                                                                             ACCEPTED
                                                                         03-15-00499-CR
                                                                                 6823789
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                    9/8/2015 12:21:57 PM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK


                  No. 03-15-00499-CR
                                                         FILED IN
                                                  3rd COURT OF APPEALS
                           In the                     AUSTIN, TEXAS
                      Court of Appeals            9/8/2015 12:21:57 PM
                       Third District               JEFFREY D. KYLE
                       Austin, Texas                      Clerk


                   The State of Texas,
                        Appellant

                              v.

                    Robert Simpson,
                        Appellee

        Appeal from the 167th Judicial District Court
                   Travis County, Texas
            Cause Number D-1-DC-14-201815

                     STATE’S BRIEF


                             Rosemary Lehmberg
                             District Attorney
                             Travis County

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

Oral argument is requested
                 Identity of Parties and Counsel

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

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

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

Defendant/Appellee:          Robert Simpson

Counsel for Defendant:       Daniel H. Wannamaker
                             1012 Rio Grande Street
                             Austin, Texas 78701




                                    i
                                      Table of Contents

Identity of Parties and Counsel ............................................................ i
Index of Authorities............................................................................ iii
Statement of the Case ......................................................................... iv
Statement of Facts ................................................................................1
Summary of the State’s Argument....................................................... 3
Standard of Review.............................................................................. 4
Argument ............................................................................................. 4
 Point One: The warrantless blood draw, which is mandated by
 statute, is constitutionally reasonable under the Fourth
 Amendment. ..................................................................................... 5
 Point Two: Alternatively, there was no violation of the Fourth
 Amendment because the officer made a reasonable mistake of law.
  .........................................................................................................10
Prayer ................................................................................................. 11
Certificate of Compliance and Service ................................................12




                                                        ii
                                    Index of Authorities

     Cases
Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448
  (1957)................................................................................................ 8
Heien v. North Carolina, __ U.S. __, 135 S. Ct. 530, 190 L. Ed. 2d
  475 (2014)........................................................................................10
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
Neesley v. State, 239 S.W.3d 780 (Tex. Crim. App. 2007)...............6, 7
Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d.
  250 (2006)........................................................................................ 6
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) ............... 4
South Dakota v. Neville, 459 U.S. 553, 103 s. Ct. 916, 74 L. Ed. 2d 748
  (1983) ............................................................................................... 8
State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ................ 8
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) .......................................... 4, 6
Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985)
  .......................................................................................................... 8

     Statutes
Tex. Penal Code § 49.04 ..................................................................... iv
Tex. Penal Code § 49.09 ..................................................................... iv
Tex. Transp. Code § 724.012................................................................ 5
Tex. Transp. Code § 724.017 ................................................................ 9




                                                        iii
                       Statement of the Case

   A grand jury indicted the defendant for driving while intoxicated

with three prior convictions. CR 16-17; Tex. Penal Code § 49.04,

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

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

CR 37-42.




                                     iv
                        No. 03-15-00499-CR

                                In the
                           Court of Appeals
                            Third District
                            Austin, Texas

                         The State of Texas,
                              Appellant

                                   v.

                          Robert Simpson,
                              Appellee

             Appeal from the 167th Judicial District Court
                        Travis County, Texas
                 Cause Number D-1-DC-14-201815

                           STATE’S BRIEF


To the Honorable Third Court of Appeals:

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

thereof respectfully shows the following:



                         Statement of Facts

   The defendant filed a motion to suppress, which argued that the

DWI blood draw violated his Fourth Amendment rights. CR 18. After

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

conclusions of law, and order:

                                        1
Findings of Fact

  1. On March 29, 2014, Trooper Erich Herd 14175
     arrested the defendant for driving while
     intoxicated.

  2. The judge upheld the probable cause for the stop.

  3. Trooper Herd read the DIC 24 (statutory warnings)
     to the defendant.

  4. The defendant refused Trooper Herd’s request to
     voluntarily submit to the taking of a blood
     specimen.

  5. At the time of arrest, the officer received reliable
     information from a credible source that the
     defendant had been previously convicted, on two
     occasions, of driving while intoxicated.

  6. Relying on Tex. Transp. Code §§ 724.011(a) and
     724.012(b), Trooper Herd directed Peter Compton,
     a nurse at St. Davids Medical Center, to take a
     blood sample from the defendant.

  7. Trooper Herd relied in good faith on Tex. Transp.
     Code §§ 724.011(a) and 724.012(b) in obtaining the
     warrantless blood draw.

  8. The blood draw complied with the requirements of
     the Texas Transportation Code.

  9. Trooper Herd did not get, or attempt to get, a
     search warrant to draw blood.

Conclusions of Law

  10. The defendant did not consent to the blood draw.



                            2
         11. There were no exigent circumstances in this case.

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

         13. The federal exclusionary rule bars admission of the
            evidence in this case because the evidence was
            obtained in violation of the Fourth Amendment.

         14. The Texas exclusionary rule (Tex. Code Crim. Proc.
            art. 38.23) bars the admission of the evidence in
            this case because the evidence was obtained in
            violation of the Fourth Amendment.

       On the basis of the above findings and conclusions, the motion
   to suppress the blood draw evidence is GRANTED.
See CR 37-38.

     The State is appealing this order. CR 37-42.

                Summary of the State’s Argument

   The warrantless blood draw, which is mandated by Tex. Transp.

Code § 724.011(b), does not violate the Fourth Amendment because it

is a reasonable search.

   Alternatively, there was no 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.



                                    3
                         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).



                               Argument

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

Criminal Appeals has 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).

   But Villarreal is not final. The Court of Criminal Appeals granted

a motion for rehearing 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 since left the court. In

                                      4
light of this, the State continues to argue that the warrantless blood

draw is constitutional.


Point One: The warrantless blood draw, which is
mandated by Tex. Transp. Code § 724.011(b), does not
violate the Fourth Amendment because it is a reasonable
search.

   The warrantless blood draw in this case was mandated by Tex.

Transp. Code § 724.012(b)(3)(B), which 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.

   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




                                     5
warrant or warrant exception, but rather, prohibits unreasonable

searches.1

      A traditional balancing test weighs in favor of the constitutionality

of Section 724.012(b)(3)(B).

      To begin, 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


1   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. The State is making this argument, however, because Villarreal is
    not final.


                                          6
acted reasonably in passing a law that requires police to secure this

evidence, in serious cases, before it dissipates.

   Reasonableness is also shown in that the statute does not leave

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

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

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

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

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

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

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

useable blood draw, and it only applies to 1) people who are arrested

2) based on probable cause 3) for driving while intoxicated 4) 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



                                       7
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. The Supreme Court has stated time and again that a

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

unduly extensive imposition on an individual's privacy and bodily

integrity. See Schmerber, 384 U.S. at 771; Skinner 489 U.S. at 625;

Winston v. Lee, 470 U.S. 753, 761-62, 105 S. Ct. 1611, 84 L. Ed. 2d 662

(1985); South Dakota v. Neville, 459 U.S. 553, 563, 103 s. Ct. 916, 74

L. Ed. 2d 748 (1983); Breithaupt v. Abram, 352 U.S. 432, 436-37, 77

S. Ct. 408, 1 L. Ed. 2d 448 (1957); but see 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, and such arrestees have significantly diminished



                                    8
expectations of privacy. Arrestees are not free to leave, so the testing’s

interference with their freedom to move does not infringe on

significant privacy interests either. 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

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.




                                      9
   In sum, a traditional Fourth Amendment balancing test shows

that the blood draw search mandated by Section 724.012(b)(3)(B) is a

reasonable, constitutional search.


Point Two: 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 in this case clearly believed that there was a valid

statutory mandate for a blood draw. If the officer was mistaken about

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


                                     10
prosecutors, defense attorneys, and judges have assumed that

warrantless blood draws taken pursuant to the mandatory blood draw

statute were constitutional.

   In short, the blood draw did not violate the Fourth Amendment

because the officer’s mistake of law, if any, was reasonable.



                                Prayer

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

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

remand this case to the trial court for further proceedings.



                               Respectfully submitted,

                                    Rosemary Lehmberg
                                    District Attorney
                                    Travis County




                                    Angie Creasy
                                    Assistant District Attorney
                                    State Bar No. 24043613
                                    P.O. Box 1748
                                    Austin, Texas 78767


                                     11
                                     (512) 854-9400
                                     Fax (512) 854-4810
                                     Angie.Creasy@traviscountytx.gov
                                     AppellateTCDA@traviscountytx.gov



             Certificate of Compliance and Service
   I certify that this brief contains 1,879 words. I further certify that,

on the 8th day of September, 2015, a true and correct copy of this brief

was served, by U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, to Daniel H. Wannamaker,

1012 Rio Grande Street, Austin, Texas 78701.




                                  Angie Creasy




                                     12
