AFFIRM; and Opinion Filed June 28, 2016.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-15-00629-CR

                         VINCENT REED MCCAULEY, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 9
                                   Dallas County, Texas
                           Trial Court Cause No. MB-1345533

                             MEMORANDUM OPINION
                          Before Justices Lang, Brown, and Whitehill
                                  Opinion by Justice Brown
       At issue in this appeal is whether admission of evidence that a defendant refused to

provide a breath specimen after his arrest for driving while intoxicated (DWI) violates the Fourth

Amendment to the United States Constitution. Based on the United States Supreme Court’s

recent opinion in Birchfield v. North Dakota, No. 14-1468, 2016 WL 3434398 (June 23, 2016),

we conclude it does not. We affirm the trial court’s judgment of conviction.

       Appellant Vincent Reed McCauley was charged by information with his second DWI

offense. He filed a motion to suppress, arguing that his refusal to provide a breath specimen was

not admissible at trial because it would impermissibly punish him for exercising his Fourth

Amendment rights. At the hearing on the motion to suppress, the parties stipulated to the

following facts: Appellant was arrested for DWI and taken to jail; he was read the statutory

warnings (DIC-24); and he was asked to provide a sample of his breath and refused. After the
trial court denied the motion to suppress, appellant pleaded nolo contendere. The trial court

found appellant guilty and assessed punishment in accordance with a plea bargain agreement at

180 days in jail, probated for twenty months, and a $1,000 fine.

       In a single issue on appeal, appellant contends the trial court erred in denying the motion

to suppress evidence of his refusal to provide a breath sample. He argues that the warrantless

seizure of his breath was unconstitutional under the Fourth Amendment, which protects

individuals from unreasonable searches. See U.S. CONST. amend. IV; State v. Betts, 397 S.W.3d

198, 203 (Tex. Crim. App. 2013). When, as in this case, the facts are undisputed and the trial

court’s ruling on a motion to suppress turns on a pure question of law, we review the trial court’s

ruling de novo. Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003).

       The administration of a breath test is considered a search. Birchfield, 2016 WL 3434398,

at *12 (citing Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616–17 (1989)). The Texas

implied consent statute provides that a person arrested for DWI is deemed to have consented to

the taking of a breath specimen for analysis to determine blood alcohol concentration. TEX.

TRANSP. CODE ANN. § 724.011(a) (West 2011). Despite this, a person has an absolute right to

refuse to provide a specimen, subject to certain exceptions. Id. § 724.013 (West 2011); State v.

Villarreal, 475 S.W.3d 784, 794–95 (Tex. Crim. App. 2015); Fienen v. State, 390 S.W.3d 328,

333 (Tex. Crim. App. 2012). Before asking a person to submit to the taking of a specimen, the

officer must inform the person orally and in writing that, if the person refuses, that refusal may

be admissible in a subsequent prosecution. TEX. TRANSP. CODE ANN. § 724.015 (West Supp.

2015). A defendant’s refusal of an officer’s request to submit to the taking of a breath specimen

may be introduced into evidence at trial. Id. § 724.061 (West 2011). Such evidence is relevant

because it tends to show a consciousness of guilt. Bartlett v. State, 270 S.W.3d 147, 153 (Tex.

Crim. App. 2008).

                                               –2–
       In Birchfield, the United States Supreme Court considered whether laws that make it a

crime for a motorist to refuse to be tested after being lawfully arrested for DWI violate the

Fourth Amendment.        Birchfield, 2016 WL 3434398, at *5.             Birchfield involved three

consolidated cases with somewhat different facts; one involved the refusal of a blood test, one

involved allegedly involuntary consent to a blood test, and one involved the refusal of a breath

test. In the case involving a breath test, the defendant was arrested in Minnesota for driving

while impaired. After he refused to take a breath test, he was charged under a state law that

made it a crime to refuse to submit to a legally required blood alcohol concentration test. Id. at

*10. The United States Supreme Court stated that success for all three petitioners depended on

the proposition that the criminal law may not ordinarily compel a motorist to submit to the taking

of a blood sample or a breath test unless a warrant authorizing the test is issued. If such

warrantless searches comport with the Fourth Amendment, it follows that a State may

criminalize the refusal to submit to the required testing. Id. at *12.

       The Supreme Court considered whether the breath and blood tests were permissible under

the exception to the warrant requirement for searches conducted incident to a lawful arrest. Id. at

*14. In doing so, the Court examined the degree to which breath and blood tests intrude upon an

individual’s privacy and the degree to which the tests are needed for the promotion of legitimate

governmental interests. Id. at *16. The Court determined that a breath test does not implicate

significant privacy concerns for three reasons: 1) the physical intrusion is “almost negligible;”

2) a breath test results in a blood alcohol concentration reading on a machine and does not leave

any sample in the possession of the police; and 3) participation in a breath test is not likely to

cause any great enhancement in the embarrassment inherent in any arrest. Id. at *17–18. It

further noted that laws criminalizing refusal were designed to provide an incentive to cooperate

in DWI cases and therefore serve a very important function. Id. at *19. The Court concluded the

                                                 –3–
impact of breath tests on privacy is slight, and the need for the testing is great. Id. at *25. It held

that the Fourth Amendment therefore permits warrantless breath tests incident to arrests for

drunk driving. Id. After reaching a different conclusion regarding blood tests, the Court still

noted its approval of the general concept of implied consent laws that impose civil penalties and

evidentiary consequences on motorists who refuse to comply. Id. at *26.

       It follows from the Supreme Court’s holding in Birchfield that because the Fourth

Amendment did not require police to obtain a warrant to insist on a test of appellant’s breath,

admission of evidence of appellant’s refusal would not violate the Fourth Amendment. See id. at

*27; Rankin v. Tex. Dep’t of Public Safety, No. 13-15-00065-CV, 2016 WL 3136279, at *5–7

(Tex. App.—Corpus Christi June 2, 2016, no pet. h.) (rejecting motorist’s argument that he was

penalized for exercising his Fourth Amendment right to refuse to provide a breath sample when

his license was suspended); see also South Dakota v. Neville, 459 U.S. 553, 564 (1983)

(evidence a defendant refused to submit to blood-alcohol testing does not violate the Fifth

Amendment’s privilege against self-incrimination). We likewise reject appellant’s argument that

transportation code section 724.061, which permits refusal evidence to be used at trial, is

unconstitutional facially and as applied because it conflicts with the Fourth Amendment. See

Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015) (to successfully mount facial

challenge to statute, defendant must establish that no set of circumstances exists under which

statute would be valid). The trial court did not err in denying appellant’s motion to suppress.

We overrule appellant’s sole issue.




                                                 –4–
       We affirm the trial court’s judgment.




                                                     /Ada Brown/
                                                     ADA BROWN
                                                     JUSTICE




Do Not Publish
TEX. R. APP. P. 47.2(b).

150629F.U05




                                               –5–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

VINCENT REED MCCAULEY, Appellant                      On Appeal from the County Criminal Court
                                                      No. 9, Dallas County, Texas
No. 05-15-00629-CR         V.                         Trial Court Cause No. MB-1345533.
                                                      Opinion delivered by Justice Brown, Justices
THE STATE OF TEXAS, Appellee                          Lang and Whitehill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 28th day of June, 2016.




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