
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-04-00803-CR


The State of Texas, Appellant

v.


Rosanna Nicholson, Appellee






FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY

NO. 72797, HONORABLE HOWARD S. WARNER, II, JUDGE PRESIDING



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

The State appeals an order granting appellee Rosanna Nicholson's motion to suppress
evidence.  See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2005).  At issue is whether
Nicholson's consent to the taking of a sample of her blood was shown to be voluntary.  We will
affirm the suppression order.
San Marcos Police Officer Dustin Slaughter testified that he was called to the scene
of a "major vehicle accident" on the night of April 26, 2003.  When he arrived, Nicholson was
outside her car and being treated by paramedics.  Before Nicholson was transported to the hospital,
the officer spoke to her briefly and noticed the smell of alcoholic beverage on her breath.  There is
no other evidence regarding Nicholson's physical condition. (1)
Slaughter went to the hospital where Nicholson was being treated, advised her of her
Miranda rights, and asked her for a specimen of her blood. (2)  Pursuant to this request, the officer read
to Nicholson the statutory consent form commonly referred to as the DIC-24 form.  By this form,
Nicholson was told that she was "under arrest for an offense arising out of acts alleged to have been
committed while [she was] operating a motor vehicle . . . in a public place while intoxicated," and
that if she refused to give the specimen, "[her] license, permit or privilege to operate a motor vehicle
will be suspended or denied for not less than 180 days."  See Tex. Transp. Code Ann. § 724.015
(West Supp. 2005).  Slaughter testified that he made no other statements to Nicholson with respect
to the consequences of refusing to give the specimen.  After the DIC-24 form was read, Nicholson
signed a written consent to the requested blood specimen.  
Nicholson testified that she would not have signed the consent form if she had not
been told that a refusal would result in the suspension of her driver's license.  She added, "I had
never been in trouble with the police before and I awoke to the officer in my room reading me my
rights.  And the way it seemed to me I had no other option."
The test of Nicholson's blood showed her to have an alcohol concentration of 0.22. 
Nicholson moved to suppress this test result on the ground that her consent to the blood draw was
induced by the officer's misstatement of the consequences of a refusal and hence involuntary.
Under the implied consent law, consent to the taking of a breath or blood specimen
must be voluntary.  Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993).  If a driver's
consent is induced by an officer's misstatement of the consequences flowing from a refusal to give
a specimen, the consent is not voluntary.  Id. at 894 (holding that officer's erroneous statement that
Erdman would immediately be jailed and charged with driving while intoxicated if he refused to give
specimen rendered consent involuntary); State v. Sells, 798 S.W.2d 865, 867 (Tex. App.--Austin
1990, no pet.) (holding that officer's erroneous statement that Sells would automatically be charged
and incarcerated if he refused to give specimen rendered consent involuntary).
The implied consent law applies only to persons who are arrested for driving while
intoxicated or related offenses.  Aliff v. State, 627 S.W.2d 166, 168 (Tex. Crim. App. 1982); Combest
v. State, 981 S.W.2d 958, 960 (Tex. App.--Austin 1998, pet. ref'd); see Tex. Transp. Code Ann.
§ 724.011(a) (West 1999) ("If a person is arrested . . . the person is deemed to have consented"),
§ 724.012(a) (West Supp. 2005) ("specimens . . . may be taken if the person is arrested").  It was
undisputed at the hearing that Nicholson was not under arrest when the DIC-24 form was read and
the blood specimen was taken.  Thus, the provisions of the law suspending the driver's license of
a person who refuses to submit to the taking of a specimen did not apply to Nicholson.  See Tex.
Transp. Code Ann. § 724.002 (West Supp. 2005).
The State relies on this Court's opinion in Combest.  The facts in that case were
roughly similar to those now before us: Combest was taken to a hospital following an automobile
accident; he was suspected of driving while intoxicated but was not under arrest; he agreed to give
a blood specimen after an officer read the DIC-24 form.  See 981 S.W.2d at 960.  Combest argued
on appeal that his consent to the blood draw was involuntary due to the officer's erroneous statement
that a refusal would result in the suspension of his license.  Id. at 961.  After reviewing the totality
of the circumstances, this Court concluded that Combest's consent was shown to be voluntary
despite the officer's misstatement.  Id. at 962.
There is a critical distinction between Combest and the case now before us.  Combest
did not testify at the hearing on his motion to suppress and there was no evidence that his agreement
to give the blood specimen was influenced in any way by the erroneous information regarding the
consequences of a refusal.  Id.  In fact, Combest's attorney told the trial court that the wording of the
form warning was not an issue: "[T]here's no Erdman question here."  Id.  Nicholson, on the other
hand, testified below that she would not have consented to the blood specimen had she not been told
that her driver's license would be suspended if she refused.  Thus, this case is analogous to Sells,
where the defendant testified that he would not have agreed to give a specimen but for the officer's
erroneous statement that he would immediately be jailed if he refused.  See Sells, 798 S.W.2d at 866. 
This Court affirmed the order granting Sells's motion to suppress the test result on the ground that
it had been induced by the officer's misstatement.  Id. at 867. 
When reviewing a trial court's ruling on a motion to suppress evidence obtained
without a warrant, we defer to the court's factual determinations but review de novo the court's
application of the law to the facts.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 
We review the evidence in the light most favorable to the court's ruling and, if the court did not
make explicit findings of fact, we assume that the court made findings that are supported by the
record and buttress its conclusion.  Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App.
2000).  In this case, we assume that the trial court believed Nicholson's testimony regarding the
coercive effect of the inapplicable DIC-24 form on her decision to give a blood specimen.  Applying
de novo the holdings in Erdman and Sells, we conclude that the State failed to prove that
Nicholson's consent to the blood draw was voluntary. (3)
The order granting Nicholson's motion to suppress evidence is affirmed.


				__________________________________________
				Bea Ann Smith, Justice
Before Chief Justice Law, Justices B. A. Smith and Pemberton
Affirmed
Filed:   January 20, 2006
Do Not Publish
1.        In its brief to this Court, the State refers to the hospital records filed with the clerk several
months before the hearing pursuant to rule 902(10).  Tex. R. Evid. 902(10).  These records were not
introduced in evidence at the hearing, and there is no indication that the court considered them in
making its ruling.
2.        See Miranda v. Arizona, 384 U.S. 436 (1966).  Officer Slaughter did not testify at the hearing
regarding the odor on Nicholson's breath or his advising her of her rights.  This information is found
in the officer's affidavit in support of an arrest warrant issued in March 2004, which was introduced
in evidence at the hearing by the defense.
3.        Both Erdman and Sells were decided before the opinion in Guzman and employed a different
standard of appellate review.  See Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993)
(applying abuse of discretion review); State v. Sells, 798 S.W.2d 865, 867 (Tex. App.--Austin 1990,
no pet.) (same).  Although we now employ the Guzman standard, the substantive holding of those
opinions remains valid: a consent induced by a police officer's misstatement of the consequences
of a refusal may render it involuntary.

