                                                                              PD-1428-15
                                                             COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                           Transmitted 12/9/2015 11:44:31 AM
                                                            Accepted 12/11/2015 11:14:43 AM
                           No. PD-1428-15                                     ABEL ACOSTA
                                                                                      CLERK
              (Court of Appeals No. 02-14-00339-CR)




                              IN THE

                 COURT OF CRIMINAL APPEALS

                             OF TEXAS




                           ANN BUCARO,

                                                     Petitioner,
                                 v.

                        THE STATE OF TEXAS




PETITIONER'S PETITION FOR DISCRETIONARY REVIEW



          On discretionary review from the Court of Appeals
               Second District of Texas at Fort Worth



                                      MELVYN CARSON BRUDER

                                            516 Turley Law Center
                                            6440 N. Central Expressway
                                            Dallas, Texas 75206
                                            214.987.3500
    December 11, 2015                       214.987.3518 Telecopier

                                      Counsel for Petitioner
           IDENTITY OF JUDGE, PARTIES, AND COUNSEL

The trial court judge in this case was Virgil Vahlenkamp.

The parties to the judgment in this case are Ann Bucaro and the State of Texas.

The names and addresses of all trial and appellate counsel are:

                            Hayley Jones
                 Assistant Criminal District Attorney
                  Denton County Courts Building
                      1450 E. McKinney Street
                         Denton, TX 76209

                 Trial Counsel for the State of Texas

                       Melvyn Carson Bruder
                       615 Turley Law Center
                     6440 N. Central Expressway
                          Dallas, TX 75206

                     Trial Counsel for Ms. Bucaro

                           Paul Johnson
                     Criminal District Attorney
                   Denton County Courts Building
                     1450 E. McKinney Street
                        Denton, TX 76209

               Appellate Counsel for the State of Texas

                       Melvyn Carson Bruder
                       516 Turley Law Center
                     6440 N. Central Expressway
                          Dallas, TX 75206

                  Appellate Counsel for Ms. Bucaro




                                   -i-
                                         TABLE OF CONTENTS

Identity of Judge, Parties, and Counsel ................................................................. i

Table of Contents ................................................................................................. ii

Index of Authorities ............................................................................................. iv

Statement Regarding Oral Argument ................................................................... 2

Statement of the Case ........................................................................................... 2

Statement of the Procedural History of the Case ................................................. 2

Grounds for Review .............................................................................................. 3

         1.       Whether the portion of the Texas Transportation Code that
                  permits the introduction into evidence at a person’s trial of
                  that person’s refusal to provide a specimen of breath or
                  blood at the request of the arresting officer (§ 724.061)
                  violates the Fourth Amendment to the Constitution of the
                  United States. CR 21-23, 25-27, 30; RR 29-31, 36-37.

         2.       Whether consent obtained under the Implied Consent Law
                  satisfies the requirement of consent under the Fourth
                  Amendment. CR 21-23. 25-27, 30; RR 29-31, 36-37.

Argument .............................................................................................................. 3

         Relevant Facts ............................................................................................. 3

         How the Court of Appeals Decided Ground for Review No. 1 ................. 5

         Why This Court Should Grant Discretionary Review ............................... 6

         How the Court of Appeals Decided Ground for Review No. 2 ................. 9

         Why This Court Should Grant Discretionary Review ............................. 10

Prayer for Relief .................................................................................................. 13

Certificate of Service ........................................................................................... 14

Certificate of Compliance ................................................................................... 15

                                                          -ii-
Appendix A - Opinion of the Court of Appeals in Bucaro v. State ................... 15

Appendix B - Order Denying Motion for Rehearing in Bucaro v. State .......... 26




                                         -iii-
                                INDEX OF AUTHORITIES


Cases:

     Bucaro v. State
          No. 02-14-00339-CR, Tex.App. – Fort Worth Aug. 27, 2015 ........ 2

     Bumper v. North Carolina
          391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) ................... 12

     Burson v. Bell
          402 U.S. 505, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) ..................... 12

     Camara v. Municipal Court of the City and County of San Francisco
         387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) ..................... 7

     District of Columbia v. Little
           339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950) ............................... 6

     Doyle v. Ohio
           426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)                          ...................... 7

     Fienen v. State
           390 S.W.3d 328 (Tex.Crim.App.2012) ........................................... 6

     Florida v. Royer
           460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed. 229 (1983) ...................... 12

     Forsyth v. State
           438 S.W.3d 216 (Tex.App. – Eastland 2014) ................................. 12

     Garrity v. New Jersey
           85 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) ....................... 12

     Gore v. State
           No. 01-13-00608-CR (Tex.App. – Houston [1st Dist.]
           Nov. 13, 2014 ................................................................................. 12

     Missouri v. McNeely
          569 U.S. ___, 133 S.Ct. 1552 (2013) .............................................. 6

     People v. Pollard
           307 P.3d 1124 (Colo.App. 2013) .................................................... 9

                                                  -iv-
      Powell v. State
           660 S.W.2d 842 (Tex.App. – El Paso 1983) ................................... 8

      Reeves v. State
           969 S.W.2d 471 (Tex.App. – Waco 1998) .................................. 7, 8

      Skinner v. Railway Labor Executives’ Association
            489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ................. 7

      State v. Kelly
             204 S.W.3d 808 (Tex.Crim.App. 2006) ........................................ 12

      United States v. Clariot
            655 F.3d 550 (6th Cir.2011)                 ........................................................... 7

      United States v. Moreno
            233 F.3d 937 (7th Cir.2000) ............................................................ 8

      United States v. Prescott
            581 F.2d 1343 (9th Cir.1978) ........................................................... 8

      United States v. Runyon
            290 F.3d 223 (5th Cir.2002) ............................................................ 8

      United States v. Thame
            846 F.2d 200 (3rd Cir.1988) ........................................................... 8

      Weems v. State
          434 S.W.3d 655 (Tex.App. – San Antonio 2014) ......................... 11

      Williams v. State
            No. S14-1625 (Ga. Mar. 27, 2015) ................................................ 10


Constitutions:

      U.S.CONST.amend VI ........................................................................... passim
      U.S.CONST.amend XIV .............................................................................. 7




                                                  -v-
Statutes:

      TEX.TRANSP.CODE § 724.015 .................................................................... 3
      TEX.TRANSP.CODE § 724.061 ........................................................... 3, 5, 9


Rules:

      TEX.R.APP.P. 66.3 ...................................................................................... 2




                                                    -vi-
                                 No. PD-1428-15

                     (Court of Appeals No. 02-14-00339-CR)




                                     IN THE

                       COURT OF CRIMINAL APPEALS

                                   OF TEXAS




                                 ANN BUCARO,

                                                            Petitioner,
                                        v.

                            THE STATE OF TEXAS




PETITIONER'S PETITION FOR DISCRETIONARY REVIEW



                On discretionary review from the Court of Appeals
                     Second District of Texas at Fort Worth




TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      ANN BUCARO, Petitioner, petitions this Court to grant discretionary review

to review the judgment of the Court of Appeals for the Fifth District of Texas

affirming her conviction for driving while intoxicated because the court of appeals
                                        -1-
has decided two important questions of law in ways that conflict with applicable

decisions of other Texas courts of appeal, of this Court and of the Supreme Court of

the United States. See TEX.R.APP.P. 66.3.

                    STATEMENT REGARDING ORAL ARGUMENT

      Ms. Bucaro believes that oral argument will be helpful to the Court in resolving

the grounds for review because of the nature of the issues presented in the grounds

for review.

                              STATEMENT OF THE CASE

      This is an appeal from a conviction for driving while intoxicated.1 The grounds

for review relate to the trial court’s failure to suppress the admission of the breath

specimens given to the arresting officer by Ms. Bucaro.

              STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      The court of appeals affirmed Ms. Bucaro’s conviction on 27 August 2015 in

a Memorandum Opinion on Rehearing. Bucaro v. State, No. 02-14-00339-CR,

Tex.App. – Fort Worth 27 August 2015, unpublished.2 A timely-filed motion for

rehearing was denied on 8 October 2015.3




  1
      Clerk’s Record (CR) 35-36 (Judgment of Community Supervision).
  2
      A copy of that opinion is appended hereto as Appendix A, pp. 16-25, infra.
  3
      A copy of the Order denying the motion for rehearing is appended to this petition as
Appendix B, p. 27, infra.

                                             -2-
                                 GROUNDS FOR REVIEW

       1. Whether the portion of the Texas Transportation Code that
          permits the introduction into evidence at a person’s trial of that
          person’s refusal to provide a specimen of breath or blood at the
          request of the arresting officer (§ 724.061) violates the Fourth
          Amendment to the Constitution of the United States. CR 21-23,
          25-27, 30; RR 29-31, 36-37.

       2. Whether consent obtained under the Implied Consent Law
          satisfies the requirement of consent under the Fourth Amendment.
          CR 21-23. 25-27, 30; RR 29-31, 36-37.

                                       ARGUMENT

                                   RELEVANT FACTS

       Ms. Bucaro was arrested for driving while intoxicated and was then transported

to jail. At the jail the arresting officer provided Ms. Bucaro with a DIC-24 form4 and

asked her to follow along as he read it to her. Thereafter, the arresting officer three

times asked Ms. Bucaro if she understood the warnings, to which she relied that she

did not. Eventually, the officer repeated the second paragraph of the form and

explained to her “that he was gong to ask her for a breath specimen and she needed

to understand that ‘if [she] says no, they can use it against her in court and [her]

license will be suspended for not less than six months.” The officer again read the

DIC-24, requested that Ms. Bucaro provide breath specimens, which she did. Bucaro

v. State, supra, slip op. 3-4.

       The officer testified that Ms. Bucaro’s consent was freely and voluntarily

given, that he did not coerce, force, threaten or intimidate her in connection with

   4
      The DIC-24 form is the standard form used by the Texas Department of Public Safety to
admonish persons arrested for driving while intoxicated of the warnings required by the Texas
Transportation Code. TEX.TRANSP.CODE § 724.015.

                                             -3-
obtaining the breath specimens. Id.

      Ms. Bucaro testified that she thought she had no option but to provide the

specimens because if she refused she would lose her driver’s license which would

cost her her job. Id.

      Ms. Bucaro filed a pretrial motion to suppress evidence in which she

challenged the seizure of the specimens of her breath on various grounds, including

the Fourth Amendment to the Constitution of the United States.               CR 13-32.

Following a hearing on the motion it was denied. The trial court’s conclusions of law

addressed Fifth and Sixth Amendment issues, but not the Fourth Amendment issues

raised by Ms. Bucaro. The trial court impliedly concluded that reading of the Implied

Consent Law warnings provided a basis for finding consent under the Fourth

Amendment.

      The gist of Ms. Bucaro’s Fourth Amendment argument was that the officer’s

request for a breath specimen amounted to a request for consent to a warrantless

seizure of Ms. Bucaro’s breath; that the seizure of Ms Bucaro’s breath is protected

by the Fourth Amendment; that Ms. Bucaro’s “consent” was not obtained freely and

voluntarily because it was the product of the coercive threats contained in the DIC-24

warnings, i.e., that if she did not provide the breath specimen she would lose her

driver’s license and her refusal could be used against her at her trial; and that the mere

reading of the Implied Consent Law warnings could not suffice to establish consent

within the meaning of the Fourth Amendment (and thus the State had failed to sustain




                                           -4-
its burden of proving that Ms. Bucaro’s consent was freely and voluntarily given).5

      1. Whether the portion of the Texas Transportation Code that
         permits the introduction into evidence at a person’s trial of that
         person’s refusal to provide a specimen of breath or blood at the
         request of the arresting officer (§ 724.061) violates the Fourth
         Amendment to the Constitution of the United States.

      HOW THE COURT OF APPEALS DECIDED GROUND FOR REVIEW NO. 1

      Ms. Bucaro argued that the portion of the Implied Consent Law authorizing the

admissibility as evidence at a person’s trial of a refusal to provide a specimen of

breath for alcohol content testing purposes violates the Fourth Amendment’s

protection against unreasonable seizures because the use by a prosecutor of a citizen’s

refusal to consent to a seizure protected by the Fourth Amendment “would erode the

protection” guaranteed by the Fourth Amendment.6 She argued that taking a breath

specimen from a person arrested for driving while intoxicated is protected by the

Fourth Amendment and requires either a warrant or proof of the existence of an

exception to the requirement of a warrant. In this case the State relied on the consent

exception to the requirement of a warrant. Because the Fourth Amendment provides

citizens with the absolute right to refuse to consent to warrantless searches and

seizures, an exercise of that right may not be used as evidence against them at a trial.7

      The court of appeals did not acknowledge that consent to provide a specimen

of breath is protected by the Fourth Amendment, but did acknowledge that consent


  5
      CR 17-23, 25-27, 30; Reporter’s Record (RR) 30-31, 36-37.
  6
      Appellant’s Brief 19-22, 25-27.
  7
      Id. at 10-12, 19-23, 25-27.

                                           -5-
to provide a specimen of breath must be tested by Fienen v. State, 390 S.W.2d 328

(Tex.Crim.App.2012), which adopted the standard required by the Fourth

Amendment for establishing consent to provide a breath specimen.8 The court then

concluded that because the arresting officer read Ms. Bucaro the warnings required

by the Implied Consent Law, Ms. Bucaro’s consent was voluntary and, citing Fienen,

held that Ms. Bucaro’s consent did not violate the Fourth Amendment.9

      The court ignored Ms.. Bucaro’s argument and supporting cases that the Fourth

Amendment protects citizens from having the exercise of the right to refuse to

consent to a warrantless seizure used as evidence of guilt at trial.

          WHY THIS COURT SHOULD GRANT DISCRETIONARY REVIEW

      The Fourth Amendment protects citizens against the use as evidence against

them of illegally seized evidence. To the extent the Implied Consent Law permits the

use against a person arrested for driving while intoxicated of his refusal to provide

the arresting officer with a specimen of breath for alcohol content testing, that law

violates the Fourth Amendment.

      In Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013), the Supreme

Court declared that the taking of blood from a person arrested for driving while

intoxicated is protected by the Fourth Amendment. Any bodily intrusion, whether for

blood or breath, is a search within the meaning of the Fourth Amendment for which

a warrant or an applicable exception is required. McNeely, supra; Skinner v. Railway


  8
      Bucaro v. State, supra, slip op. 7
  9
      Id. at 7-9.

                                           -6-
Labor Executives’ Association, 489 U.S. 602, 614, 109 S.Ct, 1402, 103 L.Ed.2d 639

(1989).

       No warrant was obtained to search for or seize Ms. Bucaro’s breath. The

exception to the warrant requirement on which the State relied in this case, and on

which the court of appeals decided the case, was consent.10

       A person has the absolute right to refuse to consent to an officer’s request for

a warrantless search or seizure. Camara v. Municipal Court of the City and County

of San Francisco, 387 U.S. 523, 533-34, 87 S.Ct,. 1727, 18 L.Ed.2d 930 (1967) (“we

therefore conclude that appellant had a constitutional right to insist that the inspectors

obtain a warrant to search”); District of Columbia v. Little, 339 U.S. 1, 7, 70 S.Ct.

468. 94 L.Ed. 2d 599 (1950) (holding that persons have the right to refuse requests

of public officials to enter their homes without a warrant); see also Reeves v. State,

969 S.W.2d 471, 493 (Tex.App. – Waco 1998, pet.ref’d) (holding that a person has

the right to refuse to consent to searches of his home).

       The exercise of constitutional rights may not be used as evidence of guilt lest

there be a deprivation of fundamental fairness and due process as guaranteed by the

Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49

L.Ed.2d 91 (1976) (holding that an accused’s exercise of his Sixth Amendment right

to remain silent following arrest may not be used at his trial to impeach him). With

respect to the assertion of Fourth Amendment rights, numerous courts have held that

a citizen’s refusal to consent to a request by an officer to conduct a warrantless search


  10
       Id. at 6-9.

                                           -7-
or seizure may not be used as evidence without imposing an unfair and impermissible

burden on the assertion of the right. United States v. Clariot, 655 F.3d 550, 555 (6th

Cir.2011) (“The exercise of a constitutional right, whether to refuse to consent to a

search, to refuse to waive Miranda rights or to decline to testify at trial, is not

evidence of guilt”); United States v. Runyon, 290 F.3d 223, 249 (5th Cir.2002) (the

other circuit courts that have addressed the “question whether a prosecutor commits

constitutional error by invoking a defendant’s refusal to consent to a warrantless

search to support an inference of guilt” have “unanimously held that a defendant’s

refusal to consent to a warrantless search may not be presented as evidence of guilt”);

United States v. Moreno, 233 F.3d 937, 940-41 (7th Cir.2000) (because the Fourth

Amendment entitled the defendants to withhold their consent to a search of their

residence, proof of that refusal is not admissible as evidence of guilt); United States

v. Thame, 846 F.2d 200, 206 (3rd Cir.1988) (“[I]t was error for the prosecutor to

argue that [the accused’s] reliance on his fourth amendment rights constituted

evidence of his guilt”); United States v. Prescott, 581 F.2d 1343 (9th Cir.1978)

(evidence that the accused refused to permit the police to enter her apartment without

a warrant was constitutionally protected conduct which should not have been

considered as evidence of the offense charged); Reeves v. State, 969 S.W.2d 471

(Tex.App. – Waco 1998, pet.ref’d) (“To allow the use of one’s refusal to consent to

entry into his home without a warrant would be to impose a penalty for exercising a

constitutional right”); Powell v. State, 660 S.W.2d 842, 845 (Tex.App. – El Paso

1983, no pet.) (“The invocation of constitutional rights such as assistance of counsel,


                                          -8-
silence, or freedom from unreasonable searches may not be relied upon as evidence

of guilt. To permit the use of such evidence for purposes of incrimination would

erode the protections guaranteed by both state and federal constitutions”).11

       Section 724.061 plainly states that “a persons’s refusal of a request by an

officer to submit to the taking of a specimen of breath or blood . . . may be

introduced into evidence at the person’s trial.” That statute clearly violates the

holdings in the cases which forbid the use of an invocation of Fourth Amendment

rights as evidence of guilt. Section 724.061 impermissibly chills the assertion of a

constitutional right by penalizing those who choose to exercise their Fourth

Amendment rights. It is, therefore, unconstitutional as a matter of law, and as applied

in this case. To the extent the court of appeals relied upon “consent” as the basis for

upholding the trial court’s denial of Ms. Bucaro’s motion to suppress, this Court

should grant discretionary review to correct that error.

       2. Whether consent obtained under the Implied Consent Law
          satisfies the requirement of consent under the Fourth Amendment.
          CR 21-23. 25-27, 30; RR 29-31, 36-37.

       HOW THE COURT OF APPEALS DECIDED GROUND FOR REVIEW NO. 2

       Ms. Bucaro argued that because the taking of a specimen of breath from a

person arrested for driving while intoxicated is protected by the Fourth Amendment

and requires either a warrant or proof of an exception to the requirement of a warrant,

that taking amounts to a consent to a warrantless search or seizure. As such, the

consent must be tested by the Fourth Amendment standard. She further argued the

  11
        See People v. Pollard, 307 P.3d 1124 (Colo.App.2013), for a collection of state cases holding
that the exercise of Fourth Amendment rights cannot be used as evidence of guilt.

                                                -9-
mere compliance with the Implied Consent Law does not satisfy the Fourth

Amendment requirement of consent.12

        The court of appeals began with the observation that “[a]ny person arrested for

DWI is deemed to have given consent to submit to providing a specimen of breath or

blood for determining alcohol concentration or the presence of a controlled

substance.” Bucaro v. State, supra, slip op. 6. The court then conducted an analysis

using state decisional law and concluded that the warnings required by the Implied

Consent Law suffice to satisfy the Fourth Amendment’s requirement of consent. Id.

at 9.

           WHY THIS COURT SHOULD GRANT DISCRETIONARY REVIEW

        The Supreme Court of Georgia recently determined that mere compliance with

Georgia’s statutory implied consent request does not satisfy the burden of

establishing free and voluntary consent under Fourth Amendment standards.

Williams v. State, No. S14A1625 (Ga. Mar. 27, 2015). That court’s rationale began

with the recognition that searches involving intrusions beyond the body’s surface are

protected by the Fourth Amendment. Thus, when warrantless seizures of breath or

blood occur based on consent, it is essential that the State demonstrate actual consent

as required by the Fourth Amendment. Id. at 9-10. What is required to show consent

under the Fourth Amendment is an examination of the totality of the circumstances

to determine that the consent was voluntarily and freely given, and was not the

product of coercion or mere acquiescence to authority. The Williams court concluded


   12
        Appellant’s Brief 12, 23; Appellant’s Supplemental and Reply Brief, 3-7.

                                              -10-
that proof of Fourth Amendment consent cannot be established by merely showing

that the accused acquiesced to a request made pursuant to the implied consent law.

Id. at 11-12.

      Although no Texas court has reached the same precise conclusion as Williams,

Texas courts of appeals have recognized that the Texas Implied Consent Law does

not create an exception to the Fourth Amendment and that warrantless seizures of

bodily substances must be supported by facts that establish an exception to the Fourth

Amendment’s warrant requirement. In Weems v. State, the San Antonio court of

appeals observed:

      We agree with both the Amarillo and the Corpus Christi Courts of
      Appeals that the implied consent and mandatory blood draw statutes are
      not exceptions to the Fourth Amendment’s warrant requirement. . . .
      McNeely, however, clearly proscribed what it labeled as categorical or
      per se rules for warrantless blood testing, emphasizing over and over
      again that the reasonableness of a search must be judge based on the
      totality of the circumstances presented in each case. See McNeely, 133
      S.Ct. At 156-63. Texas’s implied consent and mandatory blood draw
      statutes clearly create such categories or per se rules that the Supreme
      Court proscribed in McNeely. See TEX.TRANSP.CODE §§ 724.011(a),
      724.012(b). These statutes do not take into account the totality of the
      circumstances present in each case, but only consider certain facts. See
      id. Thus, we hold that the implied consent and mandatory blood draw
      statutory scheme found in the Transportation Code are not exceptions
      to the warrant requirement under the Fourth Amendment, To be
      authorized, the State’s warrantless blood draw of Weems must be based
      on a well-recognized exception to the Fourth Amendment.

Weems v. State, 434 S.W.3d 655, 665 (Tex.App. – San Antonio 2014, pet.filed).

      Texas courts of appeals have also declined to hold that “implied consent under

the [Implied Consent Law] is the equivalent to voluntary consent as a recognized

exception to the warrant requirement” because “mere acquiescence to a claim of


                                         -11-
lawful authority does not discharge the burden imposed upon the State to show that

the suspect freely and voluntarily consented.” Forsyth v. State, 438 S.W.3d 216, 223

(Tex.App. – Eastland 2014, pet.ref’d). See also Gore v. State, No. 01-13-00608-CR

(Tex.App. – Houston [1st Dist.] Nov. 13, 2014, pet.filed).

      There are numerous reasons why implied consent cannot satisfy the

requirement of actual consent required by the Fourth Amendment. Consent given in

response to a claim of authority or based on fraud is not valid. Florida v. Royer, 460

U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed. 229 (1983); Bumper v. North Carolina, 391

U.S. 543, 548-50, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The use of implied consent

to uphold a seizure of a bodily substance does not permit consideration of whether

the implied consent was a result of “mere acquiescence” to a claim of authority. See

State v. Kelly, 204 S.W.3d 808 (Tex.Crim.App. 2006); Forsyth v. State, supra.

Consent that is coerced by duress is not valid. Garrity v. New Jersey, 385 U.S. 493,

87 S.Ct. 616, 17 L.Ed.2d 562 (1967). The Implied Consent Law warning that if a

person does not consent to provide a specimen of breath he will lose his driving

privileges can be incredibly coercive to the extent that the individual whose license

is at stake may have to rely upon his driving privileges for his income. As stated in

Burson v. Bell, 402 U.S. 505, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), “[o]nce

licenses are issued . . . their continued possession may become essential in the

pursuit of a livelihood.” To say that the Implied Consent Law warnings suffice to

establish consent under the Fourth Amendment precludes consideration of the

constitutional issue resolved in Garrity - that a person’s livelihood cannot hinge on


                                         -12-
his waiver of a constitutional right. Third, the admonition contained in the Implied

Consent that a refusal to provide the requested specimen can be used as evidence of

guilt violates the notion that the exercise of a constitutional right cannot be used as

evidence of guilt. See infra, 7-9.

      Implied consent has no basis within the context of Fourth Amendment rights.

By its terms, implied consent is not express consent. The Implied Consent Law

warnings do not contain the word “consent”; thus, a person who is alleged to have

“consented” has not been asked for his consent and likely has not affirmatively given

consent. In the case of the Implied Consent Law warnings, a police officer “requests”

persons arrested for driving while intoxicated to provide specimens of their breath or

blood. Prior to the request for a specimen being made, the Implied Consent Law

warnings do not require that the person be advised of his rights under the Fourth

Amendment.

      For the foregoing reasons this Court should grant discretionary review to

resolve the conflict between the courts of appeals in this State regarding whether

“implied consent” can satisfy the Fourth Amendment requirement of consent in the

context of obtaining breath specimens from persons arrested for driving while

intoxicated.

                                PRAYER FOR RELIEF

      For the foregoing reasons Ms. Bucaro prays that this Court grant discretionary

review to review the decision of the court of appeals in this case.




                                         -13-
                                      Respectfully submitted,

                                      /s/   Melvyn Carson Bruder


                                      MELVYN CARSON BRUDER 03241000

                                               516 Turley Law Center
                                               6440 North Central Expressway
                                               Dallas, Texas 75206
                                               214.987.3500
                                               214.987.3518 FAX
                                               melvyn@melvynbruderlaw.com

                                               Counsel for the Petitioner


                         CERTIFICATE OF SERVICE

       I certify that on 9 December 2015 a true and correct copy of the foregoing
Petitioner’s Petition for Discretionary Review was served upon counsel for the State
of Texas in this case and upon the State Prosecuting Attorney via first class United
States mail, postage prepaid, in Dallas, Texas.

                                               /s/    Melvyn Carson Bruder


                                                     MELVYN CARSON BRUDER


                      CERTIFICATE OF COMPLIANCE

      I certify that this petition (including the opinion of the court of appeals)
contains 4277 words based on the word count of the Word Perfect X5 program used
to prepare the petition.

                                               /s/    Melvyn Carson Bruder


                                                     MELVYN CARSON BRUDER




                                        -14-
       APPENDIX A

OPINION IN BUCARO v. STATE




           -15-
-16-
-17-
-18-
-19-
-20-
-21-
-22-
-23-
-24-
-25-
               APPENDIX B

ORDER DENYING REHEARING IN BUCARO v. STATE




                   -26-
-27-
-28-
