TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-14-00153-CR The State of Texas, Appellant v. Marguerite Foreman, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. D-1-DC-13-201477, HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING M E M O R A N D U M O P I N I O N 1 Following her arrest for the felony offense of driving while intoxicated, appellee Marguerite Foreman s blood was drawn without a warrant pursuant to section 724.012(b) of the 2 Texas Transportation Code, commonly known as the mandatory-blood-draw statute. Prior to trial, Foreman filed a motion to suppress evidence relating to the results of the blood draw, which the district court granted following a hearing. In four points of error on appeal, the State asserts that the district court abused its discretion in granting the motion to suppress. Following recent opinions by this Court applying binding precedents from the United States Supreme Court and the Texas Court of Criminal Appeals, we will affirm the district court s order. 1 2 See Tex. Penal Code 49.04(a), 49.09(b)(2). See Tex. Transp. Code 724.012(b).

BACKGROUND At the hearing on the motion to suppress, the district court heard evidence that on the night of March 13, 2013, Officer Kevin Garvey of the Austin Police Department (APD) responded to a call that a vehicle that was driving erratically in South Austin. Officer Garvey testified that he stopped the vehicle after observing it parked in the middle of the road with its brake lights illuminated and no other traffic in front of or behind it. Garvey recounted that when he made contact with the driver, later identified as Foreman, he detected a strong odor of alcohol on her person, noticed that her eyes were red and bloodshot, and observed that her speech was slurred. Another APD officer who had responded to the call, Daniel Walsh, proceeded to conduct field sobriety tests on Foreman. Officer Walsh testified that he subsequently arrested Foreman for driving while intoxicated and asked for a sample of her blood. According to Walsh, Foreman refused. Then, after determining that Foreman had three prior convictions for the offense of driving while intoxicated, Walsh transported Foreman to the Travis County Jail, where, Walsh recounted, Foreman s blood was drawn without obtaining a warrant. On cross-examination, Walsh acknowledged that he could have obtained a warrant for Foreman s blood if he had needed to do so and that at no point during his interaction with Foreman did she consent to the blood draw. At the conclusion of the hearing, the district court granted the motion to suppress and entered a written order to that effect. The court based its ruling on the following conclusions of law: The warrantless taking of Defendant s blood was not justified because of any exigent circumstance. 3 3 In Missouri v. McNeely, the United States Supreme Court rejected the argument that the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an 2

Based on the totality of the circumstances, the warrantless taking of Defendant s blood was not reasonable under the Fourth Amendment to the United States Constitution or Article 1, Section 9 of the Texas Constitution. Defendant did not voluntarily consent to the taking of her blood. By driving a vehicle after being issued a Texas driver s license Defendant did not implicitly consent to the taking of her blood. Based on the totality of the circumstances, the failure of the APD officers to obtain a search warrant prior to taking the blood of Defendant violated her rights under the Fourth Amendment to the United States Constitution and Article 1, Section 9 of the Texas Constitution, thus the blood test results and evidence related to the taking of Defendant s blood should be suppressed at the trial of Defendant. No exception to the requirement that searches be conducted with a warrant existed at the time Defendant s blood was taken. This appeal by the State followed. STANDARD OF REVIEW In reviewing a trial court s ruling on a motion to suppress, an appellate court must apply a standard of abuse of discretion and overturn the trial court s ruling only if it is outside the 4 zone of reasonable disagreement. We will uphold the court s ruling if it is reasonably supported 5 by the record and correct under any theory of law applicable to the case. The appellate court must exception to the Fourth Amendment s warrant requirement for nonconsensual blood testing in all drunk driving cases. 133 S. Ct. 1552, 1556 (2013). Instead, the Court held, exigency in this context must be determined case by case based on the totality of the circumstances. Id. In this case, the State does not dispute the district court s conclusion that there were no exigent circumstances. 4 Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). 5 See Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009). 3

apply a bifurcated standard of review, giving almost total deference to a trial court s determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not 6 depend on credibility determinations. In this case, we review de novo the trial court s application of the law of search and seizure to the facts. 7 ANALYSIS In its first point of error, the State asserts that the blood-draw evidence is admissible because warrantless blood draws, which the State contends are authorized by section 724.012(b) of 8 the Transportation Code, are reasonable under a traditional Fourth-Amendment balancing test. In its second point of error, the State argues in the alternative that the evidence is admissible because Foreman impliedly consented to the blood draw pursuant to section 724.011(a) of 9 the Transportation Code. In its third and fourth points of error, the State asserts that, even if the 6 Martinez, 348 S.W.3d at 922-23 (citing Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997)). 7 See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2011); Thompson v. State, 408 S.W.3d 614, 621 (Tex. App. Austin 2013, no pet.); see also State v. Villarreal, 475 S.W.3d 784, 798 (Tex. Crim. App. 2014) ( [B]ecause the facts are undisputed and the questions before us are matters of law, we apply a de novo standard of review. ); Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004) ( On appeal, the question of whether a specific search or seizure is reasonable under the Fourth Amendment is subject to de novo review. Despite its fact-sensitive analysis, reasonableness is ultimately a question of substantive Fourth Amendment law. ). 8 See Tex. Transp. Code 724.012(b). 9 See id. 724.011(a) ( If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place,.. the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more 4

evidence was obtained in violation of the Fourth Amendment, the federal and state exclusionary rules do not require the evidence to be suppressed. The State s arguments in its first and second points of error have been previously addressed and rejected in State v. Villarreal, a recent decision by the Texas Court of Criminal 10 Appeals regarding the constitutionality of warrantless, mandatory blood draws. In Villarreal, the court held that a nonconsensual search of a DWI suspect s blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the 11 Fourth Amendment. The court explained that the Transportation Code provisions on which the State relied to excuse compliance with the warrant requirement do not, taken by themselves, form a constitutionally valid alternative to the Fourth Amendment warrant requirement, and the court reject[ed] the State s assertion that a warrantless, nonconsensual blood draw conducted pursuant 12 to those provisions can fall under one of the established exceptions to the warrant requirement. specimens of the person s breath or blood for analysis to determine the alcohol concentration or the presence in the person s body of a controlled substance, drug, dangerous drug, or other substance. ). 10 See 475 S.W.3d at 787. Although Villarreal was decided in late 2014, the Court of Criminal Appeals had initially granted a motion for rehearing in the case, see 2015 Tex. Crim. App. LEXIS 201 (Tex. Crim. App. Feb. 25, 2015), which created uncertainty among the lower courts concerning its precedential value. However, on December 16, 2015, the Court of Criminal Appeals concluded that the State s motion for rehearing had been improvidently granted and denied the motion for rehearing, making its decision final at that time. See 2015 Tex. Crim. App. 1402 (Tex. Crim. App. Dec. 16, 2015). 11 12 475 S.W.3d at 815. Id. at 813. 5

The Villarreal court further reject[ed] the State s suggestion similar to the argument raised by the State in its first point of error here that such a search may be upheld 13 under a general Fourth Amendment balancing test. Although the court agree[d] with the State s contention that the government has a substantial interest in preventing drunk driving, it disagree[d] that a balancing test is appropriate given the context of an active criminal investigation, [] when 14 the primary goal of law-enforcement activity is the gathering of evidence. In that context, the court observed, the United States Supreme Court has repeatedly held that a warrantless search of a person is unreasonable unless it falls within an established exception to the warrant requirement. 15 The court decline[d] to disregard this well-established principle in favor of a more generalized balancing-of-interests test. 16 Regarding the State s alternative argument, raised in its second point of error, that a suspect s implied consent to a mandatory blood draw obviates the need to obtain a warrant, the Villarreal court also rejected this contention. The court explained that to constitute a valid waiver of Fourth Amendment rights through consent, a suspect s consent to search must be freely and 17 voluntarily given, and the suspect must possess the ability to limit or revoke it. According to the court, [i]t would be wholly inconsistent with these principles to uphold the warrantless search 13 14 Id. Id. at 808-09. 15 Id. at 809 (citing Riley v. California, 134 S. Ct. 2473, 2482 (2014); McNeely, 133 S. Ct. at 1558; Skinner v. Railway Labor Execs. Ass n, 489 U.S. 602, 619 (1989)). 16 17 Id. Id. at 799. 6

of a suspect s blood on the basis of consent when a suspect has, as in the present case, expressly and 18 unequivocally refused to submit to the search. That explicit refusal to submit to blood testing, the court concluded, overrides the existence of any implied consent, and, unless some other justification for the search applies, there remains no valid basis for conducting a warrantless search under those circumstances. 19 In State v. Ayala, this Court followed the binding precedent of Villarreal and rejected 20 arguments similar to the ones raised by the State in its first and second points of error here. This 21 Court and other intermediate courts have done the same in prior cases. Consistent with the precedent established in these and other cases, we overrule the State s first and second points of error. This Court and others have also previously addressed and rejected the arguments raised in the State s third and fourth points of error regarding the applicability of the state and federal 18 19 Id. at 800. Id. 20 See No. 03-14-00651-CR, 2016 Tex. App. LEXIS 2166, at *6-10 (Tex. App. Austin Mar. 2, 2016, no pet. h.) (mem. op., not designated for publication). 21 See State v. Molden, S.W.3d, No. 03-14-00166-CR, 2016 Tex. App. LEXIS 1539, at *4-9 (Tex. App. Austin Feb. 17, 2016, no pet. h.) (op., designated for publication); State v. Hill, S.W.3d, No. 03-13-00834-CR, 2016 Tex. App. LEXIS 1540, at *3-8 (Tex. App. Austin Feb. 17, 2016, no pet. h.) (op., designated for publication); Roop v. State, S.W.3d, 2016 Tex. App. LEXIS 1541, at *11-13 (Tex. App. Austin Feb. 17, 2016, no pet. h.) (op., designated for publication); see also State v. Munoz, 474 S.W.3d 8, 13-14 (Tex. App. El Paso 2015, no pet.); State v. Tercero, 467 S.W.3d 1, 6-9 (Tex. App. Houston [1st Dist.] 2015, pet. ref d); Chidyausiku v. State, 457 S.W.3d 627, 630-31 (Tex. App. Fort Worth 2015, no pet.); State v. Garcia, 457 S.W.3d 546, 547-48 (Tex. App. San Antonio 2015, no pet.); Lloyd v. State, 453 S.W.3d 544, 546-48 (Tex. App. Dallas 2014, pet. ref d). 7

exclusionary rules. In Ayala, this Court observed that the Texas exclusionary rule, article 38.23 of the Code of Criminal Procedure, broadly provides that [n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the 22 accused on the trial of any criminal case. This Court further observed that the Legislature has authorized only one exception to this rule: It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good 23 faith reliance upon a warrant issued by a neutral magistrate based on probable cause. This Court concluded, contrary to what the State argued in Ayala and is again urging here, that there is no 24 exception based on an officer s compliance with the law as it existed at the time of the search. This Court s holding in Ayala followed a long line of cases from this Court and others reaching a similar conclusion regarding the applicability of the Texas exclusionary rule to blood-draw evidence 25 obtained in violation of the Fourth Amendment. Following Ayala and the cases on which it relied, 22 23 24 2016 Tex. App. LEXIS 2166, at *11 (quoting Tex. Code Crim. Proc. art. 38.23(a)). Id. (quoting Tex. Code Crim. Proc. art. 38.23(b)). Id. at *11-12. 25 See Molden, 2016 Tex. App. LEXIS 1539, at *12-15; Hill, 2016 Tex. App. LEXIS 1540, at *10-14; Roop, 2016 Tex. App. LEXIS 1541, at *15-17; Munoz, 474 S.W.3d at 16; Tercero, 467 S.W.3d at 10-11; Burks v. State, 454 S.W.3d 705, 709 (Tex. App. Fort Worth 2015, no pet.); State v. Anderson, 445 S.W.3d 895, 912 (Tex. App. Beaumont 2014, no pet.); Forsyth v. State, 438 S.W.3d 216, 224-25 (Tex. App. Eastland 2014, pet. ref d); see also State v. Esher, No. 05-14-00694-CR, 2015 Tex. App. LEXIS 7722, at *10-11 (Tex. App. Dallas July 27, 2015, no pet.) (mem. op., not designated for publication); Gentry v. State, No. 12-13-00168-CR, 2014 Tex. App. LEXIS 9538, at *6-7 (Tex. App. Tyler Aug. 27, 2014, no pet.) (mem. op., not designated for publication); Fitzgerald v. State, 2014 Tex. App. LEXIS 8208, at *6 (Tex. App. San Antonio July 30, 2014, no pet.) (mem. op., not designated for publication). 8

we cannot conclude that the district court abused its discretion in suppressing the blood-draw evidence pursuant to the Texas exclusionary rule. 26 27 As for the applicability of the judicially created federal exclusionary rule, which 28 contains exceptions that are not present in the Texas exclusionary rule, we reach the same conclusion here that we did in Ayala because the Texas exclusionary rule is broader in scope and 29 provides more protection to a suspect than its federal counterpart, we can uphold the district court s 26 We note here, as we did in Ayala, that the applicability of the exclusionary rule to evidence obtained from a warrantless blood draw is an issue that is currently pending before the Court of Criminal Appeals. See Cole v. State, 454 S.W.3d 89 (Tex. App. Texarkana 2014, pet. granted). But unless and until that court instructs us otherwise, we adhere to the exception to the Texas exclusionary rule that the Legislature has expressly authorized. See State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) ( But Article 38.23 already contains one express exception, see Subsection (b) thereof, and according to the rules of statutory construction, where a statute contains an express exception, its terms must apply in all cases not excepted. ); Garcia v. State, 829 S.W.2d 796, 800 (Tex. Crim. App. 1992) ( Certainly, the Legislature has the prerogative to amend Article 38.23 to enact the specific exception to its rule if it chooses. Until that time, however, we must enforce the statute as written, excluding all illegally obtained evidence, with the single exception as set out in the statute. ); see also 67 Tex. Jur. 3d Statutes 117 (2015) ( In construing a statute, it is not ordinarily permissible to imply an exception, proviso, or restriction or to enlarge an exception so as to include cases not within its terms. ). Cf. Wehrenberg v. State, 416 S.W.3d 458, 470-71 (Tex. Crim. App. 2013) (concluding that independent source doctrine may be basis for admitting otherwise inadmissible evidence because that doctrine is consistent with the plain terms of the Texas exclusionary rule ); State v. Johnson, 871 S.W.2d 744, 750-51 (Tex. Crim. App. 1994) (reaching similar conclusion regarding attenuation of taint doctrine). (1984). 27 See Arizona v. Evans, 514 U.S. 1, 10 (1995); United States v. Leon, 468 U.S. 897, 906 28 See Davis v. United States, 131 S. Ct. 2419, 2423-24 (2011) (holding that [e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule ); Illinois v. Krull, 480 U.S. 340, 360 (1987) (holding that evidence obtained by officer acting in good-faith reliance on statute that is later determined to be unconstitutional is not subject to exclusionary rule). 29 See Wilson v. State, 311 S.W.3d 452, 458-59 (Tex. Crim. App. 2010); Miles v. State, 241 S.W.3d 28, 34 (Tex. Crim. App. 2007); Melendez v. State, 467 S.W.3d 586, 592 9

ruling on the theory that the Texas exclusionary rule requires suppression of the evidence, without 30 needing to further address the applicability of the federal exclusionary rule. We overrule the State s third and fourth points of error. CONCLUSION We affirm the district court s order granting the motion to suppress. Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Field Affirmed Filed: March 11, 2016 Do Not Publish (Tex. App. San Antonio 2015, no pet.); Tercero, 467 S.W.3d at 10; see also 40 George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice and Procedure 7.10 (3d ed. 2011) ( Article 38.23 of the Code of Criminal Procedure imposes what is probably the broadest state exclusionary requirement of any American jurisdiction. ); 1 C. McCormick & R. Ray, Texas Law of Evidence, 473 (2d ed. 1956) ( The Texas [exclusionary] statute lays down a rule far broader than that existing in any other state and goes much beyond the doctrine of the [federal] cases. ). 30 See 2016 Tex. App. LEXIS 2166, at *13-15; see also Tex. R. App. P. 47.1; Valtierra, 310 S.W.3d at 447-48 ( We will sustain the trial court s ruling [on a motion to suppress] if that ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006))); Greer v. State, No. 01-14-00033-CR, 2015 Tex. App. LEXIS 10892, at *5 (Tex. App. Houston [1st Dist.] Oct. 22, 2015, pet. filed) ( Even if evidence is admissible as an exception to the federal rule, it may, nonetheless, still be excluded by Article 38.23. ); 40 Dix & Schmolesky 7:7 ( The States also remain free to exclude evidence obtained in violation of federal constitutional or statutory requirements even if exclusion is not required by federal law. ). 10