     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                    NO. 03-00-00327-CR



                                The State of Texas, Appellant

                                              v.

                                 Joe Shack Laird, Appellee




     FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
         NO. 50,088, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING




              Joe Shack Laird was indicted for intoxication manslaughter and felony failure to

stop and render aid. See Tex. Penal Code Ann. § 49. 08 (West Supp. 2000); Tex. Transp. Code

Ann. § 550.021 (West 1999). Before trial on the merits, Laird filed a motion to suppress the

blood sample taken from him by a paramedic on the night of the offense. Laird urges that blood

drawn by this paramedic, who was an emergency medical services technician, was inadmissible

because section 724.017(c) of the Transportation Code specifically excludes emergency medical

services personnel from the list of people qualified to draw blood in these circumstances. See

Tex. Transp. Code Ann. § 724.017(c) (West 1999). The trial court agreed and granted Laird’s

motion to suppress. On this appeal, the State asks us to infer that the legislature intended to

exclude emergency medical services personnel from drawing blood only when they are responding

to an emergency situation. We are sympathetic to the State’s position and believe its version of
the law may be more reasonable, but we feel constrained by the plain language of the statute to

affirm the trial court’s order.


               FACTUAL BACKGROUND AND PROCEDURAL HISTORY

               On the night of May 29, 1999, Temple police officer Sean Childress was dispatched

to an accident where Laird’s truck had collided with a parked car on a residential street. At the

scene, Childress found Laird in the driveway of a nearby residence, surrounded by concerned

homeowners and guests. Childress spoke with Laird about the accident and determined that Laird

had been driving the truck. Laird smelled strongly of alcohol and appeared to be intoxicated.

               After making sure that Laird was uninjured, Childress inspected the vehicles

involved in the collision. He found what appeared to be blood and hair on the front right side of

the truck, but he could not determine its source.      Childress then arrested Laird for public

intoxication and took him to the city jail.

               In the meantime, Temple police detective Keith Reed responded to another traffic

accident where a pedestrian had been killed. The victim appeared to have been struck by a

vehicle, but the vehicle had left the scene. A front license plate, however, was lying next to the

victim’s body. Reed then discovered that a truck with a matching rear license plate had been

involved in a different accident nearby. The truck was the one that Laird had been driving. Reed

immediately instructed Childress to have blood drawn from Laird because it appeared that his

truck was involved in an accident which had resulted in a death. See Tex. Transp. Code Ann.

§ 724.012(b) (West 1999). Neither Reed nor Childress sought a warrant for the blood extraction.


                                                2
               Acting on Reed’s instructions, Childress took Laird from the jail to the emergency

room of Scott and White Hospital to have his blood drawn. At the hospital, when Laird refused

to consent to the blood sample, the emergency room physicians would not draw his blood. 1

Childress then telephoned his supervisor, Sergeant William Llewellyn, who in turn asked Reed

what to do next.

               Reed instructed the officers to take Laird to a nearby fire station to have a licensed

paramedic take the required blood specimen. Childress drove Laird to the central fire station, and

Llewellyn met them there within minutes. The paramedic on duty that night was Jeff Waggy.

The two officers and Waggy tried to get Laird to voluntarily submit to giving a blood sample, but

Laird steadfastly refused. Llewellyn then swept Laird’s feet out from under him, and both

officers pinned Laird down on the floor of the fire station and held out his arm so that Waggy

could take a blood sample. The officers testified that Laird did not struggle during this procedure.

Childress then drove Laird back to jail, and Laird was subsequently indicted for intoxication

manslaughter and felony failure to stop and render aid. See Tex. Penal Code Ann. § 49.08; Tex.

Transp. Code Ann. § 550.021.

               About six weeks before Laird was scheduled to be tried for the charged offenses,

he filed a motion to suppress the blood sample taken from him, urging that the specimen was

obtained in violation of section 724.017 of the Transportation Code and was therefore

inadmissible. See Tex. Transp. Code Ann. § 724.017; Tex. Code Crim. Proc. Ann. art. 38.23(a)


       1
         The hospital’s risk manager advised the emergency room personnel not to take Laird’s
blood without his consent.

                                                 3
(West Supp. 2000) (stating that evidence obtained unlawfully shall not be admitted). The trial

court granted Laird’s motion to suppress, agreeing that the blood sample was taken by a person

unauthorized to do so under section 724.017. The State now challenges this ruling. See Tex.

Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2000).


                                           DISCUSSION

                In its sole point of error, the State contends that the trial court should have denied

Laird’s motion to suppress. The State offers various legal theories in support of its position, all

of which relate to the application and interpretation of section 724.017 of the Transportation Code.

We consider each of the State’s contentions in turn.

                In general, an appellate court reviews a trial court’s ruling on a motion to suppress

for abuse of discretion. In re R.J.H., 28 S.W.3d 250, 252 (Tex. App.—
                                                                    Austin 2000, no pet.).

When presented with a pure question of law based on undisputed historical facts, however, de

novo review is proper. Id. The parties in this case do not dispute the facts that formed the basis

of the trial court’s decision; rather, the State questions only the trial court’s application of the law

to those facts. We therefore review the trial court’s decision de novo. See Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997) (holding that mixed questions of law and fact that do not

turn on an evaluation of credibility and demeanor may be reviewed de novo); In re R.J.H., 28

S.W.3d at 252.




                                                   4
               The statute in question is part of a broader statutory scheme which governs the

taking of blood and breath specimens from persons who have been arrested for certain

intoxication-related offenses. Section 724.017 provides in pertinent part that



       (a) Only a physician, qualified technician, chemist, registered professional nurse,
           or licensed vocational nurse may take a blood specimen at the request or order
           of a peace officer under this chapter. The blood specimen must be taken in
           a sanitary place.
            ....

       (c) In this section, “qualified technician” does not include emergency medical
           services personnel.


Tex. Transp. Code Ann. § 724.017(a), (c) (West 1999).

               The State’s first contention is that the provisions of chapter 724 (specifically section

724.017) do not apply to Laird because he was arrested for public intoxication and not “for an

offense arising out of acts alleged to have been committed while the person was operating a motor

vehicle in a public place . . . while intoxicated . . . .” Id. § 724.011(a) (West 1999). We

considered this very question in Elliott v. State, 908 S.W.2d 590, 593 (Tex. App.—
                                                                                 Austin 1995,

pet. ref’d), and explicitly rejected the State’s argument. 2 Just as in Elliott, Laird was arrested for

public intoxication after he drove his truck into another vehicle. See id. at 591. The offense for



       2
          Although we realize that section 724.011 has been amended and codified since we
decided Elliott, the difference in the relevant phrase is only one of semantics. See Act of April
21, 1993, 73d Leg., R.S., ch. 82, § 1, 1993 Tex. Gen. Laws 168, 168-69 (Tex. Rev. Civ. Stat.
Ann. art. 6701l-5, § 1 since amended and codified at Tex. Transp. Code Ann. § 724. 011(a) (West
1999)).

                                                  5
which Laird was arrested arose in part out of acts allegedly committed while driving under the

influence, and as we found in Elliott, chapter 724 therefore applies to his case. See id. at 593.

                The State next contends that even if chapter 724 does apply in this case, section

724.017 was not violated because the paramedic who drew Laird’s blood was not acting as

“emergency medical services personnel” at the time he took the blood sample from Laird. The

State urges that section 724.017(c) is meant only to exclude medical personnel responding to an

actual emergency and that any other reading of this statute leads to absurd results. “Surely,” the

State argues,


       a paramedic employed by a hospital in the task of drawing blood at the hospital in
       the course of everyday treatment of patients . . . is a “qualified technician” and not
       excluded from the class of persons authorized to draw blood simply because he also
       happens to be a paramedic. That is the case here, instead of being on duty at a
       hospital the paramedic was on duty at a fire station.


As a matter of statutory construction, however, we cannot agree.

                The starting point for statutory analysis is the text of the relevant provision. Ex

parte Kuester, 21 S.W.3d 264, 266 (Tex. Crim. App. 2000). We look first to the plain meaning

of the words to determine the purpose and effect of a statute. Id. Every word of a statute is

presumed to have been used for a purpose, and every word excluded must also be presumed to

have been excluded for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540

(Tex. 1981). We may look beyond the text only if the language is ambiguous or would lead to

an absurd result that the legislature could not possibly have intended. Ex parte Kuester, 21

S.W.3d at 266 (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). Specific,

                                                 6
unambiguous statutes are the current law and should not be construed by a court to mean

something other than the plain words say. Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d

278, 284 (Tex. 1999).

               The text of section 724.017 lists several professions whose members are authorized

to draw blood under the statute. Tex. Transp. Code Ann. § 724.017(a); see Cavazos v. State, 969

S.W.2d 454, 456 (Tex. App.—
                          Corpus Christi 1998, pet. ref’d). Paramedics are not included on

this list. Cf. Tex. Transp. Code Ann. § 724.017(a). The statute also includes a general category

for other “qualified technicians.” Id. The statute expressly excludes “emergency medical services

personnel” from the catch-all category.       Id. § 724.017(c).     “Emergency medical services

personnel” is not defined in the statute.

               If a technical term is not defined in a statute, courts often interpret the statute in

light of testimony of witnesses familiar with the particular art, science, or trade.        State v.

Bingham, 921 S.W.2d 494, 496 (Tex. App.—
                                       Waco 1996, pet. ref’d). At the suppression hearing,

Waggy explained to the trial court that a paramedic is a high-level emergency medical technician.

Nothing in the plain text of the statute suggests that the term emergency medical services

personnel was not meant to include paramedics. Construing the statute literally, then, Waggy’s

testimony leads us to conclude that he is an emergency medical technician and that under the

statute he was not authorized to take Laird’s blood at the request of the police. This is exactly

what the trial court determined.

               The State urges us, however, to consider the fact that Laird’s blood was not drawn

during an actual emergency.        Nothing in the statute itself suggests that the existence of an

                                                  7
emergency is what disqualifies emergency medical services personnel from taking blood

specimens. If the legislature was concerned about emergency situations, it could easily have

disqualified blood samples taken by an emergency medical technician or any of the other

authorized personnel during an emergency.

               Although we recognize that this statute could lead to some unexpected outcomes

in certain cases such as this one, it is our job as the judiciary to faithfully follow the specific text

that was adopted by the legislature. See Boykin, 818 S.W.2d at 785. As written, the statute sets

forth a bright-line rule that is easy for peace officers to follow; they may request that blood

specimens be taken by any qualified person other than emergency medical services personnel. If

we were to read section 724.017 as excluding only those specimens obtained during an

emergency, peace officers would be burdened with discerning whether a particular situation

constituted an emergency for the purpose of the statute. If this is in fact what the legislature

intended, they could have said so more plainly. Because bright-line rules are useful to law

enforcement officers, we cannot say that the statute as written leads to results that the legislature

could not possibly have intended. See id.

                The State next argues that evidence obtained in violation of chapter 724 should not

be excluded if the State can show that the specimen was taken in accordance with some other

lawful procedure such as by a search warrant, with the defendant’s actual consent, or under

exigent circumstances where probable cause exists to arrest the defendant. 3 Because the trial court


       3
           The State’s argument that section 724.017 need not be complied with if a blood sample
is obtained with a search warrant or with the accused’s actual consent is not relevant to the instant

                                                   8
made explicit findings that probable cause and exigent circumstances existed at the time Laird’s

blood was drawn, the State asks us to overlook the violation of section 724. 017. 4

               The taking of a blood sample is a search and seizure under both the federal and

Texas constitutions. Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim. App. 1982). However,

when officers have probable cause, exigent circumstances, and a reasonable method of extraction,

taking a blood sample without a warrant or consent is not an unreasonable search and seizure and

does not violate either the Fourth Amendment or article I, section 9 of the Texas Constitution.

See U. S. Const. amend. IV; Tex. Const. art. I, § 9; Schmerber v. California, 384 U. S. 757, 767-

68 (1966); Aliff, 627 S.W.2d at 169-70. It is a well-settled fact that alcohol in the blood dissipates

quickly constitutes exigent circumstances. See Schmerber, 384 U. S. at 770-71; Aliff, 627 S.W.2d

at 170; Weaver v. State, 721 S.W.2d 495, 497 (Tex. App.—
                                                       Houston [1st Dist.] 1986, pet. ref’d).

What the State fails to note, however, is that while this doctrine renders constitutional the taking

of blood samples under exigent circumstances where probable cause exists, it does not necessarily

comply with other laws to make the samples lawfully obtained evidence.

               Chapter 724 of the Texas Transportation Code enlarges upon what is

constitutionally required with regard to blood samples when a person is under arrest for an



case. We note, however, that on the facts of both Cavazos v. State, 969 S.W.2d 454, 455-57
(Tex. App.—Corpus Christi 1998, pet. ref’d), and State v. Bingham, 921 S.W.2d 494, 495 (Tex.
App.— Waco 1996, pet. ref’d), actual consent did not obviate compliance with section 724.017.
       4
           Laird contends that the State lacks standing to make this argument because constitutional
rights belong only to individuals. The State is not seeking redress for someone else’s
constitutional injury, but is only offering alternative legal grounds for the admissibility of
evidence. There is no standing problem with the State’s position.

                                                  9
intoxication-related offense. Weaver, 721 S.W.2d at 497. The statute applies only to persons

under arrest when the blood sample is taken. Id. Accordingly, Texas courts apply the probable

cause and exigent circumstances test only in cases where a blood sample is taken from someone

not under arrest. See, e.g., Pesina v. State, 676 S.W.2d 122, 123, 125 (Tex. Crim. App. 1984);

Weaver, 721 S.W.2d at 497; Burkhalter v. State, 642 S.W.2d 231, 232-33 (Tex. App.—
                                                                                 Houston

[14th Dist.] 1982, no pet.).

               On the other hand, Texas courts require full compliance with the provisions of

chapter 724 when a blood sample is taken from an arrested suspect even though exigent

circumstances exist. See, e.g., Cavazos, 969 S.W.2d at 457 (holding that it was error to admit

blood sample taken by phlebotomist without evidence showing he was a qualified technician);

Bingham, 921 S.W.2d at 496 (requiring proof of phlebotomist’s qualifications to determine

admissibility of blood taken from person arrested for driving while intoxicated). The removal of

constitutional impediments as to the taking of a blood test “does not obviate the necessity of

compliance with statutory provisions, even though statutory requirements may not now be

constitutionally required.” Darland v. State, 582 S.W.2d 452, 454 (Tex. Crim. App. 1979)

(quoting Olson v. State, 484 S.W.2d 756, 772 (Tex. Crim. App. 1969)). It is clear, therefore,

that although the taking of the blood sample from Laird passes constitutional muster, that is not

enough. His blood was drawn pursuant to an arrest related to intoxicated driving believed to have

caused the death of another. See Tex. Transp. Code Ann. § 724.012(b). By the plain language

of the statute, only authorized professionals may “take a blood specimen at the request or order




                                               10
of a peace officer under this chapter.” Id. § 724.017(a). The State cannot attempt to circumvent

the controlling statute by claiming constitutional compliance.

               The State next suggests that suppression of the blood sample taken from Laird does

not serve the purpose of the exclusionary rule. Article 38. 23 of the Texas Code of Criminal

Procedure provides:


       (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.


Tex. Code Crim. Proc. Ann. art. 38.23(a). Although the plain language of article 38. 23(a)

suggests that evidence obtained in violation of any law must be suppressed, the State is correct in

its assertion that article 38. 23(a) may not be invoked for statutory violations unrelated to the

purpose of the exclusionary rule. See Lane v. State, 951 S.W.2d 242, 243 (Tex. App.– Austin

1997, no pet.); Carroll v. State, 911 S.W.2d 210, 221 (Tex. App.– Austin 1995, no pet.). The

primary purpose of article 38.23(a) is to deter unlawful actions which violate the rights of criminal

suspects. Carroll, 911 S.W.2d at 221. “[T]he underlying theory of both the exclusionary rule

and article 38.23 is the same: to protect a suspect’s liberty interests against the overzealousness

of others in obtaining evidence to use against them.” Chavez v. State, 9 S.W.3d 817, 822 (Tex.

Crim. App. 2000) (Price, J., concurring). In the instant case, the State contends that the primary

purpose of section 724.017 is to protect the rights of emergency medical services personnel and




                                                 11
not criminal defendants. The State asks us to conclude that evidence obtained in violation of

section 724.017, therefore, need not be excluded under article 38.23(a).

               Section 724.017 governs where and by whom a blood specimen may be taken at

the request of a peace officer from a person arrested for intoxicated driving. Tex. Transp. Code

Ann. § 724.017(a). As we discussed earlier, nothing in the plain language of that section

demonstrates that the legislature intended to protect emergency workers; in fact, the statutory

language suggests that physicians, chemists, registered professional nurses, licensed vocational

nurses, and qualified technicians who are not emergency medical services personnel are authorized

to draw blood at any time. See id. § 724.017(a), (c).

               The more obvious purpose of section 724.017 in requiring sanitary conditions and

qualified technicians is to ensure that a suspect’s health not be compromised just because he is

accused of committing a crime. Blood samples taken by unauthorized persons are inadmissible.

Cavazos, 969 S.W.2d at 457. Further, the statute requires that the sample be taken in a sanitary

place. Tex. Transp. Code Ann. § 724.017(a). The rights of criminal suspects are clearly

implicated by section 724.017. The statute is directly related to the gathering of evidence for use

in a criminal prosecution against the suspect, and suppression of a blood specimen serves the

exclusionary purpose of article 38. 23. See Tex. Code Crim. Proc. Ann. art. 38.23(a). We hold,

therefore, that Laird’s blood sample is inadmissible under article 38.23(a) because it was drawn

in violation of section 724.017 of the Transportation Code.

               The State’s final argument is that Laird should be estopped from asserting any

complaint about noncompliance with section 724.017 because it was his refusal to consent which

                                                12
caused the police to leave the hospital and resort to a fire station in order to obtain the blood

sample. The State argues that he, in effect, invites the alleged error he now complains about.

              We note initially that Laird’s refusal to consent to the taking of his blood did not

proximately cause the officers to take him to a fire station. Scott and White Hospital made its

own determination of the risk involved in taking Laird’s blood without his consent. The hospital

may have refused to take the sample for any number of reasons. After Scott and White decided

not to take the specimen, Detective Reed made his own independent, professional decision to have

Laird taken to a fire station. This scenario is very different from the situation in State v.

Yount– the only case cited by the State in support of its estoppel argument. State v. Yount, 853

S.W.2d 6, 11 (Tex. Crim. App. 1993) (Baird, J., concurring) (finding that jury instruction on

lesser included offense was requested by defendant, so he could not later complain that lesser

included offense was time-barred).

              Perhaps more instructive in Laird’s situation, however, is the fact that section

724.017 applies to all blood specimens taken at police request under chapter 724, regardless of

whether the suspect has expressly or impliedly consented.        See Tex. Transp. Code Ann.

§ 724.013, .017(a) (West 1999). If we were to hold that a suspect could not complain of

noncompliance with section 724.017 unless he or she voluntarily consented, the statute would be

eviscerated with respect to mandatory blood draws. Such a holding would also expose some

suspects to possibly egregious violations of the statute whenever doctors or hospitals determine

that drawing blood without the suspect’s consent presents too high a risk. These results would be




                                               13
contrary to the plain language of section 724.017 and detrimental to our finding that section

724.017 is concerned with the rights of the accused.


                                         CONCLUSION

               We hold that the trial court did not err by determining that the blood sample taken

from Laird was obtained in violation of section 724.017 of the Transportation Code. We overrule

the State’s sole point of error and affirm the order of the trial court.




                                              Bea Ann Smith, Justice

Before Justices Jones, B. A. Smith and Patterson

Affirmed

Filed: December 14, 2000

Publish




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