                                                                                 PD-1615-14
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                              Transmitted 2/17/2015 3:22:34 PM
February 17, 2015
                                                                Accepted 2/17/2015 3:26:13 PM
                                                                                  ABEL ACOSTA
                            No. PD-1615-14                                                CLERK


                                IN THE
                    TEXAS COURT OF CRIMINAL APPEALS


                        THE STATE OF TEXAS,
                            PETITIONER,
                                    v.
                           WILLIAM SMITH,
                            RESPONDENT.


                      ON PDR FROM THE THIRTEENTH
                           COURT OF APPEALS




                         PETITIONER’S BRIEF




                               Douglas K. Norman
                               State Bar No. 15078900
                               Assistant District Attorney
                               105th Judicial District of Texas
                               901 Leopard, Room 206
                               Corpus Christi, Texas 78401
                               (361) 888-0410
                               (361) 888-0399 (fax)
                               douglas.norman@co.nueces.tx.us
                               Attorney for Petitioner
              IDENTITY OF PARTIES AND COUNSEL

State’s Trial Attorney:
       Mr. William Patrick Delgado
       State Bar No. 24064540
       Assistant District Attorney
       901 Leopard, Room 206
       Corpus Christi, Texas 78401
State’s Appellate Attorney:
       Mr. Douglas K. Norman
       State Bar No. 15078900
       Assistant District Attorney
       901 Leopard, Room 206
       Corpus Christi, Texas 78401
       (361) 888-0410
       douglas.norman@co.nueces.tx.us
Appellant:
     William Smith
     1203 El Cibolo Rd.
     Edinburg, Texas 78542

Appellant’s Trial Attorney:
     Mr. Mark DiCarlo
     State Bar No. 05812510
     722 Elizabeth Street
     Corpus Christi, Texas 78404

Appellant’s Appellate Attorney:
     Mr. Donald B. Edwards
     State Bar No. 06469050
     P.O. Box 3302
     Corpus Christi, Texas 78463
     (361) 887-7007
     mxlplk@swbell.net




                                     i
                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................. i

INDEX OF AUTHORITIES.......................................................................... iv

STATEMENT OF THE CASE ....................................................................... 1

ISSUES PRESENTED.................................................................................... 2

STATEMENT OF FACTS ............................................................................. 2

SUMMARY OF THE ARGUMENT ............................................................. 3

ARGUMENT .................................................................................................. 4

I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement. .................................................... 4

         I. THE IMPLIED CONSENT/MANDATORY DRAW
         STATUTE. .......................................................................................... 4

         II. THE McNEELY CASE.................................................................. 5

         III. RECOGNIZED EXCEPTIONS TO THE WARRANT
         REQUIREMENT. ............................................................................... 9
              A. The Automobile Exception. ................................................ 9
              B. The Special Needs Exception and Warrantless
              Inspections of Closely Regulated Activities. ........................ 11
              C. Consent and Waiver. ......................................................... 14
              D. Search Incident to Arrest.................................................. 18

         IV. OTHER SIGNIFICANT FACTORS. ...................................... 20
              A. Legitimate Governmental Interest. ................................. 20
              B. Gravity of the Offense. ...................................................... 21
              C. Bright-Line Rule. ............................................................... 21
              D. Presumption of Validity and Constitutionality. ............. 21
              E. The Underlying Expectation of Privacy. ......................... 22


                                                      ii
                  F. Habitual Offenders Have a Diminished Expectation of
                  Privacy. .................................................................................... 23
                  G. The Specific Context of a Post-Arrest Mandatory
                  Draw......................................................................................... 24
                  H. Statutory Protections Concerning the Manner of
                  Drawing Blood. ....................................................................... 25
                  I. Mistake of Law. ................................................................... 27

         V. THE UNIQUE NATURE OF THE INTRUSION – SEARCH
         OR SEIZURE? .................................................................................. 28

         VI. CONCLUSION. .......................................................................... 30

II. Whether the defendant preserves his Fourth Amendment objection
to blood evidence when he fails to object to testimony concerning the
results of testing done on that blood and only later objects to admission
of the blood sample itself. ........................................................................... 31

PRAYER ....................................................................................................... 34

RULE 9.4 (i) CERTIFICATION .................................................................. 35

CERTIFICATE OF SERVICE ..................................................................... 35




                                                       iii
                                   INDEX OF AUTHORITIES

                                                      Cases

Arizona v. Gant, 556 U.S. 332, 338 (2009). ................................................. 19

Ex parte Arnold, 916 S.W.2d 640, 642 (Tex. App.—Austin 1996,
pet. ref’d). ................................................................................................ 15, 16

Atwater v. City of Lago Vista, 532 U.S. 318, 340-41, 121 S.Ct. 1536
(2001). ........................................................................................................... 28

United States v. Biswell, 406 U.S. 311, 316-17, 92 S.Ct. 1593 (1972). . 12, 15

Breithaupt v. Abram, 352 U.S. 432, 436 (1957). .......................................... 24

Brinegar v. United States, 338 U. S. 160, 176 (1949).................................. 27

California v. Carney, 471 U.S. 386, 105 S.Ct. 2066 (1985). ................... 9, 10

Carpenter v. Gage, 686 F.3d 644, 649-50 (8th Cir. 2012). ........................... 30

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280 (1925). .................. 9, 10

City of Ontario v. Quon, 130 S.Ct. 2619, 2629-30 (2010). .................... 22, 23

Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970). ..... 12

Cook v. City of Bella Villa, 582 F.3d 840, 849-50 (8th Cir. 2009)................ 30

Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000 (1973). .................. 19, 29

Donovan v. Dewey, 452 U.S. 594, 602 (1981). ........................................... 12

Dunaway v. New York, 442 U.S. 200, 213–14 (1979). ................................. 21

United States v. Edwards, 415 U.S. 800, 803 n.9 (1973). ............................ 19

Ford v. State, 919 S.W.2d 107, 117 (Tex. Crim. App. 1996). ..................... 33

                                                         iv
Griffin v. Wisconsin, 483 U.S. 868, 880 (1987). .......................................... 24

Heien v. North Carolina, --- U.S. ---, No. 13-604 (December 15, 2014). ....... 27

Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301 (1990). ............... 28

Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946 (2001).............................. 9

United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652 (1984). ....... 28

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). ................ 22

United States v. Knights, 534 U.S. 112, 120, 122 S.Ct. 587 (2001). ...... 14, 23

Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). .................... 33

Life & Casualty Ins. Co. v. McCray, 291 U.S. 566, 572, 54 S.Ct. 482
(1934). ........................................................................................................... 22

Marshall v. Barlow’s, Inc., 436 U.S. 307, 323–25 (1978)........................... 12

Maryland v. King, 133 S.Ct. 1958, 1970 (2013). ............................. 20, 27, 29

Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011). ........................ 14

Missouri v. McNeely, 133 S.Ct. 1552, 1556 (2013). ............................. passim

New York v. Burger, 482 U.S. 691, 702–03, 708 (1987). ........................... 11

Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012)......................................... 30

Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365
(1998). ........................................................................................................... 24

State v. Powell, 306 S.W.3d 761, 769 n.14 (Tex. Crim. App. 2010). .......... 28

Powell v. State, 898 S.W.2d 821, 829 (Tex. Crim. App. 1994). .................. 34

Samson v. California, 547 U.S. 843, 852, 126 S.Ct. 2193 (2006).... 14, 23, 24

                                                          v
Schmerber v. California, 384 U.S. 757, 769-70, 86 S.Ct. 1826
(1966). ......................................................................................... 19, 25, 26, 29

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041 (1973). ....... 14

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). .... 11

South Dakota v. Neville, 459 U.S. 553, 563 (1983)...................................... 24

Texas Dept. of Public Safety v. Richardson, 384 S.W.2d 128, 132 (Tex.
1964). ...................................................................................................... 13, 16

Texas Dept. of Public Safety v. Schaejbe, 687 S.W.2d 727, 728
(Tex. 1984). ................................................................................................... 15

Tharp v. State, 935 S.W.2d 157, 159 (Tex. Crim. App. 1996). ........ 13, 15, 16

State v. Villarreal, PD-0306-14 (Tex. Crim. App, November 26, 2014). ...... 4

Weems v. State, No. 04-13-00366-CR, (Tex. App.—San Antonio, May 14,
2014). .............................................................................................................. 7

Welsh v. Wisconsin, 466 U.S. 740, 751-52 (1984). ...................................... 21

Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297 (1999).............. 20

Zap v. United States, 328 U.S. 624, 627-28, 66 S.Ct. 1277 (1946)........ 14, 15

                             Statutes, Rules & Other Authorities

Tex. Penal Code § 49.01. .............................................................................. 12

Tex. Transp. Code § 524.012. ....................................................................... 12

Tex. Transp. Code § 524.022. ....................................................................... 13

Tex. Transp. Code § 724.011. ......................................................................... 5

Tex. Transp. Code § 724.012. ..................................................................... 5, 8

                                                          vi
Tex. Transp. Code § 724.013. ..................................................................... 5, 8

Tex. Transp. Code § 724.016. ......................................................................... 5

Tex. Transp. Code § 724.017. ................................................................... 5, 26

Tex. R. App. P. 33.1...................................................................................... 33

Texas Driver’s Handbook (rev. July 2012). ................................................. 16

Mo. Ann. Stat. § 577.020.1. ............................................................................ 6

Mo. Ann. Stat. § 577.041. ............................................................................... 6

National Highway Traffic Safety Administration [NHTSA], Alcohol and
Highway Safety: A Review of the State of Knowledge 167 (No. 811374,
Mar. 2011) [NHTSA Review]). .................................................................... 6




                                                     vii
                             NO. PD-1615-14
                 (Appellate Court Cause No. 13-11-694-CR)

THE STATE OF TEXAS,                  §   IN THE
         Petitioner,                 §
                                     §
V.                                   §   COURT OF CRIMINAL APPEALS
                                     §
WILLIAM SMITH,                       §
         Respondent.                 §   OF TEXAS

                          PETITIONER’S BRIEF

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now the State of Texas, by and through the District Attorney

for the 105th Judicial District of Texas, and respectfully urges this Court to

reverse the judgment of the Thirteenth Court of Appeals in the above named

cause for the reasons that follow:

                      STATEMENT OF THE CASE

      William Smith was indicted for felony driving while intoxicated based

on two prior DWIs, further enhanced to a habitual felony offender by two

prior felonies. The trial court found Smith guilty and assessed punishment at

25 years in prison. Smith filed a timely notice of appeal.

      A panel of the Thirteenth Court of Appeals reversed Smith’s

conviction based on the supposedly improper admission of blood evidence




                                         1
that had been obtained pursuant to the implied consent and mandatory draw

provisions of the Texas Transportation Code.

                          ISSUES PRESENTED

I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement.

II. Whether the defendant preserves his Fourth Amendment objection
to blood evidence when he fails to object to testimony concerning the
results of testing done on that blood and only later objects to admission
of the blood sample itself.

                        STATEMENT OF FACTS

      State trooper David Anguiano stopped Smith for driving without

wearing a seat belt. (RR vol. 1, p. 22) Upon approaching Smith’s car,

Anguiano smelled the strong odor of some sort of alcoholic beverage

coming from him and saw numerous open alcoholic beverages spread

throughout the vehicle. Anguiano observed that Smith’s movements were

slow and that he had glassy, blood-shot eyes. After further investigation,

including administering the standardized field sobriety tests, Anguiano

arrested Smith for driving while intoxicated. (RR vol. 1, pp. 23-32)

      Anguiano testified that Smith made “a statement to the fact that it was

a felony D.W.I. for him.” (RR vol. 1, p. 43) After Anguiano confirmed

Smith’s criminal history, a different officer transported him to the hospital

while Anguiano followed. (RR vol. 1, p. 43) At the hospital, Anguiano

                                      2
tried to obtain Smith’s consent to take a blood specimen, but when he

refused consent, Anguiano informed Smith that the blood draw was

mandatory. (RR vol. 1, pp. 44-45) Approximately one hour after the initial

traffic stop, a certified medical technologist took a sample of Smith’s blood.

(RR vol. 1, p. 49)

                     SUMMARY OF THE ARGUMENT

      Issue No. 1 – The implied consent / mandatory draw provisions of the

Texas Transportation Code are a constitutionally valid alterative to the

warrant requirement based on several related justifications, most of which

balance the need to rid public roads of drunk drivers against the lessened

expectation of privacy that impaired drivers have concerning the drawing of

a sample of their blood, and on the driver’s implied consent/waiver of the

warrant requirement under narrowly specified circumstances.

      Issue No. 2 – Smith waived error on his constitutional challenge to the

blood evidence in question by failing to object timely on Fourth Amendment

grounds when the state offered the critical testimony of the forensic scientist

concerning the incriminating results of the blood test.




                                       3
                               ARGUMENT
I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement.

      Although this issue has recently been decided against the State in

State v. Villarreal, PD-0306-14 (Tex. Crim. App, November 26, 2014), that

decision has not yet become final, and the State respectfully requests that the

Court reconsider Villarreal, and hold as well in the present case that the

implied consent and mandatory blood draw provisions of the Texas

Transportation Code are a constitutionally valid alternative to the warrant

requirement, and that the decision of the Thirteenth Court of Appeals to the

contrary should be reversed, for the following reasons.

   I. THE IMPLIED CONSENT/MANDATORY DRAW STATUTE.

      Driving on a roadway is a privilege, not a right; by doing so, a

defendant impliedly consents to providing a breath or blood sample when

suspected of     intoxication-related crimes.      The Transportation Code

provides as follows:

      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, or a watercraft, while intoxicated, or
      an offense under Section 106.041, Alcoholic Beverage Code,
      the person is deemed to have consented, subject to this chapter,
      to submit to the taking of one or more specimens of the person's
      breath or blood for analysis to determine the alcohol


                                       4
      concentration or the presence in the person's body of a
      controlled substance, drug, dangerous drug, or other substance.

Tex. Transp. Code § 724.011 (emphasis added). A person retains the right

under most routine circumstances, subject to an automatic license

suspension, to refuse to provide a specimen. Tex. Transp. Code § 724.013.

However, the Legislature extinguished a defendant’s right to refuse in cases

where an officer possesses probable cause to believe that certain

enumerated, egregious circumstances existed. Id. at § 724.012(b). In those

narrow instances, the Transportation Code requires the arresting officer to

"require the taking of a specimen of the person's breath or blood." See Tex.

Transp. Code § 724.012(b). The Transportation Code then provides for the

breath or blood specimen to be taken "at the request or order of" the officer

in question. See Tex. Transp. Code § 724.016 (a) & § 724.017 (a).

                        II. THE McNEELY CASE.

      The Supreme Court’s McNeely decision focused on the narrow

question of “whether the natural metabolization of alcohol in the

bloodstream presents a per se exigency that justifies an exception to the

Fourth Amendment’s warrant requirement for nonconsensual blood testing

in all drunk-driving questions.” Missouri v. McNeely, 133 S.Ct. 1552, 1556

(2013). The five-vote majority reversed the warrantless seizure in McNeely,



                                      5
holding that the State may not rely on a per se exigency premised solely on

the natural dissipation of alcohol from the bloodstream. Id. at 1568.1

      McNeely’s disposition resulted in four separate opinions, including the

5-4 majority by Justice Sotomayor. However, only part of her decision

garnered a majority; Justice Kennedy did not join in the last part of Section

II, nor did he join Section III. Justice Kennedy’s separate concurrence

signaled – in express language – that the majority only decided the per se

exigency issue on which certiorari had been granted, and nothing more.

McNeely, 133 S.Ct. at 1569 (J. Kennedy, concurring in part).             Justice

Kennedy did not agree with Justice Sotomayor’s Section III discussion

discounting law enforcement’s concerns regarding the need for a bright-line

rule, nor did he join in the remaining plurality’s minimization of the

government’s interest in preventing and prosecuting drunk-driving offenses.

Id. at 1564-67 (Part III).    While five justices voted against a per se

application of exigency, all of the justices recognized some blood draws will

be compelled, and there appears to be a differently-constituted-five-vote


1
  Missouri has an implied-consent statute, as do all fifty states. See, e.g.,
Mo. Ann. Stat. §§ 577.020.1, 577.041; see also McNeely, 133 S.Ct. at 1566
(citing National Highway Traffic Safety Administration [NHTSA], Alcohol
and Highway Safety: A Review of the State of Knowledge 167 (No. 811374,
Mar. 2011) [NHTSA Review]). Yet, the Missouri prosecutors did not rely
on their State’s implied-consent statute or, for that matter, any other
exception to the Fourth Amendment’s warrant preference.
                                      6
block that remains open to a modified rule departing from the warrant

requirement in circumstances other than a per se blood-alcohol exigency.

See id. at 1568-77 (J. Kennedy, concurring; Chief Justice Roberts,

concurring and dissenting, joined by Justices Breyer and Alito; and Justice

Thomas, dissenting). It should also be noted that the McNeely majority did

not reject all “per se” or “categorical” exceptions to the warrant requirement,

but rather only “per se” or “categorical” determinations of the exigent

circumstances exception under consideration in that case. Id. at 1556-60;

but see Weems v. State, No. 04-13-00366-CR, slip op. at 14 (Tex. App.—

San Antonio, May 14, 2014) (misinterpreting McNeely in this manner).

      Moreover, the McNeely opinions contain positive references to the

implied-consent provisions enacted across this country. Part III of Justice

Sotomayor’s opinion, for instance, stated:

      States have a broad range of legal tools to enforce their drunk-
      driving laws and to secure BAC evidence without undertaking
      warrantless nonconsensual blood draws. For example, all 50
      States have adopted implied consent laws that require
      motorists, as a condition of operating a motor vehicle within
      the State, to consent to BAC testing if they are arrested or
      otherwise detained on suspicion of a drunk-driving offense.
      See NHTSA Review 173; supra, at 1556 (describing Missouri's
      implied consent law).

McNeely, 133 S.Ct. at 1566 (emphasis added). The opinion continues by

recognizing the “significant restrictions” States have placed on when an


                                       7
officer may obtain a compelled sample. See McNeely, 133 S.Ct. at 1566 n.9

(listing mandatory-draw provisions countrywide as an example of how states

have placed “significant restrictions” on when officers may obtain

compelled samples). The Court even cites Texas’ mandatory blood-draw

statute. Id. at n.9 citing Tex. Transp. Code §§ 724.012(b), 724.013.

Moreover, Justice Kennedy, who provided the crucial fifth vote in McNeely,

states in his concurrence that States “can adopt rules, procedures, and

protocols that meet the reasonableness requirements of the Fourth

Amendment and give helpful guidance to law enforcement officials.” Id. at

1569.     These opinions in no way disapproved of the States’ carefully

tailored implied consent schemes where only specified and limited situations

authorized compelled blood draws after refusal. See id. at 1566 & n.9.

        In addition, the language in each of the McNeely opinions, including

the majority, assumes the gravity of the dangers faced by the traveling public

due to intoxicated drivers. For example, the majority asserts as follows:

        “No one can seriously dispute the magnitude of the drunken
        driving problem or the States' interest in eradicating it.”
        Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110
        S.Ct. 2481, 110 L.Ed.2d 412 (1990). Certainly we do not.
        While some progress has been made, drunk driving continues to
        exact a terrible toll on our society. See NHTSA, Traffic Safety
        Facts, 2011 Data 1 (No. 811700, Dec. 2012) (reporting that
        9,878 people were killed in alcohol-impaired driving crashes in
        2011, an average of one fatality every 53 minutes).


                                       8
McNeely, 133 S.Ct. at 1565 (emphasis added). Nothing in any of the various

McNeely opinions signals that any member of the Supreme Court would

look unfavorably on implied consent provisions.

                 III. RECOGNIZED EXCEPTIONS TO
                  THE WARRANT REQUIREMENT.

      Aside from exigent circumstances, the Supreme Court recognizes that

there are exceptions to the warrant requirement, such that "[w]hen faced

with special law enforcement needs, diminished expectations of privacy,

minimal intrusions, or the like, the Court has found that certain general, or

individual, circumstances may render a warrantless search or seizure

reasonable." Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946 (2001).

                      A. The Automobile Exception.

      The automobile exception to the warrant requirement, first set out in

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280 (1925) and later

repeated in numerous cases including California v. Carney, 471 U.S. 386,

105 S.Ct. 2066 (1985), recognized that, although the privacy interests in an

automobile are constitutionally protected, its ready mobility and capacity to

be "quickly moved" justifies a lesser degree of protection, noting also that

there had been a long-recognized distinction between stationary structures

and vehicles. Carney, 471 U.S. at 390. The Court in Carney recognized that

the reduced expectations of privacy that justify the automobile exception

                                      9
also derive from "the pervasive regulation of vehicles capable of traveling

on the public highways." 471 U.S. at 392.

      When the automobile exception had originally been recognized in

Carroll, the Supreme Court looked to statutes contemporary with the

adoption of the Fourth Amendment which allowed law enforcement

officials, without a warrant, "to stop, search, and examine any vehicle, beast,

or person on which or whom they should suspect [of a violation]." 267 U.S.

151 (quoting Act of March 3, 1815, 3 Stat. 231, 232) (emphasis added).

      Arguably, the driver of an automobile in transit is just as mobile as his

vehicle, just as subject to pervasive licensure and regulation, and,

historically, was subject to search without warrant under the same terms as a

vehicle or vessel.    Accordingly, the Courts should recognize a driver

exception to the warrant requirement coextensive with the vehicle exception.

      However, even short of a full-fledged and free-standing exception of

this nature, the Courts should allow the States to craft such an exception

based both on these considerations, on the substantial public interest in

ridding the road of drunk drivers, and on implied consent statutes like the

Texas version, which condition the privilege of driving on the acceptance of

a warrantless search under very limited circumstances.




                                      10
      As in Carney, the driving public is on notice of the lessened degree of

privacy protection in matters that concern the safety of the roads on which

they drive. They know that their cars can be stopped and searched on

probable cause alone; likewise, under common mandatory blood draw

statutes, they should know that their blood can be drawn without a warrant,

on probable cause of DWI alone, under specified conditions.          In both

situations, the normal expectation of a warrant yields to common concerns

inherent in a highly regulated activity in which the driver freely chooses to

engage.

            B. The Special Needs Exception and Warrantless
               Inspections of Closely Regulated Activities.

      In Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 619

(1989), the Supreme Court articulated a “special needs” exception to the

warrant preference.    In Skinner, the Court found certain “well-defined

circumstances” authorized warrantless, suspicionless blood draws to test

railroad employees for drugs and alcohol; the protocol relied upon in Skinner

arose out of a concern about serious public-transportation-safety issues

involving railways. In other contexts as well, the Supreme Court has found

that warrantless and suspicionless searches of closely regulated activities

are reasonable when there is a substantial governmental interest and a

regulatory scheme that forwards that interest. New York v. Burger, 482

                                     11
U.S. 691, 702–03, 708 (1987) (warrantless entry and inspection of junk

yards is reasonable); Donovan v. Dewey, 452 U.S. 594, 602 (1981) (same

with mining sites); United States v. Biswell, 406 U.S. 311, 316–17 (1972)

(same with federally licensed gun dealers). The Supreme Court has o n l y

found s u c h regulatory searches unreasonable when the regulation does not

sufficiently limit the discretion of the government agent, Marshall v.

Barlow’s, Inc., 436 U.S. 307, 323–25 (1978), or when agents completely

disregard the parameters of the regulation or statute.       See Colonnade

Catering Corp. v. United States, 397 U.S. 72, 77 (1970) (concluding that

the liquor industry is subject to regulation, suggesting that Congress

could allow for warrantless inspection, but concluding that federal agents

breaking into a liquor distributor’s premises at night violated the Fourth

Amendment absent special authorization under the regulation).

       Under the mandatory draw provisions of the Texas Transportation

 Code, in addition to providing evidence for a criminal prosecution, the

 results of the blood draw may be used in the administrative removal of

 drunken drivers from the public roadways.       The Department of Public

 Safety must suspend the person’s license if analysis of the blood reveals an

 alcohol concentration of 0.08 or greater.          TEX. TRANSP. CODE §

 524.012(b)(1); TEX. PENAL CODE § 49.01(2)(B). The suspension is for a


                                     12
period of 90 days or one year, depending on whether the person has had

any prior DWI arrests in the ten years preceding the current date of arrest.

TEX. TRANSP. CODE § 524.022(a).

      This Court has noted that the “primary purpose of the administrative

license suspension statute is not to deter the licensee or to seek retribution,

but is to protect the public from the carnage on the public roads of

Texas caused by drunk drivers.”        Ex parte Tharpe, 935 S.W.2d 157,

159 (Tex. Crim. App. 1996); see also Tex. Dept. Pub. Safety v.

Richardson, 384 S.W.2d 128, 132 (1964) (“But, it should be made

abundantly clear that in this case [of driver’s license revocation] we are

not concerned with criminal penalties but rather with an administrative

and regulative power vested in the Texas Department of Public Safety

which power has for its purpose the protection of the lives and property of

those using the highways.”).

      Accordingly, the mandatory draw statute may be justified

under the special needs exception, as applied to the closely

regulated activity of driving on public roads, and as a tool not only

of criminal enforcement but also for administrative measures

designed to protect the public from drunk drivers by removing their

driving privileges.


                                      13
                         C. Consent and Waiver.

      Another recognized exception to the warrant requirement is a search

conducted with the person's voluntary consent, which may be communicated

to law enforcement in a variety of ways, including by words, action, or

circumstantial evidence showing implied consent. Meekins v. State, 340

S.W.3d 454 (Tex. Crim. App. 2011) (citing Schneckloth v. Bustamonte, 412

U.S. 218, 219, 93 S.Ct. 2041 (1973)) Such consent must ordinarily be

carefully scrutinized for its knowing, intelligent and voluntary character.

See Id.

      However, the Supreme Court has long recognized a parallel exception

in the form of a prior waiver of the Fourth Amendment rights to probable

cause and a warrant, as a condition for some benefit extended to the suspect

from the State. Zap v. United States, 328 U.S. 624, 627-28, 66 S.Ct. 1277

(1946), vacated on other grounds, 330 U.S. 800, 67 S.Ct. 857 (1947) (the

benefit of doing business as a Navy contractor). 2     The waiver applies,


2
  Governmental and quasi-governmental bodies often condition the granting
of a privilege upon the waiver of certain constitutional rights. The decision
to participate in an activity is a prime example of this same give-and-take
privilege. See Board of Education v. Earls, 536 U.S. at 828 (no Fourth
Amendment violation where school board policy conditioned participation
in extracurricular activities on random drug testing). Even in the criminal
context, suspicion searches promoting a legitimate government interest pass
Fourth Amendment muster based upon an offender’s parolee status which
invokes statutorily-required conditions agreeing to such searches. Samson v.
                                     14
moreover, in spite of the suspect's protest at the time of the search in

question. See Id. In the same way, acceptance of a license to engage in a

pervasively regulated activity may carry with it an obligation to allow

statutorily authorized inspections of that activity that would otherwise

require a warrant. See United States v. Biswell, 406 U.S. 311, 316-17, 92

S.Ct. 1593 (1972) (gun dealer who chose to engage in this pervasively

regulated business and to accept a federal license was subject to warrantless

inspection of his business records and firearms).

      A long line of Texas cases hold that “a driver's license is not a right,

but a privilege.” Tharp v. State, 935 S.W.2d 157, 159 (Tex. Crim. App.

1996) (quoting Ex parte Arnold, 916 S.W.2d 640, 642 (Tex. App.—Austin

1996, pet. ref’d)); Texas Dept. of Public Safety v. Schaejbe, 687 S.W.2d 727,

728 (Tex. 1984) (license suspension proceeding).        Elaborating on this

principle, this Court has quoted with approval statements made by that

Austin Court of Appeals that “[a] license to drive an automobile on the


California, 547 U.S. 843 (2006); see also United States v. Knights, 534 U.S.
112 (2001) (upholding warrantless search of probationer’s apartment where
authorized by probation condition). In this context, the Supreme Court has
suggested its approval of a bargained-for waiver in holding that "acceptance
of a clear and unambiguous search condition 'significantly diminished [the
suspect's] reasonable expectation of privacy,' … [such] that petitioner did
not have an expectation of privacy that society would recognize as
legitimate." Samson v. California, 547 U.S. 843, 852, 126 S.Ct. 2193 (2006)
(quoting United States v. Knights, 534 U.S. 112, 120, 122 S.Ct. 587 (2001)).
                                      15
streets is ... a privilege subject to reasonable regulations formulated under

the police power in the interest of the welfare and safety of the general

public.” Tharp, 935 S.W.2d at 159 (quoting Arnold, 916 S.W.2d at 642).

The Texas Supreme Court has likewise acknowledged that “one making use

of the highways of the state is exercising a privilege which is subject to

regulation.” Texas Dept. of Public Safety v. Richardson, 384 S.W.2d 128,

132 (Tex. 1964).

      With regard to public knowledge of the implied consent / mandatory

draw provisions, the State would point to the Texas Driver’s Handbook (rev.

July 2012),3 which is published by the Texas Department of Public Safety

and asserts as its primary purpose “1) to help you qualify for a Texas driver

license, and 2) to help you become a safer driver.” (Handbook Introduction

Page) In Chapter Ten: How Alcohol and Drugs Affect the Ability to Drive,

the Handbook includes the following paragraph:

      The Alcohol Test
      If you are arrested for an offense arising from acts allegedly
      committed while operating a motor vehicle in a public place, a
      watercraft while intoxicated, or another alcohol-related offense, you
      are deemed to have consent to taking one or more specimens of breath
      or blood for analysis to determine the alcohol concentration or the
      presence in your body of a controlled substance, drug, or other
      substance.


3
 Available at http://www.txdps.state.tx.us/DriverLicense/documents/DL-
7.pdf).
                                     16
(Handbook p. 60) Though perhaps not written as clearly as it could have

been, this paragraph clearly puts prospective drivers on notice of the implied

consent law.

      In addition, there is no indication that the Navy contractor in Zap

actually read, much less consciously understood or knowingly agreed to, the

waiver in question. However, unlike the consent exception recognized in

Schneckloth, which on the one hand is unbargained-for and gratuitous on the

part of the waiving party, and on the other is subject to strict scrutiny

concerning its knowing and voluntary character, a bargained-for waiver, like

any other contractual provision, binds a party even though he neglected to

read the clause in question. In other words, unlike bare consent, a waiver

acts more like a bargained-for contract that binds a party even though he

neglected to read it, and it cannot later be withdrawn. In the case of a

mandatory draw statute, which the law presumes the driving public to have

read, the 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.




                                       17
      Moreover, implied consent statutes like the one in Texas do not apply

to all motorists, but only to objectively impaired ones. Accordingly, there

are two components over which the driver has control: (1) the choice to

drive a vehicle on Texas roads; (2) in an objectively impaired condition that

would create probable cause to believe he is intoxicated. A driver who

wishes to avoid the inconvenience of a warrantless search of his or her blood

may effectively do so simply by avoiding any alcohol or other drugs that

might tend to impair his driving or lead to probable cause to believe that he

is intoxicated. On the other hand, the driver who imbibes enough to raise

suspicion rightfully takes his chances and should fairly be held to his waiver.

      Finally, this Court should not reject the waiver exception simply

because it has never before been applied to the particular circumstances in

the present case. Waiver remains a “well recognized exception” to the

warrant requirement, even though waiver of the specific right of an impaired

driver to object to a warrantless blood draw may not be a “well recognized

application” of that exception.

                       D. Search Incident to Arrest.

      The blood draw should also have been valid pursuant to the search-

incident-to-arrest exception to the warrant preference, especially in light of

the recognized exigency regarding the dissipation of alcohol from the blood.


                                      18
McNeely, 133 S.Ct. at 1568 (“in every case the law must be concerned that

evidence is being destroyed”); but see Schmerber v. California, 384 U.S.

757, 769-70, 86 S.Ct. 1826 (1966) (suggesting that search incident to arrest

may not extend so far as a forced blood draw). In Cupp v. Murphy, the

Supreme Court upheld the warrantless search of the defendant's body –

obtaining samples from underneath his fingernails – as a search incident to

arrest. The officers possessed probable cause to believe the defendant had

strangled the victim, and the circumstances also involved a potential

exigency. See Cupp v. Murphy, 412 U.S. 291, 294-95 (1973) (analogizing

the highly evanescent characteristic of the fingernail scrapings to the exigent

nature of blood alcohol described in Schmerber).4

      In the search-incident-to-lawful-arrest scenario, a law enforcement

officer may conduct a full but reasonable search of a person, unlike the

scenario often seen where the search focuses on a vehicle. See, e.g., Arizona

v. Gant, 556 U.S. 332, 338 (2009). There is no limit on the scope of such a

search, other than the        Fourth    Amendment’s      core reasonableness

requirement. 5 See United States v. Edwards, 415 U.S. 800, 803 n.9 (1973).


4
  See Schmerber, 384 U.S. 757.
5
    The McNeely majority acknowledged that, unlike the exigent
circumstances exception, the traditional warrant exception known as search-
incident-to-arrest applies categorically, not requiring a case-by-case analysis.
McNeely at 1558 n.3.
                                       19
Here, the nexus between the crime being investigated and the search being

sought is beyond dispute. Additionally, the instant search-incident-to-arrest

responds to the need to preserve evidence.

                IV. OTHER SIGNIFICANT FACTORS.

      In addition to the specific exceptions into which a mandatory blood

draw might fit, a number of factors should be considered in determining the

overriding question – is it “reasonable” to allow this sort of warrantless

blood draw?

                  A. Legitimate Governmental Interest.

      The Supreme Court has recently stated, concerning warrantless

searches, that the “application of ‘traditional standards of reasonableness’

requires a court to weigh ‘the promotion of legitimate governmental

interests’ against ‘the degree to which [the search] intrudes upon an

individual's privacy.’” Maryland v. King, 133 S.Ct. 1958, 1970 (2013)

(reasonable to require buccal swab as a legitimate police booking procedure)

(quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297 (1999)).

In the present case, the legitimate interests of the State in detering drunk

driving is thus a factor to weigh in favor of upholding the present mandatory

draw statute.




                                     20
                        B. Gravity of the Offense.

      In Welsh v. Wisconsin, the Supreme Court recognized that the Fourth

Amendment authorizes common-sense consideration of the gravity of the

underlying offense when weighing the existence of an exigency. Welsh v.

Wisconsin, 466 U.S. 740, 751-52 (1984). According to the Court, a crime’s

severity should be considered as an “important” or “principal” factor in the

exigency calculation. The mandatory-blood draw statute applies this legal

theory by authorizing compelled draws only in limited, serious cases

involving felony conduct or less-than-minor injuries.

                           C. Bright-Line Rule.

      By providing a limited number of instances mandating compelled

blood draws, the implied-consent framework provides a standard "essential

to guide police officers, who have only limited time and expertise to reflect

on and balance the social and individual interests involved in the specific

circumstances they confront.” Dunaway v. New York, 442 U.S. 200, 213–14

(1979) (applying the Fourth Amendment to facts unrelated to the instant

scenario).

             D. Presumption of Validity and Constitutionality.

      Statutes are presumed constitutional until determined otherwise;

challengers to a statute’s constitutionality bear the burden of rebutting


                                     21
presumed constitutionality. Karenev v. State, 281 S.W.3d 428, 434 (Tex.

Crim. App. 2009).

      In addition, the Supreme Court has recognized that “[t]he presumption

of validity which applies to legislation generally is fortified by acquiescence

continued through the years.” Life & Casualty Ins. Co. v. McCray, 291 U.S.

566, 572, 54 S.Ct. 482 (1934). Implied consent statutes of the present nature

have been around in Texas and other states for the past 30 years without any

significant challenge to their constitutionality. The fact that these statutes

are widely accepted throughout the country and have survived for so long

without any such challenge should weigh heavily in favor of a presumption

that the mandatory draw is valid, reasonable, and constitutional.

                E. The Underlying Expectation of Privacy.

      While a state statute cannot contravene the Fourth Amendment

protection and requirements for a warrant, it may both represent and inform

the extent of the societal "reasonable expectation of privacy."

      The Supreme Court has recognized that the extent to which society

recognizes an expectation of privacy in any particular context evolves with

changing conditions, and that state statutes themselves may represent and

mirror those expectations. See City of Ontario v. Quon, 130 S.Ct. 2619,

2629-30 (2010) (city’s review of employee’s text messages was reasonable,


                                      22
and thus did not violate Fourth Amendment).            In addition, clearly

communicated policies of someone in authority, such as an employer, may

shape the reasonable expectation of privacy for those subject to his or her

authority. See Quon, 130 S.Ct. at 2630. Likewise, clearly communicated

policies concerning the driving privilege may shape a driver's expectation of

privacy in his blood should he be stopped on suspicion of DWI.

      Accordingly, to the extent that mandatory draw statutes represent a

lowering of the driving public's expectations concerning privacy in their

blood and what they may be required to do in certain circumstances, that

lowering of expectations may inform the debate concerning the extent to

which the Fourth Amendment privacy right continues to require a warrant.

Stated another way, the people have spoken, through their legislators,

concerning their expectations about privacy, and reasonable intrusions

thereon, when they are caught driving in an impaired condition.

               F. Habitual Offenders Have a Diminished
                        Expectation of Privacy.

      In addition, not all persons are equal under the Fourth Amendment.

Those with prior criminal convictions may be forced to abide by different

rules. See Samson v. California, 547 U.S. 843, 856 (2006) (random search

of parolee in California requires no suspicion); United States v. Knights,

534 U.S. 112, 121 (2001) (warrantless search of federal probationers

                                     23
    house requires only reasonable suspicion); Griffin v. Wisconsin, 483 U.S.

    868, 880 (1987) (warrantless search of probationer’s house in Wisconsin

    requires less than probable cause).      Texas may further restrict the

    privileges of those who have prior DWI convictions with the aim of

    combatting recidivism. Samson, 547 U.S. at 853 (citing Pennsylvania

    Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365 (1998)).

         G. The Specific Context of a Post-Arrest Mandatory Draw.

         As a practical matter, the suspect has already been arrested and cannot

complain that the blood draw is interfering with his freedom; he will sit

waiting either at the hospital or at the jail. He cannot complain that he is

being subjected to forced surgery or medication, or some risky or painful

medical procedure. He will receive the same pin prick that all patients come

to expect as a routine matter of occasional testing. 6 The testing of that blood

will not put his entire medical condition before the public eye, but will be

limited to testing for intoxicants to confirm or deny that he was driving

while intoxicated. In short, the privacy interest being invaded is slight in the

context of a post-arrest mandatory draw.




6
 Blood tests have been described as commonplace, routine, and safe by the
Supreme Court. See South Dakota v. Neville, 459 U.S. 553, 563 (1983);
Breithaupt v. Abram, 352 U.S. 432, 436 (1957).
                                        24
  H. Statutory Protections Concerning the Manner of Drawing Blood.

      Concurrent with the lack of a warrant requirement, the mandatory

draw statute provides added protection concerning the procedure for the

blood draw, which significantly alleviates the concerns expressed by

McNeely and Schmerber.

      The Supreme Court in Schmerber v. California, 384 U.S. 757, 86

S.Ct. 1826 (1966), focused its concern not only on the initial justification for

the blood draw, but also, arguably primarily, on the means and procedures

employed and whether they involve “an unjustified element of personal risk

of infection and pain.” 384 U.S. at 772.

      Assuming that the bodily invasion itself is the primary concern, that

invasion can be significantly ameliorated by a statutory framework that

requires the conditions of the draw to be sanitary and restricts those persons

who may draw blood to a qualified few.

      The blood draw provisions in the Transportation Code require both

that the person drawing the blood be qualified and that it be taken in a

sanitary place, as follows:

      (a) Only the following may take a blood specimen at the request or
      order of a peace officer under this chapter:
      (1) a physician;
      (2) a qualified technician;
      (3) a registered professional nurse;
      (4) a licensed vocational nurse; or

                                       25
      (5) a licensed or certified emergency medical technician-intermediate
      or emergency medical technician-paramedic authorized to take a
      blood specimen under Subsection (c).
      (a-1) The blood specimen must be taken in a sanitary place.

Tex. Transp. Code § 724.017.

      Accordingly, blood drawn pursuant to this statutory mandate avoids

the concerns present in McNeely, where a favorable ruling would have

opened up the possible situations where blood could be drawn to any

environment that the officer might consider appropriate and any person that

the officer in his discretion might consider to be competent to draw it. Had

McNeely gone the other way, it is easy to imagine officers on patrol carrying

a little blood draw kit, with minimal training thereon, ready to take blood

wherever they encounter a drunk driver. See Schmerber v. California, 384

U.S. 757, 772, 86 S.Ct. 1826 (1966) (questioning the reasonableness of a

blood draw “administered by police in the privacy of the stationhouse”).

The Texas draw statute protects drivers against this sort of arbitrary

procedure and should ease their minds concerning the circumstances of a

required draw. These statutorily enhanced procedures should be considered

in balancing the reasonableness of the statutory mandate against the actual

intrusion allowed thereunder. In other words, to the extent that the statute

lessens the dangers of a painful or unsanitary draw, it should likewise lessen

the hurdle that the State must overcome in order to justify such a warrantless

                                      26
draw. See Maryland v. King, 133 S.Ct. 1958, 1969 (2013) (“fact than an

intrusion   is   negligible   is   of   central   relevance   to   determining

reasonableness”).

                              I. Mistake of Law.

      Finally, the State believes that the very recent opinion by the United

States Supreme Court in Heien v. North Carolina, --- U.S. ---, No. 13-604

(December 15, 2014), should be considered by this Court.

      In Heien, the Supreme Court, arguably for the first time, recognized that

an officer’s reasonable mistake of law, like a reasonable mistake of fact, may

render legal conduct that would otherwise amount to a Fourth Amendment

violation. Specifically, in Heien, the Court held that it was “objectively

reasonable for an officer in Sergeant Darisse’s position to think that Heien’s

faulty right brake light was a violation of North Carolina law. And because

the mistake of law was reasonable, there was reasonable suspicion justifying

the stop.” Slip op. at 13.

      On a broader level, the Supreme Court reasoned that, “[t]o be

reasonable is not to be perfect, and so the Fourth Amendment allows for

some mistakes on the part of government officials, giving them ‘fair leeway

for enforcing the law in the community’s protection.’” Slip op. at 5 (quoting

Brinegar v. United States, 338 U. S. 160, 176 (1949)).


                                        27
      In the present case, Trooper Anguiano clearly relied on what he

reasonably believed to be a valid statutory mandate for him to require the

blood draw in question. To that extent that he reasonably relied upon the

implied consent / mandatory draw statute, he, like Sergeant Darisse, did not

violate the Fourth Amendment by conduct that would later be shown to be a

mistake of law.

           V. THE UNIQUE NATURE OF THE INTRUSION
                    – SEARCH OR SEIZURE?

      Finally, the State would suggest that the Supreme Court has

mislabeled a blood draw as a “search,” when it more properly fits the legal

definition of a “seizure.”   The distinction is more than merely academic, as

a seizure or arrest, unlike a search, generally does not require a warrant. See

Atwater v. City of Lago Vista, 532 U.S. 318, 340-41, 121 S.Ct. 1536 (2001).

      The Supreme Court has distinguished searches from seizures as

follows: “A search compromises the individual interest in privacy; a seizure

deprives the individual of dominion over his or her person or property.”

Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301 (1990) (citing

United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652 (1984)); see

also State v. Powell, 306 S.W.3d 761, 769 n.14 (Tex. Crim. App. 2010)

(citing Horton).



                                      28
      When Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966),

was decided some fifty years ago, the Supreme Court acknowledged the

unique nature of the intrusion in forced blood draws and stated, “Because we

are dealing with intrusions into the human body rather than with state

interferences with property relationships or private papers—‘houses, papers,

and effects'—we write on a clean slate.” 384 U.S. at 767-68. Recently, the

Supreme Court has continued to recognize forced blood draws as “an

invasion of bodily integrity [that] implicates an individual's ‘most personal

and deep-rooted expectations of privacy.’” Missouri v. McNeely, 133 S.Ct.

1552, 1558 (2013). Similarly, the Supreme Court has characterized buccal

swabs of the mouth as “an invasion of ‘cherished personal security’ that is

subject to constitutional scrutiny.” Maryland v. King, 133 S.Ct. 1958, 1969

(2013) (quoting Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000 (1973)).

      However, in writing on a “clean slate,” the Court has, in the State’s

view, too hastily categorized a blood draw as a search rather than a seizure.

      In the present case, the interest being protected is, like an arrest,

grounded in an individual’s dominion over his own person, rather than on

the privacy of things carried on his person. Blood is not a briefcase, pocket,

or purse in which a person may carry private things, and it is not the private

nature of the blood being seized that gives rise to the Fourth Amendment


                                      29
protection, but the manner of getting at that blood through an assault on the

skin and veins of the person in question. Accordingly, as with an arrest, the

Fourth Amendment here protects personal dominion rather than privacy.

      Blood draws are comparable to the use of a taser as an incident of the

defendant’s arrest. See, e.g., Carpenter v. Gage, 686 F.3d 644, 649-50 (8th

Cir. 2012); Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012); Cook v. City of

Bella Villa, 582 F.3d 840, 849-50 (8th Cir. 2009). Both situations involve

forcing a metal object under the defendant’s skin – the taser being

significantly more severe – and both should be analyzed as a form or manner

of seizure, rather than as a search, for purposes of the Fourth Amendment.

      Although the Supreme Court has summarily categorized a forced

blood draw as a search, the State would argue that it should re-examine this

analysis and hold that it amounts instead to a seizure - in the nature of an

extension or collateral part of the arrest of the person - and that, as such,

there is no warrant requirement if probable cause has already been

established.

                           VI. CONCLUSION.

      Although the McNeely opinion arguably raised some uncertainty

concerning the constitutionality of mandatory draw statutes, there is every

reason to believe that one or more of the exceptions discussed above will be


                                     30
sufficient to sustain the constitutionality of the Texas statute, which is

narrowly drawn to include only the most egregious offenders and situations.

      The Thirteenth Court of Appeals erred in refusing to hold that the

mandatory blood draw provisions of the Texas Transportation Code are a

constitutionally valid alternative to the warrant requirement.

II. Whether the defendant preserves his Fourth Amendment objection
to blood evidence when he fails to object to testimony concerning the
results of testing done on that blood and only later objects to admission
of the blood sample itself.


      Smith failed to object timely on Fourth Amendment grounds to

testimony concerning the results of the blood alcohol testing in question,

and, when he did later object, the trial court carried Smith’s constitutional

objection with the case and only conditionally admitted the blood evidence

itself, and Smith failed to renew this objection and secure a final ruling until

after he had rested and the evidence was complete.

      When State Trooper David Anguiana testified concerning his

observation of the blood draw, Smith objected that there was no evidence

that the person who drew the blood was a qualified technician, which the

trial court purported to "sustain," but nevertheless allowed the witness to

testify as to what he saw. (RR vol. 1, p. 48) Trooper Anguiana testified that

he identified Anna Marie Quintanilla as a qualified technician and that she


                                       31
drew Smith's blood. (RR vol. 1, p. 49) Trooper Anguiana then identified

the blood tube in question, which was marked as SX # 2. (RR vol. 1, pp. 50-

53)

      DPS Forensic Scientist Emily Bonvino then testified concerning the

test results for SX #2. Specifically, Bonvino testified, without objection,

that the vial containing Smith’s blood tested at .21 grams of alcohol per 100

milliliters of blood, and that this showed Smith was likely over the legal

limit of .08 percent at the time he was driving. (RR vol. 1, pp. 78-80) Later,

Smith’s attorney did briefly raise a Fourth Amendment challenge based on

the lack of an order from a magistrate or judge for the blood draw in

question, but the trial court indicated that it would carry this objection and

reserve ruling on the admissibility of the evidence. (RR vol. 1, pp. 83-85,

93-95).

      Anna Marie Quintanilla testified that she was a medical technologist

working for Northwest Regional, and that her duties there included

collecting blood, as well as testing specimens and maintaining the

instruments. (RR vol. 2, pp. 4-5) Quintanilla testified that the blood sample

was taken using reliable procedures that were recognized by the scientific

community, followed by the hospital, and required by State regulations.

(RR vol. 2, pp. 15-16) Smith raised no objection here to Quintanilla's


                                      32
testimony or her qualification to draw the blood in question, nor did he

renew any previous objection.

      At the close of the evidence on guilt-innocence and after both sides

rested (RR vol. 2, pp. 19-20), Smith's attorney made a motion for directed

verdict, arguing, among other things, that his blood was illegally seized

without a court order and in violation of Due Process. (RR vol. 2, pp. 20-21)

      In order to preserve error, a party must make a timely objection and

obtain a ruling before the objectionable evidence has been admitted. See

Tex. R. App. P. 33.1. By failing to object on Fourth Amendment grounds to

Bonvino’s testimony concerning the result of the blood alcohol test, Smith

clearly waived error concerning the only evidence that really mattered in this

case – testimony that Smith’s blood tested over the limit. By analogy, an

objection to photographic evidence is waived if the same information

contained in the photograph is conveyed to the jury in some other form, such

as testimony concerning the contents of the photograph in question. See

Ford v. State, 919 S.W.2d 107, 117 (Tex. Crim. App. 1996) see also Leday

v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (The admission of

evidence over objection “will not result in reversal when other such evidence

was received without objection, either before or after the complained-of

ruling.”). Here, in order to preserve error, Smith likewise should have


                                      33
objected not only to the physical blood evidence, but also to Bonvino’s

testimony concerning the results of the blood test.

      Alternatively, by failing to renew his late objection and secure a final

ruling until after the close of the evidence, Smith also failed to preserve the

constitutional challenge that he relies upon on appeal. When evidence is

conditionally admitted, the opposing party must renew his original objection

by a motion to strike the conditionally admitted evidence before the close of

the evidence, and failure to do so constitutes waiver. See Powell v. State,

898 S.W.2d 821, 829 (Tex. Crim. App. 1994).

      Accordingly, the Thirteenth Court of Appeals erred in even reaching

the constitutional challenge in view of Smith’s failure to preserve error.

                          PRAYER FOR RELIEF

      For the foregoing reasons, the State requests that the Court reverse the

judgment of the Court of Appeals and remand for consideration of other

issues on appeal.

                                 Respectfully submitted,

                                 /s/Douglas K. Norman
                                 ___________________
                                 Douglas K. Norman
                                 State Bar No. 15078900
                                 Assistant District Attorney
                                 105th Judicial District of Texas
                                 901 Leopard, Room 206

                                      34
                                Corpus Christi, Texas 78401
                                (361) 888-0410
                                (361) 888-0399 (fax)
                                douglas.norman@co.nueces.tx.us

                      RULE 9.4 (i) CERTIFICATION
      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(1), is 6,807.

                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman


                       CERTIFICATE OF SERVICE
      This is to certify that, pursuant to Tex. R. App. P. 6.3 (a), copies of

this brief were e-mailed on February 17, 2015, to Respondent's attorney, Mr.

Donald B. Edwards, and to the State Prosecuting Attorney.


                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      35
