed under the original cause number instead of the re-indicted cause number.
5 The State also argued that the blood draw evidence is admissible
because the defendant is deemed to have consented to the taking of a
specimen, per Tex. Transp. Code § 724.011(a). CR 40-41.
Finally, the State argued that, even if the blood draw was
unconstitutional, (1) The Texas exclusionary rule does not apply
because the police did not violate the law as it existed at the time of
the search, and (2) The federal exclusionary rule does not bar
admission of the evidence either because the police were acting in
good faith reliance on both statutes and appellate precedent. CR 44-
45.
After a hearing on the motion to suppress, the magistrate judge
recommended suppressing the blood test results because “the medical
intervention did not present exigent circumstances,” “the State does
not have an interest in prosecuting DWIs which would override the
constitutional requirement for a search warrant,” and “implied
consent is not a recognized exception to the warrant requirement.”
CR 61-63. He did not specifically address the State’s last argument,
namely, that the exclusionary rules do not apply.
6 The presiding judge signed an order adopting the rulings of the
magistrate and granting the motion to suppress the blood draw. CR
64. The State is appealing this order. CR 65-70.
Summary of the State’s Argument
Point One: The exigent circumstances exception to the warrant
requirement applies in this case. This case does not involve a routine
DWI, and the State is not arguing exigency based solely on the
dissipation of alcohol in the blood. Instead, there was an actual
medical emergency and a combative defendant, which ate up time
and took the officer away from the jail and the magistrate. Thus, the
officer acted reasonably in pursuing a blood draw without a warrant
in this case.
Point Two: The evidence is admissible because the blood draw
was mandated by statute, and the statute is constitutionally
reasonable under the Fourth Amendment.
Point Three: Alternatively, the blood draw evidence is
admissible because the defendant is deemed to have consented to the
taking of a specimen, per Tex. Transp. Code § 724.011(a).
7 Point Four: Even if the blood draw was unconstitutional, the
Texas exclusionary rule does not apply because the police did not
violate the law as it existed at the time of the search.
Point Five: The federal exclusionary rule does not bar admission
of the evidence either because the police were acting in good faith
reliance on both statutes and appellate precedent.
Standard of Review
The appellate court reviews a ruling on a motion to suppress
evidence for an abuse of discretion. The appellate court views the
facts in the light most favorable to the trial court's decision. The
appellate court reviews de novo the trial court's application of the law
of search and seizure to those facts. Shepherd v. State, 273 S.W.3d
681, 684 (Tex. Crim. App. 2008).
Argument
The State acknowledges that the Texas Court of Criminal Appeals
recently held that a warrantless blood draw, conducted pursuant to
the mandatory blood draw statute, violated the Fourth Amendment
because it did not fall under any recognized exception to the warrant
8 requirement. The court held that implied consent that has been
withdrawn by a suspect cannot serve as a substitute for the free and
voluntary consent that the Fourth Amendment requires. State v.
Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex.
Crim. App. Nov. 26, 2014).
The court’s decision in Villarreal directly contradicts the
arguments made by the State in Points Two and Three. The State is
making these arguments to preserve error because Villarreal is not
yet final, but in light of Villarreal, the State asks this Court to focus
on Points One, Four, and Five.
Point One: The blood draw evidence is admissible under the exigent circumstances exception to the warrant requirement.
The judge held that there were no exigent circumstances, stating:
I find that the medical intervention did not present exigent circumstances which would have made a warrantless blood draw objectively reasonable. The time from the initial call to when the blood was drawn was about three hours. According to Officer Johnson’s testimony, it would have been about the same amount of time had a warrant been sought. The medical situation might have given rise to exigency had it been prolonged, as the passage of time does make the blood test evidence less reliable, but that did not in fact happen.
9 CR 61 (emphasis added).
First, the trial court’s finding that, “According to Officer Johnson’s
testimony, it would have taken about the same amount of time had a
warrant been sought” is not supported by the record. Officer Johnson
testified that a search warrant usually takes 45 minutes to an hour to
obtain. 2RR 38-39.
And although it was not explored in detail, getting a warrant
probably would have taken quite a bit longer in the defendant’s case
because Officer Johnson was at the hospital instead of at the jail;
there is no indication that he had access to a computer, or a printer,
or the search warrant form; and it appears that the search warrant
forms and expedited process did not even exist at the time of this
blood draw. 2RR 38-41.
Even if Officer Johnson was able to draft an affidavit at the
hospital, he still would have had to wait for a corporal to come pick it
up to take it to the magistrate at the jail. Alternatively, Officer
Johnson could have had another officer take custody of the defendant
so he could head to the jail to secure a search warrant. But in either
case, it clearly would have taken longer than the normal process of
10 getting a search warrant at the jail, which Officer Johnson testified
usually takes 45 minutes to an hour.
Additionally, it does not appear that Officer Johnson spent any
part of the night standing around and wasting time, when he could
have been getting a search warrant. Instead, the record shows that
Officer Johnson investigated the original disturbance call, conducted
a DWI investigation, made an arrest, read the DIC-24, made
arrangements for the defendant’s car, transported the defendant to
the BAT bus for processing by the DWI unit, received information
that the defendant had prior DWI convictions, transported him to the
jail, was confronted with a nonresponsive defendant, spoke to the jail
medics who refused to accept the defendant, called EMS, fought to
restrain the now-combative defendant, accompanied EMS to the
hospital, stopped along the way because EMS had to sedate the
defendant, and drew blood shortly after they arrived at the hospital.
Therefore, the trial court’s finding that the blood draw would have
taken the same amount of time had a warrant been sought is not
supported by the record.
11 Additionally, the trial court’s conclusion that the officer’s decision
to proceed without a warrant was unreasonable shows an improper
analysis and judicial second-guessing. First, the court must consider
the totality of the circumstances, not just the time it would take to get
a warrant. Missouri v. McNeely, 569 U.S. __, 133 S. Ct. 1552, 1561,
185 L. Ed. 2d 696 (2013). Second, the analysis must be undertaken
from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight. Id. at 1564 n7.
Considering the totality of the circumstances from the perspective
of a reasonable officer on the scene means that the court must
consider that three hours had elapsed at the point that Officer
Johnson obtained a warrantless blood draw.4 By any standard, three
hours is a significant delay.
A lengthy delay means the resulting BAC is less relevant to the
jury’s determination of BAC at the time of the crash. As stated in
McNeely,
4 The 911 call came in around 12:25 a.m. Officer Johnson responded about 10 minutes later. The defendant’s blood was drawn at 3:34 a.m. It is important to note that the length of time between the defendant’s last drink and the blood draw was even longer.
12 Because an individual’s alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results. This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence.
McNeely, at 1561.
A lengthy delay also affects the State’s ability to calculate an
admissible retrograde extrapolation. Finally, a lengthy delay means it
is more likely that the defendant’s BAC will drop below 0.08 by the
time of the blood draw. For these reasons, when there has been a
lengthy delay, the need to proceed without a warrant is far greater
than in a case where there has been only 30 minutes to an hour from
the time of driving to the time of a blood draw.
In sum, this case does not involve a routine DWI, and the State is
not arguing exigency based solely on the dissipation of alcohol in the
blood. Instead, there was an actual medical emergency and a
combative defendant, which ate up time and took the officer away
from the jail and the magistrate. Ultimately, over three hours elapsed
from the time of driving to the time of the blood draw. Under these
13 circumstances, the State is asking this Court to conduct a de novo
review of the trial court's application of the law of search and seizure
to the facts and find that the officer’s decision to proceed with a
warrantless blood draw, instead of taking an additional 45 minutes to
an hour, or possibly longer, to obtain a warrant, was reasonable.
Point Two: Alternatively, the evidence is admissible because the blood draw was mandated by statute, and the statute is constitutionally reasonable under the Fourth Amendment.
The warrantless blood draw was mandated by statute.
Tex. Transp. Code § 724.012(b)(3)(B) mandated the warrantless
blood draw in this case. The statute does not specifically state that the
blood draws should be undertaken without a warrant, but when a
statute mandates that the police do something, it is incompatible to
read in a requirement that they get approval from a magistrate as
well. What happens when the magistrate refuses to issue a warrant?
Should the police comply with the statute’s mandate to draw blood or
abide by the magistrate’s decision? Because it would lead to absurd
results, the mandatory blood draw statute cannot be interpreted to
require warrants. Muniz v. State, 851 S.W.2d 238, 244 (Tex. Crim.
14 App. 1993) (stating that courts should prefer an interpretation of a
statute that does not yield absurd results).
The court should conduct a traditional balancing test to evaluate the constitutionality of the statute.
Because the search in this case was mandated by statute, the State
asks this Court to apply a traditional Fourth Amendment balancing
test, which weighs the statute’s promotion of legitimate government
interests against the intrusion on individual privacy. See Maryland v.
King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013); Segundo v.
State, 270 S.W.3d 79, 96-99 (Tex. Crim. App. 2008); Samson v.
California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d. 250 (2006).
A balancing test is consistent with the plain language of the
Fourth Amendment, which does not actually require a warrant or
warrant exception, but rather, prohibits unreasonable searches.
The State acknowledges, however, that the Court of Criminal
Appeals declined to conduct a balancing test in Villarreal, holding
instead that the mandatory blood draw must fall under a recognized
warrant exception. Villarreal, 2014 Tex. App. LEXIS 1898, at *59-75.
15 A traditional balancing test weighs in favor of the constitutionality of Section 724.012(b)(3)(B).
The primary purpose of Section 724.012(b) is to save lives and
decrease the number of casualties caused by drunken drivers. Neesley
v. State, 239 S.W.3d 780, 785 (Tex. Crim. App. 2007). Mandatory
draws identify intoxicated drivers, so that the State can remove them
from the roads through administrative license revocations.
Mandatory draws also promote safety through their deterrent effect.
The State also has a legitimate interest in preserving evidence,
both for administrative licensing hearings and criminal prosecutions.
Timely blood alcohol evidence is indisputably the most probative
evidence of intoxication, far more so than subjective observations or
field sobriety tests, or retrograde extrapolation. The Texas Legislature
acted reasonably in passing a law that requires police to secure this
evidence, in serious cases, before it dissipates.
Reasonableness is also shown in that the statute does not leave
blood draws to the discretion of the officer on the scene. Instead, the
circumstances requiring blood draws are clearly set out in the statute,
which was enacted by the Legislature, which is itself a neutral and
detached body. Clear guidelines also further the State’s legitimate
16 interest in readily applicable rules for officers in the field, which are
not subject to second-guessing months and years down the road.
The law is narrowly tailored in scope. The statute only allows one
useable blood draw, and it only applies to drivers, who are arrested,
based on probable cause, for driving, while intoxicated, on public
roads. Neesley, 239 S.W.3d at 786; State v. Mosely, 348 S.W.3d 435,
444 (Tex. App.—Austin 2011, pet. ref’d).
The law also takes the gravity of the crime into consideration by
mandating draws only in serious cases.
Additionally, the search specified by the statute (a blood draw) is
reasonable because blood testing is a highly effective means of
determining the degree to which a person is under the influence of
alcohol. State v. Johnston, 336 S.W.3d 649, 659-60 (Tex. Crim. App.
2011).
Also, blood tests are commonplace and involve virtually no risk,
trauma, or pain, and the Supreme Court has stated time and again
that a blood draw is a minimally intrusive search that does not
constitute an unduly extensive imposition on an individual's privacy
and bodily integrity. See Schmerber, 384 U.S. at 771; Skinner 489
17 U.S. at 625; Winston v. Lee, 470 U.S. 753, 761-62, 105 S. Ct. 1611, 84
L. Ed. 2d 662 (1985); South Dakota v. Neville, 459 U.S. 553, 563, 103
s. Ct. 916, 74 L. Ed. 2d 748 (1983); Breithaupt v. Abram, 352 U.S.
432, 436-37, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957); but see McNeely,
133 S. Ct. at 1558.
The Transportation Code also limits who can draw blood and
where it can be drawn. Tex. Transp. Code § 724.017; Johnston, at 661
(noting that Section 724.017 is reasonable under the Fourth
Amendment).
Additionally, the law mandates testing only on people who are
already under arrest. Arrestees have significantly diminished
expectations of privacy. And arrestees are not free to leave, so the
testing’s interference with their freedom to move does not infringe on
significant privacy interests. Drivers are likewise subject to extensive
regulations and have a reduced expectation of privacy.
Finally, the defendant bears the burden of establishing that
statutes are unconstitutional, courts presume that statutes are
constitutional and resolve all reasonable doubts in favor of their
constitutionality, and the mere fact that opinions regarding
18 constitutionality may differ is not a sufficient basis to strike down a
statute. Luquis v. State, 72 S.W.3d 355, 363, 365-66 (Tex. Crim. App.
2002). The presumption of constitutionality afforded legislation
should not to be disposed of lightly. Laws passed by elected
representatives represent the will of the people. Of course, courts
must safeguard against violations of the Constitution, but in
determining what is “reasonable” under the Fourth Amendment, the
fact that the Legislature has passed laws mandating these searches
speaks volumes as to what the people of Texas believe is reasonable.
In sum, the search mandated by Section 724.012(b)(3)(B) is
constitutionally reasonable, and the trial court erred in suppressing
the blood evidence obtained pursuant to the statute.
The Court of Criminal Appeals stated in Villarreal, however, that
a DWI suspect's privacy interest outweighs the State's interest in
preventing drunk driving through warrantless searches. Villarreal,
2014 Tex. App. LEXIS 1898, at *67-69.
19 Point Three: Alternatively, the blood draw evidence is admissible because the defendant is deemed to have consented to the taking of a specimen, per Tex. Transp. Code § 724.011(a).
Under Tex. Transp. Code § 724.011(a), the defendant is deemed to
have consented to the blood draw.
As a matter of statutory construction, the consent implied by
Section 724.011(a) cannot be revoked. Forte v. State, 759 S.W.2d 128,
138-139 (Tex. Crim. App. 1988), overruled on other grounds in
McCambridge v. State, 778 S.W.2d 70, 76 (Tex. Crim. App. 1989).
Additionally, implied consent is irrevocable because it is given in
exchange for the privilege to drive on public roads. The defendant was
driving pursuant to this bargain, but he wants to withdraw consent
when convenient for him. Allowing him to withdraw his consent when
the red and blue lights come on would render this exchange a one-
way street for the benefit of the defendant.
Finally, irrevocable implied consent can satisfy the consent
exception to the warrant requirement. See, e.g., United States v.
Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984) (regarding airport
screening searches); United States v. De Angelo, 584 F.2d 46, 48 (4th
20 Cir. 1978) (same); United States v. Spriggs, 827 F. Supp. 372, 375
(E.D. Va. 1993) (regarding prison visitor searches).
In sum, the defendant is deemed to have consented to the blood
draw, and he cannot withdraw that consent. Since consent is a well-
established exception to the warrant requirement, the trial court
erred in suppressing the blood draw evidence.
The Court of Criminal Appeals held in Villarreal, however, that
implied consent that has been withdrawn by a suspect cannot serve as
a substitute for the free and voluntary consent that the Fourth
Amendment requires. Villarreal, 2014 Tex. App. LEXIS 1898, at *34-
37.
Point Four: Assuming, arguendo, that the blood draw is unconstitutional, the Texas exclusionary rule still does not bar admission of the evidence.
The Texas exclusionary rule is codified in Tex. Code Crim. Proc.
art. 38.23, which states:
(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
21 In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.
The evidence is not barred by article 38.23 because the police
officer did not obtain the evidence in violation of the Constitution
because, at the time the evidence was obtained, Texas case law clearly
held that alcohol dissipation alone constituted exigent circumstances
in DWI cases. See Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App.
1982); and State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin
2000, pet. ref’d) (stating, “It is a well-settled fact that alcohol in the
blood dissipates quickly constitutes exigent circumstances”). Thus, at
the time of the blood draw in this case, the search clearly fell under
the exigent circumstances exception, which means the police did not
obtain the evidence in violation of the Fourth Amendment, which
means the Texas exclusionary rule does not apply.
22 To be clear, the State is not arguing for a good faith exception to
article 38.23. Rather, the State is arguing that article 38.23 does not
apply because the officer did not obtain the evidence in violation of
the law.5
The State’s argument may appear to be a backdoor good faith
argument, but the argument is in line with other statutory
construction cases that have held that Article 38.23 does not apply
when the evidence was not actually obtained in violation of the law.
See State v. Johnson, 871 S.W.2d. 744, 750-51 (Tex. Crim. App. 1994)
(no exclusion when there is attenuation of taint); Wehrenberg v.
State, 416 S.W.3d 458, 467-70 (Tex. Crim. App. 2013) (no exclusion
when there is an independent source).
In other words, the defendant cannot backdate a change in law to
exclude evidence. To do so would twist the plain language of the
statute because the evidence was not actually “obtained” in violation
of the law. Rather, it was obtained in compliance with the law, which
later changed.
5 The State will argue that there are applicable good faith exceptions to the federal exclusionary rule, below, but this is distinct from its arguments regarding the Texas exclusionary rule.
23 Some courts have held that there was no change in the law and
that McNeely merely clarified existing constitutional law. That may
be true in other jurisdictions, but it is not true in Texas. In Texas, case
law had clearly established a per se exigency in DWI cases. See Aliff,
627 S.W.2d at 170; Laird, 38 S.W.3d at 713. McNeely specifically
granted certiorari to resolve the split of authority among states on the
question of whether the natural dissipation it the bloodstream
establishes a per se exigency. See McNeely, 133 S. Ct. at 1558.
McNeely decided that there is no per se exigency. Thus, McNeely
clearly overturned (i.e., changed) the law in several jurisdictions,
including Texas. Cf. State v. Adkins, 433 N.J. Super. 479, 484-93, 81
A.3d 680 (App. Div. Dec. 20, 2013) (stating that McNeely
dramatically changed the legal landscape when the Supreme Court
issued a new search and seizure rule that was more restrictive than
state court precedent, and holding that the State was not seeking to
admit the fruits of unlawful police conduct because the police fully
complied with the law in effect at the time they acted).
In conclusion, the State asks this Court to hold that Article 38.23
does not bar admission of evidence when the police scrupulously
24 adhered to the statutes and Constitutional case law that were in effect
at the time of the search because, in such a case, the evidence was not
actually obtained in violation of the law.
Point Five: The federal exclusionary rule does not bar admission of the evidence either.
The purpose of the judicially-created federal exclusionary rule is
to safeguard Fourth Amendment rights by deterring police
misconduct. Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L.
Ed. 2d 364 (1987). With this purpose in mind, the Supreme Court has
created good faith exceptions.
The police relied in good faith on a statute.
One exception is when an officer acts in good faith reliance on a
statute that is later held to be unconstitutional, because “Unless a
statute is clearly unconstitutional, an officer cannot be expected to
question the judgment of the legislature that passed the law. If the
statute is subsequently declared unconstitutional, excluding evidence
obtained pursuant to it prior to such a judicial declaration will not
deter future Fourth Amendment by an officer who has simply fulfilled
25 his responsibility to enforce the statute as written.” Krull, 480 U.S. at
349-50.
In this case, the officer relied on the mandatory blood draw
statute in Section 724.012(b)(3)(B). Moreover, the law was not
“clearly unconstitutional.” Indeed, Texas’s police officers,
prosecutors, defense attorneys, and judges have had mandatory blood
draw cases for years without questioning their constitutionality.
Therefore, under Krull, the federal exclusionary rule does not bar
admission of the evidence, and the trial court erred in granting the
motion to suppress.
The police acted in good faith reliance on binding appellate precedent.
Another exception applies when the police act in good faith
reliance on binding precedent, because “It is one thing for the
criminal to go free because the constable has blundered. It is quite
another to set the criminal free because the constable has
scrupulously adhered to governing law. Excluding evidence in such
cases deters no police misconduct and imposes substantial social
26 costs.” Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 2423-24,
2434, 180 L. Ed. 285 (2011).
The blood draw in this case was done prior to the Supreme Court’s
decision in McNeely. At that time, Texas case law held that
dissipation alone constituted exigent circumstances in DWI cases.
Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App. 1982); State v.
Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref’d).
Exigency is an established exception to the warrant requirement, so
the search in this case was constitutional under binding Texas
precedent at the time it was done. Therefore, under Davis, the good
faith exception for reliance on precedent applies, and the trial court
erred in granting the motion to suppress. See People v. Youn, 2014
Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15, 2014) (applying the
good faith exception for reliance on state court precedent to pre-
McNeely blood draws); United States v. Brooks, No. PWG-14-0053,
2014 U.S. Dist. LEXIS 67417, at *5-15 (D. Md. May 16, 2014) (mem.
op.) (same).
27 Prayer
The State asks this Court to sustain its points of error, reverse the
trial court’s order suppressing the results of the blood analysis, and
remand this case to the trial court for further proceedings.
Respectfully submitted,
Angie Creasy Assistant District Attorney State Bar No. 24043613 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax (512) 854-4206 Angie.Creasy@co.travis.tx.us AppellateTCDA@co.travis.tx.us
28 Certificate of Compliance and Service I hereby certify that this letter contains 5,118 words, based upon
the computer program used to generate this letter and excluding
words contained in those parts of the letter that Texas Rule of
Appellate Procedure 9.4(i) exempts from inclusion in the word count,
and that this letter is printed in a conventional, 14-point typeface.
I further certify that, on the 31st day of December, 2014, a true and
correct copy of this letter was served, by U.S. mail, electronic mail,
facsimile, or electronically through the electronic filing manager, to
the Appellee’s attorney, John De la Vina, Attorney at Law, 702 Rio
Grande, Austin, Texas 78701.
Angie Creasy