                                                                        PD-1010-15
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                      Transmitted 8/5/2015 12:51:09 PM
                                                        Accepted 8/7/2015 10:24:33 AM
                                                                        ABEL ACOSTA
                      IN THE COURT                                              CLERK
              OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS,         §
    APPELLANT               §
                            §
V.                          §     PD-_____-15         AUGUST 7, 2015
                            §
DENNIS MICHAEL TAYLOR,      §
    APPELLEE                §


                         § § §

       STATE'S PETITION FOR DISCRETIONARY REVIEW

                         § § §

                         SHAREN WILSON
                         Criminal District Attorney
                         Tarrant County, Texas

                         DEBRA WINDSOR, Assistant
                         Criminal District Attorney
                         Chief, Post-Conviction

                         TANYA S. DOHONEY
                         Assistant Criminal District Attorney
                         Tim Curry Criminal Justice Center
                         401 W. Belknap
                         Fort Worth, Texas 76196-0201
                         (817) 884-1687 FAX (817) 884-1672
                         State Bar No. 02760900
                         ccaappellatealerts@tarrantcountytx.gov

                         LISA C. MCMINN,
                         State Prosecuting Attorney


            ORAL ARGUMENT IS NOT REQUESTED
               IDENTITY OF THE PARTIES AND COUNSEL

     The State of Texas is represented by the Hon. Sharen Wilson,

Tarrant County Criminal District Attorney. Additionally, representing the

State on appeal is the Hon. Tanya S. Dohoney, Assistant Criminal District

Attorney and Hon. Debra Windsor, Post-Conviction Chief. At the trial level,

Hon. Kacey Fickes and Hon. Tanya S. Dohoney represented the

prosecution.   The State’s attorneys’ address is Office of the Criminal

District Attorney of Tarrant County, Tim Curry Criminal Justice Center, 401

W. Belknap, Fort Worth, Texas 76196-0201.

     Appellee, Defendant below, is Dennis Michael Taylor. Hon. Mark G.

Daniel, 115 West 2nd Street, Ste. 202, Fort Worth, Texas, 76102

represented Appellee at trial and now on appeal. Hon. Andrew J. Decker,

at the same address, also represented Appellee on appeal.

     The Hon. Louis E. Sturns, judge of the 213th Judicial District Court in

Tarrant County, Texas, presided over Appellee’s case.




                                     ii
                                       SUBJECT INDEX

                                                                                               PAGE

IDENTITY OF THE PARTIES AND COUNSEL ........................................... ii

SUBJECT INDEX ...................................................................................... iii

INDEX OF AUTHORITIES ......................................................................... vi

STATEMENT REGARDING ORAL ARGUMENT ........................................ 1

STATEMENT OF THE CASE ..................................................................... 2

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ............. 2

STATEMENT OF FACTS ........................................................................... 3

QUESTIONS PRESENTED FOR REVIEW................................................. 5

FIRST QUESTION FOR REVIEW .............................................................. 5

        Does a warrantless, nonconsensual blood draw conducted pursuant
        to TEX. TRANSP. CODE § 724.012(b) violate the Fourth Amendment?
        (1CR at 18, 39-46)

SECOND QUESTION FOR REVIEW ......................................................... 5

        Are Fourth Amendment warrant-preference exceptions the sole
        measure of Fourth Amendment reasonableness in warrantless
        scenarios? (1CR at 18, 39-46)

THIRD QUESTION FOR REVIEW .............................................................. 5

        Do exclusionary rule principles mandate suppression of blood
        evidence seized via a warrantless, nonconsensual, valid-at-the-time
        mandatory blood draw? (1CR at 18, 39-46)

ARGUMENT AND AUTHORITIES .............................................................. 6

                                                   iii
I.      Valid, compelled statutory blood draw ............................................... 8

        A.      Codification of Fourth Amendment principles............................ 8
                1.      Exigency .......................................................................... 8
                2.      Severity ........................................................................... 9
                3.      Probable cause ............................................................. 11
        B.      Special-needs framework adds to the reasonableness
                calculation .............................................................................. 12
        C.      Erroneous consideration of the “Less Intrusive Means” test.... 13

II.     Implied-consent draws are reasonable ............................................ 15

III.    Exclusionary rule inapplicable and not invoked ................................ 17

CONCLUSION AND PRAYER .................................................................. 20

CERTIFICATE OF COMPLIANCE ............................................................ 21

CERTIFICATE OF SERVICE .................................................................... 21

APPENDIX ................................................................................................ A




                                                     iv
                                 INDEX OF AUTHORITIES

Cases
Breithaupt v. Abram,
      352 U.S. 432 (1957) ........................................................................ 16

Cole v. State,
     454 S.W.3d 89 (Tex. App.—Texarkana 2014, pet. granted) ........ 6n, 7

Davis v. United States,
     564 U.S. ___, 131 S. Ct. 2419 (2011) ........................................ 17, 18

Douds v. State,
    434 S.W.3d 842
    (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. granted) ...... 6n, 7

Heien v. North Carolina,
     ___ U.S. ___, 135 S. Ct. 530 (2014) .......................................... 18, 19

Holidy v. State,
      No. 06-13-00261-CR, 2014 WL 1722171
      (Tex. App.—Texarkana Apr. 30, 2014, pet. granted)
      (mem. op., not designated for publication) ....................................... 6n

Hulit v. State,
       982 S.W.2d 431 (Tex. Crim. App. 1998) .................................... 15, 16

Illinois v. Krull,
        480 U.S. 340 (1987) ........................................................................ 17

Maryland v. King,
     569 U.S. ___, 133 S. Ct. 1958 (2013) .............................................. 15

McGee v. State,
    105 S.W.3d 609 (Tex. Crim. App. 2003) .......................................... 16

McGruder v. State,
    No. 10-13-00109-CR, ___ S.W.3d ___, 2014 WL 3973089
    (Tex. App.—Waco 2014, pet. granted) ............................................ 6n

                                                  v
Michigan Dept. of State Police v. Sitz,
     496 U.S. 444 (1990) ........................................................................ 15

Michigan v. DeFillippo,
     443 U.S. 31 (1979) .......................................................................... 19

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

Reeder v. State,
    428 S.W.3d 930 (Tex. App.—Texarkana 2014, pet. granted) .......... 6n

Riley v. California,
      ___ U.S. ___, 134 S. Ct. 2473 (2014) .............................................. 11

Segundo v. State,
    270 S.W.3d 79 (Tex. Crim. App. 2008),
    cert. denied, 558 U.S. 828 (2009) .............................................. 15, 16

Skinner v. Railway Labor Executives' Ass'n,
     489 U.S. 602 (1989) ............................................................ 12, 13, 14

Smith v. State,
     No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759
     (Tex. App.—Corpus Christi 2014, pet. granted) ............................... 6n

State v. Villarreal,
      PD-0306-14, ___ S.W.3d ___,
      2014 WL 6734178 (Tex. Crim. App. 2014)................................passim

State v. Taylor,
      No. 02-14-00456-CR, 2015 WL 4504806
      (Tex. App.—Fort Worth July 23, 2015)..................................... 2, 7, 10

Tharp v. State,
     935 S.W.2d 157 (Tex. Crim. App. 1996) .......................................... 13

Vernonia School Dist. 47J v. Acton,
     515 U.S. 646 (1995) ........................................................................ 14
                                                 vi
Weems v. State,
    434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted) ... 6n, 7

Welsh v. Wisconsin,
     466 U.S. 740 (1984) ........................................................................ 10


Statutes, Rules, Constitutions

TEX. CODE CRIM. PROC. art. 14.04.............................................................. 10

TEX. CODE CRIM. PROC. art. 38.23.................................................. 17, 18, 19

TEX. PENAL CODE § 1.07 ............................................................................ 18

TEX. PENAL CODE § 49.045 ...................................................................... 2, 8

TEX. TRANS. CODE § 524.012 ..................................................................... 12

TEX. TRANS. CODE § 724.012 ..............................................................passim

TEX. R. APP. P. 66.3 .................................................................................... 7

U.S. CONST. amend. IV ....................................................................... 11, 15




                                                    vii
                          IN THE COURT
                  OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS,                  §
    APPELLANT                        §
                                     §
V.                                   §     PD-_____-15
                                     §
DENNIS MICHAEL TAYLOR,               §
    APPELLEE                         §

          STATE’S PETITION FOR DISCRETIONARY REVIEW


TO THE HONORABLE JUDGES OF
THE COURT OF CRIMINAL APPEALS:

     Comes now the State of Texas, by and through her Tarrant County

Criminal District Attorney, and respectfully urges this Court to grant

discretionary review of this cause in accordance with the rules of appellate

procedure.

             STATEMENT REGARDING ORAL ARGUMENT

     Although the reasonableness of statutory mandatory blood draws

merits argument, this Court has already granted petitions on similar issues

and heard arguments from other parties regarding the issues discussed

herein. Hence, the State does not request argument in this case.




                                     1
                             STATEMENT OF THE CASE

        Appellee successfully suppressed the blood evidence in his felony

driving while intoxicated [DWI] with a child passenger case. TEX. PENAL

CODE § 49.045. 1 (1CR1:7, 18). After the pretrial hearing, the trial judge

entered express fact-findings. (1CR at 39-46). The State relied on Texas’

mandatory blood-draw statute to support the instant warrantless seizure of

a blood sample. TEX. TRANSP. CODE §724.012(b)(2). Appellee relied on the

Supreme Court’s McNeely decision. Missouri v. McNeely, 569 U.S. ___,

133 S. Ct. 1552 (2013). This State’s appeal ensued. TEX. CODE CRIM.

PROC. art. 44.01(a)(5).



       STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

        The Fort Worth Court of Appeals affirmed the trial court’s suppression

ruling in an unpublished per curiam opinion; the panel included Justices

Meier, Dauphinot, and Walker, and Justice Walker concurred in the result.

State v. Taylor, No. 02-14-00456-CR, 2015 WL 4504806 (Tex. App.—Fort

Worth July 23, 2015). No party sought rehearing. The State timely files

this petition.



1
    Statutory references cited throughout refer to the current version unless noted.
                                              2
                         STATEMENT OF FACTS

     Appellee’s felony DWI with a child arose after a 9-1-1 call about a

possibly intoxicated person causing a disturbance outside a gymnastics

studio. (1CR at 39-46 [FOF 1-6]). A City of Keller officer stopped the

dispatch-described vehicle as it was departing the facility when the 9-1-1

caller directed the officer’s attention to the suspect’s vehicle. (1CR at 39-

46 [FOF 5-7]).     Appellee’s SUV carried four younger-than-teen-aged

children. (1CR at 39-46 [FOF 10, 19, 21]).

     At the scene, the officer quickly garnered information showing

Appellee’s intoxication, including: alcohol on breath and person; slurred

speech; admitted consumption of margaritas at dinner; six-out-of-six HGN

clues; inability to pass the walk-and-turn test; and decision to decline one-

leg-stand test. (1CR at 39-46 [FOF 7, 9-18]).

     Appellee’s DWI with a child arrest occurred at 10:21 p.m. (1CR at

39-46 [FOF 19]). Another Keller officer assisted and remained with the

children at the scene. (1CR at 39-46 [FOF 8, 22]). At the Keller Police

Department, Appellee received DWI-related admonishments and refused to

take a blood test. (1CR at 39-46 [FOF 24-26]). Pursuant to extant state

law, the officer took Appellee to a nearby hospital where a registered nurse



                                     3
drew Appellee’s warrantless, non-consensual blood sample at 11:34 p.m.

(1CR at 39-46 [FOF 27-33]). TEX. TRANSP. CODE § 724.012(b).

     During the suppression hearing the State conceded that, at the time

of Appellee’s crime, the Keller Police Department had created an efficient

protocol for obtaining blood search warrants for DWI suspects. (1CR at 39-

46 [FOF 46, COL 12-15]). Local magistrates were available 24/7 within

close proximity to the jail. (1CR at 39-46 [FOF 39-58,60-61; COL 12]). As

the trial court expressly found, the Keller officer possessed the tools, time,

and skill to efficiently obtain a search warrant on the night of Appellee’s

arrest. (1CR at 39-46 [FOF 57; COL 12-15]). Instead, however, Officer

Hicks relied upon Section 724.012(b) of the Transportation Code,

commonly referred to as the mandatory draw provision of Texas’ implied

consent statute, to compel the draw. (1CR at 39-46 [FOF 32-33, 59; COL

10]). TEX. TRANSP. CODE §724.012(b). Indeed, the trial court concluded

that the Texas Transportation Code required Officer Hicks to obtain a

sample from Appellee for blood-alcohol testing. (1CR at 39-46 [FOF 4;

COL 4). TEX. TRANSP. CODE §724.012(b).

     At pretrial, the State also argued the inapplicability of the exclusionary

rule to Appellee’s scenario. (1CR at 123-24). Nevertheless, the lower




                                      4
court found good faith rationales inapplicable to the instant scenario. (1CR

at 39-46 [COL 16-17,19]).



                QUESTIONS PRESENTED FOR REVIEW

                   FIRST QUESTION FOR REVIEW
           Does a warrantless, nonconsensual blood draw
         conducted pursuant to TEX. TRANSP. CODE § 724.012(b)
                   violate the Fourth Amendment?
                           (1CR at 18, 39-46)

                  SECOND QUESTION FOR REVIEW
        Are Fourth Amendment warrant-preference exceptions
       the sole measure of Fourth Amendment reasonableness
                     in warrantless scenarios?
                         (1CR at 18, 39-46)

                    THIRD QUESTION FOR REVIEW
       Do exclusionary rule principles mandate suppression of
       blood evidence seized via a warrantless, nonconsensual,
               valid-at-the-time mandatory blood draw?
                           (1CR at 18, 39-46)




                                     5
                      ARGUMENT AND AUTHORITIES

      This Court is in the midst of grappling with the issues presented

herein. At his pretrial suppression hearing, Appellee invoked the Supreme

Court’s 2013 decision in Missouri v. McNeely to undermine the admissibility

of the statutorily based blood draw evidence in this case. See Missouri v.

McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013). Whilst a November 2014

decision addressed the merits of how McNeely impacts the Fourth

Amendment’s application to statutory blood draws, the validity of Villarreal’s

original holding is steeped in uncertainty since the Court continued to grant

petitions and hear arguments in other cases, while also granting rehearing

last February in Villarreal. State v. Villarreal, PD-0306-14, ___ S.W.3d ___,

2014 WL 6734178 (Tex. Crim. App. 2014) (reh’g granted, re-submitted

Mar. 18, 2015).2         The Fort Worth court’s decision in this case heavily



2
  The appellate milieu includes six other submitted McNeely-inspired cases, with yet
another case granted and waiting in the wings for submission. Douds v. State, 434
S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2014, pet. granted) (submitted on
arguments Mar. 13, 2015, PD-0857-14); Weems v. State, 434 S.W.3d 655 (Tex. App.—
San Antonio 2014, pet. granted) (submitted on arguments Nov. 19, 2014, PD-0635-14);
Reeder v. State, 428 S.W.3d 930 (Tex. App.—Texarkana 2014, pet. granted) (submitted
on arguments Jan. 14, 2015, PD-0601-14); Smith v. State, No. 13-11-00694-CR, ___
S.W.3d ___, 2014 WL 5901759 (Tex. App.—Corpus Christi 2014, pet. granted)
(submitted Apr. 29, 2015, PD-1615-CR); McGruder v. State, No. 10-13-00109-CR, ___
S.W.3d ___, 2014 WL 3973089 (Tex. App.—Waco 2014, pet. granted) (submitted Apr.
15, 2015, PD-1263-14); Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 (Tex.
App.—Texarkana Apr. 30, 2014, pet. granted) (mem. op., not designated for
publication) (submitted on arguments Jan. 14, 2015, PD-0622-14); see also Cole v.
                                         6
relied on this Court’s original Villarreal opinion. State v. Taylor, 2015 WL

4504806, at *1–2 (citing Villarreal, 2014 WL 6734178, at *10-16).

      The State’s instant petition focuses on two aspects of any McNeely-

related consequences: the validity of a statutorily compelled draw and the

invalidity of the exclusionary rule’s application. Villarreal only resolved the

merits of the mandatory-draw issue and did not address the applicability of

the exclusionary rule. Villarreal, 2014 WL 6734178, at *1-23. However, the

exclusionary rule argument is also before this Court.         See Cole, 454

S.W.3d at 89 (fourth ground granted); see also Weems, 434 S.W.3d at 666

(applying exclusionary rule); Douds, 434 S.W.3d at 861–62 (same). In

other words, this Court has already granted review on both issues

presented herein.

      This Court should grant review because this case focuses on

important legal questions that have not yet been finally addressed, matters

in conflict in the interim appellate courts, the misinterpretation of a Supreme

Court decision, and the misapplication of that Supreme Court case to the

Texas implied-consent statute. TEX. R. APP. P. 66.3(a),(b),(c),(d),(f).




State, 454 S.W.3d 89 (Tex. App.—Texarkana 2014, pet. granted Apr. 22, 2015)
(awaiting submission, PD-0077-15).

                                      7
I.   Valid, compelled statutory blood draw

     The State’s appellate stance is in lockstep with that of prosecutors

from other counties across the State who have already had cases granted

for review on a McNeely-related issue. See n.2, supra. Hence, the State

respectfully asks this Court to dispose of the instant case in a manner

consistent with the petitions in Villarreal, Douds, Weems, Reeder, Smith,

McGruder, Holidy, and Cole. See id. Here, the officer reasonably relied on

an existing, ubiquitous, narrowly focused, reasonable statute to obtain a

compelled blood draw. The seizure occurred when the officer—at the time

of the offense—possessed probable cause that Appellee’s impaired and

intoxicated conduct constituted felony DWI. TEX. PENAL CODE § 49.045;

TEX. TRANSP. CODE § 724.012(b)(2).

     In addition, the State differs with Villarreal’s original-submission

decision and respectfully suggests that the opinion was mistaken. The

State further asserts that several important arguments should be

considered.

     A.    Codification of Fourth Amendment principles

           1.    Exigency

     The applicable Transportation Code provisions codify several Fourth

Amendment principles. For instance, the exigency exception underpins the


                                     8
rationale of Texas’ mandatory draw provisions in the implied-consent

statute.    TEX. TRANSP. CODE § 724.012(b)(2).              Indeed, McNeely itself

recognized that every case involving blood alcohol included some exigency

due to dissipation; McNeely simply disallowed a per se exigency. McNeely,

133 S. Ct. at 1561, 1568.3 The Supreme Court recognized this exigency

always exists in every drunk-driving related case. Id. (“. . . for in every case

the law must be concerned that evidence is being destroyed.”).                      The

mandatory draw statute codifies Fourth Amendment exigency principles by

streamlining evidence gathering in certain limited cases.                TEX. TRANSP.

CODE § 724.012(b).

                2.      Severity

      Combine the static alcohol-evaporation exigency consideration with

the Legislature’s clear codification of the gravity-of-the-offense exigency.

The implied-consent statute extinguishes a defendant’s right to refuse

where      an        officer   believes   that   certain   enumerated,       egregious

circumstances exist. TEX. TRANSP. CODE § 724.012(b). Defendants only

lose their refusal right under carefully circumscribed scenarios involving




3
  Logically, ignoring application of the evaporative aspect of alcohol actually applies a
converse per se rule, again conflicting with the Fourth Amendment’s totality-of-the-
circumstances roots and McNeely’s rationale.
                                             9
felonious   intoxication-related     offenses   and/or   resultant   injuries

necessitating hospitalization. Id.

      This statutory limitation amounts to a codification of a recognized

exigency unrelated to blood-alcohol dissipation. Welsh v. Wisconsin held

that the Fourth Amendment authorizes common-sense consideration of the

underlying offense’s gravity when weighing the existence of an exigency.

Welsh v. Wisconsin, 466 U.S. 740, 751–52 (1984) (exigency calculations

include consideration of a crime’s severity). Consideration of a crime’s

gravity is the essence of reasonableness because the State’s interest is

greater in a more serious case. Cf. TEX. CODE CRIM. PROC. art. 14.04

(authorizing warrantless arrests for felonies where an officer did not

observe the offense). While Welsh’s facts involved consideration of an

exigency authorizing entry into a home, the hierarchy found in Chapter 14

reveals that the severity-of-the-crime exigency applies to circumstances

beyond a warrantless home-entry scenario. But see State v. Taylor, 2015

WL 4504806, at *2.

      Contrary to the interim appellate court’s assessment, several factors

reveal the reasonableness of the mandatory draw provisions of the implied-

consent statute. Id. The State’s position is predicated on consideration of

the serious nature of the crimes statutorily singled out; the grave nature of

                                      10
the enumerated provisions codifies the Welsh exigency. Additionally, the

always-dissipating nature of blood alcohol provides another factor in the

reasonableness analysis, along with the fact of the defendant’s refusal to

provide a voluntary sample. Where these three circumstances exist and,

as discussed infra, the officer harbors a constitutional quantum of evidence

known as probable cause, constitutional reasonableness validates

obtaining a compelled blood draw.

           3.    Probable cause

     Of course, it almost goes without saying that Texas’ implied-consent

legislation codified Fourth Amendment probable-cause requirements. U.S.

CONST. amend. IV.     Predicate elements of the implied consent statute

codify this well-known quantum-of-evidence as a requirement for a

compelled search.    TEX. TRANSP. CODE § 724.012(b).       Probable cause,

along with the exigencies based upon the gravity-of-the-crime and the

dissipation-of-alcohol exigency, create a framework that provides a neutral

set of guidelines authorizing a narrowly defined seizure from an already-in-

custody arrestee. By including the probable-cause requirement as part of

the blood-draw predicate, the implied-consent framework guarantees that a

subject’s privacy expectations are diminished by the fact of a valid,

probable-cause-based arrest. See Riley v. California, ___ U.S. ___, 134 S.


                                    11
Ct. 2473, 2485 (2014). The aggregate effect of these provisions reveals

that the statutory framework embraces the essence of Fourth Amendment

reasonableness.

     In sum, the mandatory draw statute codifies the exigency exception in

the circumscribed instances. Furthermore, it does so in light of two other

Fourth Amendment principles: consideration of a crime’s severity and the

well-known probable cause standard.          These Fourth Amendment

underpinnings imbue the mandatory draw provisions of the Texas

Transportation Code with constitutional reasonableness.

     B.      Special-needs framework adds to the reasonableness
             calculation

     The now-withdrawn Villarreal decision rejected application of the

Supreme Court’s special-needs doctrine to the mandatory blood draw

framework.     Villarreal, 2014 WL 6734178, at *14–15; see Skinner v.

Railway Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). However, the

Court did not consider that blood drawn pursuant to Chapter 724’s mandate

also implicates administrative license revocation procedures, a separate

regulatory process that focuses on protecting the traveling public by

removing offenders from the road. See TEX. TRANSP. CODE § 524.012(b)(1)

(mandating license suspension based upon BAC).



                                   12
     “The primary purpose of the administrative license suspension statute

is not to deter the licensee or to seek retribution, but to protect the public

from the carnage on the public roads of Texas caused by drunk drivers.”

Tharp v. State, 935 S.W.2d 157, 159 (Tex. Crim. App. 1996).             Such

regulation focuses on the government’s strong interest in removing

intoxicated drivers from the road, just as railroad regulation in Skinner

sought to increase railway safety by detecting intoxicated employees.

Compare Skinner, 489 U.S. at 620–21 with Tharp, 935 S.W.2d at 159.

     Special needs’ principles recognize the statute’s provision of a

neutral, detached vehicle for protecting citizens from impaired drivers and

defendants from unfettered discretion.        The special-needs exception

constitutes another factor to consider in a non-dualistic analysis that

renders Texas’ compelled-draw framework reasonable.

      C.    Erroneous consideration of the “Less Intrusive
            Means” test

      The original Villarreal opinion considered the ready availability of

warrants when rejecting the validity of Texas’ mandatory draw statute.

Villarreal, 2014 WL 6734178, at *18 (finding no compelling need to uphold

warrantless, nonconsensual blood searches where warrants are “often

readily available”). However, factors such as electronic warrants and the

availability of a magistrate shift the focus away from an officer’s conduct
                                     13
and, instead, weigh considerations of alternative means. But see McNeely,

133 S. Ct. at 1560–64 (Part IIB’s alternative-means analysis applied when

determining whether per se exigency existed).

      The Supreme Court resoundingly rejected applying less-intrusive-

alternative-practices arguments to Fourth Amendment cases not resolved

under the exigency exception. Vernonia School Dist. 47J v. Acton, 515

U.S. 646, 663–64 n.3 (1995) (upholding warrantless, random urine

screening     of    athletes     after      considering    diminished    privacy,

unobtrusiveness, and severity of need, spurning arguments relying on less

intrusive alternatives); Skinner, 489 U.S. at 629 n.9 (upholding random,

suspicionless drug screening of railway employees under special-needs

exception     and       discarding       less-drastic-and-equally-effective-means

arguments).    One footnote in Skinner flatly debunks the propriety of

considering less-drastic alternatives in scenarios that include warrantless

and even suspicionless seizures for toxicological testing, similar to

Appellee’s facts. Id.

      The State maintains that less-restrictive-alternatives logically apply

when a seizure’s validity rests solely on the temporal factors presenting an

exigency; less-drastic, post-hoc what-ifs do not apply, however, to

reasonableness calculations factoring in other warrantless exceptions.

                                          14
Hence, Villarreal’s analysis mistakenly applied this eschewed construct to

discount the application of non-exigency-related Fourth Amendment

principles.

II.   Implied-consent draws are reasonable

      Reasonableness has always been the linchpin of the Fourth

Amendment, venerated in the provision’s plain language.         U.S. CONST.

amend. IV; Hulit v. State, 982 S.W.2d 431, 435–36, 438 (Tex. Crim. App.

1998). Discernment of what is “reasonable” requires courts to consider the

balance between an individual’s privacy and legitimate governmental

interests, especially when public safety is of utmost concern.          See

Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958, 1979 (2013); Michigan

Dept. of State Police v. Sitz, 496 U.S. 444, 455 (1990); Segundo v. State,

270 S.W.3d 79 (Tex. Crim. App. 2008), cert. denied, 558 U.S. 828 (2009).

      Villarreal viewed the choice between applying a Fourth Amendment

exception and consideration of a reasonableness balancing approach as

mutually exclusive analytical constructs. The State respectfully believes

that this black-white consideration of these two concepts is mistaken,

especially in light of the fact that the Court of Criminal Appeals has relied

upon the balancing approach to assay reasonableness on similar issues.




                                     15
See Segundo, 270 S.W.3d at 96–99; McGee v. State, 105 S.W.3d 609

(Tex. Crim. App. 2003); Hulit, 982 S.W.2d at 434 n.1, 436.

     Again, the statute is reasonable.    Years ago, the Supreme Court

recognized that a framework requiring a driver’s consent was anything but

nonsensical.   The Breithaupt Court pointed to then recently adopted

implied-consent provisions and wrote:

     It might be a fair assumption that a driver on the highways in
     obedience to a policy of the State, would consent to have a
     blood test made as part of a sensible and civilized system
     protecting himself as well as other citizens not only from the
     hazards of the road due to drunken driving, but also from some
     use of dubious lay testimony.

Breithaupt v. Abram, 352 U.S. 432, 435 n.2 (1957). The State contends

that compelled draws under implied-consent provisions are inherently

reasonable when weighing the needs of all involved.            Indeed, Fourth

Amendment reasonableness underpins the statute.              The well-known

exceptions—as argued in the myriad cases already granted before the

Court of Criminal Appeals—considered individually and in concert with

each other, alongside a balancing of the competing interests, all support

the continued viability of Texas’ implied-consent framework.




                                    16
III.   Exclusionary rule inapplicable and not invoked

       Statutory mandatory blood-draws are reasonable. But see Villarreal,

2014 WL 6734178 (opinion on original submission; under re-submission).

When the ink dries on Villarreal and future McNeely-related decisions, and

if those cases are adverse to the State on the merits, the rules requiring

evidence exclusion should not apply to mandatory blood-draw scenarios

that occurred prior to the Supreme Court’s April 2013 pronouncement.

       Federally, the good-faith exception to the Fourth Amendment’s

exclusionary rule applies when law enforcement, at the time of the search,

acted with objectively reasonable reliance on (1) a statute, later declared

unconstitutional, or (2) binding judicial precedent, subsequently overruled.

Illinois v. Krull, 480 U.S. 340, 349–57 (1987) (statutes); Davis v. United

States, 564 U.S. ___, 131 S. Ct. 2419, 2428–34 (2011) (caselaw).

       Under state law, the Texas exclusionary rule is not invoked

because—at the time of the offense—no violation occurred.          The State

recognizes that article 38.23(b)—Texas’ limited good-faith exception—

requires a warrant. TEX. CODE CRIM. PROC. art. 38.23(b). Notwithstanding,

invocation of exclusionary rule principles relies on subsection (a) of article

38.23.   TEX. CODE CRIM. PROC. art. 38.23(a).       That subsection’s plain

language requires a violation for exclusion to be triggered.           When


                                     17
Appellee’s blood was drawn, no one credibly questioned the validity of the

officer’s statutory authority. In other words, at the time of the seizure, the

officer followed then-existing law.        See TEX. CODE CRIM. PROC. art.

38.23(a); see also TEX. PENAL CODE § 1.07(a)(30) (defining “law” as

meaning the state and federal constitution and statutes, in addition to the

written opinions of a court of record); Davis, 131 S. Ct. at 2427–28

(“obtained” applies to unlawfulness at the time of the seizure; exclusion not

triggered in an absence of police culpability).     Simply put, the instant

circumstances do not invoke exclusion.

      The Supreme Court mentioned, in dictum, the application of the

exclusionary rule versus Fourth Amendment violations in a non-blood-draw

scenario decided recently. In Heien, the Court weighed the validity of an

investigatory stop where the officer misunderstood the traffic code provision

he relied on to support the stop. See Heien v. North Carolina, ___ U.S.

___, 135 S. Ct. 530, 538–39 (2014). The Supreme Court considered the

reasonableness of the officer’s mistake that lead to the stop and arrest

when considering remedies. In so doing, the Court pointed out the myriad

decisions finding exclusionary-rule invocation inappropriate where the

officer’s conduct—valid at the time—was later declared unconstitutional.

Id.   With only one justice dissenting, the Supreme Court’s decision

                                      18
pondered the exclusionary rule’s limits pursuant to Michigan v. DeFillippo.

Heien, 135 S. Ct. at 538–39; see generally Michigan v. DeFillippo, 443 U.S.

31, 3–9 (1979) (suggesting that exclusion might have been appropriate had

the provision been “grossly and flagrantly unconstitutional”).

      Although the Heien discussion is merely dicta, it reiterates the

importance of focusing on the fact that the instant officer’s conduct fully

complied with mandatory, settled law at the time of Appellee’s arrest.

Heien, 135 S. Ct. at 538–39.           McNeely and subsequent caselaw

questioning implied-consent blood draws came later. Since the officer’s

conduct did not constitute a violation at the time of Appellee’s August 2011

blood draw, Texas’ exclusionary provision does not apply. TEX. CODE CRIM.

PROC. art. 38.23(a). Also, since the officer’s conduct at the time of the

arrest was reasonable, Fourth Amendment cases do not mandate the

remedy of exclusion. See Heien, 135 S. Ct. at 539.




                                      19
                      CONCLUSION AND PRAYER

     Review should be granted and the decision of the Court of Appeals

should be reversed; Appellee’s felony DWI with a child conviction should be

upheld.

                                  Respectfully submitted,

                                  SHAREN WILSON
                                  Criminal District Attorney
                                  Tarrant County, Texas

                                  DEBRA WINDSOR, Assistant
                                  Criminal District Attorney
                                  Chief, Post-Conviction

                                  /s/ Tanya S. Dohoney
                                  TANYA S. DOHONEY
                                  Assistant Criminal District Attorney
                                  Tim Curry Criminal Justice Center
                                  401 W. Belknap
                                  Fort Worth, Texas 76196-0201
                                  (817) 884-1687
                                  FAX (817) 884-1672
                                  State Bar No. 02760900
                                  ccaappellatealerts@tarrantcountytx.gov




                                    20
                                  CERTIFICATE OF COMPLIANCE

         This document complies with the typeface requirements of TEX. R.

APP. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document

also complies with the word-count limitations of TEX. R. APP. P. 9.4 (i)

because it contains less than 4300 words, excluding any parts exempted

by TEX. R. APP. P. 9.4(i)(1), as computed by Microsoft Word, the computer

software used to prepare the document.

                                            /s/ Tanya S. Dohoney
                                            TANYA S. DOHONEY



                                   CERTIFICATE OF SERVICE

         A true copy of the State's petition for discretionary review has been e-

served to opposing counsel, the Hon. Mark G. Daniel, mgd1016@aol.com,

Sundance Square, 115 West Second Street, Suite 202, Fort Worth, Texas,

76102, on this, the 5th day of August 2015.

                                            /s/ Tanya S. Dohoney
                                            TANYA S. DOHONEY




072715 st v taylor mcneely.docx




                                             21
         APPENDIX

State v. Dennis Michael Taylor,
       2015 WL 4504806
 (Tex. App.—Fort Worth 2015)




              A
State v. Taylor, Not Reported in S.W.3d (2015)


                                                               724.012(b). Tex. Transp. Code Ann. § 724.012(b) (West
                                                               2011). We will affirm.
                  	

    	

          !!"#$$%&$'
!()$                                                II. BACKGROUND
    *! +,-%"+-%-* +,-+-,)&+-+- 
                                                               The facts adduced at the suppression hearing in this case are
      *-"&'.
+ /"!#$%&&&(0.1                   not in dispute. After being dispatched on a disorderly-conduct
            23%443"56                         complaint, Keller Police Officer Johnathan Hicks stopped
                   )	                                 Taylor's vehicle. According to Hicks's testimony, when he
                                                               made contact with Taylor, he smelled alcohol on Taylor's
              " 3"56%44
                                                               breath and person, and Taylor demonstrated slurred speech.
                            
                                                               Taylor also admitted to Hicks that he had consumed “a
                *7"6 
                                                               couple of margaritas” that night. Other indicia of intoxication
                                                               included Taylor's failure of the horizontal gaze nystagmus
                -8882$ 9
                                                               test and his inability to successfully complete the walk-and-
                *!
+:!$!*;<=6
                                                               turn test. Taylor refused further field-sobriety tests, and Hicks
FROM THE 213TH DISTRICT COURT OF TARRANT                       arrested him for DWI with a child passenger. 2 See Tex. Penal
COUNTY, TRIAL COURT NO. 1325354D. LOUIS E.                     Code Ann. § 49.045 (West 2014). Upon arriving in custody at
STURNS, JUDGE                                                  the Keller Police Department, Taylor received DWI-related
                                                               admonishments and then refused to submit to a blood test
Attorneys and Law Firms                                        when requested. Hicks then took Taylor to a nearby hospital
                                                               and obtained a warrantless, nonconsensual blood-draw.
Mark G. Daniel, Andrew J. Decker; Fort Worth, TX, for
Appellant.
                                                               2       There were four children who were passengers in
Sharen Wilson, Criminal District Attorney; Debra Windsor,              Taylor's vehicle.
Chief of Post–Conviction; Tanya S. Dohoney, Kacey S.
                                                               Hicks testified that he possessed the time, ability, and
Fickes, Assistant Criminal District Attorneys for Tarrant
                                                               articulable facts to obtain a warrant, but said instead that
County; Fort Worth, TX, for State.
                                                               he relied solely on the Transportation Code's mandatory
PANEL: MEIER, DAUPHINOT, and WALKER, JJ.                       provisions of the implied-consent statute. See Tex. Transp.
                                                               Code Ann. § 724.012(b). A registered nurse drew Taylor's
                                                               compelled sample a little over an hour after the arrest. The
                                                               trial court granted Taylor's suppression motion regarding
             MEMORANDUM OPINION 1                              the blood draw, and this accelerated appeal by the State
                                                               followed. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5)
1      See Tex.R.App. P. 47.4.                                 (West Supp.2014) (providing that under specific conditions,
                                                               the State may appeal an order that “grants a motion to
PER CURIAM                                                     suppress evidence”).


                   I INTRODUCTION
                                                                                     III. DISCUSSION
 *1 The State appeals from the trial court's order granting
appellee Dennis M. Taylor's motion to suppress. In three       Following the United States Supreme Court's decision in
points, the State argues that the trial court abused its       Missouri v. McNeely, the court of criminal appeals has held
discretion by ruling that the arresting officer in this case   that the provisions in the Transportation Code do not, taken
violated Taylor's Fourth Amendment rights when he had          by themselves, form a constitutionally valid alternative to
medical personnel perform amandatory blood draw from           the Fourth Amendment warrant requirement. ––– U.S. ––––,
Taylor in accordance with Texas Transportation Code section    133 S.Ct. 1552, 1563 (2013); State v. Villarreal, ––– S.W.3d



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
State v. Taylor, Not Reported in S.W.3d (2015)


––––, No. PD–0306–14, 2014 WL 6734178, at *10–16                  case sufficient to justify conducting a blood test without a
(Tex.Crim.App. Nov. 26, 2014) (reh'g granted). Specifically,      warrant.”).
the court in Villarreal rejected the State's arguments
that (1)a warrantless, nonconsensual blood test under the         The State's position is predicated on language from the
Transportation Code should be upheld as categorically             Supreme Court's decision in Welsh v. Wisconsin. 466 U.S.
reasonable under the consent exception—applicable in the          740, 749–50, 104 S.Ct. 2091, 2097–98 (1984). But the State's
form of a prior waiver through implied consent, the               reliance on Welsh, a warrantless-entry-into-the-home case,
automobile exception, the special-needs exception, or the         is misplaced. In Welsh, the Court examined whether the
search-incident-to-arrest exception, (2) a blood draw should      need to obtain the blood-alcohol level of a driver who had
be treated as a seizure instead of a search, and (3) such a       fled the scene of an accident would constitute an “exigent
search may be upheld on the basis that it is reasonable under a   circumstance.” Id. at 742, 104 S.Ct. at 2100. The driver in
general Fourth Amendment balancing test. Id. at ––––, 2014        Welsh lost control of his car and ended up in a field, causing
WL 6734178, at *10–17. As the State points out, the court of      no injury or damage. A witness who saw the driver walk away
criminal appeals granted rehearing of Villarreal on February      told the police that the driver was either inebriated or sick.
25, 2015.                                                         Id. at 742, 104 S.Ct. at 2904. The police went to the driver's
                                                                  house and entered after the driver's stepdaughter answered the
 *2 Even after the court of criminal appeals granted              door. They found the driver in bed, arrested him, and asked
rehearing, however, this court, along with several other Texas    him to take an impliedconsent test. He declined. When his
intermediate courts of appeals, has consistently followed         license was automatically suspended for refusing the blood
the Villarreal precedent. See Bowyer v. State, No. 02–13–         test, he challenged that decision. Id. at 753–54, 104 S.Ct. at
00315–CR, 2015 WL 1120332, at *1 (Tex.App.–Fort Worth,            2099–2100.
Mar. 12, 2015, pet. filed) (mem. op., not designated for
publication); see also Burcie v. State, No. 08–13–00212–CR,       The Welsh Court held that neither exigent circumstances
2015 WL 2342876, at *1 (Tex.App.–El Paso, May 14, 2015,           nor hot pursuit justified the entry into Welsh's home. Id.
no pet.) (not designated for publication); Moser v. State, No.    at 748–49, 104 S.Ct. at 2096–97. In reaching this holding,
04–13–00826–CR, 2015 WL 1938865, at *1 (Tex.App.–San              the Welsh Court relied heavily on the nature of the alleged
Antonio, Apr. 29, 2015, pet. filed) (mem op., not designated      offense, which in Wisconsin was a civil forfeiture traffic
for publication).                                                 violation where no imprisonment was possible. See id. at
                                                                  746, 104 S.Ct. at 2095. The Welsh Court reasoned that
In this case, in addition to the array of arguments that this     the exigencies were insufficient to overcome the warrant
court has already rejected in our cases that have followed        requirement in the context of an arrest for a civil traffic
Villarreal, the State argues that an exigency exception           offense. Id. Nonetheless, the Court stated that an important
to the Fourth Amendment warrant requirement, based on             factor in determining whether an exigency exists is “the
the gravity of the underlying offense, should apply to the        gravity of the underlying offense for which the arrest is being
Transportation Code's mandatory provisions of the implied-        made.” Id. at 753, 104 S.Ct. at 2099. The Welsh Court also
consent statute and that upon considering this proposition,       clearly explained that the exigency they were referring to
we should hold that the Transportation Code's mandatory           was the potential dissipation of blood-alcohol content. See
provisions of the implied-consent statute are reasonable under    id. (“The State attempts to justify the arrest ... on the need
a Fourth Amendment analysis. See Burks v. State, 454 S.W.3d       to preserve evidence of the petitioner's blood-alcohol level.”)
705, 709 (Tex.App.–Fort Worth 2015, pet. filed) (“Following       cf. McNeely, –––U.S. ––––, 133 S.Ct. 1552, 1568 (“We hold
Villarreal, we hold that this warrantless, nonconsensual blood    that in drunk-driving investigations, the natural dissipation of
draw conducted pursuant to the mandatory-blood-draw and           alcohol in the bloodstream does not constitute an exigency in
implied-consent provisions of the Texas Transportation Code       every case sufficient to justify conducting a blood test without
violated the Fourth Amendment.”); see also Bowyer, 2015           a warrant.”).
WL 1120332, at *2 (same); Chidyausiku v. State, 457 S.W.3d
627, 631 (Tex.App.–Fort Worth 2015, pet. filed) (“But, as          *3 Even though the Welsh Court stopped short of drawing
the McNeely court held, the natural dissipation of alcohol        a bright line between felonies and nonfelonies, the opinion
in the bloodstream does not constitute an exigency in every       states that circumstances are more clearly exigent when the
                                                                  offense involved is a “serious crime.” Welsh, 466 U.S. at



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
State v. Taylor, Not Reported in S.W.3d (2015)


                                                                         Hicks testified at the suppression hearing that he had both
752, 104 S.Ct. at 2099. The reasoning in Welsh spawned
                                                                         the availability and time to obtain a warrant, and the only
a number of cases recognizing the proposition that blood-
                                                                         reason he did not do so is because he was relying on
alcohol dissipation may create a destruction-of-evidence
                                                                         the Transportation Code's mandatory blood-draw provisions.
exigency justifying a warrantless entry into a home. State v.
                                                                         Thus, “[a]pplication of [the Welsh] principle to the facts of
Komoto, 40 Wn.App. 200, 213, 697 P.2d 1025, 1033 (1985);
                                                                         the present case is relatively straightforward,” and to allow
People v. Keltie, 148 Cal.App.3d 773, 781, 196 Cal.Rptr. 243,
                                                                         a warrantless blood-draw in this case “would be to approve
247 (1983); Stark v. New York State Dep't of Motor Vehicles,
                                                                         unreasonable police behavior that the principles of the Fourth
104 A.D.2d 194, 197, 483 N.Y.S.2d 824 (1984).
                                                                         Amendment will not sanction.” Welsh, 466 U.S. at 753–54,
                                                                         104 S.Ct. at 2099–2100.
Thus, and contrary to the State's position in this case, Welsh
stands for (and has been widely interpreted and applied
                                                                         In short, despite having time to obtain a warrant, the
as standing for) the proposition that an exigency based on
                                                                         officer in this case relied exclusively on the mandatory
blood-alcohol dissipation can sometimes exist. Therefore,
                                                                         provisions of Transportation Code section 724.012(b)(2) for
the State's argument in this case—that the Transportation
                                                                         the warrantless blood draw. See Tex. Transp. Code Ann.
Code's mandatory blood-draw provision's limitation of only
                                                                         § 724.012(b)(2). And we hold again that this warrantless,
authorizing compelled draws in the most serious offenses is a
                                                                         nonconsensual blood draw conducted pursuant to the
“recognized exigency” unrelated to blood-alcohol dissipation
                                                                         mandatory-blood-draw and implied-consent provisions of the
—is dubious. Further, Welsh specifically reasoned that the
                                                                         Texas Transportation Code violated the Fourth Amendment.
“nature of the underlying offense” is an important factor, but
                                                                         See Burks, 754 S.W.3d at 709. We overrule the State's three
it is not a sufficient factor in and of itself to create exigency.
                                                                         points.
466 U.S. at 751–52, 104 S.Ct. at 2098–99.

Harkening back to Justice Jackson's concurrence in
McDonald v. United States, the Welsh Court illuminated                                        IV. CONCLUSION
that when no true emergency is present, the method of
law enforcement that statutorily dispenses with a warrant                We hold that the trial court did not err by granting Taylor's
requirement “displays a shocking lack of all sense of                    motion to suppress the results of the warrantless blood draw,
proportion.” Id. (citing McDonald v. United States, 335 U.S.             and we affirm the trial court's order.
451, 69 S.Ct. 191 (1948) (Jackson, J. concurring)).

Here, even assuming that we are to consider the gravity of               WALKER, J., concurs without opinion.
the offense of DWI with child passengers as an important
factor which might have led Hicks to believe that exigent                All Citations
circumstances required him to obtain a warrantless blood
draw, no such circumstances existed in this case. Indeed,                Not Reported in S.W.3d, 2015 WL 4504806


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
