November 2014 Texas Law Enforcement Handbook Monthly Update is published monthly. Copyright 2014. P.O. Box 1261, Euless, TX 76039. No claim is made regarding the accuracy of official government works or copyright of same. Educational purposes only. Does not constitute legal advice. No reproduction outside TPCA membership without written consent. Court of Criminal Appeals COURT HOLDS THAT A NON- CONSENSUAL 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 FOURTH AMENDMENT Issue presented: application of statute regarding warrantless blood draws. The defendant was charged with driving while intoxicated. The trial court granted the defendant s motion to suppress the evidence from the warrantless blood draw. The state filed an appeal to the Court of Criminal Appeals, challenging the trial court s ruling. The Court affirmed the trial court s ruling. Officer P stopped the defendant for a traffic violation. During the stop P observed the defendant appeared intoxicated. Officer P contacted Officer W to perform a DWI investigation. W asked the defendant to perform standardized field sobriety tests and the defendant refused. The defendant was arrested and W advised him of his statutory warning regarding the giving of specimens. The defendant refused to provide a specimen and was then transported to a medical facility where the blood was drawn over defendant s objection. The police did not obtain a warrant prior to the blood draw. The case deals with the limited question of whether the blood draw, in this case, violated the Fourth Amendment. Originally the defendant had raised an argument that the implied consent statute was unconstitutional, but the defendant abandoned that argument on appeal. This opinion does not address the underlying constitutionality of the implied consent statute.
The Court of Criminal Appeals considered whether or not the mandatory blood draw provisions in section 724.012(b) of the Transportation Code created a constitutionally valid alternative to the warrant requirement. The Court of Criminal Appeals summed up the requirements of the statute as follows: Reading these provisions in conjunction, [section 724.012(b)] we observe that they establish a statutory scheme by which an individual who was arrested for an "ordinary" DWI that is, one that does not fall within any of the enumerated circumstances of section 724.012 (b) has an absolute right to refuse to provide a specimen, notwithstanding the existence of implied consent But, if one of the aggravating circumstances described in section 724.012 (b) is present, then, as the state observes, the statutory scheme appears to "extinguish" a suspect's right to refuse to submit a specimen under those specified circumstances Stated differently, if one of the aggravating circumstances is present, then, pursuant to the statute, even if the suspect refuses to comply, an officer has a mandatory duty to require that the suspect's blood be drawn. Because the dispute here centers on whether a warrantless, nonconsensual search of a DWI suspect s blood conducted pursuant to section 724.012 (b) complies with the Constitution, we turn to review of the relevant Fourth Amendment principles. The Court of Criminal Appeals reviewed the basic requirements of the Fourth Amendment regarding searches of persons: In general, to comply with the Fourth Amendment, a search of a person pursuant to a criminal investigation (1) requires a search warrant or a recognized exception to the warrant requirement, and (2) must be reasonable under the totality of the circumstances. Furthermore, of particular relevance to DWI cases, the Supreme Court has recognized that the Fourth Amendment is implicated in that (3) the collection of a suspect's blood invades a substantial privacy interest, and (4) the exigent circumstances exception to the search warrant requirement is not established merely by the natural dissipation of alcohol. **** Specifically, with respect to searches of people undertaken November 2014 2
for the purpose of furthering a criminal investigation, the Supreme Court has determined that, in the absence of a search warrant, a "search of the person is reasonable only if it falls within a recognized exception" to the warrant requirement The recognized exceptions to the warrant requirement that the state suggests are implicated in the present case are the consent exception; the automobile exception; the search incident to arrest exception; and, the special needs doctrine. [Internal cites omitted Ed.]. A Understanding that the Supreme Court had already ruled that the natural dissipation of alcohol in the bloodstream did not constitute an exigent circumstance that would waive the warrant requirement [the McNeely case Ed.], the state of Texas focused on other exceptions to the warrant requirement. Prior Waiver through Implied Consent Is Inapplicable: The state argued that by accepting a license, which is a privilege, a driver in the state of Texas has consented to a search of his person in the form of a blood draw in exchange for that privilege: On this basis, the state urges this Court to hold that, in light of the existence of the implied-consent in the mandatory blood draw provisions, a driver "impliedly agrees ahead of time that, in exchange for the privilege of driving on our roads, he is willing to waive the right to a warrant in these limited circumstances. The deal is sealed when he gets behind the wheel, and it can't later be revoked when he gets caught driving in an impaired condition." The Court pointed out that "an additional necessary element of valid consent is the ability to limit or revoke it." The Court went on to add: To the extent the state suggests that the implied consent and mandatory blood draw provisions in the Transportation Code categorically extinguish a DWI suspect s right to withdraw consent when some aggravating circumstances present, that suggestion cannot be squared with the requirement that, to be valid for Fourth Amendment purposes, consent must be freely and voluntarily given based on the totality of the November 2014 3
circumstances, and must not have been revoked or withdrawn at the time of search In other words, implied consent that has been withdrawn or revoked by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires. The state recognized this problem with general consent rules for searches and offered up an alternative argument - the parallel exception : [The state] urges us to hold that a driver who accepts the privilege of driving on Texas roadways has, by virtue of his enjoyment of that privilege, lost the right to later revoke the implied consent supplied by the Transportation Code or to complain about the absence of a warrant. The state argued to the Court that the implied consent statute should be interpreted along the line of cases that established the "parallel exception" to the consent exception. The parallel exception is a line of cases that hold that a person may not withdraw a waiver of a constitutional right that was given in exchange for some benefit or privilege. The Court noted that this line of cases was applicable only to the federal regulatory context, the context of parolees and probationers, or a noncriminal context. Accordingly, the Court held that the parallel exception argument was not applicable in a case that involved a bodily search of an individual suspected of criminal wrongdoing, such as the instant case. The Automobile Exception Is Inapplicable: The state argued that the warrantless search of a DWI suspect s blood should be upheld under the automobile exception. The Court rejected that argument outright, stating "the automobile exception has been expressly limited to the vehicular search context It cannot be expanded to encompass a bodily search in the form of a compulsory blood draw of an individual." In other words, the driver of a motor vehicle cannot be searched in much the same way as any other container in his vehicle could be searched during the application of the automobile exception. The Special Needs Exception Is Inapplicable: The special needs exception is a very limited exception to the warrant requirement. It has been recognized in situations such as screening student athletes for drug use and compulsory testing of train engineers for drug and alcohol use. The history of this exception has been a limited application in situations when special needs beyond the normal need for law enforcement make the warrant and November 2014 4
probable cause requirement impracticable." The Court responded to this argument by the state: Here, we see no basis for holding that the governments need to conduct searches of DWI suspects blood constitutes a "special need" that would permit a departure from the probable cause and warrant requirement. The need here does not go "beyond the normal need for lawenforcement," nor does it "make the warrant and probable cause requirement impracticable." Furthermore, the Supreme Court has suggested that the special needs doctrine is inapplicable when the primary purpose of a search is to generate evidence for law enforcement purposes. Search Incident to Arrest Is Inapplicable: The state also argued that the search incident to arrest exception would apply in this situation. The Court noted that a search incident to arrest must be "substantially contemporaneous" with the arrest it is limited to the area within the immediate control of the arrestee. The justification for the search is twofold: (1) the need for officers to seize weapons or other things that might be used to assault an officer or facilitate an escape, and (2) the need to prevent the loss or destruction of evidence. The state argued that the dissipation of alcohol in the bloodstream constitutes a "recognized exigency" that would justify applying the search incident to arrest exception. The Court stated that such a proposal would urge the adoption of a per se exigency rule, and such a rule has been expressly disavowed by the Supreme Court in Missouri v. McNeely, 133 S.Ct 1552 (2013). [Which ruled that the dissipation of blood alcohol levels did not create an exigent circumstance justifying a warrantless blood draw Ed.]. The Court, having considered, and discounted, the exceptions to the search warrant doctrine offered by the state, ruled 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 Fourth Amendment. State v. Villareal, NO. PD-0306-14 (Tex. Crim. App. 11/26/14) Commentary: Readers should note that this opinion did not hold that the mandatory blood draw statute is unconstitutional. However, this case does illustrate that the mandatory blood draw statute s effectiveness has been called into question. November 2014 5
HEALTH AND SAFETY CODE PROVIDES A DEFENSE TO PERSONS ACCUSED OF KILLING ANIMALS UNDER CERTAIN CIRCUMSTANCES The appellant was charged with cruelty to non-livestock animals under Texas Penal Code section 42.092(b)(6). The appellant sought to raise the defenses found in section 822.013 of the Health and Safety Code. The trial court did not allow the defense to be raised. The appellant challenged this decision on appeal and the court of appeals remanded the case to the trial court. The state appealed. The appellant and his wife were walking their dogs. Two dogs escaped from another back yard. One dog, Zeus, attacked the appellant s dog, grabbing it by the neck. The appellant and another neighbor tried for five minutes to get Zeus to let go of the dog. Zeus bit both the appellant and the neighbor during this encounter. Zeus finally released the dog. The appellant dragged Zeus to his house and tied the dog to a car bumper and then cut his throat. The police charged appellant with cruelty to non-livestock animals. The main issue was whether section 822.013 of the Health and Safety Code comprised a defense to prosecution under the Penal Code. Section 822.013 states: A dog or coyote that is attacking, is about to attack, or has recently attacked livestock, domestic animals, or fowls may be killed by: (1) any person witnessing the attack; or (2) the attacked animal s owner or a person acting on behalf of the owner if the owner or person has knowledge of the attack. After reviewing the statute and its history, the Court of Criminal Appeals held that section 822.013 does in fact create a defense to prosecution under section 42.092(b)(6) of the Penal Code. Chase v. State, NO. PD-1768-13 (Tex. Crim. App. 11/16/14) Texas Appellate Courts TAKEN AS A WHOLE OFFICER S OBSERVATIONS, COUPLED WITH HIS TRAINING AND EXPERIENCE, WERE SUFFICIENT TO ESTABLISH REASONABLE SUSPICION THAT DEFENDANT WAS INTOXICATED Issue presented: reasonable suspicion for traffic stop The appellant was arrested for driving while intoxicated. At trial, the appellant filed a motion to suppress. The trial court denied the motion to suppress and the appellant was convicted. The appellant brought this appeal to challenge the denial of the motion to suppress. November 2014 6
At approximately 1 AM on July 12 Cpl. H was at a red light when he saw a vehicle approaching the intersection. He estimated the vehicle was speeding at that time but he was unable to confirm the speed of the vehicle. Before reaching the intersection the vehicle rapidly braked in a way that Cpl. H described as not a normal slowdown better" and as an "overcompensation in braking." He also noticed the drivers door was not completely closed. Cpl. H followed the vehicle for about a half a mile. He wants the vehicle drastically change speeds couple of times and then dramatically slow down. He also testified that the vehicle swerved and touched the center-line several times. Based on these observations Cpl. H stopped the vehicle and ultimately arrested the driver for DWI. The appellant challenged the trial court's decision to deny her motion to suppress. The appellant contends that the trial court should have suppressed Cpl. H's testimony "because he lacked a reasonable suspicion that she was breaking the law prior to pulling her over." The court reviewed the law applicable to temporary detentions: An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that a person is violating the law Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts would lead the officer to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. [Internal cites omitted Ed.]. The court then reviewed the facts of this case to determine if there were sufficient facts and circumstances to justify the traffic stop. The court began by stating, "Texas courts have held that an officer is justified in pulling over a vehicle if the circumstances, taken as a whole, could reasonably lead to the conclusion that the driver is intoxicated." Additionally, the court pointed out, "In totality-of-thecircumstances inferences, Texas courts may factor an officer's experience recognizing intoxication through certain driving patterns." The court pointed out the following facts and circumstances that were available to Cpl. H: (1) the stop occurred at 1 AM and officers "may heighten their suspicions when they observe unusual driving behavior late at night"; (2) the unusual braking behavior displayed by the driver of the vehicle; (3) the slow speed and inconsistent speed of the vehicle; (4) the driver side November 2014 7
door appeared unlatched; (5) Cpl. H had 15 years experience as a peace officer; and, (6) Cpl. H had a Masters degree in Criminology and Criminal Justice. The court concluded that, "Taken as a whole, these factors support an objective justification for the stop [to investigate a possible DWI]." The trial court properly denied the motion to suppress. Brown v. State, NO. 02-14-00045-CR (Tex. App. Fort Worth, 11/20/14)(not designated for publication) November 2014 8