                                                                               ACCEPTED
                                                                          03-14-00541-CR
                                                                                 4859995
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                    4/13/2015 11:23:23 AM
                                                                         JEFFREY D. KYLE
                                                                                   CLERK


                  No. 03-14-00541-CR
                                                         FILED IN
                                                  3rd COURT OF APPEALS
                           In the                      AUSTIN, TEXAS
                      Court of Appeals            4/13/2015 11:23:23 AM
                       Third District                 JEFFREY D. KYLE
                       Austin, Texas                       Clerk


                  Robert Rene Torres,
                       Appellant

                             v.

                   The State of Texas,
                        Appellee

        Appeal from the 299th Judicial District Court
                   Travis County, Texas
            Cause Number D-1-DC-12-302414

                     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 not requested
                                     Table of Contents

Index of Authorities............................................................................. ii
Summary of the State’s Argument........................................................1
Standard of Review.............................................................................. 2
Argument............................................................................................. 3
  Reply Point One: The warrantless blood draw did not violate the
  Fourth Amendment. ......................................................................... 4
  Reply Point Two: Assuming, arguendo, that the blood draw violated
  the Fourth Amendment, the exclusionary rules do not bar
  admission of the evidence................................................................ 11
Prayer .................................................................................................18
Certificate of Compliance and Service................................................19




                                                       i
                                    Index of Authorities

     Cases
Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) ................. 12, 16
Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448
   (1957)................................................................................................ 8
Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 180 L. Ed. 285
   (2011)...............................................................................................16
Heien v. North Carolina, __ U.S. __, 135 S. Ct. 530, 190 L. Ed. 2d
   475 (2014)........................................................................................10
Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)
   .........................................................................................................15
Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002)...................... 9
Maryland v. King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013)
   .......................................................................................................... 5
Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552, 185 L. Ed. 2d 696
   (2013) ..........................................................................................8, 14
Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) ..................... 4
Neesley v. State, 239 S.W.3d 780 (Tex. Crim. App. 2007)...............6, 7
People v. Youn, 2014 Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15,
   2014)................................................................................................ 17
Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d.
   250 (2006)........................................................................................ 5
Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008) .................. 5
Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) ............... 2
South Dakota v. Neville, 459 U.S. 553, 103 s. Ct. 916, 74 L. Ed. 2d 748
   (1983) ............................................................................................... 8
State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680 (App. Div. Dec. 20,
   2013)................................................................................................14
State v. Johnson, 871 S.W.2d. 744 (Tex. Crim. App. 1994)................13
State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ................ 7
State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000, pet. ref’d) ..16
State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet.
   ref’d) ................................................................................................12
State v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d) 7
State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS
   1898 (Tex. Crim. App. Nov. 26, 2014)...................................3, 4, 5, 9
United States v. Brooks, No. PWG-14-0053, 2014 U.S. Dist. LEXIS

                                                         ii
 67417 (D. Md. May 16, 2014) (mem. op.) ........................................ 17
Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013)..........13
Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985)
 .......................................................................................................... 8
     Statutes
Tex. Code Crim. Proc. art. 38.23 ........................................................ 11
Tex. Transp. Code § 724.012........................................................... 4, 17
Tex. Transp. Code § 724.017................................................................ 8




                                                       iii
                         No. 03-14-00541-CR

                                In the
                           Court of Appeals
                            Third District
                            Austin, Texas

                         Robert Rene Torres,
                              Appellant

                                   v.

                         The State of Texas,
                              Appellee

            Appeal from the 299th Judicial District Court
                       Travis County, Texas
                Cause Number D-1-DC-12-302414

                           STATE’S BRIEF


To the Honorable Third Court of Appeals:

   Now comes the State of Texas and files this brief in response to

that of the appellant.


                Summary of the State’s Argument

   Reply Point One: The warrantless blood draw did not violate

the Fourth Amendment. The blood draw was mandated by Tex.

Transp. Code § 724.011(b), and this statute is constitutionally

reasonable under the Fourth Amendment. Alternatively, there was no

                                        1
violation of the Fourth Amendment because the officer made a

reasonable mistake of law in believing that there was a valid statutory

mandate for the blood draw.

   Reply Point Two: Assuming, arguendo, that the blood draw

violated the Fourth Amendment,

   1) the Texas exclusionary rule does not apply because the police

did not violate the law as it existed at the time of the search, and

   2) the federal exclusionary rule does not apply because the police

were acting in good faith.


                         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

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

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




                                      2
                              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. 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 first

argument made by the State in Reply Point One, but the State

continues to make this argument because Villarreal is not final. In

fact, the Court of Criminal Appeals granted the State’s motion for

rehearing in Villarreal on February 25, 2015. See id., 2015 Tex. Crim.

App. LEXIS 201. The court may issue a different decision upon

rehearing, especially since the court was split 5-4 and three of the

judges who joined the majority opinion have recently left the court.

   But even if this court holds that the blood draw violated the

Fourth Amendment, the State maintains that the exclusionary rules

do not bar admission of the evidence, as argued in Reply Point Two.



                                     3
Reply Point One: The warrantless blood draw did not
violate the Fourth Amendment.

1) The blood draw was mandated by statute, and the statute
   is reasonable under the Fourth Amendment.

   The blood draw was mandated by statute.

   As a starting point, the State argues that the warrantless blood

draw in this case was mandated by statute: Tex. Transp. Code §

724.012(b)(3)(B) states that police “shall” take a specimen of breath

or blood when they have reliable information that a suspect has two

prior DWI convictions, as in this case.

   The statute does not specifically state that blood draws should be

undertaken “without a warrant.” But if a warrant is required, the

wording of the statute stating that the officer "shall" get a specimen

would place an officer in violation of the law if the magistrate refuses

to sign the officer's warrant. See Villarreal, 2014 Tex. Crim. App.

LEXIS 1898, at *83 (Meyers, J., dissenting). Because this is an absurd

result, 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).



                                     4
   Courts conduct a traditional balancing test to evaluate
   the constitutionality of statutorily-mandated searches.

   When evaluating the constitutionality of statutorily-mandated

searches, courts routinely apply a traditional Fourth Amendment

balancing 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). This balancing test approach 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.




                                    5
   A traditional balancing test weighs in favor of the
   constitutionality of Section 724.012(b)(3)(B).

   As a starting point, the State has a significant legitimate interest in

the primary purpose of Section 724.012(b), which 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

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,

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


                                      6
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 people who are arrested,

based on probable cause, for driving while intoxicated on public

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, such as felonies or cases with

injuries.

   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



                                       7
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 Missouri v.

McNeely, __ U.S. __, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013).

   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 also have a reduced expectation

of privacy and are subject to extensive regulations.

   Finally, the defendant bears the burden of establishing that

statutes are unconstitutional, courts presume that statutes are



                                     8
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

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.

      The State acknowledges, however, that the Court of Criminal

Appeals stated in Villarreal 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.




                                      9
2) Alternatively, there was no violation of the Fourth
   Amendment because the officer made a reasonable
   mistake of law.

   Recently, the Supreme Court held that an officer does not violate

the Fourth Amendment if he stops the defendant based on a

reasonable mistake of law. Heien v. North Carolina, __ U.S. __, 135

S. Ct. 530, 540, 190 L. Ed. 2d 475 (2014).

   The Court reiterated that the touchstone of the Fourth

Amendment is reasonableness. Id. at 536. To be reasonable is not to

be perfect. Id. Thus, the Fourth Amendment allows for searches and

seizures based on reasonable mistakes. Id. In accordance with the

reasoning in Heien, the officer in this case did not violate the Fourth

Amendment if he drew the defendant’s blood based on a reasonable

mistake of law.

   The officer clearly believed that there was a valid statutory

mandate for a blood draw. 2RR 34-35. If the officer was mistaken, his

mistake was reasonable. For years, Texas’s police officers,

prosecutors, defense attorneys, and judges have assumed that

warrantless blood draws taken pursuant to the mandatory blood draw

statute were constitutional. Challenges began only after the Supreme



                                     10
Court’s ruling in McNeely, which came down in 2013, after the 2012

blood draw in this case.

   In sum, because the officer’s mistake of law, if any, was

reasonable, the search was lawful under the Fourth Amendment.


Reply Point Two: Assuming, arguendo, that the blood
draw violated the Fourth Amendment, the exclusionary
rules do not bar admission of the evidence.

1) The Texas exclusionary rule does not apply because the
   police did not violate the law as it existed at the time of
   the search.

   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


                                     11
           reliance upon a warrant issued by a neutral magistrate
           based on probable cause.

   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,

which justified a warrantless blood draw 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.




                                      12
   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 states, 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



                                      13
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 states, 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).

   Finally, the State realizes that the holding in McNeely is

retroactive and applies to all cases pending on direct appeal, such as

the defendant’s case. But this does not mean that the exclusionary

rules apply as well. Indeed, the Supreme Court has held that the

federal exclusionary rule often does not apply even though a new

holding is retroactive, as explained further below.

   It is now up to Texas courts to decide whether the Texas

exclusionary rule applies when the law changes after evidence is



                                     14
obtained. This will turn on how the courts interpret the language in

the Texas exclusionary rule, codified in Tex. Code Crim. Proc. art.

38.23.

   Again, the State’s argument is that the Texas exclusionary rule

does not apply when the law changes after evidence has been

obtained because, in such a situation, the evidence was not actually

obtained in violation of the law.


2) The federal exclusionary rule does not apply because the
   police were acting in good faith.

   The federal exclusionary rule is not codified, but rather, judicially

created, and its purpose 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 several good faith exceptions. The State

will argue that two exceptions apply in this case. The federal

exclusionary rule will not bar the evidence if either one of the

exceptions applies.




                                     15
   Exception one: Good faith reliance on binding appellate
   precedent

   One exception is 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 clearly held that

dissipation alone constituted exigent circumstances in DWI cases.

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. See People v. Youn,

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


                                    16
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).


   Exception two: Good faith reliance on a statute

   Another exception applies 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.

   As previously argued, Section 724.012(b)(3)(B) mandated the

warrantless blood draw in this case. The police officer relied on this

statute in obtaining the warrantless blood draw. 2RR 34-35. This

reliance was in good faith because the mandatory blood draw law was

not “clearly unconstitutional” before McNeely. Indeed, Texas’s police


                                       17
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.


                                Prayer

   The State asks this Court to overrule the appellant’s point of error

and to affirm the trial court’s judgment.



                        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


                                    18
              Certificate of Compliance and Service
   I hereby certify that this brief contains 3,120 words. I further

certify that, on the 13th day of April, 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, on the

defendant’s attorney: Jamie Spencer, Attorney at Law, 812 San

Antonio St., Suite 403, Austin, Texas 78701.




                                  Angie Creasy




                                      19
