ACCEPTED 03-15-00499-CR 6823789 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/8/2015 12:21:57 PM JEFFREY D. KYLE CLERK
No. 03-15-00499-CR FILED IN 3rd COURT OF APPEALS In the AUSTIN, TEXAS Court of Appeals 9/8/2015 12:21:57 PM Third District JEFFREY D. KYLE Austin, Texas Clerk
The State of Texas, Appellant
v.
Robert Simpson, Appellee
Appeal from the 167th Judicial District Court Travis County, Texas Cause Number D-1-DC-14-201815
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) 854-4810 Angie.Creasy@traviscountytx.gov AppellateTCDA@traviscountytx.gov
Oral argument is requested Identity of Parties and Counsel
Trial Judge: P. David Wahlberg 167th Judicial District Court P.O. Box 1748 Austin, Texas 78767
Trial Counsel for State: Aurora Perez 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: Robert Simpson
Counsel for Defendant: Daniel H. Wannamaker 1012 Rio Grande Street Austin, Texas 78701
i Table of Contents
Identity of Parties and Counsel ............................................................ i Index of Authorities............................................................................ iii Statement of the Case ......................................................................... iv Statement of Facts ................................................................................1 Summary of the State’s Argument....................................................... 3 Standard of Review.............................................................................. 4 Argument ............................................................................................. 4 Point One: The warrantless blood draw, which is mandated by statute, is constitutionally reasonable under the Fourth Amendment. ..................................................................................... 5 Point Two: Alternatively, there was no violation of the Fourth Amendment because the officer made a reasonable mistake of law. .........................................................................................................10 Prayer ................................................................................................. 11 Certificate of Compliance and Service ................................................12
ii Index of Authorities
Cases Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957)................................................................................................ 8 Heien v. North Carolina, __ U.S. __, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014)........................................................................................10 Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002)...................... 9 Maryland v. King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013) .......................................................................................................... 5 Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) ............................................................................................... 8 Neesley v. State, 239 S.W.3d 780 (Tex. Crim. App. 2007)...............6, 7 Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d. 250 (2006)........................................................................................ 6 Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008) .................. 5 Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) ............... 4 South Dakota v. Neville, 459 U.S. 553, 103 s. Ct. 916, 74 L. Ed. 2d 748 (1983) ............................................................................................... 8 State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ................ 8 State v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d).7 State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014) .......................................... 4, 6 Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985) .......................................................................................................... 8
Statutes Tex. Penal Code § 49.04 ..................................................................... iv Tex. Penal Code § 49.09 ..................................................................... iv Tex. Transp. Code § 724.012................................................................ 5 Tex. Transp. Code § 724.017 ................................................................ 9
iii Statement of the Case
A grand jury indicted the defendant for driving while intoxicated
with three prior convictions. CR 16-17; 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 37-42.
iv No. 03-15-00499-CR
In the Court of Appeals Third District Austin, Texas
Appeal from the 167th Judicial District Court Travis County, Texas Cause Number D-1-DC-14-201815
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
The defendant filed a motion to suppress, which argued that the
DWI blood draw violated his Fourth Amendment rights. CR 18. After
a hearing, the trial court made the following findings of fact,
conclusions of law, and order:
1 Findings of Fact
1. On March 29, 2014, Trooper Erich Herd 14175 arrested the defendant for driving while intoxicated.
2. The judge upheld the probable cause for the stop.
3. Trooper Herd read the DIC 24 (statutory warnings) to the defendant.
4. The defendant refused Trooper Herd’s request to voluntarily submit to the taking of a blood specimen.
5. At the time of arrest, the officer received reliable information from a credible source that the defendant had been previously convicted, on two occasions, of driving while intoxicated.
6. Relying on Tex. Transp. Code §§ 724.011(a) and 724.012(b), Trooper Herd directed Peter Compton, a nurse at St. Davids Medical Center, to take a blood sample from the defendant.
7. Trooper Herd relied in good faith on Tex. Transp. Code §§ 724.011(a) and 724.012(b) in obtaining the warrantless blood draw.
8. The blood draw complied with the requirements of the Texas Transportation Code.
9. Trooper Herd did not get, or attempt to get, a search warrant to draw blood.
Conclusions of Law
10. The defendant did not consent to the blood draw.
2 11. There were no exigent circumstances in this case.
12. The blood draw in the defendant’s case violated the Fourth Amendment to the U.S. Constitution because there was no warrant, no consent, and no exigent circumstances. See Missouri v. McNeely, 133 S. Ct. 1552 (2013).
13. The federal exclusionary rule bars admission of the evidence in this case because the evidence was obtained in violation of the Fourth Amendment.
14. The Texas exclusionary rule (Tex. Code Crim. Proc. art. 38.23) bars the admission of the evidence in this case because the evidence was obtained in violation of the Fourth Amendment.
On the basis of the above findings and conclusions, the motion to suppress the blood draw evidence is GRANTED. See CR 37-38.
The State is appealing this order. CR 37-42.
Summary of the State’s Argument
The warrantless blood draw, which is mandated by Tex. Transp.
Code § 724.011(b), does not violate the Fourth Amendment because it
is a reasonable search.
Alternatively, there was no violation of the Fourth Amendment
because the officer made a reasonable mistake of law in believing that
there was a valid statutory mandate for the blood draw.
3 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
As a starting point, the State acknowledges that the Texas Court of
Criminal Appeals has 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 requirement. State v. Villarreal, No. PD-0306-14, 2014
Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014).
But Villarreal is not final. The Court of Criminal Appeals granted
a motion for rehearing on February 25, 2015. See id., 2015 Tex. Crim.
App. LEXIS 201. The court may issue a different decision upon
rehearing, especially since the court was split 5-4 and three of the
judges who joined the majority opinion have since left the court. In
4 light of this, the State continues to argue that the warrantless blood
draw is constitutional.
Point One: The warrantless blood draw, which is mandated by Tex. Transp. Code § 724.011(b), does not violate the Fourth Amendment because it is a reasonable search.
The warrantless blood draw in this case was mandated by Tex.
Transp. Code § 724.012(b)(3)(B), which states that police shall take a
specimen of breath or blood when they have reliable information that
a suspect has two prior DWI convictions, as in this case.
When evaluating the constitutionality of statutorily-mandated
searches, courts routinely 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). This balancing test approach is consistent with the plain
language of the Fourth Amendment, which does not actually require a
5 warrant or warrant exception, but rather, prohibits unreasonable
searches.1
A traditional balancing test weighs in favor of the constitutionality
of Section 724.012(b)(3)(B).
To begin, the State has a significant legitimate interest in the
primary purpose of Section 724.012(b), which 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,
field sobriety tests, or retrograde extrapolation. The Texas Legislature
1 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. The State is making this argument, however, because Villarreal is not final.
6 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
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 1) people who are arrested
2) based on probable cause 3) for driving while intoxicated 4) 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, such as felonies or cases with
injuries.
Additionally, the search specified by the statute (a blood draw) is
reasonable because blood testing is a highly effective means of
7 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. 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 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 Missouri v. McNeely, __
U.S. __, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013).
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, and such arrestees have significantly diminished
8 expectations of privacy. Arrestees are not free to leave, so the testing’s
interference with their freedom to move does not infringe on
significant privacy interests either. Drivers also have a reduced
expectation of privacy and are subject to extensive regulations.
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
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.
9 In sum, a traditional Fourth Amendment balancing test shows
that the blood draw search mandated by Section 724.012(b)(3)(B) is a
reasonable, constitutional search.
Point Two: Alternatively, there was no violation of the Fourth Amendment because the officer made a reasonable mistake of law.
Recently, the Supreme Court held that an officer does not violate
the Fourth Amendment if he stops the defendant based on a
reasonable mistake of law. Heien v. North Carolina, __ U.S. __, 135
S. Ct. 530, 540, 190 L. Ed. 2d 475 (2014).
The Court reiterated that the touchstone of the Fourth
Amendment is reasonableness. Id. at 536. To be reasonable is not to
be perfect. Id. Thus, the Fourth Amendment allows for searches and
seizures based on reasonable mistakes. Id.
In accordance with the reasoning in Heien, the officer in this case
did not violate the Fourth Amendment if he drew the defendant’s
blood based on a reasonable mistake of law.
The officer in this case clearly believed that there was a valid
statutory mandate for a blood draw. If the officer was mistaken about
the law, his mistake was reasonable. For years, Texas’s police officers,
10 prosecutors, defense attorneys, and judges have assumed that
warrantless blood draws taken pursuant to the mandatory blood draw
statute were constitutional.
In short, the blood draw did not violate the Fourth Amendment
because the officer’s mistake of law, if any, was reasonable.
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
11 (512) 854-9400 Fax (512) 854-4810 Angie.Creasy@traviscountytx.gov AppellateTCDA@traviscountytx.gov
Certificate of Compliance and Service I certify that this brief contains 1,879 words. I further certify that,
on the 8th day of September, 2015, a true and correct copy of this brief
was served, by U.S. mail, electronic mail, facsimile, or electronically
through the electronic filing manager, to Daniel H. Wannamaker,
1012 Rio Grande Street, Austin, Texas 78701.
Angie Creasy