                                                                              ACCEPTED
                                                                         03-14-00651-CR
                                                                                3718009
                                                               THIRD COURT OF APPEALS
                                                                          AUSTIN, TEXAS
                                                                     1/9/2015 3:28:00 PM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK


                  No. 03-14-00651-CR
                                                         FILED IN
                                                  3rd COURT OF APPEALS
                           In the                     AUSTIN, TEXAS
                      Court of Appeals            1/9/2015 3:28:00 PM
                       Third District               JEFFREY D. KYLE
                       Austin, Texas                      Clerk


                   The State of Texas,
                        Appellant

                              v.

                  Gerardo Jerry Ayala,
                        Appellee

        Appeal from the 167th Judicial District Court
                   Travis County, Texas
            Cause Number D-1-DC-13-200850

                     STATE’S BRIEF


                             Rosemary Lehmberg
                             District Attorney
                             Travis County

                             Angie Creasy
                             Assistant District Attorney
                             State Bar No. 24043613
                             P.O. Box 1748
                             Austin, Texas 78767
                             (512) 854-9400
                             Fax (512) 854-4810
                             Angie.Creasy@traviscountytx.gov
                             AppellateTCDA@traviscountytx.gov

Oral argument is requested
                      Identity of Parties and Counsel

Trial Judge:                         P. David Wahlberg
                                     167th Judicial District Court
                                     P.O. Box 1748
                                     Austin, Texas 78767

Trial Counsel for State:             Aurora Perez
                                     Travis County District Attorney’s Office
                                     P.O. Box 1748
                                     Austin, Texas 78767

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

Defendant/Appellee:                  Gerardo Jerry Ayala
                                     2531 Berkeley Avenue
                                     Austin, Texas 78745

Counsel for Defendant:               Christina Tagle1
                                     812 San Antonio Street
                                     Austin, Texas 78701




1   Ms. Tagle has filed a letter with the Third Court of Appeals stating that she is
    not representing Mr. Ayala on appeal.


                                             i
                                     Table of Contents

Identity of Parties and Counsel ............................................................ i
Index of Authorities............................................................................ iii
Statement of the Case ...........................................................................v
Statement of Facts ................................................................................1
Summary of the State’s Argument....................................................... 5
Standard of Review.............................................................................. 5
Argument............................................................................................. 6
  Point One: The evidence is admissible because the blood draw was
  mandated by statute, and the statute is constitutionally reasonable
  under the Fourth Amendment.......................................................... 7
  Point Two: Alternatively, the blood draw evidence is admissible
  because the defendant is deemed to have consented to the taking of
  a specimen, per Tex. Transp. Code § 724.011(a)..............................12
  Point Three: Assuming, arguendo, that the blood draw is
  unconstitutional, the Texas exclusionary rule still does not bar
  admission of the evidence................................................................14
  Point Four: The federal exclusionary rule does not bar admission of
  the evidence either...........................................................................18
Prayer .................................................................................................21
Certificate of Compliance and Service............................................... 22




                                                      ii
                                    Index of Authorities

     Cases
Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) .................15, 20
Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448
   (1957)...............................................................................................10
Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 180 L. Ed. 285
   (2011)...............................................................................................19
Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)
   .........................................................................................................18
Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002)..................... 11
Maryland v. King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013)
   .......................................................................................................... 8
McCambridge v. State, 778 S.W.2d 70 (Tex. Crim. App. 1989).........13
Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) ..................... 7
Neesley v. State, 239 S.W.3d 780 (Tex. Crim. App. 2007)............ 8, 10
People v. Youn, 2014 Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15,
   2014)............................................................................................... 20
Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d.
   250 (2006)........................................................................................ 8
Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008) .................. 8
Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) ............... 6
South Dakota v. Neville, 459 U.S. 553, 103 s. Ct. 916, 74 L. Ed. 2d 748
   (1983) ..............................................................................................10
State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680 (App. Div. Dec. 20,
   2013)................................................................................................ 17
State v. Johnson, 871 S.W.2d. 744 (Tex. Crim. App. 1994)................16
State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ...............10
State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000, pet. ref’d) . 20
State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet.
   ref’d) ................................................................................................15
State v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d)
   ......................................................................................................... 11
State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS
   1898 (Tex. Crim. App. Nov. 26, 2014)............................... 6, 8, 12, 14
te v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d) ....10
United States v. Brooks, No. PWG-14-0053, 2014 U.S. Dist. LEXIS
   67417 (D. Md. May 16, 2014) (mem. op.) ....................................... 20

                                                        iii
United States v. De Angelo, 584 F.2d 46 (4th Cir. 1978) ...................13
United States v. Herzbrun, 723 F.2d 773 (11th Cir. 1984) .................13
United States v. Spriggs, 827 F. Supp. 372 (E.D. Va. 1993) ..............13
Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013)..........16
Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985)
 .........................................................................................................10
     Statutes
Tex. Code Crim. Proc. art. 38.23 ........................................................14
Tex. Penal Code § 49.04 .......................................................................v
Tex. Penal Code § 49.09 .......................................................................v
Tex. Transp. Code § 724.011 ...............................................................12
Tex. Transp. Code § 724.012........................................................... 7, 18
Tex. Transp. Code § 724.017............................................................... 11




                                                       iv
                       Statement of the Case

   A grand jury indicted the defendant for driving while intoxicated

with two prior convictions. CR 12-13; Tex. Penal Code § 49.04,

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

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

CR 79, 84-86, 89.




                                     v
                       No. 03-14-00651-CR

                                In the
                           Court of Appeals
                            Third District
                            Austin, Texas

                        The State of Texas,
                             Appellant

                                   v.

                       Gerardo Jerry Ayala,
                             Appellee

            Appeal from the 167th Judicial District Court
                       Travis County, Texas
                Cause Number D-1-DC-13-200850

                          STATE’S BRIEF


To the Honorable Third Court of Appeals:

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

thereof respectfully shows the following:


                        Statement of Facts

   After a hearing, the trial court made the following findings of fact:

     1. The court finds Brian Brejcha’s, Adam Master’s,
         Brandon Kunkel’s and Judge Olivia Ruiz’s testimony
         credible.




                                        1
2. On February 9, 2013, the defendant was involved in a
   collision involving two other cars. The scene of the
   collision was approximately 5-7 miles away from the
   Travis County Jail. No one in the accident was injured
   and EMS was declined. No one was transported to the
   hospital. Officer Masters made contact with the
   defendant who seemed confused and had an odor of
   alcohol on his breath. He called for another unit to
   assist in the investigation. Other units were already on
   scene working the collision. Officer Brejcha arrived on
   scene with his field training officer Kunkel. They took
   over the DWI investigation. After asking a series of
   questions Brejcha requested that defendant perform a
   series of standardized field sobriety tests. Brejcha
   observed 6 out of 6 clues on the horizontal gaze
   nystagmus test and the defendant declined to perform
   the other tests.

3. Officer Brejcha arrested the defendant for driving while
   intoxicated.

4. Officer Brejcha read the DIC 24 (statutory warnings) to
   the defendant.

5. The defendant refused Officer Brejcha’s request to
   voluntarily submit to the taking of a blood specimen.

6. Shortly after the arrest, Officer Brejcha received
   reliable information from a credible source that the
   defendant had been previously convicted, on two
   occasions, of driving while intoxicated.

7. Relying on Tex. Transp. Code §§ 724.011 and
   724.012(b), Officer Brejcha directed a phlebotomist at
   the Travis County Jail to take a blood sample from the
   defendant.




                              2
      8. A magistrate is available 24 hours a day, every day at
         the central booking facility for Travis County, which is
         located in the basement of the Travis County Jail.

      9. It would take an additional 30 minutes for the officers
         to get a search warrant for blood.

      10. Officer Brejcha was aware that a magistrate was on
         duty and available but did not attempt to get a search
         warrant to draw blood.

CR 88-89.

   The defendant argued that the warrantless blood draw violated

the Fourth Amendment because there was neither consent nor

exigent circumstances. CR 34-36.

   The State argued that the evidence is admissible because the blood

draw was mandated by Tex. Transp. Code § 724.011(b), and the

statute is constitutionally reasonable under the Fourth Amendment.

CR 43-47.

   The State also argued that the blood draw evidence is admissible

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

specimen, per Tex. Transp. Code § 724.011(a). CR 40-42.

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

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

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


                                      3
the search, and (2) The federal exclusionary rule does not bar

admission of the evidence either because the police were acting in

good faith reliance on both statutes and appellate precedent. CR 48-

49.

      The trial court made the following conclusions of law and granted

the motion to suppress:

        11. Officer Brejcha had probable cause to arrest the
            defendant.

        12. Officer Brejcha acted in good faith when he relied on
           Tex. Transp. Code §§ 724.011 and 724.012(b) to draw
           blood.

        13. The officer did not obtain a search warrant.

        14. The Defendant did not consent to the taking of a
           specimen of his breath or blood.

        15. There were not exigent circumstances in this case.

        16. Because there was no warrant and no exigent
           circumstances, the blood draw in the defendant's case
           violated the Fourth Amendment to the U.S.
           Constitution. See Missouri v. McNeely, 133 S. Ct.
           1552 (2013).

        On the basis of the above findings and conclusions, the
        motion to suppress the blood draw evidence is GRANTED.

CR 79, 89. The State is appealing this order. CR 84-86.




                                       4
                Summary of the State’s Argument

   Point One: The evidence is admissible because the blood draw

was mandated by Tex. Transp. Code § 724.011(b), and the statute is

constitutionally reasonable under the Fourth Amendment.

   Point Two: Alternatively, the blood draw evidence is admissible

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

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

   Point Three: Even if the blood draw was unconstitutional, the

Texas exclusionary rule does not apply because the police did not

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

   Point Four: The federal exclusionary rule does not bar

admission of the evidence either because the police were acting in

good faith reliance on both statutes and appellate precedent.


                         Standard of Review

   The appellate court reviews a ruling on a motion to suppress

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

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

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




                                      5
of search and seizure to those facts. Shepherd v. State, 273 S.W.3d

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


                               Argument

   As a starting point, the State acknowledges that the Texas Court of

Criminal Appeals recently held that a warrantless blood draw,

conducted pursuant to the mandatory blood draw statute, violated the

Fourth Amendment because it did not fall under any recognized

exception to the warrant requirement. The court held that implied

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

substitute for the free and voluntary consent that the Fourth

Amendment requires. State v. Villarreal, No. PD-0306-14, 2014 Tex.

Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014).

   The court’s decision in Villarreal directly contradicts the

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

making these arguments to preserve error because Villarreal is not

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

on Points Three and Four.




                                       6
Point One: The evidence is admissible because the blood
draw was mandated by statute, and the statute is
constitutionally reasonable under the Fourth Amendment.

The warrantless blood draw was mandated by statute.

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

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

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

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

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

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

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

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

results, the mandatory blood draw statute cannot be interpreted to

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

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

statute that does not yield absurd results).


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

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

asks this Court to apply a traditional Fourth Amendment balancing



                                     7
test, which weighs the statute’s promotion of legitimate government

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

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

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

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

   A balancing test is consistent with the plain language of the

Fourth Amendment, which does not actually require a warrant or

warrant exception, but rather, prohibits unreasonable searches.

   The State acknowledges, however, that the Court of Criminal

Appeals declined to conduct a balancing test in Villarreal, holding

instead that the mandatory blood draw must fall under a recognized

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


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

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

decrease the number of casualties caused by drunken drivers. Neesley

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

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




                                    8
from the roads through administrative license revocations.

Mandatory draws also promote safety through their deterrent effect.

   The State also has a legitimate interest in preserving evidence,

both for administrative licensing hearings and criminal prosecutions.

Timely blood alcohol evidence is indisputably the most probative

evidence of intoxication, far more so than subjective observations or

field sobriety tests, or retrograde extrapolation. The Texas Legislature

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

evidence, in serious cases, before it dissipates.

   Reasonableness is also shown in that the statute does not leave

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

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

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

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

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

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

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

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

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



                                       9
roads. Neesley, 239 S.W.3d at 786; State v. Mosely, 348 S.W.3d 435,

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

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

mandating draws only in serious cases.

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

reasonable because blood testing is a highly effective means of

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

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

2011).

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

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

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

constitute an unduly extensive imposition on an individual's privacy

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

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

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

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

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

133 S. Ct. at 1558.



                                    10
   The Transportation Code also limits who can draw blood and

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

(noting that Section 724.017 is reasonable under the Fourth

Amendment).

   Additionally, the law mandates testing only on people who are

already under arrest. Arrestees have significantly diminished

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

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

significant privacy interests. Drivers are likewise subject to extensive

regulations and have a reduced expectation of privacy.

   Finally, the defendant bears the burden of establishing that

statutes are unconstitutional, courts presume that statutes are

constitutional and resolve all reasonable doubts in favor of their

constitutionality, and the mere fact that opinions regarding

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

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

2002). The presumption of constitutionality afforded legislation

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

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



                                     11
must safeguard against violations of the Constitution, but in

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

fact that the Legislature has passed laws mandating these searches

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

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

constitutionally reasonable, and the trial court erred in suppressing

the blood evidence obtained pursuant to the statute.

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

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

preventing drunk driving through warrantless searches. Villarreal,

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


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

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

have consented to the blood draw.

   As a matter of statutory construction, the consent implied by

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




                                    12
138-139 (Tex. Crim. App. 1988), overruled on other grounds in

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

   Additionally, implied consent is irrevocable because it is given in

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

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

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

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

way street for the benefit of the defendant.

   Finally, irrevocable implied consent can satisfy the consent

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

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

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

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

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

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

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

established exception to the warrant requirement, the trial court

erred in suppressing the blood draw evidence.




                                    13
      The Court of Criminal Appeals held in Villarreal, however, that

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

a substitute for the free and voluntary consent that the Fourth

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

37.


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

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

art. 38.23, which states:

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

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

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


                                       14
      The evidence is not barred by article 38.23 because the police

officer did not obtain the evidence in violation of the Constitution

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

held that alcohol dissipation alone constituted exigent circumstances

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

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

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

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

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

the exigent circumstances exception, which means the police did not

obtain the evidence in violation of the Fourth Amendment, which

means the Texas exclusionary rule does not apply.

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

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

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

the law.2




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


                                           15
   The State’s argument may appear to be a backdoor good faith

argument, but the argument is in line with other statutory

construction cases that have held that Article 38.23 does not apply

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

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

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

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

when there is an independent source).

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

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

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

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

later changed.

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

that McNeely merely clarified existing constitutional law. That may

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

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

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

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



                                      16
question of whether the natural dissipation it the bloodstream

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

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

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

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

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

dramatically changed the legal landscape when the Supreme Court

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

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

admit the fruits of unlawful police conduct because the police fully

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

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

does not bar admission of evidence when the police scrupulously

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

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

actually obtained in violation of the law.




                                     17
Point Four: The federal exclusionary rule does not bar
admission of the evidence either.

   The purpose of the judicially-created federal exclusionary rule is

to safeguard Fourth Amendment rights by deterring police

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

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

created good faith exceptions.


The police relied in good faith on a statute.

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

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

statute is clearly unconstitutional, an officer cannot be expected to

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

statute is subsequently declared unconstitutional, excluding evidence

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

deter future Fourth Amendment by an officer who has simply fulfilled

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

349-50.

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

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



                                     18
“clearly unconstitutional.” Indeed, Texas’s police officers,

prosecutors, defense attorneys, and judges have had mandatory blood

draw cases for years without questioning their constitutionality.

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

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

motion to suppress.


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

   Another exception applies when the police act in good faith

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

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

another to set the criminal free because the constable has

scrupulously adhered to governing law. Excluding evidence in such

cases deters no police misconduct and imposes substantial social

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

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

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

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

dissipation alone constituted exigent circumstances in DWI cases.



                                     19
Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App. 1982); State v.

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

Exigency is an established exception to the warrant requirement, so

the search in this case was constitutional under binding Texas

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

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

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

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

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

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

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

op.) (same).




                                    20
                                Prayer

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

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

remand this case to the trial court for further proceedings.



                              Respectfully submitted,

                                    Rosemary Lehmberg
                                    District Attorney
                                    Travis County




                                    Angie Creasy
                                    Assistant District Attorney
                                    State Bar No. 24043613
                                    P.O. Box 1748
                                    Austin, Texas 78767
                                    (512) 854-9400
                                    Fax (512) 854-4810
                                    Angie.Creasy@traviscountytx.gov
                                    AppellateTCDA@traviscountytx.gov




                                     21
                 Certificate of Compliance and Service
      I hereby certify that this brief contains 3,598 words, based upon

the computer program used to generate this brief and excluding

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

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

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

      I further certify that, on the 9th day of January, 2015, a true and

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

facsimile, or electronically through the electronic filing manager, to:

      Gerardo Jerry Ayala, 2531 Berkeley Avenue, Austin, Texas 78745.

      Christina Tagle, 812 San Antonio Street, Austin, Texas 78701.3




                                        Angie Creasy




3   Ms. Tagle has filed a letter with the Third Court of Appeals stating that she
    is not representing Mr. Ayala on appeal.


                                           22
