                                                                        ACCEPTED
                                                                   13-14-00682-CR
                                                     THIRTEENTH COURT OF APPEALS
                                                           CORPUS CHRISTI, TEXAS
                                                              2/18/2015 9:20:22 AM
                                                                  DORIAN RAMIREZ
                                                                            CLERK




               No. 13-14-682-CR        FILED IN
                                13th COURT OF APPEALS
                             CORPUS CHRISTI/EDINBURG, TEXAS
         IN THE COURT OF APPEALS2/18/2015 9:20:22 AM
 FOR   THE THIRTEENTH DISTRICT OF DORIAN
                                   TEXASE. RAMIREZ
             AT CORPUS CHRISTI          Clerk

            THE STATE OF TEXAS,
                APPELLANT

                       v.

             JEROME EDMOND,
                APPELLEE.

ON APPEAL FROM THE 105TH DISTRICT COURT
        NUECES COUNTY, TEXAS


            APPELLANT’S BRIEF
             (STATE’S APPEAL)


                  Michelle A. Putman
                  State Bar No. 24068493
                  Assistant District Attorney
                  105th Judicial District of Texas
                  901 Leopard, Room 206
                  Corpus Christi, Texas 78401
                  (361) 888-0410
                  (361) 888-0399 (fax)
                  michelle.putman@nuecesco.com

                  Attorney for Appellant

    ORAL ARGUMENT IS REQUESTED
             IDENTITY OF PARTIES AND ATTORNEYS

State’s Trial Attorney:
       Michelle A. Putman
       State Bar No. 24068493
       Assistant District Attorney
       901 Leopard, Room 206
       Corpus Christi, Texas 78401
       (361) 888-0410
       (361) 888-0399 (fax)
       michelle.putman@nuecesco.com

State’s Appellate Attorney:
       Michelle A. Putman
       State Bar No. 24068493
       Assistant District Attorney
       901 Leopard, Room 206
       Corpus Christi, Texas 78401
       (361) 888-0410
       (361) 888-0399 (fax)
       michelle.putman@nuecesco.com

Appellee:
     Jerome Edmond
     921 Red Start Cir.
     Corpus Christi, Texas 78418
     361-533-6135

Appellee’s Trial & Appellate Attorney:
     Scott Ellison
     State Bar No. 00787432
     410 Peoples Street
     Corpus Christi, Texas 78401
     (361) 887-7600
     scottellison@att.net




                                    2
                                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND ATTORNEYS ………………………….2

INDEX OF AUTHORITIES . . . …………………………………………..5

STATEMENT OF THE CASE ……………………………………………8

ISSUE PRESENTED………………………………………………………9

SUMMARY OF THE ARGUMENT . . . …………………………………10

STATEMENT OF FACTS…………………………………………………12

ARGUMENT

(1) Whether the Corpus Christi Police Department’s Officer Robert
Mayorga’s seizure of appellant’s blood under Texas Transportation
Code section 724.012(b)(3), Texas’s mandatory blood draw statute, was
constitutional as applied under the Fourth Amendment as interpreted
by McNeely v. Missouri. .............................................................................. 13

        I. THE TEXAS IMPLIED CONSENT / MANDATORY DRAW
        STATUTE.......................................................................................... 13
        II. THE McNEELY CASE. .............................................................. 16
        III. RECOGNIZED EXCEPTIONS TO THE WARRANT
        REQUIREMENT. ............................................................................ 19
              A. Actual
              Consent………………………………………………………20
              B. Exigent Circumstances…………………………………..20
              C. The Automobile Exception. ............................................. 22
              D. Consent and Waiver. ......................................................... 24
              E. Search Incident to Arrest.................................................. 27
        IV. OTHER SIGNIFICANT FACTORS. ...................................... 28
              A. Legitimate Governmental Interest. ................................. 28
              B. Gravity of the Offense. ...................................................... 29
              C. Bright-Line Rule. ............................................................... 29
              D. Presumption of Validity and Constitutionality. ............. 30
              E. The Underlying Expectation of Privacy. ......................... 30
              F. The Specific Context of a Post-Arrest Mandatory Draw.32

                                                    3
          G. Statutory Protections Concerning the Manner of
          Drawing Blood. ....................................................................... 32
    V. OTHER CASES. .......................................................................... 34
    VI. THE UNIQUE NATURE OF THE INTRUSION
    – SEARCH OR SEIZURE? ............................................................. 35
    VII. CONCLUSION. ........................................................................ 38

PRAYER . . . ………………………………………………………………38

CERTIFICATE OF SERVICE . . . ………………………………………...40




                                              4
                             INDEX OF AUTHORITIES

                                             Cases

Aliff v. State, 627 S.W.2d 166, 169-170 (Tex. Crim. App. 1982)………….20

Arizona v. Gant, 556 U.S. 332 (2009). ......................................................... 27

Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536 (2001)........... 36

Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012, pet ref’d).35

Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). .................... 15, 16

United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593 (1972). .................... 25

Breithaupt v. Abram, 352 U.S. 432 (1957). .................................................. 32

California v. Carney, 471 U.S. 386, 105 S.Ct. 2066 (1985). ................. 22, 23

Carpenter v. Gage, 686 F.3d 644 (8th Cir. 2012). ........................................ 37

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280 (1925). ................ 22, 23

City of Ontario v. Quon, 130 S.Ct. 2619 (2010). ......................................... 31

Cook v. City of Bella Villa, 582 F.3d 840 (8th Cir. 2009). ............................ 37

Cupp v. Murphy, 412 U.S. 291 (1973). .................................................. 27, 37

Douds v. State, --- S.W.3d ----, No. 14–12–00642–CR, 2013 WL 5629818
(Tex. App.--Houston [14th Dist.], October 15, 2013, no pet. h.). ................ 35

Dunaway v. New York, 442 U.S. 200 (1979). ............................................... 29

United States v. Edwards, 415 U.S. 800 (1973). .......................................... 28

State v. Flonnory, 2013 WL 3327526 (Del. Super. Ct., June 12, 2013). ..... 35

In re Hart, 2013 WL 2990658 (Wis. App., June 18, 2013). ........................ 35

                                                5
Horton v. California, 496 U.S. 128, 110 S.Ct. 2301 (1990). ....................... 36

Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946 (2001). .......................... 19

United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652 (1984). ............... 36

Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009). ........................ 30

United States v. Knights, 534 U.S. 112 (2001). ............................................ 25

Life & Casualty Ins. Co. v. McCray, 291 U.S. 566, 54 S.Ct. 482 (1934). ... 30

Maryland v. King, 133 S.Ct. 1958 (2013). ....................................... 28, 34, 37

Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011). ........................ 24

Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013). .... 16, 17, 18, 19,
21, 27, 29, 36

State v. Mosely, 348 S.W. 3d 435, 440 (Tex. App.-Austin 2011, pet ref’d).20

Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012). ....................................... 37

State v. Osborne, 2013 WL 3213298 (Wis. App., June 27, 2013). .............. 35

State v. Powell, 306 S.W.3d 761 (Tex. Crim. App. 2010). .......................... 36

Reeder v. State, --- S.W.3d ----, No. 06–13–00126–CR, 2014 WL 60162
(Tex. App.--Texarkana, January 8, 2014). ................................................... 34

Sampson v. California, 547 U.S. 843 (2006)................................................ 25

Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966).. 20, 27, 32, 33,
34, 36

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973). ......... 20, 24

South Dakota v. Neville, 459 U.S. 553 (1983). ............................................ 32


                                              6
State v. Villarreal, No. 13-13-00253-CR (Tex. App.—Corpus Christi Jan.
23, 2014). ................................................................................................ 15, 35

Welsh v. Wisconsin, 466 U.S. 740 (1984). ................................................... 29

Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297 (1999). .................... 28

Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277 (1946). .......................... 25

                                           Statutes & Rules

Tex. Code Crim. Proc. art. 18.01. ................................................................. 15

Tex. Transp. Code § 724.011........................................................................ 14

Tex. Transp. Code § 724.012.................................................................. 14, 18

Tex. Transp. Code § 724.013.................................................................. 14, 18

Tex. Transp. Code § 724.016........................................................................ 14

Tex. Transp. Code § 724.017. …………………………………………14, 33




                                                        7
                       STATEMENT OF THE CASE

        Defendant Jerome Edmond was charged by indictment in Cause 13-

CR-0895-D with the third degree felony offense of Driving While

Intoxicated, Third Offense or More alleged to have been committed on or

about March 20, 2013 in Nueces County, Texas. Edmond was represented

by his attorney, Scott Ellison throughout all proceedings, and Mr. Ellison

continues to represent Edmond in this Court. On April 4, 2014, the State and

defendant presented evidence and argument on Defendant's Motion to

Suppress. The sole issue on the motion to suppress was whether or not

McNeely v. Missouri required a warrant for the officer to perform the blood

draw.

        The Court suppressed the results from the warrantless blood draw law

that Corpus Christi Police Officer Robert Mayorga obtained during his

investigation of the March 20, 2013 offense of driving while intoxicated,

alleged to have been committed by Edmond. On November 18, 2014, the

trial court granted Defendant’s Motion to Suppress.




                                      8
                        ISSUE PRESENTED

     Whether the Corpus Christi Police Department’s Officer Robert

Mayorga’s seizure of appellant’s blood under Texas Transportation Code

section 724.012(b)(3), Texas’s mandatory blood draw statute, was

constitutional as applied under the Fourth Amendment as interpreted by

McNeely v. Missouri?




                                  9
                   SUMMARY OF THE ARGUMENT

      The trial court abused its discretion when it suppressed the results of

the warrantless blood draw of defendant's blood. The State argues that the

opinion issued by the United States Supreme Court in McNeely v. Missouri

does not stand for the proposition that all warrantless blood draws in driving

while intoxicated (hereinafter “DWI”) offense are unconstitutional absent a

warrant, and, accordingly, the Texas mandatory blood draw statute

encompassed in Transportation Code Section 724.012. In Villarreal v. State,

the Texas Court of Criminal Appeals has presently ruled that a warrant is

required; however, the State in that case has a motion for rehearing on file

that has yet to be ruled upon.

      The State further would have the Court find that in situations where a

defendant, such as in this case, initially confers consent for a blood draw,

withdraws it, then subsequently confers consent again, the defendant has

actually consented to the blood draw.

      Additionally, the State argues that the defendant created an exigent

circumstance because he initially conferred consent for the blood draw. Only

upon arrival at the hospital did he say he withdrew consent. The officer

relied on the defendant’s consent, all the way up until the actual blood draw,




                                        10
time he could have spent getting a warrant, only to have it withdrawn right

as the blood was about to be drawn. This created an exigent circumstance.

      This case can be distinguished from Villarreal and other McNeely

type cases in that the defendant ended up actually consenting and created an

exigent circumstance by allowing the officer to detrimentally rely on the

defendant’s consent only to have it withdrawn at the last moment.




                                     11
                       STATEMENT OF FACTS

      At the hearing of Defendant’s Motion to Suppress testimony provided

the following facts : (1) Officer Robert Mayorga was called out to

investigate a possible intoxicated driver, Jerome Edmond at approximately

2:00/2:20 a.m.; (2) Edmond initially agreed to perform field sobriety tests,

but then refused to complete them; (3) Officer Mayorga read Edmond his

rights in the DIC-24 form and requested a sample of Edmond’s blood at

approximately 3:08 a.m.; (4) Edmond agreed to provide a sample of his

blood at that time; (5) Officer Mayorga did not have a blood kit on him, so

he had to wait for his supervisor to arrive with a blood kit; (6) Officer

Mayorga then transported the defendant to the hospital to perform the blood

draw; (7) Defendant’s blood was drawn at approximately 3:40 a.m.; (8)

During the transport to the hospital, Officer Mayorga was not working on

obtaining a warrant because Edmond consented to the blood draw; (9) Right

as defendant’s blood was to be drawn, he withdrew consent; (10) Officer

Mayorga read the defendant the DIC-24 again, and the defendant refused;

(11) Officer Mayorga had the defendant’s blood drawn anyways because he

had two previous DWI convitions; (12) During transport back to the

detention center, defendant tells Officer Mayorga that he never said no, he

agreed to the blood draw.


                                     12
                            NO. 13-14-682-CR

THE STATE OF TEXAS,                   §     COURT OF APPEALS
         Appellant,                   §
                                      §
V.                                    §     FOR THE THIRTEENTH
                                      §
JERMONE EDMOND                        §
        Appellee.                     §     DISTRICT OF TEXAS

                            APPELLANT’S BRIEF
                             (STATE’S APPEAL)

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

105th Judicial District of Texas, and files this Second Supplemental Brief in

compliance with this Court’s February 13, 2014, order for briefing, and would

show the Court the following:

     (1) Whether the Corpus Christi Police Department’s Officer Robert
         Mayorga’s seizure of appellant’s blood under Texas
         Transportation Code section 724.012(b)(3), Texas’s mandatory
         blood draw statute, was constitutional as applied under the
         Fourth Amendment as interpreted by McNeely v. Missouri.

       I. THE TEXAS 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:



                                     13
        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
        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).1 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). The

specimen is taken purely under the authority of the statute.




1 Transportation Code Sections 724.012(b)(1)(A)-(b)(1)(C) require mandatory draws when the offense
caused death, serious bodily injury, or an injury requiring transport to a medical facility for care, while
Section (b)(2) requires a mandatory draw when the intoxicated driver was carrying a child passenger under
fifteen years of age, and Section (b)(3) requires a mandatory draw for a recidivistic DWI offender. See
generally Tex. Transp. Code § 724.012(b).

                                                    14
      By contrast, a search warrant is defined in the Code of Criminal

Procedure as "a written order, issued by a magistrate and directed to a peace

officer, commanding him to search for any property or thing and to seize the

same and bring it before such magistrate." See Tex. Code Crim. Proc. art.

18.01 (a).   The arresting officer has no authority to require a magistrate to

issue a warrant, but only to provide information to that magistrate in the

hope of securing a warrant. If the magistrate signs a warrant, the arresting

officer, or any other officer into whose hands the warrant comes, then acts

under the authority of the magistrate's warrant and not the statutory

directive.

      Accordingly, the two are collateral sources of authority which may

not be merged into one, contrary to 13th Court of Appeals’ suggestion in

State v. Villarreal, No. 13-13-00253-CR (Tex. App.—Corpus Christi Jan.

23, 2014).

      The Court of Criminal Appeals endorsed this distinction when it

recognized the taking of a blood specimen under the implied consent statute

as "another method of conducting a constitutionally valid search," Beeman v.

State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002), and stated that:

      The implied consent law expands on the State's search
      capabilities by providing a framework for drawing DWI
      suspects' blood in the absence of a search warrant. It gives
      officers an additional weapon in their investigative arsenal,

                                      15
        enabling them to draw blood in certain limited circumstances
        even without a search warrant.

Id. at 616. (emphasis added).

                                 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.” McNeely, 133 S.Ct. at 1556. The five-vote

majority reversed the warrantless seizure in McNeely, 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 1568.2 However, the Court made the

limited nature of its holding apparent: “Because this case was argued on the

broad proposition that drunk-driving cases present a per se exigency, the

arguments and the record do not provide the Court with an adequate analytic

framework for a detailed discussion of all the relevant factors that can be

taken into account in determining the reasonableness of acting without a

warrant.” Id. at 1566-57.


2
  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.

                                                   16
      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

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).




                                     17
        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

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


                                       18
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).

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.

   In addition to 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




                                      19
individual, circumstances may render a warrantless search or seizure

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

                               A. Actual Consent

      The law is well settled that actual consent to a search is an exception

to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218,

219, 93 S.Ct. 2041, 2044, 36 L.Ed.2d 854 (1973).         Defendant initially

consented to the blood draw, but then withdrew that consent at the hospital.

However, after the blood was drawn and defendant was transported to the

detention center, he stated that he did agree to the blood draw, thereby

conferring consent again. Consequently, defendant was waived his argument

that he did not provide actual consent.

                          B. Exigent Circumstances

      Warrantless blood draws are constitutional where “officers have

probable cause to arrest a suspect, exigent circumstances exist, and a

reasonable method of extraction is available.” State v. Mosely, 348 S.W. 3d

435, 440 (Tex. App.-Austin 2011, pet ref’d) (citing Schmerber v. California,

384 U.S. 757, 767-68, 86 S.Ct. 1826, (1966)); Aliff v. State, 627 S.W.2d 166,

169-170 (Tex. Crim. App. 1982).

      In the instant case, officers had probable cause to arrest defendant,

and a blood draw is a reasonable method of extraction. Additionally, exigent


                                      20
circumstances existed due to defendant’s withdrawal of his consent to the

blood draw at the hospital. Officer Mayorga had to take time to wait for his

supervisor to arrive with an extra blood kit, took time to transport the

defendant to the hospital, only to have the defendant right as the blood draw

is about to begin withdraw consent.

      In McNeely, the Supreme Court recognized that “some circumstances

will make obtaining a warrant impractical such that the dissipation of

alcohol from the bloodstream will support an exigency justifying a properly

conducted warrantless blood test.” McNeely, 133 S.Ct. at 1561. Here,

defendant provided consent to the blood draw at the scene of his arrest. Once

transported to the hospital and again read the DIC-24, defendant withdrew

his consent. During the time it took to transport defendant to the hospital,

officers could have used that time to obtain a warrant. However, the officers

relied on defendant’s consent and did not obtain a warrant. Only once the

time had passed to get defendant to the hospital did defendant withdraw his

consent. Having to get a warrant at the point would just further delay the

blood draw.

      This is an exigent circumstance because those arrested on suspicion of

DWI can basically “play the system” and provide verbal consent on the

scene of their arrest, causing officers to rely on it, knowing they will


                                      21
withdraw that consent by the time they get to a hospital in the hopes that the

alcohol in their bloodstream will dissipate to below a .08. Officers will have

lost valuable time to obtain a warrant to for a sample before this dissipation

occurs, and thus the destruction of evidence is a real threat, caused only by

the officer’s reliance on a defendant’s verbal consent. Therefore, due to the

dissipation of alcohol in the bloodstream over time, and the officers’ reliance

on defendant’s verbal consent at the scene, exigent circumstances existed to

obtain a sample of defendant’s blood without a warrant, as anticipated in

McNeely.

                      C. 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




                                      22
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.




                                      23
      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.

                         D. 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


                                     24
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).3                             The waiver applies,

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).

        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

3
  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. Sampson v. 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." Sampson 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)).

                                                    25
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.

      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


                                       26
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.

                                   E. Search Incident to Arrest.

          The blood draw was also 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.

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

evidence is being destroyed”). 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


4
    See Schmerber, 384 U.S. 757.

                                                27
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).

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)).

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

                                                  28
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.

                                 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




analysis. McNeely at 1558 n.3.

                                             29
(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

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."


                                      30
      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,

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.




                                     31
         F. 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.

    G. 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

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).

                                               32
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
      (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


                                      33
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

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

intrusion   is   negligible   is   of   central   relevance   to   determining

reasonableness”).

                              V. OTHER CASES.

      There are a number of Texas cases addressing the constitutionality of

the implied consent and mandatory blood-draw statute, several post-

McNeely, although no case yet from the Court of Criminal Appeals.

      - Reeder v. State, --- S.W.3d ----, No. 06–13–00126–CR, 2014 WL
        60162 (Tex. App.--Texarkana, January 8, 2014) (recognizing

                                        34
           implied consent as another method of conducting a constitutionally
           valid search).
         - Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012,
           pet ref’d) (pre-McNeely opinion holding that the mandatory blood-
           draw statute does not violate the Fourth Amendment).7
         - Douds v. State, --- S.W.3d ----, No. 14–12–00642–CR, 2013 WL
           5629818 (Tex. App.--Houston [14th Dist.], October 15, 2013, no
           pet. h.) (upholding a mandatory blood draw where there were
           exigent circumstances).
         - State v. Villarreal, No. 13-13-00253-CR, 2014 Tex. App. LEXIS
           645, at *34 (Tex. App.—Corpus Christi Jan. 23, 2014) (holding
           that the statute was unconstitutional as applied because the State
           conceded to the trial court that there was no consent, no exigency,
           and no warrant).

In addition, out-of-state cases generally agree that McNeely’s rejection of a

categorical exigency exception to the warrant requirement does not impact

implied-consent provisions. See In re Hart, 2013 WL 2990658, slip op. at

n.2 (Wis. App., June 18, 2013) (publication decision pending) (dicta); State

v. Flonnory, 2013 WL 3327526, at *6 (Del. Super. Ct., June 12, 2013) (not

designated for publication); see also State v. Osborne, 2013 WL 3213298,

slip op. (Wis. App., June 27, 2013) (publication decision pending).

              VI. 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


7
 Both the State and the defendant, however, asked the Supreme Court to grant the defendant’s petition for
certiorari and issue an opinion on the constitutionality of Texas’ statutes in light of McNeely. Predictably,
on January 13, 2014, the Supreme Court vacated the judgment and remanded for the state court to do such
an analysis first.

                                                     35
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).

      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


                                      36
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

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.


                                      37
      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.

                           VII. CONCLUSION.

      Because McNeely’s holding was limited to whether the mere

dissipation of alcohol in the blood constituted exigent circumstances, the

United States Supreme Court has not ruled that § 724.012 of the Texas

Transportation Code is unconstitutional. There is every reason to believe that

one or more of the exceptions discussed above will be sufficient to sustain

the constitutionality of the Texas mandatory blood draw and implied consent

statutes, which are narrowly drawn to include only the most egregious

offenders and situations. Additionally, the blood draw in this case meets

several exceptions to the warrant requirement – actual consent and exigent

circumstances.

                                  PRAYER

      For the foregoing reasons, the State respectfully requests that the

Court of Appeals order the trial court to vacate its order           granting


                                      38
defendant’s Motion to Suppress, and for all other relief to which the State

shows itself justly entitled.

                                Respectfully Submitted,

                                /s/ Michelle A. Putman
                                ___________________
                                Michelle A. Putman
                                State Bar No. 24068493
                                Assistant District Attorney
                                105th Judicial District of Texas
                                901 Leopard, Room 206
                                Corpus Christi, Texas 78401
                                (361) 888-0410
                                (361) 888-0399 (fax)
                                michelle.putman@nuecesco.com


                      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 5,879.

                                /s/ Michelle A. Putman
                                ___________________
                                Michelle A. Putman




                                      39
                      CERTIFICATE OF SERVICE

      This is to certify that a copy of this brief was mailed this 19th day of

February, 2015, to Appellee’s attorney, Scott Ellison.

                                 /s/ Michelle A. Putman
                                 ___________________
                                 Michelle A. Putman




                                      40
