                                                                              ACCEPTED
                                                                         03-14-00588-CR
                                                                                3629106
                                                               THIRD COURT OF APPEALS
                                                                          AUSTIN, TEXAS
                                                                   12/31/2014 1:29:51 PM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK


                  No. 03-14-00588-CR
                                                        FILED IN
                                                 3rd COURT OF APPEALS
                          In the                      AUSTIN, TEXAS
                     Court of Appeals            12/31/2014 1:29:51 PM
                      Third District                 JEFFREY D. KYLE
                      Austin, Texas                       Clerk


                   The State of Texas,
                        Appellant

                              v.

                    Hector Martinez,
                        Appellee

        Appeal from the 42th Judicial District Court
                   Travis County, Texas
            Cause Number D-1-DC-13-900228

                    STATE’S BRIEF


                             Rosemary Lehmberg
                             District Attorney
                             Travis County

                             Angie Creasy
                             Assistant District Attorney
                             State Bar No. 24043613
                             P.O. Box 1748
                             Austin, Texas 78767
                             (512) 854-9400
                             Fax (512) 854-4206
                             Angie.Creasy@traviscountytx.gov
                             AppellateTCDA@traviscountytx.gov

Oral argument is requested
                 Identity of Parties and Counsel

Trial Judge:                 Jim Coronado
                             427th Judicial District Court
                             P.O. Box 1748
                             Austin, Texas 78767

                             Leon Grizzard
                             Magistrate Judge
                             P.O. Box 1748
                             Austin, Texas 78767

Trial Counsel for State:     Kelly Gier and Willis Chambers
                             Travis County District Attorney’s Office
                             P.O. Box 1748
                             Austin, Texas 78767

Appellate Counsel for State: Angie Creasy
                             Travis County District Attorney’s Office
                             P.O. Box 1748
                             Austin, Texas 78767

Defendant/Appellee:          Hector Martinez

Counsel for                  John de la Vina
Defendant/Appellee:          1108 Lavaca Street, Suite 110
                             Austin, Texas 78701




                                    i
                                     Table of Contents

Identity of Parties and Counsel ............................................................ i
Index of Authorities............................................................................ iii
Statement of the Case ...........................................................................v
Statement of Facts ................................................................................1
Summary of the State’s Argument....................................................... 7
Standard of Review.............................................................................. 8
Argument............................................................................................. 8
  Point One: The blood draw evidence is admissible under the exigent
  circumstances exception to the warrant requirement. ..................... 9
  Point Two: Alternatively, the evidence is admissible because the
  blood draw was mandated by statute, and the statute is
  constitutionally reasonable under the Fourth Amendment. ...........14
  Point Three: Alternatively, the blood draw evidence is admissible
  because the defendant is deemed to have consented to the taking of
  a specimen, per Tex. Transp. Code § 724.011(a)............................. 20
  Point Four: Assuming, arguendo, that the blood draw is
  unconstitutional, the Texas exclusionary rule still does not bar
  admission of the evidence................................................................21
  Point Five: The federal exclusionary rule does not bar admission of
  the evidence either.......................................................................... 25
Prayer ................................................................................................ 28
Certificate of Compliance and Service............................................... 29




                                                      ii
                                    Index of Authorities

     Cases
Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) .................22, 27
Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448
   (1957)...............................................................................................18
Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 180 L. Ed. 285
   (2011).............................................................................................. 27
Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)
   ........................................................................................................ 25
Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002).....................19
Maryland v. King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013)
   .........................................................................................................15
McCambridge v. State, 778 S.W.2d 70 (Tex. Crim. App. 1989)........ 20
Missouri v. McNeely, 569 U.S. __, 133 S. Ct. 1552, 185 L. Ed. 2d 696
   (2013) .................................................................................. 13, 24, 27
Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) ....................15
Neesley v. State, 239 S.W.3d 780 (Tex. Crim. App. 2007)........... 16, 17
People v. Youn, 2014 Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15,
   2014)............................................................................................... 27
Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d.
   250 (2006).......................................................................................15
Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008) .................15
Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) ............... 8
South Dakota v. Neville, 459 U.S. 553, 103 s. Ct. 916, 74 L. Ed. 2d 748
   (1983) ..............................................................................................18
State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680 (App. Div. Dec. 20,
   2013)............................................................................................... 24
State v. Johnson, 871 S.W.2d. 744 (Tex. Crim. App. 1994)............... 23
State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ............... 17
State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000, pet. ref’d) . 27
State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet.
   ref’d) ............................................................................................... 22
State v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d)
   .........................................................................................................18
State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS
   1898 (Tex. Crim. App. Nov. 26, 2014).............................. 9, 15, 19, 21
te v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d) .... 17

                                                        iii
United States v. Brooks, No. PWG-14-0053, 2014 U.S. Dist. LEXIS
 67417 (D. Md. May 16, 2014) (mem. op.) ....................................... 27
United States v. De Angelo, 584 F.2d 46 (4th Cir. 1978) ...................21
United States v. Herzbrun, 723 F.2d 773 (11th Cir. 1984) ................ 20
United States v. Spriggs, 827 F. Supp. 372 (E.D. Va. 1993) ..............21
Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013)......... 23
Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985)
 .........................................................................................................18
     Statutes
Tex. Code Crim. Proc. art. 38.23 ........................................................21
Tex. Penal Code § 49.04 .......................................................................v
Tex. Penal Code § 49.09 .......................................................................v
Tex. Transp. Code § 724.011 .............................................................. 20
Tex. Transp. Code § 724.012.........................................................14, 26
Tex. Transp. Code § 724.017...............................................................18




                                                       iv
                       Statement of the Case

   A grand jury indicted the defendant for driving while intoxicated

with two prior convictions. CR 3-4; Tex. Penal Code § 49.04,

49.09(b)(2). The trial court granted the defendant’s motion to

suppress the blood test results, and the State gave notice of appeal.

CR 61-70.




                                     v
                       No. 03-14-00588-CR

                               In the
                          Court of Appeals
                           Third District
                           Austin, Texas

                        The State of Texas,
                             Appellant

                                  v.

                         Hector Martinez,
                             Appellee

             Appeal from the 42th Judicial District Court
                        Travis County, Texas
                 Cause Number D-1-DC-13-900228

                          STATE’S BRIEF


To the Honorable Third Court of Appeals:

   Now comes the State of Texas and files this brief, and in support

thereof respectfully shows the following:


                        Statement of Facts

   Around 12:25 a.m. on March 15, 2013, a 911 caller reported that an

unknown man was banging on her front door. 2RR 9, 12, 29. Officer

Johnson arrived at the caller’s home about 10 minutes later, and he

saw the defendant backing his truck out of the driveway. 2RR 13-14,

                                       1
21, 48, 74; 3RR 8. Officer Johnson detained the defendant in

handcuffs. 2RR 15. The defendant explained that he had made a

mistake, that he thought his friend lived at the caller’s house. 2RR 17,

19-20, 74.

      Officer Johnson testified that the defendant had glassy bloodshot

eyes, he swayed, he had a strong odor of an alcoholic beverage on his

breath, he thought it was 3 a.m., he admitted drinking two or three

beers at a concert event for South by Southwest, and he said “I’m

fucked up, I’m not going to lie.” 2RR 17-18, 21-23. Officer Johnson

began a DWI investigation around 12:41 a.m. 2RR 21. For the

standardized field sobriety tests, the defendant exhibited all six

possible clues on the horizontal gaze nystagmus test, four clues on the

walk and turn test, and two clues on the one leg stand test. 2RR 25-

28.

      Officer Johnson arrested the defendant for driving while

intoxicated around 1 a.m. 2RR 29, 38. Officer Johnson read the DIC-

24 statutory warnings to the defendant, and the defendant refused to

provide a sample of his breath or blood. 2RR 61, 75, 79. After making

arrangements for the defendant’s vehicle, Officer Johnson



                                      2
transported the defendant to the “BAT bus,” in order to turn him over

to the “DWI unit” for transport to the jail. 2RR 60-61; 3RR 8.

   They arrived at the BAT bus at 1:45 a.m. 2RR 63-64, 67. Once

there, Officer Johnson learned that the defendant had prior

convictions for driving while intoxicated, which meant the officer had

to get a mandatory blood draw pursuant to state law. 2RR 37, 64.

Officer Johnson then transported the defendant to the jail, where

there was a phlebotomist who could take the mandatory blood draw.

2RR 64.

   They arrived at the jail around 2:15 a.m. 2RR 67, 71. Once at the

jail, Officer Johnson saw that the defendant’s eyes were open but he

was nonresponsive. 2RR 65. Then the defendant was “trying to

hyperventilate.” 2RR 30.

   Officer Johnson called EMS, who arrived 5 to 10 minutes later.

The defendant fought EMS, flailing and kicking his legs. EMS tried to

strap him down but he was still kicking. Officer Johnson had to hold

his legs down. On the way to the hospital, EMS had to stop on the

street to sedate the defendant because he was still fighting and

kicking. Officer Johnson testified that the defendant fought for about



                                     3
30 minutes or so. 2RR 66-67. Officer Johnson testified that the entire

medical intervention (calling EMS, fighting with and subduing the

defendant, and transporting him to the hospital) added

approximately an hour to the investigation. 2RR 71.

      Officer Johnson did not recall exactly what time they arrived at

the hospital, but dispatch showed that they were en route to the

hospital at 3 a.m., and the defendant’s blood was drawn at the

hospital at 3:34 a.m. 2RR 31, 67, 71.

      Officer Johnson did not get, or attempt to get, a search warrant.

2RR 36-37. Officer Johnson testified that he had never gotten a

search warrant before this arrest, but he has gotten search warrants

since that time, and it usually takes 45 minutes to an hour to obtain.

2RR 38-41.1 The process entails printing out a form and calling a

corporal to review the form, and the corporal fills outs some more

paperwork and takes it all to the magistrate at the jail. 2RR 64-65.




1   When asked on cross examination, Officer Johnson said it takes about 20 to
    30 minutes to get a warrant on a “no refusal” weekend, but he did not know
    whether it was a “no refusal” weekend on the night that the defendant was
    arrested, and no evidence was admitted to show that it was. 2RR 68, 76-77.


                                          4
The process, however, was put in place after the arrest in this case.2

2RR 36-41.

      The defendant filed a motion to suppress the blood draw evidence,

arguing that the blood draw violated the Fourth Amendment because

there was no warrant and no warrant exception. Supp CR 4-6.3 He

argued at the hearing that the police officer should have gotten a

warrant, that he had ample time to do so, and that the implied

consent statute runs afoul of the Fourth Amendment. 3RR 7-8.

      The State countered that the blood draw was justified under the

exigent circumstances exception to the warrant requirement. CR 45;

3RR 7.

      Additionally, the State argued that the evidence is admissible

because the blood draw was mandated by Tex. Transp. Code §

724.011(b), and the statute is constitutionally reasonable under the

Fourth Amendment. CR 40-44.




2   The officer testified that the search warrant policy changed because of “case
    law.” He was likely referring to the Supreme Court’s decision in Missouri v.
    McNeely, 569 U.S. __, 133 S. Ct. 1552, 1561, 185 L. Ed. 2d 696 (2013).
3   The motion to suppress was filed under the original cause number instead of
    the re-indicted cause number.


                                           5
      The State also argued that the blood draw evidence is admissible

because the defendant is deemed to have consented to the taking of a

specimen, per Tex. Transp. Code § 724.011(a). CR 40-41.

      Finally, the State argued that, even if the blood draw was

unconstitutional, (1) The Texas exclusionary rule does not apply

because the police did not violate the law as it existed at the time of

the search, and (2) The federal exclusionary rule does not bar

admission of the evidence either because the police were acting in

good faith reliance on both statutes and appellate precedent. CR 44-

45.

      After a hearing on the motion to suppress, the magistrate judge

recommended suppressing the blood test results because “the medical

intervention did not present exigent circumstances,” “the State does

not have an interest in prosecuting DWIs which would override the

constitutional requirement for a search warrant,” and “implied

consent is not a recognized exception to the warrant requirement.”

CR 61-63. He did not specifically address the State’s last argument,

namely, that the exclusionary rules do not apply.




                                       6
   The presiding judge signed an order adopting the rulings of the

magistrate and granting the motion to suppress the blood draw. CR

64. The State is appealing this order. CR 65-70.


                Summary of the State’s Argument

   Point One: The exigent circumstances exception to the warrant

requirement applies in this case. This case does not involve a routine

DWI, and the State is not arguing exigency based solely on the

dissipation of alcohol in the blood. Instead, there was an actual

medical emergency and a combative defendant, which ate up time

and took the officer away from the jail and the magistrate. Thus, the

officer acted reasonably in pursuing a blood draw without a warrant

in this case.

   Point Two: The evidence is admissible because the blood draw

was mandated by statute, and the statute is constitutionally

reasonable under the Fourth Amendment.

   Point Three: Alternatively, the blood draw evidence is

admissible because the defendant is deemed to have consented to the

taking of a specimen, per Tex. Transp. Code § 724.011(a).




                                     7
   Point Four: Even if the blood draw was unconstitutional, the

Texas exclusionary rule does not apply because the police did not

violate the law as it existed at the time of the search.

   Point Five: The federal exclusionary rule does not bar admission

of the evidence either because the police were acting in good faith

reliance on both statutes and appellate precedent.


                         Standard of Review

   The appellate court reviews a ruling on a motion to suppress

evidence for an abuse of discretion. The appellate court views the

facts in the light most favorable to the trial court's decision. The

appellate court reviews de novo the trial court's application of the law

of search and seizure to those facts. Shepherd v. State, 273 S.W.3d

681, 684 (Tex. Crim. App. 2008).


                               Argument

   The State acknowledges that the Texas Court of Criminal Appeals

recently held that a warrantless blood draw, conducted pursuant to

the mandatory blood draw statute, violated the Fourth Amendment

because it did not fall under any recognized exception to the warrant


                                      8
requirement. The court held that implied consent that has been

withdrawn by a suspect cannot serve as a substitute for the free and

voluntary consent that the Fourth Amendment requires. State v.

Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex.

Crim. App. Nov. 26, 2014).

   The court’s decision in Villarreal directly contradicts the

arguments made by the State in Points Two and Three. The State is

making these arguments to preserve error because Villarreal is not

yet final, but in light of Villarreal, the State asks this Court to focus

on Points One, Four, and Five.


Point One: The blood draw evidence is admissible under
the exigent circumstances exception to the warrant
requirement.

   The judge held that there were no exigent circumstances, stating:

      I find that the medical intervention did not present
      exigent circumstances which would have made a
      warrantless blood draw objectively reasonable. The time
      from the initial call to when the blood was drawn was
      about three hours. According to Officer Johnson’s
      testimony, it would have been about the same amount of
      time had a warrant been sought. The medical situation
      might have given rise to exigency had it been prolonged,
      as the passage of time does make the blood test evidence
      less reliable, but that did not in fact happen.



                                       9
CR 61 (emphasis added).

   First, the trial court’s finding that, “According to Officer Johnson’s

testimony, it would have taken about the same amount of time had a

warrant been sought” is not supported by the record. Officer Johnson

testified that a search warrant usually takes 45 minutes to an hour to

obtain. 2RR 38-39.

   And although it was not explored in detail, getting a warrant

probably would have taken quite a bit longer in the defendant’s case

because Officer Johnson was at the hospital instead of at the jail;

there is no indication that he had access to a computer, or a printer,

or the search warrant form; and it appears that the search warrant

forms and expedited process did not even exist at the time of this

blood draw. 2RR 38-41.

   Even if Officer Johnson was able to draft an affidavit at the

hospital, he still would have had to wait for a corporal to come pick it

up to take it to the magistrate at the jail. Alternatively, Officer

Johnson could have had another officer take custody of the defendant

so he could head to the jail to secure a search warrant. But in either

case, it clearly would have taken longer than the normal process of



                                      10
getting a search warrant at the jail, which Officer Johnson testified

usually takes 45 minutes to an hour.

   Additionally, it does not appear that Officer Johnson spent any

part of the night standing around and wasting time, when he could

have been getting a search warrant. Instead, the record shows that

Officer Johnson investigated the original disturbance call, conducted

a DWI investigation, made an arrest, read the DIC-24, made

arrangements for the defendant’s car, transported the defendant to

the BAT bus for processing by the DWI unit, received information

that the defendant had prior DWI convictions, transported him to the

jail, was confronted with a nonresponsive defendant, spoke to the jail

medics who refused to accept the defendant, called EMS, fought to

restrain the now-combative defendant, accompanied EMS to the

hospital, stopped along the way because EMS had to sedate the

defendant, and drew blood shortly after they arrived at the hospital.

   Therefore, the trial court’s finding that the blood draw would have

taken the same amount of time had a warrant been sought is not

supported by the record.




                                     11
      Additionally, the trial court’s conclusion that the officer’s decision

to proceed without a warrant was unreasonable shows an improper

analysis and judicial second-guessing. First, the court must consider

the totality of the circumstances, not just the time it would take to get

a warrant. Missouri v. McNeely, 569 U.S. __, 133 S. Ct. 1552, 1561,

185 L. Ed. 2d 696 (2013). Second, the analysis must be undertaken

from the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight. Id. at 1564 n7.

      Considering the totality of the circumstances from the perspective

of a reasonable officer on the scene means that the court must

consider that three hours had elapsed at the point that Officer

Johnson obtained a warrantless blood draw.4 By any standard, three

hours is a significant delay.

      A lengthy delay means the resulting BAC is less relevant to the

jury’s determination of BAC at the time of the crash. As stated in

McNeely,



4   The 911 call came in around 12:25 a.m. Officer Johnson responded about 10
    minutes later. The defendant’s blood was drawn at 3:34 a.m. It is important
    to note that the length of time between the defendant’s last drink and the
    blood draw was even longer.


                                          12
      Because an individual’s alcohol level gradually declines
      soon after he stops drinking, a significant delay in testing
      will negatively affect the probative value of the results.
      This fact was essential to our holding in Schmerber, as we
      recognized that, under the circumstances, further delay in
      order to secure a warrant after the time spent
      investigating the scene of the accident and transporting
      the injured suspect to the hospital to receive treatment
      would have threatened the destruction of evidence.

McNeely, at 1561.

   A lengthy delay also affects the State’s ability to calculate an

admissible retrograde extrapolation. Finally, a lengthy delay means it

is more likely that the defendant’s BAC will drop below 0.08 by the

time of the blood draw. For these reasons, when there has been a

lengthy delay, the need to proceed without a warrant is far greater

than in a case where there has been only 30 minutes to an hour from

the time of driving to the time of a blood draw.

   In sum, this case does not involve a routine DWI, and the State is

not arguing exigency based solely on the dissipation of alcohol in the

blood. Instead, there was an actual medical emergency and a

combative defendant, which ate up time and took the officer away

from the jail and the magistrate. Ultimately, over three hours elapsed

from the time of driving to the time of the blood draw. Under these



                                     13
circumstances, the State is asking this Court to conduct a de novo

review of the trial court's application of the law of search and seizure

to the facts and find that the officer’s decision to proceed with a

warrantless blood draw, instead of taking an additional 45 minutes to

an hour, or possibly longer, to obtain a warrant, was reasonable.


Point Two: Alternatively, the evidence is admissible
because the blood draw was mandated by statute, and the
statute is constitutionally reasonable under the Fourth
Amendment.

The warrantless blood draw was mandated by statute.

   Tex. Transp. Code § 724.012(b)(3)(B) mandated the warrantless

blood draw in this case. The statute does not specifically state that the

blood draws should be undertaken without a warrant, but when a

statute mandates that the police do something, it is incompatible to

read in a requirement that they get approval from a magistrate as

well. What happens when the magistrate refuses to issue a warrant?

Should the police comply with the statute’s mandate to draw blood or

abide by the magistrate’s decision? Because it would lead to absurd

results, the mandatory blood draw statute cannot be interpreted to

require warrants. Muniz v. State, 851 S.W.2d 238, 244 (Tex. Crim.



                                     14
App. 1993) (stating that courts should prefer an interpretation of a

statute that does not yield absurd results).


The court should conduct a traditional balancing test to
evaluate the constitutionality of the statute.

   Because the search in this case was mandated by statute, the State

asks this Court to apply a traditional Fourth Amendment balancing

test, which weighs the statute’s promotion of legitimate government

interests against the intrusion on individual privacy. See Maryland v.

King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013); Segundo v.

State, 270 S.W.3d 79, 96-99 (Tex. Crim. App. 2008); Samson v.

California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d. 250 (2006).

   A balancing test is consistent with the plain language of the

Fourth Amendment, which does not actually require a warrant or

warrant exception, but rather, prohibits unreasonable searches.

   The State acknowledges, however, that the Court of Criminal

Appeals declined to conduct a balancing test in Villarreal, holding

instead that the mandatory blood draw must fall under a recognized

warrant exception. Villarreal, 2014 Tex. App. LEXIS 1898, at *59-75.




                                     15
A traditional balancing test weighs in favor of the
constitutionality of Section 724.012(b)(3)(B).

   The primary purpose of Section 724.012(b) is to save lives and

decrease the number of casualties caused by drunken drivers. Neesley

v. State, 239 S.W.3d 780, 785 (Tex. Crim. App. 2007). Mandatory

draws identify intoxicated drivers, so that the State can remove them

from the roads through administrative license revocations.

Mandatory draws also promote safety through their deterrent effect.

   The State also has a legitimate interest in preserving evidence,

both for administrative licensing hearings and criminal prosecutions.

Timely blood alcohol evidence is indisputably the most probative

evidence of intoxication, far more so than subjective observations or

field sobriety tests, or retrograde extrapolation. The Texas Legislature

acted reasonably in passing a law that requires police to secure this

evidence, in serious cases, before it dissipates.

   Reasonableness is also shown in that the statute does not leave

blood draws to the discretion of the officer on the scene. Instead, the

circumstances requiring blood draws are clearly set out in the statute,

which was enacted by the Legislature, which is itself a neutral and

detached body. Clear guidelines also further the State’s legitimate


                                     16
interest in readily applicable rules for officers in the field, which are

not subject to second-guessing months and years down the road.

   The law is narrowly tailored in scope. The statute only allows one

useable blood draw, and it only applies to drivers, who are arrested,

based on probable cause, for driving, while intoxicated, on public

roads. Neesley, 239 S.W.3d at 786; State v. Mosely, 348 S.W.3d 435,

444 (Tex. App.—Austin 2011, pet. ref’d).

   The law also takes the gravity of the crime into consideration by

mandating draws only in serious cases.

   Additionally, the search specified by the statute (a blood draw) is

reasonable because blood testing is a highly effective means of

determining the degree to which a person is under the influence of

alcohol. State v. Johnston, 336 S.W.3d 649, 659-60 (Tex. Crim. App.

2011).

   Also, blood tests are commonplace and involve virtually no risk,

trauma, or pain, and the Supreme Court has stated time and again

that a blood draw is a minimally intrusive search that does not

constitute an unduly extensive imposition on an individual's privacy

and bodily integrity. See Schmerber, 384 U.S. at 771; Skinner 489



                                      17
U.S. at 625; Winston v. Lee, 470 U.S. 753, 761-62, 105 S. Ct. 1611, 84

L. Ed. 2d 662 (1985); South Dakota v. Neville, 459 U.S. 553, 563, 103

s. Ct. 916, 74 L. Ed. 2d 748 (1983); Breithaupt v. Abram, 352 U.S.

432, 436-37, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957); but see McNeely,

133 S. Ct. at 1558.

   The Transportation Code also limits who can draw blood and

where it can be drawn. Tex. Transp. Code § 724.017; Johnston, at 661

(noting that Section 724.017 is reasonable under the Fourth

Amendment).

   Additionally, the law mandates testing only on people who are

already under arrest. Arrestees have significantly diminished

expectations of privacy. And arrestees are not free to leave, so the

testing’s interference with their freedom to move does not infringe on

significant privacy interests. Drivers are likewise subject to extensive

regulations and have a reduced expectation of privacy.

   Finally, the defendant bears the burden of establishing that

statutes are unconstitutional, courts presume that statutes are

constitutional and resolve all reasonable doubts in favor of their

constitutionality, and the mere fact that opinions regarding



                                     18
constitutionality may differ is not a sufficient basis to strike down a

statute. Luquis v. State, 72 S.W.3d 355, 363, 365-66 (Tex. Crim. App.

2002). The presumption of constitutionality afforded legislation

should not to be disposed of lightly. Laws passed by elected

representatives represent the will of the people. Of course, courts

must safeguard against violations of the Constitution, but in

determining what is “reasonable” under the Fourth Amendment, the

fact that the Legislature has passed laws mandating these searches

speaks volumes as to what the people of Texas believe is reasonable.

   In sum, the search mandated by Section 724.012(b)(3)(B) is

constitutionally reasonable, and the trial court erred in suppressing

the blood evidence obtained pursuant to the statute.

   The Court of Criminal Appeals stated in Villarreal, however, that

a DWI suspect's privacy interest outweighs the State's interest in

preventing drunk driving through warrantless searches. Villarreal,

2014 Tex. App. LEXIS 1898, at *67-69.




                                     19
Point Three: Alternatively, the blood draw evidence is
admissible because the defendant is deemed to have
consented to the taking of a specimen, per Tex. Transp.
Code § 724.011(a).

   Under Tex. Transp. Code § 724.011(a), the defendant is deemed to

have consented to the blood draw.

   As a matter of statutory construction, the consent implied by

Section 724.011(a) cannot be revoked. Forte v. State, 759 S.W.2d 128,

138-139 (Tex. Crim. App. 1988), overruled on other grounds in

McCambridge v. State, 778 S.W.2d 70, 76 (Tex. Crim. App. 1989).

   Additionally, implied consent is irrevocable because it is given in

exchange for the privilege to drive on public roads. The defendant was

driving pursuant to this bargain, but he wants to withdraw consent

when convenient for him. Allowing him to withdraw his consent when

the red and blue lights come on would render this exchange a one-

way street for the benefit of the defendant.

   Finally, irrevocable implied consent can satisfy the consent

exception to the warrant requirement. See, e.g., United States v.

Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984) (regarding airport

screening searches); United States v. De Angelo, 584 F.2d 46, 48 (4th




                                    20
Cir. 1978) (same); United States v. Spriggs, 827 F. Supp. 372, 375

(E.D. Va. 1993) (regarding prison visitor searches).

      In sum, the defendant is deemed to have consented to the blood

draw, and he cannot withdraw that consent. Since consent is a well-

established exception to the warrant requirement, the trial court

erred in suppressing the blood draw evidence.

      The Court of Criminal Appeals held in Villarreal, however, that

implied consent that has been withdrawn by a suspect cannot serve as

a substitute for the free and voluntary consent that the Fourth

Amendment requires. Villarreal, 2014 Tex. App. LEXIS 1898, at *34-

37.


Point Four: Assuming, arguendo, that the blood draw is
unconstitutional, the Texas exclusionary rule still does not
bar admission of the evidence.

      The Texas exclusionary rule is codified in Tex. Code Crim. Proc.

art. 38.23, which states:

        (a) No evidence obtained by an officer or other person in
        violation of any provisions of the Constitution or laws of
        the State of Texas, or of the Constitution or laws of the
        United States of America, shall be admitted in evidence
        against the accused on the trial of any criminal case.




                                      21
      In any case where the legal evidence raises an issue
      hereunder, the jury shall be instructed that if it believes,
      or has a reasonable doubt, that the evidence was obtained
      in violation of the provisions of this Article, then and in
      such event, the jury shall disregard any such evidence so
      obtained.

      (b) It is an exception to the provisions of Subsection (a) of
      this Article that the evidence was obtained by a law
      enforcement officer acting in objective good faith reliance
      upon a warrant issued by a neutral magistrate based on
      probable cause.

   The evidence is not barred by article 38.23 because the police

officer did not obtain the evidence in violation of the Constitution

because, at the time the evidence was obtained, Texas case law clearly

held that alcohol dissipation alone constituted exigent circumstances

in DWI cases. See Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App.

1982); and State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin

2000, pet. ref’d) (stating, “It is a well-settled fact that alcohol in the

blood dissipates quickly constitutes exigent circumstances”). Thus, at

the time of the blood draw in this case, the search clearly fell under

the exigent circumstances exception, which means the police did not

obtain the evidence in violation of the Fourth Amendment, which

means the Texas exclusionary rule does not apply.




                                       22
      To be clear, the State is not arguing for a good faith exception to

article 38.23. Rather, the State is arguing that article 38.23 does not

apply because the officer did not obtain the evidence in violation of

the law.5

      The State’s argument may appear to be a backdoor good faith

argument, but the argument is in line with other statutory

construction cases that have held that Article 38.23 does not apply

when the evidence was not actually obtained in violation of the law.

See State v. Johnson, 871 S.W.2d. 744, 750-51 (Tex. Crim. App. 1994)

(no exclusion when there is attenuation of taint); Wehrenberg v.

State, 416 S.W.3d 458, 467-70 (Tex. Crim. App. 2013) (no exclusion

when there is an independent source).

      In other words, the defendant cannot backdate a change in law to

exclude evidence. To do so would twist the plain language of the

statute because the evidence was not actually “obtained” in violation

of the law. Rather, it was obtained in compliance with the law, which

later changed.


5   The State will argue that there are applicable good faith exceptions to the
    federal exclusionary rule, below, but this is distinct from its arguments
    regarding the Texas exclusionary rule.


                                           23
   Some courts have held that there was no change in the law and

that McNeely merely clarified existing constitutional law. That may

be true in other jurisdictions, but it is not true in Texas. In Texas, case

law had clearly established a per se exigency in DWI cases. See Aliff,

627 S.W.2d at 170; Laird, 38 S.W.3d at 713. McNeely specifically

granted certiorari to resolve the split of authority among states on the

question of whether the natural dissipation it the bloodstream

establishes a per se exigency. See McNeely, 133 S. Ct. at 1558.

McNeely decided that there is no per se exigency. Thus, McNeely

clearly overturned (i.e., changed) the law in several jurisdictions,

including Texas. Cf. State v. Adkins, 433 N.J. Super. 479, 484-93, 81

A.3d 680 (App. Div. Dec. 20, 2013) (stating that McNeely

dramatically changed the legal landscape when the Supreme Court

issued a new search and seizure rule that was more restrictive than

state court precedent, and holding that the State was not seeking to

admit the fruits of unlawful police conduct because the police fully

complied with the law in effect at the time they acted).

   In conclusion, the State asks this Court to hold that Article 38.23

does not bar admission of evidence when the police scrupulously



                                      24
adhered to the statutes and Constitutional case law that were in effect

at the time of the search because, in such a case, the evidence was not

actually obtained in violation of the law.


Point Five: The federal exclusionary rule does not bar
admission of the evidence either.

   The purpose of the judicially-created federal exclusionary rule is

to safeguard Fourth Amendment rights by deterring police

misconduct. Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L.

Ed. 2d 364 (1987). With this purpose in mind, the Supreme Court has

created good faith exceptions.


The police relied in good faith on a statute.

   One exception is when an officer acts in good faith reliance on a

statute that is later held to be unconstitutional, because “Unless a

statute is clearly unconstitutional, an officer cannot be expected to

question the judgment of the legislature that passed the law. If the

statute is subsequently declared unconstitutional, excluding evidence

obtained pursuant to it prior to such a judicial declaration will not

deter future Fourth Amendment by an officer who has simply fulfilled




                                     25
his responsibility to enforce the statute as written.” Krull, 480 U.S. at

349-50.

   In this case, the officer relied on the mandatory blood draw

statute in Section 724.012(b)(3)(B). Moreover, the law was not

“clearly unconstitutional.” Indeed, Texas’s police officers,

prosecutors, defense attorneys, and judges have had mandatory blood

draw cases for years without questioning their constitutionality.

Therefore, under Krull, the federal exclusionary rule does not bar

admission of the evidence, and the trial court erred in granting the

motion to suppress.


The police acted in good faith reliance on binding appellate
precedent.

   Another exception applies when the police act in good faith

reliance on binding precedent, because “It is one thing for the

criminal to go free because the constable has blundered. It is quite

another to set the criminal free because the constable has

scrupulously adhered to governing law. Excluding evidence in such

cases deters no police misconduct and imposes substantial social




                                     26
costs.” Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 2423-24,

2434, 180 L. Ed. 285 (2011).

   The blood draw in this case was done prior to the Supreme Court’s

decision in McNeely. At that time, Texas case law held that

dissipation alone constituted exigent circumstances in DWI cases.

Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App. 1982); State v.

Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref’d).

Exigency is an established exception to the warrant requirement, so

the search in this case was constitutional under binding Texas

precedent at the time it was done. Therefore, under Davis, the good

faith exception for reliance on precedent applies, and the trial court

erred in granting the motion to suppress. See People v. Youn, 2014

Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15, 2014) (applying the

good faith exception for reliance on state court precedent to pre-

McNeely blood draws); United States v. Brooks, No. PWG-14-0053,

2014 U.S. Dist. LEXIS 67417, at *5-15 (D. Md. May 16, 2014) (mem.

op.) (same).




                                    27
                                Prayer

   The State asks this Court to sustain its points of error, reverse the

trial court’s order suppressing the results of the blood analysis, and

remand this case to the trial court for further proceedings.



                              Respectfully submitted,

                                    Rosemary Lehmberg
                                    District Attorney
                                    Travis County




                                    Angie Creasy
                                    Assistant District Attorney
                                    State Bar No. 24043613
                                    P.O. Box 1748
                                    Austin, Texas 78767
                                    (512) 854-9400
                                    Fax (512) 854-4206
                                    Angie.Creasy@co.travis.tx.us
                                    AppellateTCDA@co.travis.tx.us




                                    28
             Certificate of Compliance and Service
   I hereby certify that this letter contains 5,118 words, based upon

the computer program used to generate this letter and excluding

words contained in those parts of the letter that Texas Rule of

Appellate Procedure 9.4(i) exempts from inclusion in the word count,

and that this letter is printed in a conventional, 14-point typeface.

   I further certify that, on the 31st day of December, 2014, a true and

correct copy of this letter was served, by U.S. mail, electronic mail,

facsimile, or electronically through the electronic filing manager, to

the Appellee’s attorney, John De la Vina, Attorney at Law, 702 Rio

Grande, Austin, Texas 78701.




                                    Angie Creasy




                                     29
