McGruder v. State; No.-11-05822-CRF

The Waco Court of Appeals finds that 724.012(b) is not facially unconstitutional.  It appears that the Appellant failed to make any other challenges to the blood draw other than the unconstitutionality of .012(b). The Court notes that no motion to suppress was filed requesting the suppression of the blood pursuant to the Fourth Amendment.  I do not think this the Court's endorsement of the mandatory blood draw statute. 

______________________________________________________________________

IN THE TENTH COURT OF APPEALS

No. 10-13-00109-CR

MICHAEL ANTHONY MCGRUDER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 11-05822-CRF-85

OPINION

Michael Anthony McGruder was convicted of the offense of driving while intoxicated, a felony offense, and sentenced to 30 years in prison. See TEX. PENAL CODE ANN. § 49.04 (West 2011). Because section 724.012(b)(3)(B) of the Texas Transportation Code is not unconstitutional, we affirm the trial court’s judgment.

BACKGROUND

In September of 2011, McGruder was stopped by a College Station police officer because McGruder’s pickup matched the description of a suspicious vehicle in the area. After McGruder got out of his pickup, the officer who initially stopped McGruder and another officer who had arrived at the scene noted that, even from a distance, McGruder smelled of alcohol. McGruder responded to questioning by the officers and gave “nonsensical” and conflicting answers. He also refused to perform any field sobriety exercises. McGruder was arrested and refused to submit to a breath or blood test. After McGruder’s pickup was inventoried and towed, McGruder was taken to the police department where an officer began to prepare a search warrant to obtain a sample of McGruder’s blood. During the process of preparing the warrant, the officer learned that McGruder had two prior DWI convictions. At that time, the officer discontinued preparing the warrant and began working on the “mandatory blood draw” paperwork. The officer testified that a blood draw becomes mandatory when a DWI suspect has two prior DWI convictions. McGruder was then taken to the hospital and his blood was drawn.

OBJECTION AND ISSUE

At his trial in 2013, McGruder objected to the State’s introduction of the blood draw kit and the blood draw vial on the basis that section 724.012 of the Texas Transportation Code, the section which contains the mandatory blood draw provision, is unconstitutional in that it allows for the seizure of evidence without a warrant. fn1 The trial court overruled his objection. On appeal, McGruder contends in one issue that, absent exigent circumstances or consent, section 724.012(b)(3)(B) of the Texas Transportation Code violates the Texas and United States Constitutional provisions against unreasonable searches and seizures. We construe McGruder’s argument to be a facial challenge to the constitutionality of that portion of the statute. fn2

THE STATUTE

As it applies to this case, section 724.012(b) provides:

(b) A peace officer shall require the taking of a specimen of the person's breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer's request to submit to the taking of a specimen voluntarily:
***
(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:
***
(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.
TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011).

MCNEELY

Relying on the recent opinion from the United States Supreme Court in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), McGruder argues that because section 724.012(b)(3)(B) does not require any exigent circumstance for a warrantless blood draw, it impermissibly narrows the constitutional right to be free from unreasonable searches and seizures and should be declared unconstitutional.

Generally speaking, drawing blood from a suspect is a search and seizure within the scope of the Fourth Amendment to the United States Constitution. See Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). A warrantless seizure of a blood sample, however, can be constitutionally permissible if officers have probable cause to arrest a suspect, exigent circumstances exist, and a reasonable method of extraction is available. Id. at 767-68.

In McNeely, the United States Supreme Court addressed the issue of whether the Fourth Amendment required police to obtain a warrant before taking a blood sample from a non-consenting driver suspected of driving while intoxicated. McNeely, 133 S. Ct. at 1556. The Court concluded that the natural dissipation of alcohol in the bloodstream did not present a per se exigency that justified an exception to the warrant requirement for non-consensual blood testing in all DWI cases. Id. Instead, the Court recognized that, sometimes, exigent circumstances, based in part on the rapid dissipation of alcohol in the body, may allow law enforcement to obtain a blood sample without a warrant but that courts must determine on a case-by-case basis whether exigent circumstances exist, considering the totality of the circumstances. Id.

Prior to McNeely, at least one Texas appellate court had interpreted section 724.012(b) to be an exception to the Fourth Amendment warrant requirement; that is, no warrant was necessary to draw the defendant’s blood if he refused to consent to the blood draw and had two prior DWI convictions. See Aviles v. State, 385 S.W.3d 110, 112 (Tex. App.—San Antonio 2012, pet. ref'd), vacated, 134 S. Ct. 902, 187 L. Ed. 2d 767 (2014), op. on remand, ___ S.W.3d ___, 2014 Tex. App. LEXIS 8508 (Tex. App.—San Antonio Aug. 6, 2014, no pet. h.). But the United States Supreme Court vacated that court’s judgment and remanded the case to the court of appeals for further consideration in light of McNeely. Aviles, 134 S. Ct. at 902. Since then, Texas appellate courts have held that a non-consensual blood draw without a warrant pursuant to section 724.012(b) and without evidence of exigent circumstances other than simply the rapid dissipation of alcohol in the bloodstream violates a defendant’s Fourth Amendment rights.fn3 See Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish); Weems v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109 (Tex. App.—San Antonio May 14, 2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS 4558 (Tex. App.—Texarkana April 29, 2014, pet. filed) (publish); Sutherland v. State, No. 07-12-00289-CR, 2014 Tex. App. LEXIS 3694 (Tex. App.—Amarillo, April 7, 2014, pet. filed) (publish); Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish). See also Baker v. State, No. 12-12-00092-CR, 2013 Tex. App. LEXIS 12818 (Tex. App.—Tyler Oct. 16, 2013, pet. granted) (not designated for publication) (trial court could have reasonably concluded State failed to show warrantless blood draw was supported by exigent circumstances). Contra Perez v. State, No. 01-12-01001-CR, 2014 Tex. App. LEXIS 2681 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet. h.) (publish) (motion for rehearing filed; response requested by the court; response filed).

FACIAL CONSTITUTIONAL CHALLENGE

But McGruder asks us to find that section 724.012(b)(3)(B) is unconstitutional. To prevail on a facial challenge, a party 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). A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992).

Whether a statute is facially constitutional is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality of a statute is attacked, we begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden normally rests upon the person challenging the statute to establish its unconstitutionality. Id. at 15. In the absence of contrary evidence, we will presume that the legislature acted in a constitutionally sound fashion. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).

Section 724.012(b) merely requires an officer to take a blood or breath specimen in certain circumstances. What makes the statute mandatory is that the officer has no discretion in those situations to obtain either a blood or a breath specimen. It does not mandate, nor does it purport to authorize, a specimen be taken without compliance with the Fourth Amendment. And although the Court of Criminal Appeals has said that the implied consent law, the body of law in which this particular statute is contained, enables officers to draw blood in certain limited circumstances, a.k.a. exigent circumstances, even without a search warrant, the Court also said that the law did not give officers the ability to forcibly obtain blood samples from anyone just because they were arrested for DWI. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). Further, the Court did not hold in Beeman, and has not yet held, that section 724.012(b) is an exception to the Fourth Amendment’s warrant requirement such as the consent exception or the exigent circumstances exception. See Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645, *35 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish).

Further, as written, section 724.012(b) does not require a blood or breath specimen to be taken contrary to the Fourth Amendment; that is, without a warrant or without a recognized exception to the warrant requirement. See Forsyth v. State, No. 11-12-00198-CR, 2014 Tex. App. LEXIS 8381, *22 (Tex. App.—Eastland July 31, 2014) (no pet. h.) (publish) (“…Section 724.012 does not instruct an officer to take a person's blood without a warrant or in violation of the Fourth Amendment,” citing Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish)).4 We agree with the Houston Court of Appeals when it aptly noted, “We have no reason to fault the constitutionality of the mandatory blood draw statute in this case because it did not require [the officer] to obtain a blood draw without first securing a warrant. It is the officer's failure to obtain a warrant and the State's failure to prove an exception to the warrant requirement, not the mandatory nature of the blood draw statute, that violate the Fourth Amendment.” Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, *48-49 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish).

4 Other courts of appeals agree with this interpretation. See Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, *46 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish); Weems v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109, * 24 (Tex. App.—San Antonio May 14, 2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS 4558, *14 n. 10 (Tex. App.—Texarkana April 29, 2014, pet. filed) (publish).

McGruder has failed to point us to anything else that would show the statute to be unconstitutional. Thus, McGruder’s facial challenge to the statute must fail, and we presume the statute to be constitutionally valid.

CONCLUSION

Accordingly, McGruder’s sole issue is overruled, and the trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins

Affirmed

Opinion delivered and filed August 14, 2014
Publish


Footnotes:

1 McGruder later objected to the lab report which contained the blood alcohol content results of McGruder’s blood test by stating, “Renew my earlier objection.” He did not however, object to the chemist’s testimony prior to the introduction of the lab report that McGruder’s blood alcohol content was .09 grams per 100 milliliters. We note that there was no motion to suppress filed; only objections made to the various exhibits as they were introduced into evidence. The Amicus Curiae, presented by the Texas Criminal Defense Lawyers Association, argues the trial court erred in overruling the objections to the kit, vial, and lab report. The Amicus Curiae does not address the admission, without objection, of the blood alcohol content testimony. Nevertheless, this is not the issue that McGruder has presented on appeal. Rather, McGruder raises a direct challenge to the constitutional validity of the “mandatory” blood draw provision.
2 McGruder does not argue that the Texas Constitution provides any greater or different protection than the United States Constitution; thus we treat them as the same in this context. See Luquis v. State, 72 S.W.3d 355, 364 (Tex. Crim. App. 2002).
3 This is not the issue we have been asked to decide and express no opinion regarding that issue.

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DISSENTING OPINION

____________________________

Justice Rex. D. Davis, dissenting, 

At least six of our sister courts, based on Missouri v. McNeely, 133 S.Ct. 1552, 1556, 185 L.Ed.2d 696 (2013) and the Supreme Court’s treatment of Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012, pet. ref’d), vacated, 134 S.Ct. 902, 187 L.Ed.2d 767 (2014), op. on remand, --- S.W.3d ---, 2014 WL 3843757 (Tex. App.— San Antonio Aug. 6, 2014, no pet. h.), have held that a warrantless, nonconsensual blood draw under Transportation Code section 724.012(b), absent exigent circumstances, violates the Fourth Amendment. Forsyth v. State, --- S.W.3d ---, ---, 2014 WL 3865777, at *8 (Tex. App.—Eastland July 31, 2014, no pet. h.); Weems v. State, --- S.W.3d ---, ---, 2014 WL 2532299, at *8 (Tex. App.—San Antonio May 14, 2014, pet. filed); Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171, at *4 (Tex. App.—Texarkana Apr. 30, 2014, pet. filed) (mem. op., not designated for publication); Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.—Texarkana 2014, pet. filed); Sutherland v. State, --- S.W.3d ---, ---, 2014 WL 1370118, at *10 (Tex. App.—Amarillo Apr. 7, 2014, pet. filed); State v. Villareal, --- S.W.3d ---, ---, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted); see also Douds v. State, --- S.W.3d ---, 2014 WL 2619863 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed). But see Perez v. State, --- S.W.3d ---, ---, 2014 WL 943126, at *7 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet. h.) (mot. for reh’g and mot. for en banc reh’g pending) (“We conclude that the warrantless taking of appellant’s blood sample in compliance with Transportation Code section 724.012(b) did not violate his Fourth Amendment rights by requiring him to submit to a warrantless blood test without his consent.”); see id. (also holding that appellant failed to raise constitutionality of statute in trial court).

While it appears that no court has explicitly passed on the facial constitutionality of section 724.012(b),1 some have criticized the statute from a Fourth-Amendment perspective with language that I believe indicates a facial problem with the statute:

 Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *7 (“we decline to hold that mandatory blood draws under the Texas Transportation Code are per se reasonable and further decline to hold that an officer is not required to obtain a warrant for the blood draw or show that the blood draw was conducted under a recognized exception to the warrant requirement.”).

 Holidy, 2014 WL 1722171, at *1 (“This appeal involves the sole question of the constitutionality of taking and testing blood under the implied consent provisions of Section 724.012(b)(3)(B)… . Because we are constrained by principles recently enunciated by the United States Supreme Court, we reverse the conviction herein based on the unconstitutionality of the statute and remand this case for a new trial.”).

 Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *10 (“To the extent that Section 724.012(b)(3)(B) can be read to permit, nonetheless, a warrantless seizure of a suspect’s blood in the absence of such exigent circumstances or the suspect’s consent, it runs afoul of the Fourth Amendment’s warrant requirement.”).

Section 724.012(b) does not explicitly require an officer to obtain a blood or breath sample without a warrant, but it also does not instruct an officer to obtain a warrant in the absence of exigent circumstances. And the common facts in our sister courts’ opinions and in this case are that the officer did not obtain a warrant solely because of section 724.012(b) and did compel or forcibly obtain a blood sample without the defendant’s consent solely because of section 724.012(b):2

 Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *2 (“A criminal history check and Appellant’s own admissions revealed that Appellant had two prior convictions for DWI. Appellant refused to submit to a breath or blood test. Relying on Section 724.012 of the Texas Transportation Code, Officer McDaniel transported Appellant to Brackenridge Hospital for a mandatory blood draw. … Officer McDaniel acknowledged that there were magistrates available to issue a search warrant twenty-four hours a day, but stated that he could not have secured a warrant because that ‘is not what you do according to law or policy.’”).

 Weems, --- S.W.3d at ---, 2014 WL 2532299, at *1, 3 (“No warrant was procured for the blood draw. … In this case, Officer Bustamante testified that the blood draw was administered because a person other than Weems suffered bodily injury and was transported to a hospital for medical attention. The State also points out that the THP–51 form, which was admitted in evidence, indicates that the blood draw was also ordered because Weems had two prior DWI convictions.”).

 Douds, --- S.W.3d at ---, 2014 WL 2619863, at *1, 3 (“Officer Tran took the appellant to a local medical center, Texas Emergency Care, for a mandatory blood draw. Officer Tran testified his decision to obtain a blood draw was based on his reasonable belief that section 724.012 of the Texas Transportation Code had been satisfied and allowed him to do so. … Nothing in the record suggests that any officer attempted to obtain a warrant authorizing the blood draw at any point. Indeed, the evidence does not mention a warrant at all. … Officer Tran testified that he ordered the mandatory blood draw under the authority of section 724.012 of the Texas Transportation Code.”).

 Holidy, 2014 WL 1722171, at *1 & n.2 (defendant, who had two prior DWI convictions, “was told by officers that he had no choice, so he ‘didn't argue’ with them about the blood draw”).

 Reeder, 428 S.W.3d at 926 (after defendant, who had two prior DWI convictions, “refused to give his consent to have his blood drawn and tested for alcohol, law enforcement officials took a blood specimen anyway and tested it under the authority of Section 724.012(b)(3)(B)”).

Id. (emphasis added). This statement is therefore inapplicable to the warrantless blood draw cases where the officers have been forcibly obtaining blood samples without warrants under the alleged authority of the statute. And because Beeman involved a warrant, its language about warrantless blood draws is dicta. See Weems, --- S.W.3d at ---, 2014 WL 2532299, at *3-4. Moreover, as intimated by the San Antonio court in Weems, the dicta in Beeman is likely not viable after McNeely. See id., --- S.W.3d at ---, 2014 WL 2532299, at *4 (“[w]e relied on this dicta in Beeman in Aviles”); see also Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *4 (“court’s explanation of implied consent law in Beeman is dicta”); id. (“Furthermore, the implied consent statute, at the time Beeman was issued, did not contain a provision directing officers to take the blood of a DWI arrestee that had previously twice been arrested for DWI.”).

 Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *1 (“[Officer] Housmans testified that, as justification for the warrantless blood draw, he relied solely on the provision in the Texas Transportation Code that requires him to obtain a sample of a suspect’s blood whenever he learns that the individual has been convicted two or more times of driving while intoxicated.”).

 Id., --- S.W.3d at ---, 2014 WL 1370118, at *2 (“Housmans conceded, too, that he did not seek out a magistrate the night appellant was arrested; it was Housmans’s understanding of Section 724.012 that he was not required to do so. In fact, Housmans testified that he understood Section 724.012 as placing upon him a duty to take appellant for a mandatory blood draw under the circumstances presented to him the night appellant was arrested: ‘I have no discretion. The statute says I shall.’ To fail to do so, he testified, would mean that he “would be violating the law.”).

 Villareal, --- S.W.3d at ---, 2014 WL 1257150, at *11 (“The officer’s sole basis for not getting a warrant was that the repeat offender provision of the mandatory blood draw law required him to take a blood sample without appellee’s consent and without the necessity of obtaining a search warrant.”).

Plainly, the statute’s silence on warrants explains the officers’ views that the statute authorizes them to compel warrantless blood draws. See Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *2 (“Officer McDaniel acknowledged that there were magistrates available to issue a search warrant twenty-four hours a day, but stated that he could not have secured a warrant because that ‘is not what you do according to law or policy.’”).

Because of the statute’s silence on warrants and the indisputable practice of warrantless blood draws based solely on the silent statute, and based on the Texas progeny of McNeely that border on a finding of facial unconstitutionality, I cannot agree with the majority that McGruder’s facial challenge to section 724.012(b) fails. See Holidy, 2014 WL 1722171, at *1 (“we reverse the conviction herein based on the unconstitutionality of the statute”); see also State v. Baker, No. 12-12-00092-CR, 2013 WL 5657649, at *4 (Tex. App.—Tyler June 5, 2013, pet. granted) (mem. op., not designated for publication) (citing State v. Mosely, 348 S.W.3d 435, 442 (Tex. App.—Austin 2011, pet. ref’d), for the proposition that “Chapter 724 does not authorize what the constitution forbids and cannot authorize an involuntary draw when the constitution forbids it”).

Accordingly, I respectfully dissent.

REX D. DAVIS
Justice
Dissenting opinion delivered and filed August 14, 2014
Publish

1 The majority quotes two sentences in a footnote from Douds that appear to be dicta. See Douds, --- S.W.3d at --- n.24, 2014 WL 2619863, at *15 n.24. In Sutherland, the appellant presented an apparent facial challenge: “In the absence of exigent circumstances or consent[,] does Section 724.012(b)(3)(B) violate the Texas and United States constitutional prohibitions against unreasonable searches and seizures where the statute requires law enforcement officers to seize a specimen of a DWI arrestee’s blood without a search warrant in all cases where the officer believes the arrestee has been previously convicted of DWI two or more times.” Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *3. But the court did not make an explicit facial review of the statute. And in Forsyth, the appellant failed to assert a facial complaint in the trial court. Forsyth, --- S.W.3d at --- n.1, 2014 WL 3865777, at *1 n.1.
2 In Beeman, the court of criminal appeals did state: “This does not give officers the ability to forcibly obtain blood samples from anyone arrested for DWI.” Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). But the context of that sentence is important:

The dissent implies that we have given carte blanche to officers to draw blood in every single DWI case. But we have given police officers nothing more than the Constitution already gives them—the ability to apply for a search warrant and, if the magistrate finds probable cause to issue that warrant, the ability to effectuate it. This does not give officers the ability to forcibly obtain blood samples from anyone arrested for DWI. Instead, it gives officers the ability to present an affidavit to a magistrate in every DWI case, just like every other criminal offense. Whether any search ultimately occurs rests, as always, in the hands of the neutral and detached magistrate.

The text of this decision is from the appellate court's website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Ballard v, State; No. 11-13-00224-CR

Warrantless, Chapter 724 blood draw: "implied consent is not a recognized exception to the warrant requirement and that the State cannot rely on implied consent alone to justify a warrantless blood draw"
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Opinion filed July 31, 2014

In The Eleventh Court of Appeals

__________

No. 11-13-00224-CR

__________

THE STATE OF TEXAS, Appellant

V.

GARY MARK BALLARD, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CR 41355

M E M O R A N D U M O P I N I O N

The grand jury indicted Gary Mark Ballard for the felony offense of driving while intoxicated. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2013). Appellee moved to suppress the results of his blood draw and argued that the officer illegally seized his blood. The trial court granted his motion to suppress. The State appeals the trial court’s ruling. We affirm.

In a single issue, the State contends that implied consent is a valid exception to the warrant requirement and, thus, because Appellee gave implied consent to a blood draw under Chapter 724 of the Texas Transportation Code, the trial court erred when it granted Appellee’s motion to suppress. Section 724.012 of the Texas Transportation Code provides that an officer “shall require the taking of a specimen of the person’s breath or blood . . . if the officer arrests the person for [DWI] and the person refuses the officer’s request to submit to the taking of a specimen voluntarily” and one of three circumstances are met. TEX. TRANSP. CODE ANN. § 724.012(b) (West 2011). The circumstance that is at issue in this case is that, “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person” has been twice convicted of DWI. See id. § 724.012(b)(3)(B). Section 724.011 provides that, if a person is arrested for DWI, the person is deemed to have consented to the submission of a specimen of breath or blood for analysis in order to determine the alcohol concentration in the person’s body. Id. § 724.011.

We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give great deference to the trial court’s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Because the trial court is the exclusive factfinder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at 327. We also give deference to the trial court’s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court’s actions de novo. Id.

In this case, the parties agreed to the underlying facts and further agreed that there was no additional exigency arising out of the underlying facts. The dispute between the parties was whether the United States Supreme Court’s ruling in Missouri v. McNeely, 133 S.Ct. 1552 (2013), affected the constitutionality of mandatory blood draws under Chapter 724 of the Texas Transportation Code.

The agreed findings of fact show that Appellee was driving in Midland when his pickup hydroplaned and left the roadway. Appellee’s pickup came to a stop after it hit a barbed wire fence. No one was injured in the accident. Officers came to the scene and noticed a strong odor of alcohol on Appellee’s breath. One of the officers administered several field sobriety tests. Based on Appellee’s performance, the officer concluded that Appellee should be placed under arrest for DWI. The officer determined that Appellee had been previously convicted of a “DWI second” and asked Appellee if he would consent to a blood draw. Appellee refused, and the officer transported him to the Midland County Detention Center where a medical technician drew his blood. The results of the blood draw showed that Appellee had a blood alcohol level of 0.246.

In addition to the agreed findings of fact, the trial court also found that the officer did not attempt to secure a warrant or make an effort to determine if a magistrate was available. The trial court further found that the blood draw was done without the presence of exigent circumstances and that the State did not present any circumstances that suggested the officer faced an emergency in which she could not practically obtain a warrant. The trial court stated in its supplemental conclusions of law that mandatory blood draws taken pursuant to Chapter 724 of the Texas Transportation Code are affected by the United States Supreme Court’s ruling in McNeely and that McNeely requires an officer to articulate exigent circumstances beyond the natural dissipation of alcohol in order to negate the warrant requirement. The trial court further stated that, although McNeely did not abrogate the applicable section of the Texas Transportation Code, the opinion also did not address whether blood taken pursuant to the statute was constitutional. The trial court concluded that warrantless blood specimens taken pursuant to Section 724.011 are in violation of the Fourth Amendment and are therefore unconstitutional and are properly excludable from evidence. The trial court concluded that the blood draw was an unreasonable search in violation of the Fourth Amendment and granted Appellee’s motion to suppress the evidence.

On appeal, the State argues that an accused’s implied consent, under the Texas mandatory blood draw statute, is a valid exception to the “warrant preference.” The State contends that an accused does not have the right to refuse to provide a specimen when an officer has probable cause to believe that the accused has committed a DWI and has already been twice convicted of DWI. Thus, the State asserts that implied consent is irrevocable in such situations.

Appellee argues that voluntary consent is a recognized exception to the warrant requirement, but that implied consent has not been recognized as a valid exception. Therefore, because Appellee refused to submit to a blood draw and because the State presented no exigent circumstances beyond the normal dissipation of alcohol, the State failed to show that the search was valid under the exigent circumstances or consent exceptions to the warrant requirement.

We agree with Appellee that implied consent is not a recognized exception to the warrant requirement and that the State cannot rely on implied consent alone to justify a warrantless blood draw under the Texas Transportation Code. In Forsyth v. State, No. 11-12-00198-CR (Tex. App.—Eastland July 31, 2014, no pet. h.), an opinion we are also handing down today, we held that implied consent is not a recognized exception to the warrant requirement, and we discussed in great detail our reasoning behind our holding. See also Weems v. State, No. 04-13-00366-CR, 2014 WL 2532299 (Tex. App.—San Antonio May 14, 2014, pet. filed)(holding that the implied consent and mandatory blood draw statutory scheme found in the Transportation Code is not an exception to the Fourth Amendment’s warrant requirement; warrantless blood draw must be based on a well-recognized exception to the Fourth Amendment); Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 (Tex. App.—Texarkana Apr. 30, 2014, pet. filed) (mem. op., not designated for publication) (holding that officer violated defendant’s Fourth Amendment rights when he took defendant’s blood pursuant to Section 724.012(b)(3)(B) without a warrant or exigent circumstances); Reeder v. State, 428 S.W.3d 924 (Tex. App.—Texarkana 2014, pet. filed) (op. on reh’g) (holding warrantless blood draw pursuant to repeat offender provision of implied consent statute violated the Fourth Amendment in absence of warrant or exigent circumstances); Sutherland v. State, No. 07-12-00289-CR, 2014 WL 1370118 (Tex. App.—Amarillo Apr. 7, 2014, pet. filed) (holding warrantless blood draw pursuant to repeat offender provision of implied consent statute violated Fourth Amendment’s warrant requirement in the absence of warrant or exigent circumstances or the suspect’s consent); State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (holding repeat offender provision of the mandatory blood draw law did not constitute an exception to the Fourth Amendment’s warrant requirement).

Therefore, based on our reasoning and holding in Forsyth that implied consent is not a valid exception to the warrant requirement and because the State failed to show that there were exigent circumstances beyond the normal dissipation of alcohol, that Appellee voluntarily consented to the blood draw, or that any other valid exception to the warrant requirement applied in this case, we hold that the trial court did not err when it granted Appellee’s motion to suppress. We overrule the State’s sole issue on appeal.

We affirm the judgment of the trial court.

MIKE WILLSON
JUSTICE
July 31, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

The text of this decision is from the appellate court's website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Forsyth v. State, No-11-12-00198-CR; Post- Missouri v. McNeely Decision regarding Warrantless Blood Draws

The Texas "Mandatory Blood Draw" Scheme is not an exception to the Fourth Amendment warrant requirement decides the Eastland Court of Appeals, following similar decisions by San Antonio, Texarkana, the Houston Fourteenth, Amarillo, and Corpus Christi.  The only court that has not followed such reasoning appears to be the the First Court of Appeals in Houston.

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See more on this issue here at my criminal procedure blog.
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Opinion filed July 31, 2014

In The Eleventh Court of Appeals

__________

No. 11-12-00198-CR

__________

HALEY FORSYTH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 167th District Court

Travis County, Texas

Trial Court Cause No. D1DC10203431

O P I N I O N

The grand jury indicted Haley Forsyth for the felony offense of driving while intoxicated. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2013). Appellant moved to suppress the results of her blood draw and argued that the officer seized her blood in violation of the Fourth Amendment. The trial court denied her motion to suppress. Appellant pleaded guilty to the offense, and the trial court assessed Appellant’s punishment at confinement for a term of six years and a fine of $500. The trial court suspended Appellant’s sentence and placed Appellant on community supervision for a term of three years. This appeal ensued. On appeal, Appellant contends that the trial court erred when it denied her motion to suppress the results of the blood draw. Because we find that the officer seized Appellant’s blood in violation of the Fourth Amendment, we reverse and remand.

In a single issue, Appellant asserts that Section 724.012(b)(3)(B) of the Texas Transportation Code is unconstitutional as applied because the statute requires police to forcibly take a blood sample from a DWI arrestee without a search warrant and without demonstrating an exception to the warrant requirement. (footnote 1: We note that Appellant argued in a supplemental brief that the statute was also unconstitutional on its face. The State argued that Appellant did not present that argument below and cannot present a facial challenge to the statute for the first time on appeal. We agree with the State’s position and, therefore, will not address Appellant’s facial challenge to TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011). See TEX. R. APP. P. 33.1; Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that defendant may not raise a facial challenge to the constitutionality of a statute for the first time on appeal).) Section 724.012 of the Texas Transportation Code provides that an officer “shall require the taking of a specimen of the person’s breath or blood . . . if the officer arrests the person for [DWI] and the person refuses the officer’s request to submit to the taking of a specimen voluntarily” and, “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person” has been twice convicted of DWI. TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011). Section 724.011 provides that, if a person is arrested for DWI, the person is deemed to have consented to the submission of a specimen of breath or blood for analysis in order to determine the alcohol concentration in the person’s body. Id. § 724.011.

Appellant specifically argues that the trial court erred when it denied her motion to suppress the blood draw results because the officer took her blood without a warrant, without her consent, and without any exigent circumstances present. We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give great deference to the trial court’s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Because the trial court is the exclusive factfinder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at 327. We also give deference to the trial court’s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court’s actions de novo. Id.

The evidence at the suppression hearing showed that Sergeant Christine Jacobson of the Austin Police Department stopped Appellant for failing to signal her intent to turn right. At some point in the stop, Appellant was suspected of DWI. Officer Steven McDaniel assisted Sergeant Jacobson in her investigation. Officer McDaniel conducted several field sobriety tests, and as a result of Appellant’s performance, Officer McDaniel arrested Appellant for DWI. A criminal history check and Appellant’s own admissions revealed that Appellant had two prior convictions for DWI. Appellant refused to submit to a breath or blood test. Relying on Section 724.012 of the Texas Transportation Code, Officer McDaniel transported Appellant to Brackenridge Hospital for a mandatory blood draw. He estimated that it took approximately thirty to forty-five minutes for hospital personnel to draw Appellant’s blood. Appellant’s blood alcohol level was 0.18.

Officer McDaniel testified that the hospital was “[a] couple of miles” from the stop and that it was “[m]aybe a ten-minute drive.” The central booking facility was also about a ten-minute drive from the scene of the stop. Officer McDaniel acknowledged that there were magistrates available to issue a search warrant twenty-four hours a day, but stated that he could not have secured a warrant because that “is not what you do according to law or policy.” There were no other circumstances that caused him to go directly to the hospital to take Appellant’s blood instead of first going to a judge to get a warrant.

Sergeant Glen Kreger testified that it could take up to one and one-half hours to get a warrant for a blood draw, but that he had obtained a warrant almost immediately when the magistrate was available in his office. On average, from the time of the stop to the time the blood is drawn, it takes two hours to get a blood draw with a warrant. Sergeant Kreger stated that, based on his training and experience, it is always faster to get a blood draw without a warrant than it is with a warrant.

The Fourth Amendment provides that “[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, and no Warrants shall issue, but upon probable cause.” U.S. CONST. amend. IV. The Supreme Court has held that a warrantless search of the person is reasonable only if it falls within a recognized exception to the warrant requirement. Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013).

Here, the trial court found that Officer McDaniel did not make an attempt to obtain a warrant even though the officer was aware that there were magistrates available twenty-four hours a day at the central booking facility located about the same distance away from the stop as the hospital. The trial court further found that there were no exigent circumstances established by the evidence except for the natural dissipation of alcohol in Appellant’s bloodstream. The court also discussed the issue of implied consent, even though it was not expressly relied on by the State, and stated that “under present law a driver is apparently agreeing to the use of physical force to extract his blood based on a single police officer’s opinion without any review by an independent magistrate.” Recognizing that the court had to defer to higher authority, the court denied Appellant’s motion to suppress.

We first note that, at the time of its ruling on Appellant’s motion to suppress, the trial court did not have the benefit of the United States Supreme Court’s decision in Missouri v. McNeely. The Supreme Court held in McNeely that the natural dissipation of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the warrant requirement for nonconsensual blood testing in all DWI cases. 133 S.Ct. at 1561–63. The Court explained that lower courts must determine on a case-by-case basis whether exigent circumstances exist beyond the natural dissipation of alcohol in the bloodstream. Id.

In this case, the trial court found that there were no exigent circumstances beyond the natural dissipation of alcohol in Appellant’s bloodstream. Although Sergeant Kreger testified that in certain situations an officer may have to wait over one and one-half hours for a warrant, there was no evidence presented by the State in this particular case of how long Officer McDaniel would have had to wait on a warrant. Because the State failed to present evidence of any other exigent circumstances beyond the natural dissipation of alcohol in Appellant’s bloodstream, we cannot uphold the trial court’s ruling on the ground that exigent circumstances existed.

The State makes three main arguments throughout its supplemental briefs as to why the trial court did not err when it denied Appellant’s motion to suppress even if the search was not conducted pursuant to the exigent circumstances exception to the warrant requirement. First, the State argues that implied consent is a valid exception to the warrant requirement and that implied consent under the Transportation Code is irrevocable. The State asserts that a person can refuse to submit a specimen but that a person cannot withdraw consent. Second, the State argues that mandatory blood draws are not unreasonable searches under the Fourth

Amendment; therefore, no warrant is required. Under this argument, the State asks us to conduct a traditional Fourth Amendment balancing test and weigh the government’s interest against the individual’s privacy interests. Third, the State argues that, even if mandatory blood draws are no longer permitted, mandatory blood draws were permitted at the time that the officer drew Appellant’s blood. The State contends that McNeely created a more restrictive rule than what was in place at the time of the blood draw. Thus, because the officer did not violate the law when he drew Appellant’s blood, the evidence should not be suppressed under the Texas exclusionary rule.

We note that the State did not make any of these arguments to the trial court below. However, because neither the parties nor the trial court had the benefit of the Supreme Court’s decision in McNeely during the suppression hearing, we will address each of the State’s arguments in turn. The San Antonio Court has recently addressed and rejected each of these arguments in Weems v. State, No. 04-13-00366-CR, 2014 WL 2532299 (Tex. App.—San Antonio May 14, 2014, pet. filed). ((footnote 2: We note that this a transfer case from the Austin Court of Appeals, but that the Austin court has not ruled on the issue before us. Therefore, we will review other courts’ rulings for guidance. See TEX. R. APP. P. 41.3; Sutherland v. State, No. 07-12-00289-CR, 2014 WL 1370118, at *9 n.4 (Tex. App.—Amarillo Apr. 7, 2014, pet. filed) (noting Austin had not spoken on the issue).)) In Weems, the court held that the implied consent and mandatory blood draw statutory scheme found in the Texas Transportation Code were not exceptions to the Fourth Amendment’s warrant requirement. Weems, 2014 WL 2532299, at *8. In reaching its decision, the court pointed out that the Supreme Court had granted certiorari in an earlier opinion in which the San Antonio Court held that a warrantless blood draw of a DWI suspect that was conducted according to the prescriptions of the Transportation Code did not violate the suspect’s rights under the Fourth Amendment. Id. at *4 (discussing Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012, pet. ref’d), vacated, 134 S.Ct. 902 (2014)).

The court in Aviles, relying on dicta from Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002), explained that the implied consent law allows officers to draw blood in certain situations without a search warrant and that whether an officer could obtain a warrant prior to the blood draw was immaterial given the mandate of the Transportation Code. Aviles, 385 S.W.3d at 115–16. The United States Supreme Court remanded the case to the San Antonio court for further consideration in light of McNeely. Aviles v. Texas, 134 S.Ct. 902 (2014). Citing to several intermediate appellate court opinions for guidance, the court in Weems agreed that, by remanding Aviles, the Supreme Court had rejected the argument that the implied consent statute under the Transportation Code was an exception to the warrant requirement. Weems, 2014 WL 2532299, at *7–8 (citing Sutherland, 2014 WL 1370118; State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted)).

The State in this case urges us not to adopt the reasoning and holding of our sister courts regarding whether implied consent is a recognized exception. The State argues that the Supreme Court routinely remands cases to lower courts, so that lower courts can have an opportunity to review the holdings in such cases in light of the recent Supreme Court opinion, but that these routine remands do not imply that the Supreme Court has rejected the holdings of such cases. The State asks us to follow the precedent set by the Texas Court of Criminal Appeals in Beeman.

The trial court noted in its ruling that the Texas Court of Criminal Appeals appears to have adopted the view that implied consent is an exception to the warrant requirement. The Court of Criminal Appeals has stated that the implied consent law “implies a suspect’s consent to a search in certain instances,” which “is important when there is no search warrant, since it is another method of conducting a constitutionally valid search.” Beeman, 86 S.W.3d at 615. The court explained that “[t]he implied consent law expands on the State’s search capabilities by providing a framework for drawing DWI suspects’ blood in the absence of a search warrant. It gives officers an additional weapon in their investigative arsenal, enabling them to draw blood in certain limited circumstances even without a search warrant.” Id. at 616. The State argues that, under the language of Beeman, implied consent is a valid exception to the warrant requirement. Thus, because Officer McDaniel seized Appellant’s blood under the implied consent statute, the State asserts that Officer McDaniel did not seize Appellant’s blood in violation of the Fourth Amendment.

In Beeman, however, the officers obtained a warrant and, thus, the court found that compliance with the implied consent statute was not necessary. Id. at 615–16. The court stated that consent, express or implied, was a moot issue. Id. at 616. Furthermore, the implied consent statute, at the time Beeman was issued, did not contain a provision directing officers to take the blood of a DWI arrestee that had previously been twice arrested for DWI. See Act of June 19, 2009, 81st Leg., R.S., ch. 1348, § 18, 2009 Tex. Sess. Law Serv. 4262, 4267–68 (West) (amending TEX. TRANSP. CODE ANN. § 724.012(b) to include repeat offender language). The court’s explanation of implied consent law in Beeman is dicta; therefore, we are not bound by it. Regardless of whether the Supreme Court’s remand of Aviles indicates the Court’s rejection of implied consent as an exception, we decline to rely on Beeman for the proposition that implied consent is a valid exception to the warrant requirement.

The State also contends that the Supreme Court cited favorably to implied consent statutes throughout the country in its McNeely opinion. McNeely did not address whether implied consent was a valid exception to the warrant requirement; however, McNeely did refer to implied consent laws as an example of a tool that the States have “to secure BAC evidence without undertaking warrantless nonconsensual blood draws.” 133 S.Ct. at 1566. The Court stated, “Such laws impose significant consequences when a motorist withdraws consent,” such as the suspension of the motorist’s driver’s license and the right of the State to use the motorist’s refusal against the motorist in a subsequent criminal prosecution. Id. However, the Court did not indicate whether an officer could take a person’s blood based on implied consent alone. The Court’s language does suggest, however, that an accused can withdraw his or her consent to submit a specimen for testing in direct contradiction to the State’s argument that implied consent is irrevocable.  (footnote 3: We note that Justice Sotomayor’s reference and discussion of implied consent laws was not joined by a majority of the Court.)

The Supreme Court has held that a suspect may delimit the scope of the search to which she consented. Florida v. Jimeno, 500 U.S. 248, 252 (1991). In addition, the Fifth Circuit has held that consent may be limited, qualified, or withdrawn. Mason v. Pulliam, 557 F.2d 426, 428–29 (5th Cir. 1977). The Texas Court of Criminal Appeals has also recognized that a person is free to limit the scope of the consent she gives. Valtierra v. State, 310 S.W.3d 442, 449 (Tex. Crim. App. 2010). However, the State directs us to Forte v. State, 759 S.W.2d 128, 138 (Tex. Crim. App. 1988), overruled on other grounds by McCambridge v. State, 778 S.W.2d 70, 76 (Tex. Crim. App. 1989), for the proposition that a DWI suspect cannot withdraw implied consent. In Forte, the court stated that “consent being implied by law, a driver may not legally refuse. A driver, however, can physically refuse to submit, and the implied consent law, recognizing that practical reality, forbids the use of physical force to compel submission.” 759 S.W.2d at 138 (quoting State v. Spencer, 750 P.2d 147, 153 (Or. 1988)). The Court of Criminal Appeals quoted this same language in Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012), but then went on to explain that a suspect’s consent to a breath or blood test must be freely and voluntarily given. When a person refuses to submit, we can see no way to legitimately find that the suspect consented to the mandatory blood draw voluntarily. Thus, regardless of whether the Transportation Code forecloses a suspect’s ability to legally withdraw implied consent, a person cannot be said to have consented for the purpose of satisfying the voluntary consent exception to the warrant requirement. But see Chapa v. State, No. A14-87-00796-CR, 1988 WL 137628, at *1 (Tex. App.—Houston [14th Dist.] Dec. 22, 1988, pet. ref’d) (not designated for publication) (holding defendant could not complain that she involuntarily gave consent to take the breath test because, under holding in Forte, defendant could not revoke her implied legal consent to take the test).

For consent to search to be valid as an exception to the warrant requirement, the consent must be given voluntarily, without coercion by threats or force and not as the result of duress. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 224–25, 229, 233, 248 (1973). Moreover, when the State seeks to rely upon consent to justify a warrantless search, the State has the burden of proving that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968). The State cannot meet this burden when the suspect has refused to give a specimen of breath or blood because the suspect has clearly not given consent freely and voluntarily. The suspect may very well acquiesce to the officer’s authority and allow medical personnel to draw his or her blood; however, mere acquiescence to a claim of lawful authority does not discharge the burden imposed upon the State to show that the suspect freely and voluntarily consented. See id. at 548–49. We decline to hold that implied consent under the Transportation Code is the equivalent to voluntary consent as a recognized exception to the warrant requirement.

For all of the reasons we have discussed above, we agree with our sister courts’ holdings that implied consent under the Texas Transportation Code is not a recognized exception to the warrant requirement. See Weems, 2014 WL 2532299 (holding that the implied consent and mandatory blood draw statutory scheme found in the Transportation Code are not exceptions to the Fourth Amendment’s warrant requirement; warrantless blood draw must be based on a well-recognized exception to the Fourth Amendment); Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 (Tex. App.—Texarkana Apr. 30, 2014, pet. filed) (mem. op., not designated for publication) (holding that officer violated defendant’s Fourth Amendment rights when he took defendant’s blood pursuant to Section 724.012(b)(3)(B) without a warrant or exigent circumstances); Reeder v. State, 428 S.W.3d 924 (Tex. App.—Texarkana 2014, pet. filed) (op. on reh’g) (holding warrantless blood draw pursuant to repeat offender provision of implied consent statute violated the Fourth Amendment in absence of warrant or exigent circumstances); Sutherland, 2014 WL 1370118 (holding warrantless blood draw pursuant to repeat offender provision of implied consent statute violated Fourth Amendment’s warrant requirement in the absence of exigent circumstances or the suspect’s consent); Villarreal, 2014 WL 1257150 (holding repeat offender provision of the mandatory blood draw law did not constitute an exception to the Fourth Amendment’s warrant requirement). Therefore, we cannot uphold the trial court’s ruling on the ground of implied consent.

The State’s second argument as to why the trial court did not err when it denied Appellant’s motion to suppress is that a warrant is not required for mandatory blood draws because mandatory blood draws are reasonable searches under the Fourth Amendment. The State urges us to conduct a traditional Fourth Amendment balancing test and weigh the government’s interest against the individual’s privacy interests. In so doing, the State contends that we will find that the government’s interest is greater than the privacy interests of any given individual. The San Antonio court rejected this argument in Weems. 2014 WL

2532299, at *8. The court found that the implied consent and mandatory blood draw statutes created categorical or per se rules for warrantless blood testing because the statutes did not take into account the totality of the circumstances present in individual cases. Id. The court further found that McNeely clearly proscribed the use of per se rules and that the Supreme Court emphasized that the reasonableness of a search must be determined by the totality of the circumstances presented in the case. Id. (citing McNeely, 133 S.Ct. at 1560–63).

In Section III of the McNeely opinion, Justice Sotomayor weighed the interests of both the government and the individual in relation to a per se exigency rule and determined that the government’s interests did not outweigh the privacy interests of the individual. 133 S.Ct. at 1556, 1564–67. Although Section III was not joined by the majority of the Court, the majority of the Court did state, “Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception.” Id. at 1558. The majority described blood draws as “a compelled physical intrusion beneath [the accused’s] skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation.” Id. The Court further stated, “Such an invasion of bodily integrity implicates an individual’s ‘most personal and deep-rooted expectations of privacy.’” Id. (quoting Winston v. Lee, 470 U.S. 753, 760 (1985)). The Court went on to discuss its decision in Schmerber v. California, 384 U.S. 757 (1966), and said, “Noting that ‘[s]earch warrants are ordinarily required for searches of dwellings,’ we reasoned that ‘absent an emergency, no less could be required where intrusions into the human body are concerned,’ even when the search was conducted following a lawful arrest.” Id. (alteration in original) (quoting Schmerber, 384 U.S. at 770).

Based on the language in McNeely and the reasoning of our sister court in Weems, we decline to hold that mandatory blood draws under the Texas Transportation Code are per se reasonable and further decline to hold that an officer is not required to obtain a warrant for the blood draw or show that the blood draw was conducted under a recognized exception to the warrant requirement. Therefore, we also cannot uphold the trial court’s denial of Appellant’s motion to suppress on this ground.

The State’s final argument is that, even if mandatory blood draws are no longer permitted, mandatory blood draws were permitted at the time that Officer McDaniel seized Appellant’s blood. Specifically, the State contends that McNeely created a more restrictive rule than what was in place at the time of Appellant’s blood draw. Thus, because Officer McDaniel did not violate the law when he drew Appellant’s blood, the evidence should not be suppressed under the Texas exclusionary rule. We disagree.

Officer McDaniel did violate the Fourth Amendment when he took Appellant’s blood without a warrant and without showing that he did so under a valid exception to the warrant requirement. While the Supreme Court may have clarified its decision in Schmerber with its decision in McNeely, the law did not change. There was never a per se rule that the natural dissipation of alcohol in a person’s bloodstream was enough, standing alone, to satisfy the exigency exception to the warrant requirement. That is precisely what the State of Missouri was asking for in McNeely and precisely what the Supreme Court declined to adopt.

Furthermore, as the Corpus Christi court pointed out, Section 724.012 does not instruct an officer to take a person’s blood without a warrant or in violation of the Fourth Amendment. Villarreal, 2014 WL 1257150, at *11. And, as the San Antonio court pointed out, there is no exception under the Texas exclusionary rule for a good faith reliance upon a statute. Weems, 2014 WL 2532299, at *9. “Article 38.23 provides for an exception to the exclusionary rule only when an officer relies in good faith upon a warrant issued by a neutral magistrate based on probable cause.” Id. (citing TEX. CODE CRIM. PROC. ANN. art. 38.23(b) (West 2005)). Therefore, we do not agree with the State’s argument that Officer McDaniel’s good faith reliance on the implied consent statute created an exception to the exclusionary rule. Thus, the exclusionary rule applies, and we cannot uphold the trial court’s ruling on the basis that Officer McDaniel did not violate the law at the time of Appellant’s blood draw.

In conclusion, we hold that in this case there were no exigent circumstances presented by the State to justify its warrantless seizure of Appellant’s blood. We also hold that implied consent is not a recognized exception to the warrant requirement and that the idea that implied consent cannot be revoked is in direct conflict with the voluntary consent exception to the warrant requirement. We further hold that the government’s interests in combatting drunk drivers does not outweigh the privacy interests of individuals to the extent that individuals arrested for DWI, who have already been twice convicted of DWI, should be forced to submit a breath or blood specimen without requiring the arresting officer to secure a warrant or rely on an exception to the warrant requirement. And finally, we hold that the Texas exclusionary rule does require that the results from the blood draw in this case be suppressed. Therefore, the trial court erred when it denied Appellant’s motion to suppress.

Because the warrantless blood draw violated Appellant’s rights under the Fourth Amendment, we must reverse the judgment unless we determine beyond a reasonable doubt that the trial court’s error did not contribute to the conviction or punishment. See TEX. R. APP. P. 44.2(a). Here, Appellant pleaded guilty to the third degree felony offense of DWI, under a plea bargain with the State, after the trial court denied her motion to suppress. We cannot say, beyond a reasonable doubt, that the trial court’s error did not contribute to Appellant’s decision to plead guilty to the offense. Therefore, we must reverse the judgment. Appellant’s sole issue on appeal is sustained.

We reverse the judgment of the trial court and remand this cause to the trial court for further proceedings consistent with this opinion.

JIM R. WRIGHT
CHIEF JUSTICE
July 31, 2014
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

The text of this decision is from the appellate court's website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Kay v. State, 01-13-00595-CR, from First Court of Appeals in Houston, Post-McNeely Warrantless Blood Draw

Warrantless Blood Draw Upheld in Houston First Court of Appeals.  The First Court of Appeals upheld the denial of a motion to suppress blood under McNeely.  In its decision, the Court noted that the defendant had not challenged the constitutionality of the statute itself.  This follows the First Court's decision in Perez, No. 01-12-01001-CR (rehearing pending) and is contrary to the Fourteenth Court's decision in Douds,  14-12-00642-CR (PDR requested).

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See more on this at my criminal procedure blog.
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Opinion issued July 24, 2014

In The Court of Appeals

For The First District of Texas

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NO. 01-13-00595-CR

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MILTON WAYNE KAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 260th District Court

Orange County, Texas

Trial Court Case No. D-120519-R

MEMORANDUM OPINION

Appellant Milton Wayne Kay was charged by indictment for felony driving while intoxicated (“DWI”). See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2013). The indictment further alleged an enhancement for two prior driving while intoxicated convictions, in 1989 and 2000. Kay moved to quash the indictment,

 arguing that his prior DWI convictions could not be used to enhance his DWI charge to a felony because they were over ten years old, and the trial court denied his motion. Kay also moved to suppress the warrantless blood draw and video recording, both of which were taken on the night of his arrest, and the trial court denied his motion.

A jury found Kay guilty and sentenced him to 19 years’ confinement in prison. In two issues, Kay (1) challenges the constitutionality of section 724.012 of the Texas Transportation Code, which requires a law enforcement officer to take a blood sample from a suspect arrested for driving while intoxicated when the suspect has refused to submit to the blood draw voluntarily and the officer has reliable information from a credible source that the suspect has two prior convictions for driving while intoxicated, and (2) argues that he was denied effective assistance of counsel. We affirm.

Background

On June 3, 2012, Officer P. McDonald1 of the Orange Police Department stopped Kay for not wearing his seatbelt and for having an expired vehicle registration sticker. While conducting the traffic stop, Officer McDonald smelled alcohol and observed Kay slurring his speech. Officer McDonald conducted field 

sobriety tests, and indicated that Kay was intoxicated, and then placed Kay under arrest and transported him to the Orange County Jail.

At the jail, Kay refused to submit to a blood draw voluntarily. However, when Officer McDonald had earlier placed Kay in custody, dispatch had provided Kay’s criminal history report to Officer McDonald. The report showed that Kay had two prior DWI convictions. Relying on section 724.012(b) of the Transportation Code, Officer McDonald directed a nurse at the jail to perform a warrantless blood draw on Kay. The results indicated that Kay had a blood alcohol concentration of .24 grams of ethanol per 100 milliliters of blood, which was three times the legal limit.

Kay moved to suppress the blood alcohol test’s results because the blood was taken without his consent and without a warrant. At the hearing on Kay’s motion to suppress, Officer McDonald testified that he ordered the blood draw because he had a good faith belief that Kay had two previous DWI convictions. The basis for his belief was Kay’s criminal history report, given to him by dispatch, which indicated Kay had two prior DWI convictions. The trial court denied the motion, explaining: “[B]ased upon the fact that the statute in the state of Texas does allow for the non-warrant blood draw if . . . the defendant has two prior convictions for DWI, which has been admitted and stipulated here, the Court is going to deny the Motion to Suppress as to the blood draw without a warrant.” It later denied Kay’s motion for new trial, which raised the same issue, along with two issues regarding jury instructions.

After Kay filed his notice of appeal, his trial counsel moved to withdraw. The appeal was abated and the trial court held a hearing at which it granted the request to withdraw and appointed new appellate counsel. During the same hearing, the trial court also heard testimony from Kay and his trial counsel regarding Kay’s contention that trial counsel rendered ineffective assistance by failing to convey a plea offer to Kay.

Transportation Code Section 724.012

Citing Missouri v. McNeely, 133 S. Ct. 1552 (2013), Kay contends that section 724.012 of the Texas Transportation Code is unconstitutional because it “impermissibly narrows [Kay’s] Constitutionally guaranteed right to be free from unreasonable searches of his person and seizure of his bodily fluids without a warrant and without any showing of exigent circumstances.”

A. Applicable Law

The taking of a blood specimen is a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834 (1966). A warrantless search or seizure is per se unreasonable, unless it falls under a recognized exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). One such exception is a search conducted pursuant to consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973). Likewise, implied consent law “implies a suspect’s consent to a search in certain instances. This is important when there is no search warrant, since it is another method of conducting a constitutionally valid search.” Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002).

Section 724.012(b)(3)(B) of the Texas Transportation Code provides implied consent to draw blood without a warrant in limited circumstance. It states: “[a] peace officer shall require the taking of a specimen of the person’s breath or blood . . . if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle . . . and the person refuses the officer’s request to submit to the taking of a specimen voluntarily” if, “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person . . . on two or more occasions, has been previously convicted of . . . an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code.” TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B). Driving while intoxicated is an offense under section 49.04 of the Penal Code. See TEX. PENAL CODE ANN. § 49.04. When a person is arrested under the circumstances described in section 724.012(b), that person’s refusal to submit to the taking of the specimen does not suspend the officer’s statutory duty to take it. Id. § 724.013 (West 2011).

B. Analysis

Relying on McNeely, Kay contends that section 724.012 violates the Fourth Amendment. But Kay did not challenge the constitutionality of section 724.012 in the trial court. Rather, Kay’s argument in his motion to suppress and at the hearing on that motion was that (1) the blood draw was warrantless and taken over his refusal to voluntarily provide a blood sample and (2) Kay’s two prior convictions were too remote in time to serve as the two prior convictions required by section 724.012(b). At no point did Kay attack the constitutionality of section 724.012(b).

At the hearing on Kay’s motion to suppress, Kay’s counsel focused on the fact that Kay “did not agree for his blood to be taken,” and that the State had the burden to show there were circumstances present that allowed the State to take a warrantless blood draw.2 Counsel argued that

there may be exceptions where you don’t have to get a warrant under [McNeely]; but the State does have the burden of proof to carry that issue . . . [to show] what circumstances they don’t have to get a warrant, and we have agreed on the record no warrant was issued in this case . . . Kay did not agree for his blood to be taken . . . .

Counsel also argued that Kay’s two prior DWI convictions could not satisfy the statute because they were each more than ten years old. Counsel did not argue that section 724.012, the implied-consent statute, is unconstitutional under McNeely or otherwise.

Kay’s written motion to suppress likewise did not challenge the constitutionality of blood draws taken under the authority of section 724.012(b). Although Kay complained in his motion to suppress that the warrantless taking of his blood violated the United States and Texas Constitutions, he did so only generally:

[E]vidence in this case has been illegally obtained . . . in violation of the United States Constitution, the Texas Constitution, and Texas Statutory Laws . . . [T]he blood specimen was extracted from [Kay] without his permission and without a search warrant. Generally, tak[ing] of a blood sample is a search and seizure within the meaning of the Fourth Amendment to the United States Constitution . . . Article I, section 9 of the Texas Constitution requires that a search warrant be issued . . . In addition, Article 38.23 of the Texas Code of Criminal Procedure forbids any evidence obtained in violation of the law to be admitted against an accused . . . .
(Emphasis added). (Citations omitted).

Considered in context, we conclude that Kay’s complaint to the trial court was not sufficient to inform the trial court that Kay challenged the constitutionality of section 724.012(b). See Resendez v. State, 306 S.W.3d 308, 314 (Tex. Crim. App. 2009) (holding that “[o]nly when there are clear contextual clues indicating that the party was, in fact, making a particular argument will that argument be preserved”). The record demonstrates that Kay’s motion to suppress, as it was developed at the hearing, was based solely on the fact that the blood was drawn over his objection and without a warrant. Kay’s counsel seemingly ignored section 724.012 at the hearing; thus, even considering context, nothing in the record suggests that Kay alerted the trial court that he sought to challenge the constitutionality of the implied-consent statute authorizing Kay’s blood draw. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that an “objection stating one legal theory may not be used to support a different legal theory on appeal,” even when asserting a constitutional challenge). Accordingly, we hold that Kay’s challenge to the constitutionality of section 724.012(b) was not preserved for our review. See TEX. R. APP. P. 33.1; see also Lyssy v. State, 429 S.W.3d 37, 41 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (holding that appellant waived his constitutional challenge to section 724.012(b) where “[t]he context of the motion to suppress, as it developed at the hearing, demonstrates that [appellant’s] challenge was based solely on a failure to observe the statute’s terms, not an attack on the constitutionality of what it authorizes.”).

We overrule Kay’s first issue.

Ineffective Assistance of Counsel

In his second issue, Kay contends that his trial counsel rendered ineffective assistance by failing to inform Kay of a plea offer. Kay contends this warrants reversal and reinstatement of the State’s plea offer.

A. Standard of Review and Applicable Law

Both the federal and state constitutions guarantee an accused the right to have the assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.051 (West Supp. 2013). The right to counsel includes the right to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). Both state and federal claims of ineffective assistance of counsel are evaluated under the two prong analysis of Strickland. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

The first prong requires the appellant to demonstrate that counsel’s performance was deficient, meaning that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The second prong requires the appellant to show that counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To establish prejudice, the appellant must prove there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Unless an appellant can prove both prongs, an appellate court must not find counsel’s representation to be ineffective. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). On direct appeal, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective-assistance claim because the record on direct appeal is usually undeveloped and inadequately reflective of the reasons for defense counsel’s actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). The lack of a clear record usually will prevent the appellant from meeting the first prong of Strickland, as the reasonableness of counsel’s choices and actions during trial can be proven deficient only through facts that do not normally appear in the appellate record. Id. In order for an appellate court to find on direct appeal that counsel was ineffective, counsel’s deficiency must be affirmatively demonstrated in the trial record. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). When the record is silent as to counsel’s reasons for his conduct, finding counsel ineffective would call for speculation by the appellate court. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). An appellate court will not speculate about the reasons underlying defense counsel’s decisions to find counsel ineffective. Id.; Jackson, 877 S.W.2d at 771.

B. Analysis

Kay filed a motion for new trial, but it did not raise an ineffective assistance claim. On appeal, he contends that the State offered a plea bargain of seven years in prison and that his trial counsel failed to communicate that offer to Kay. Kay further contends that his trial counsel failed to intelligently assess and communicate the offer because counsel misunderstood the law. Specifically, Kay argues that his trial counsel erroneously believed that the State was prohibited from using Kay’s two prior DWI convictions as predicates for a felony DWI charge because they were more than ten years old.

We abated this appeal and ordered the trial court to hold a hearing on Kay’s trial counsel’s motion to withdraw. On the same day that the trial court held a hearing on and granted the motion to withdraw, it heard testimony from Kay to the effect that no plea offer was communicated to him but that he had since been informed that there may have been a plea offer at some point.There is a supplemental reporter’s record of a “hearing to present additional evidence,” which the trial court held after Kay was appointed new appellate counsel.)

The trial court did not have authority to hold an evidentiary hearing regarding Kay’s ineffective assistance claim because our order of abatement did not provide for such a hearing. See TEX. R. APP. P. 25.2(g) (“Once the record has been filed in the appellate court, all further proceedings in the trial court—except as provided otherwise by law or by these rules—will be suspended until the trial court receives the appellate-court mandate.”). Even when an appeal is abated, “[a] trial court is not authorized to conduct an evidentiary hearing to develop a record of new testimony and other evidence that was not presented at trial, or developed on motion for new trial.” Lewis v. State, 711 S.W.2d 41, 43–44 (Tex. Crim. App. 1986) (emphasis in original) (holding that trial court “exceeded her authority under the mandate of abatement” by holding evidentiary hearing to develop evidence on ineffective assistance claim because appellant failed to present such evidence at trial or in motion for new trial). Accordingly, we do not consider the testimony from the evidentiary hearing that was held while the case was abated. Disregarding the evidence adduced at that hearing, the record does not affirmatively show that any plea offer actually was extended by the State or that Kay’s trial counsel failed to convey an offer to him. See Lopez, 343 S.W.3d at 142 (stating that the record must affirmatively demonstrate the alleged ineffectiveness to find ineffective counsel). Thus, we cannot conclude that Kay has established that his trial counsel’s representation fell below an objective standard of

reasonableness. See Jenkins v. State, No. 01-03-00185-CR, 2004 WL 1233996, at *7 (Tex. App.—Houston [1st Dist.] June 3, 2004, no pet.) (mem. op., not designated for publication) (holding appellant failed to show his counsel’s performance was deficient because there was no record that appellant’s counsel failed to inform him of plea offer or that State ever proposed plea bargain). Accordingly, we hold that Kay failed to meet the first prong of Strickland.

We overrule Kay’s second issue.

Conclusion

We affirm the trial court’s judgment.

Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
Do Not Publish. TEX. R. APP. P. 47.2(b).

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