                                                                               PD-1263-14
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                            Transmitted 3/30/2015 5:18:35 PM
March 31, 2015                                                Accepted 3/31/2015 9:28:40 AM
                                                                                ABEL ACOSTA
                             No. PD-1263-14                                             CLERK

                 IN THE COURT OF CRIMINAL APPEALS
                            AUSTIN, TEXAS
     _____________________________________________________________

                    MICHAEL ANTHONY MCGRUDER

                                  VS.

                          THE STATE OF TEXAS
      ____________________________________________________________

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE TENTH COURT OF APPEALS
                             WACO, TEXAS
                 COURT OF APPEALS NO. 10-13-00109-CR
     _____________________________________________________________

                             STATE'S BRIEF
     _____________________________________________________________

                                        JARVIS PARSONS
                                        DISTRICT ATTORNEY
                                        BRAZOS COUNTY, TEXAS

                                        Jessica Escue
                                        Assistant District Attorney
                                        300 E. 26th Street, Suite 310
                                        Bryan, Texas 77803
                                        (979) 361-4320
                                        (979) 361-4368 (Facsimile)
                                        jescue@brazoscountytx.gov
                                        State Bar No. 24059726
                 IDENTITY OF PARTIES AND COUNSEL

APPELLANT:                    Michael McGruder

Trial Counsel:                Bruno Shimek
                              218 North Main
                              Bryan, Texas 77803

Appellate Counsel:            Mary Jo Holloway
                              10222 Old Stagecoach
                              Chappell Hill, Texas 77426
                              Mjholloway44@hotmail.com

THE STATE OF TEXAS:           Jarvis Parsons
                              District Attorney

Trial Counsel:                Brian Baker & Jessica Escue
                              Assistant District Attorney
                              300 E. 26th Street, Suite 310
                              Bryan, Texas 77803

Appellate Counsel:            Jessica Escue
                              Assistant District Attorney
                              300 E. 26th Street, Suite 310
                              Bryan, Texas 77803
                              jescue@brazoscountytx.gov




                                i
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................ i

TABLE OF CONTENTS .............................................................................................. ii

INDEX OF AUTHORITIES ........................................................................................ iii

STATEMENT OF THE CASE ..................................................................................... 1

STATEMENT OF FACTS ............................................................................................ 2

SUMMARY OF THE ARGUMENT ......................................................................... 11

STATE'S RESPONSE TO APPELLANT'S POINT OF ERROR ............................. 12

         Tex. Transp. Code § 724.012(b)(3)(B) is facially constitutional, as
         a warrantless blood draw of a defendant who is validly arrested
         for driving while intoxicated and has at least two prior convictions
         for driving while intoxicated is reasonable under the Fourth
         Amendment.

PRAYER ...................................................................................................................... 22

CERTIFICATE OF SERVICE.................................................................................... 23

CERTIFICATE OF COMPLIANCE .......................................................................... 23




                                                              ii
                                         INDEX OF AUTHORITIES

CASES

Maryland v. King, 133 S.Ct. 1958 (2013) ................................................... 16-19, 21

United States v. Knights, 534 U.S. 112 (2001) ............................................ 17-18, 21

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) ............................................. 13

McGruder v. State, No. 10-13-00109-CR, ___S.W.3d ___, 2014 WL 3973089
(Tex. App.—Waco Aug. 14, 2014, pet. granted) ...................................................... 2

Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013) ................................... 16

State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) .............................. 13-14

Samson v. California, 547 U.S. 843 (2006) ................................................. 18-19, 21

New Jersey v. T.L.O., 469 U.S. 325 (1985) ............................................................. 21

Vernoia School Dist. 47J v. Acton, 515 U.S. 646 (1995) ..................................17, 21

STATUTES

Tex. Transp. Code § 724.012(b)(3)(B) ....................................... 2, 11, 15-17, 21-22

REPORTS / STUDIES

James Fell, Repeat DWI Offenders in the United States, in TRAFFIC TECH:

TECHNOLOGY TRANSFER SERIES (National Highway Traffic Safety Administration

1995 .......................................................................................................................... 20

LIANG Y. LIU, DWI RECIDIVISM IN TEXAS 1987-1990, 13 (Texas Commission on

Alcohol And Drug Abuse, 1993) ............................................................................. 20



                                                               iii
NATHAN WARREN-KIGENYI & HEIDI COLEMAN, DWI RECIDIVISM IN THE UNITED

STATES: AN EXAMINATION OF STATE-LEVEL DRIVER DATA AND THE EFFECT OF

LOOK-BACK PERIODS ON RECIDIVISM PREVALENCE, 1 (National Highway Traffic

Safety Administration, 2014) ............................................................................... 9, 19




                                                       iv
                                 No. PD-1263-14

               IN THE COURT OF CRIMINAL APPEALS
                          AUSTIN, TEXAS
   _____________________________________________________________

                      MICHAEL ANTHONY MCGRUDER

                                        VS.

                        THE STATE OF TEXAS
    ____________________________________________________________

      ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE TENTH COURT OF APPEALS
                           WACO, TEXAS
               COURT OF APPEALS NO. 10-13-00109-CR
   _____________________________________________________________

                           STATE'S BRIEF
   _____________________________________________________________

TO THE HONORABLE COURT CRIMINAL OF APPEALS:

      COMES NOW, the State of Texas, by and through its District Attorney, and

files this brief in response to the point of error alleged by Appellant, and would

respectfully show the Court the following:

                         STATEMENT OF THE CASE

      On December 1, 2011, Appellant was indicted for the felony offense of

driving while intoxicated. (CR at 1). On March 21, 2013, Appellant waived his

right to a jury (2 RR 7) and entered a plea of not guilty. (2 RR 9). The trial court

found Appellant guilty of the offense. (3 RR 26). The trial court found the two

                                         1
enhancement paragraphs to be true, and assessed punishment at 30 years in the

institutional division of the Texas Department of Criminal Justice. (4 RR 32).

Notice of Appeal was filed on April 1, 2013. (CR 7).

      On August 14, 2014, the Tenth Court of Appeals affirmed Appellant’s

conviction in an opinion which held that Tex. Transp. Code § 724.012 is not

facially unconstitutional. McGruder v. State, No. 10-13-00109-CR, ___S.W.3d

___, 2014 WL 3973089 (Tex. App.—Waco Aug. 14, 2014, pet. granted). On

October 16, 2014, Appellant filed his Petition for Discretionary Review with this

Court. Petition for Discretionary Review was granted on January 28, 2015 by this

Court on the issue: “Did the Court of Appeals err in finding the Appellant’s facial

constitutional challenge to Texas Transportation Code Section 724.012(b)(3)(B)

failed and presumed the statute to be constitutionally valid?” (Appellant’s Brief, p.

4).

                           STATEMENT OF FACTS

      Greg Silber (Investigator with the Brazos County District Attorney’s

Office) testified that, as a fingerprint expert, he took inked prints from Appellant.

(2 RR 18). He compared Appellant’s known fingerprints (State’s exhibits 32A)

with the fingerprints in State’s exhibit 32 (misdemeanor conviction for DWI; cause

no. 93-0719) and State’s exhibit 34 (felony conviction for DWI; cause no. 23.230-




                                         2
361). He confirmed that Appellant’s prints were found in State’s exhibits 32 and

34. (2 RR 19).

      Officer Jay Summers (College Station Police Department) stated that he

was on patrol the early morning hours of September 27, 2011. (2 RR 25, 46).

Around 12:19 a.m., there was a call to dispatch concerning a black male who had

frightened someone in the parking lot of the University Place Condominiums. (2

RR 25). The male was described as being heavy set, wearing gray shorts and

driving a red truck with a lot of junk in the back of it. (2 RR 25). Because

Summers was on another call, Officers Paris and Ingram initially responded (2 RR

25), and Paris was considered the primary officer. (2 RR 37).

      After he finished his previous call, Summers saw the red truck, with junk in

the back, pass by him. (2 RR 28). He pulled in behind the truck; it continued a

short period of time before parking in the Southgate Village apartment complex. (2

RR 29). While following the red truck, Officer Fisher passed the truck head on. (2

RR 30). Summers never lost sight of the truck; he saw the truck park and saw the

driver (Appellant) get out of the vehicle. (2 RR 31, 34). Summers called over to

Appellant and told him to stop. (2 RR 35). Appellant complied. Because of the

earlier suspicious person call, Summers wanted to investigate why Appellant was

over at the University Place Condominiums. (2 RR 35). Summers noted that

Appellant smelled of alcohol. (2 RR 36).

                                           3
      Because Summers was not the primary officer, he called Officer Paris to

complete his investigation. (2 RR 38). Summers listened to Paris’ interview of

Appellant. (2 RR 38). Initially, Appellant was cooperative. As the interview went

on, Appellant stated that he had walked over to Southgate, not driven. (2 RR 38).

Summers said that Appellant’s responses did not make sense. Although Summers

was seven to ten feet away, he continued to smell alcohol, coming from Appellant,

while Appellant was being interviewed by Paris. (2 RR 39). State’s exhibit 5

(police car mobile video, with no audio) was admitted. (2 RR 41). The time of the

stop showed 12:32 a.m. on the video.

      Appellant refused Officer Paris’ request to perform field sobriety tests. (2

RR 38). After the investigation was complete, Appellant was arrested. (2 RR 44).

Appellant had stated that he did not live at Southgate Village Apartments; he was

just visiting. (2 RR 45). Because he did not live at Southgate Village Apartments,

Appellant’s truck could not be legally parked in the parking lot. (2 RR 45).

Consequently, Appellant’s truck was inventoried prior to towing it. (2 RR 44).

State’s exhibit 14 was a photo of the front passenger seat area showing a unopened

can of Miller High Life beer. (2 RR 45). Summers stated that, based on his training

and experience, Appellant was without the normal use of his mental faculties due

to the introduction of alcohol. (2 RR 46).




                                             4
      On cross-examination, Summers estimated that Appellant was detained

approximately twenty to twenty-five minutes before his arrest. (2 RR 48). There

were four to five officers on the scene. (2 RR 48). Summers agreed that “there was

some heated confrontation” between Appellant and the officers. (2 RR 48).

Summers did not see the truck speed or make an improper turn. (2 RR 50). He

could not explain why his body microphone, that supplied audio for the mobile

video, did not turn on. (2 RR 52).

      On redirect, Summers stated that he became frustrated with Appellant

because of the nonsensical answers he gave to Officer Paris’ questions and because

he had lied when he said that he wasn’t driving. (2 RR 54).

      Officer Matthew Paris testified that, on September 27, 2011, he was still in

the “ghost phase” training; his supervising officer was Officer Ingram. (2 RR 62).

At 12:19 a.m., a call came in reporting a suspicious person. (2 RR 62). The person

was described as a black male wearing a gray T-shirt driving an older model red

Ford truck with furniture in the bed. (2 RR 63). He responded to the University

Place Condominiums and did not locate the red truck. (2 RR 64). He then drove to

Southgate Village Apartments. (2 RR 65). He saw Officer Summers’ and Fisher’s

patrol cars; he saw a black male wearing a gray t-shirt and gray shorts, later

identified as Appellant. (2 RR 67). Also located was the red truck with furniture. (2

RR 68). Paris asked Appellant if he had been over at the University Place

                                         5
Condominium apartments; he said he had not. (2 RR 71). Appellant also said that

he had done nothing wrong and wanted to know why the officers were questioning

him. (2 RR 71). Paris noticed that Appellant was sweating, and he was not standing

still but shifting from foot to foot–possibly to conceal his swaying. (2 RR 72).

Appellant also smelled of alcohol. Appellant denied being at the University Place

Condominium apartments and said he was coming from his house. (2 RR 72). He

said that he had walked from his home at 1118 Phoenix to Southgate to visit his

girlfriend. (2 RR 74). When asked if he had been drinking, Appellant stated “I had

– paused for a minute and told me [Paris] no.” (2 RR 74). When confronted with

the fact that Paris could smell alcohol on Appellant’s breath, Appellant changed his

story and said that he had had one beer at 6:00 p.m. (2 RR 75). Paris stated that one

forty ounce King Cobra beer (2 RR 76), ingested six hours earlier, was not

consistent with the odor of alcohol and behavior that he was witnessing. (2 RR 75).

He asked Appellant to perform field sobriety tests to determine if Appellant was

safe to drive. (2 RR 75). Appellant refused. (2 RR 76). Appellant was asked how

drunk he was, on a scale of one to ten—with a ten being the most intoxicated he

had ever been. (2 RR 76). Appellant “rated himself a 10 or a 20.” Appellant was

placed under arrest for DWI. Paris then read the admonishments required in the

DIC 24 form, that let him know the consequences for failing to provide a breath or

blood sample. (2 RR 77).

                                         6
      State’s exhibit 18 (mobile video of Paris’ interaction with Appellant) was

admitted, in part, as to the portion covering the police’s initial interaction with

Appellant to determine if he was intoxicated. (2 RR 85). The trial court suppressed

any statement made by Appellant after he was arrested and placed into the squad

car until the police stopped questioning him. (2 RR 85). However, the trial court

held that all statements in State’s exhibit 18, that were volunteered by Appellant

while in the squad car after questioning had stopped, were admitted. (2 RR 85).

      Paris stated that Appellant had a soda in his hand at the time of contact. (2

RR 88). He inventoried the truck; State’s exhibit 14 showed an unopened 32 ounce

Miller High Life beer, cool to the touch, in the interior of the truck. (2 RR 89).

      After the truck was inventoried and the wrecker took possession of it, Paris

transported Appellant to the police department to write a search warrant for his

blood. (2 RR 90). He did not know, at that point, that Appellant had two prior

convictions for DWI. However, he later learned of Appellant’s two priors for DWI.

(2 RR 91). He then disregarded preparing the search warrant, filled out the

mandatory blood draw form and obtained a blood draw kit. (2 RR 91). He stated

that he abandoned obtaining the search warrant for blood because it takes time to

get a warrant and “every bit of time matters because his body is eliminating the

alcohol that’s in his system.” (2 RR 91).




                                            7
        State’s exhibit 19 (videotape of the blood draw) was admitted. (2 RR 94).

State’s exhibits 23 and 24 were still photos taken from the video. (2 RR 95). Paris’

initial contact with Appellant was at 12:32 a.m. (2 RR 95). Time of arrest was 1:02

a.m. (2 RR 100). State’s exhibit 24 and 28 showed the time of the blood draw to be

2:15 a.m.—approximately one hour and forty-five minutes later. (2 RR 96, 99,

100). (2 RR 99). State’s exhibits 20-22 were photos taken of the blood draw. (2 RR

94). State’s exhibits 25 (blood kit box) and 26 (blood vial) were admitted. (2 RR

99). After obtaining Appellant’s blood, he was released to the jail at 2:27 a.m.; the

blood evidence was put into the evidence drop box of the police department. (2 RR

101).

        On cross-examination, Paris conceded that he had never contacted Appellant

before and did not know what his normal speech or voice was. (2 RR 102).

Appellant was already outside the truck when Paris arrived; he did not see

Appellant operate the truck. (2 RR 104). Paris stated that the following indicated

Appellant was intoxicated: admission to drinking; stating he did not drive when

two officers had seen him driving the truck; odor of alcohol; had trouble putting

his words together at times. (2 RR 104).

        During the contact with Appellant, he wasn’t being cooperative and was

frustrated. (2 RR 105-106). It was possible that Appellant thought that the range of

intoxication was a 1 to 100 scale, but it was clearly stated that it was a one to ten

                                           8
scale. (2 RR 106). Appellant appeared nervous because he was sweating and

stuttered at the beginning of his sentences. (2 RR 106). Officer Summers indicated

in his report that he did not note any problems with Appellant’s speech or balance.

(2 RR 108, 117). Before Paris activated his mobile video, Officer Summers had

dispatch run Appellant’s driver’s license; it had expired. (2 RR 112). Paris found

out that Appellant had two priors DWI convictions when he was back at the police

department preparing the search warrant. (2 RR 112-113).

      Tomika Warren was a phlebotomist at the College Station Medical Center.

(2 RR 118). On September 27, 2011, she took blood from Appellant at 2:15 a.m. (2

RR 123, 124).

      On cross-examination, she stated that Appellant cooperated during the blood

draw. (2 RR 126).

      Anna Mudd (DPS forensic scientist) obtained the blood sample vial (State’s

exhibit 26) contained in the box (State’s exhibit 25). (2 RR 137). She tested the

blood for alcohol concentration on two different days. (2 RR 141). Her test on

October 27th resulted in values of .0985 and .0991 units of grams of alcohol per

100 milliliters of blood. (2 RR 145). The October 28 th test resulted in values of

.0983 and .0988. The reporting value was .09 at 2:15 a.m. on September 27, 2011.

(2 RR 146, 148). State’s exhibit 31 was the report she generated from her tests. (2

RR 146-147). The legal limit in Texas is .08. (2 RR 148).

                                        9
      Mudd testified that the body typically eliminates alcohol at a range of .01 to

.03 grams of alcohol per 100 milliliters of blood per hour. (2 RR 151). As soon as

alcohol is absorbed, the body is actively trying to eliminate it from the body.

      Officer Michael Fisher (College Station Police Department) stated that, on

September 27, 2011, he initially responded to University Place Condominiums

concerning the suspicious person call. (2 RR 156). He had remembered seeing a

vehicle, that matched the suspect vehicle, at Southgate Village Apartments earlier

in the night. (2 RR 157). He went there to see if the truck was present. (2 RR 157).

He was leaving the Southgate Village Apartments when Appellant and Officer

Summers passed him. (2 RR 161). He turned around and located Summers talking

to Appellant, whom he had just seen driving the truck. (2 RR 162). Fisher opined

that Appellant was intoxicated because he was having a hard time remembering

statements he had made and continually repeated himself. He also initially said he

was driving and then said he was not. (2 RR 165). Fisher specifically asked

Appellant, on a scale of one to ten, if he was intoxicated. He said ten to twenty.

      On cross-examination, Fisher stated that he did not see the truck commit any

traffic violations when it passed by. (2 RR 170). He did not know Appellant’s

normal speech patterns. (2 RR 172).

      Officer William Snell (College Station Police Department) stated that he

was on patrol on January 25, 2013. (3 RR 5). He made contact with Appellant at

                                          10
11:42 a.m. During that contact, Appellant provided a telephone number for

Appellant’s girlfriend (Sherri Stoval) of (979) 402-0684. (3 RR 5).

      Sergeant Anna Sifuentes (Brazos County Jail custodian of records; 3 RR 7)

testified that she pulled all the booking records for Appellant. (3 RR 7). State’s

exhibits 36, 37, 38 and 40 were admitted. (3 RR 8).

      Pursuant to subpoena, Sifuentes also retrieved all phone calls made from the

jail to (979) 402-0684. (3 RR 10). Twenty-two phone calls were made on

September 27, 2011 from the jail intake area. (3 RR 10). State’s exhibit 39

contained the phone calls to (979) 402-0684 and was admitted. (3 RR 12-13). Two

of the phone calls were played for the trial court. (3 RR 13).

                 SUMMARY OF THE STATE’S ARGUMENT

      Appellant argues that the Tenth Court of Appeals erred in its opinion which

found Tex. Transp. Code § 724.012(b)(3)(B) facially constitutional, because (1)

Appellant was not making solely a facial challenge to the statute; and (2) the

statute is unconstitutional because it permits a “mandatory blood draw in the

absence of a warrant or a recognized exception to a warrant.” First, a clear reading

of the record reveals that Appellant was making only a facial challenge to the

statute, as his complaint was based on the statute’s allowance of a warrantless

blood draw for all defendants arrested for DWI with two or more prior convictions

-- not on the specific facts of Appellant’s case.

                                          11
      Second, the warrantless blood draw authorized under Tex. Transp. Code §

724.012(b)(3)(B) is facially constitutional because the search is reasonable under

the Fourth Amendment. The government has a substantial interest in protecting

the public against the dangers of repeat DWI offenders. Studies show individuals

who have been arrested at least twice for driving while intoxicated are significantly

more likely than the average law-abiding citizen to be arrested for DWI in the four

years following their arrest, more likely to refuse to submit a blood or breath

sample when arrested for a subsequent DWI, and more likely to be involved in a

fatal crash. The government’s substantial interest in protecting the public

outweighs the privacy interest of a defendant who (1) is arrested under valid

probable cause for driving while intoxicated, and (2) has at least two prior

convictions for driving while intoxicated. Consequently, since a warrantless blood

draw in these circumstances is reasonable under the Fourth Amendment, Tex.

Transp. Code § 724.012(b)(3)(B) is facially constitutional.

             RESPONSE TO APPELLANT'S POINT OF ERROR

      Tex. Transp. Code § 724.012(b)(3)(B) is facially constitutional, as
      a warrantless blood draw of a defendant who is validly arrested
      for driving while intoxicated and has at least two prior convictions
      for driving while intoxicated is reasonable under the Fourth
      Amendment.

      Appellant argues that the Tenth Court of Appeals erred in its opinion which

found Tex. Transp. Code § 724.012(b)(3)(B) facially constitutional, because (1)

                                          12
Appellant was not making solely a facial challenge to the statute; and (2) the

statute is unconstitutional because it permits a “mandatory blood draw in the

absence of a warrant or a recognized exception to a warrant.” However, a clear

view of the record demonstrates that Appellant was only making a facial challenge

to the statute when he objected at trial. Furthermore, it is clear that section

724.012(b)(3)(B) is not facially unconstitutional, as a warrantless blood draw of a

suspect who was arrested for DWI based on probable cause, and has previously

been convicted at least twice of DWI in the past, is reasonable under the Fourth

Amendment.

Standard of Review

      Whether a statute is facially constitutional is a question of law that is

reviewed de novo. Ex parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2013). A

statute is presumed constitutionally valid, and the burden of showing its

unconstitutionality lies with the party challenging the statute. Id. at 15. In order to

prevail on a facial constitutional challenge, the party challenging the statute “must

establish that the statute always operates unconstitutionally in all possible

circumstances.” State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013).

Objection at Trial

      Although Appellant argues that the Tenth Court of Appeals erred in applying

“a ‘hyper-technical’ analysis in determining [that] McGruder was making only a

                                          13
facial challenge,”1 it is clear from Appellant’s objection at trial that he was only

making a facial challenge to the statute. While a facial challenge alleges that the

statute is unconstitutional in all situations, an as-applied challenge depends “on

development of the specific facts of the case showing how the statute is being

applied to the defendant.” Rosseau, 398 S.W.3d at 778. The record from trial

clearly showed that Appellant was solely making a facial challenge:

      Q. [By Ms. Escue] I'm going to show you state's Exhibits 25 and 26.
      Do you recognize these exhibits?

      A. [Officer Paris] Yes, ma'am.

      Q. What are they?

      A. It's the sealed blood kit --

      Q. Okay.

      A. -- that we used.

      Q. And how can you tell that it's the same one that you used?

      A. Got my initials on it from where I sealed it and my name and
      handwriting on the end where I submitted it as evidence.

      Q.      Other than the testing does it look like it's been tampered with
      or altered with in any way since the last time you saw it?

      A.      No.

      MS. ESCUE: Your Honor, I offer State's Exhibits 25 and 26 into
      evidence.


1
      (Appellant’s brief at 5).
                                        14
MR. SHIMEK: Judge, I'm going to object to State's Exhibit 25 and 26,
first of all, on the basis that Section 724.012 of the Texas
Transportation Code is unconstitutional in that it denies the defendant
due process, allows for the collection of evidence without a search
warrant, it's a violation of search and seizure; and for that reason I
object to it under that basis.

       Further I'd object in that there's been -- actually no probable
cause established to draw the blood in the first place, and so this blood
was seized without -- or drawn without adequate probable cause to --
without adequate probable cause that an offense even occurred. For
that reason I'd object on that basis as well.

THE COURT: Why do you think the statute is unconstitutional and do
you have any case law that --

MR. SHIMEK: Haven't found any cases to support it. I believe it's
unconstitutional because I think it's a violation of due process and
protection clause of both the U.S. and federal (sic) Constitutions. The
-- essentially the basis is that it puts a person who's had two DWIs in a
position to have items from his body seized, a search done without a
warrant – a search done without a warrant and a search done -- it
allows for wide abuse of the -- of a person who is in that position,
abuse of that person's individual rights; and it does not afford that
person the protection of a -- of an unbiased magistrate to review
whether or not there's probable cause to think that an offense even
because of the fact that under this statute it puts persons in Mr.
McGruder's position in a different position than every other person in
the state of Texas. And so he's denied equal protection under that --
he's denied equal protection, he's denied the right to have a fair and
impartial magistrate review whether or not there's probable cause that
exists for a search of his person to be even done; and a search of a
person is so invasive that I believe that this statute would be
unconstitutional. Have not been able to find any case law to support
that, and I believe that it is unconstitutional.

THE COURT: Don't we deprive a lot of people of their Constitutional
rights because they've been convicted?



                                   15
      MR. SHIMEK: We do; but we shouldn't in this case, Judge. It sets up
      a clear pattern -- clear ability for an officer without probable cause to
      submit -- make a person submit to a blood draw that a magistrate can't
      even review.

      THE COURT: Objection overruled. The exhibits will be admitted --
      or -- both of them are just one?

      MS. ESCUE: Both. It's 25 and 26, 25 is the box and 26 is the actual
      vial.

      THE COURT: 25 and 26 are admitted.

(2 RR 97-99).

      Consequently, Appellant’s argument that the court of appeals erred in only

assessing his objection as a facial challenge is without merit.

Reasonableness

      Appellant’s second argument -- that the court of appeals erred finding Tex.

Transp. Code § 724.012(b)(3)(B) facially constitutional -- is without merit, because

the warrantless blood draw of an individual who (1) is arrested under valid probable

cause for driving while intoxicated, and (2) has at least two prior convictions for

driving while intoxicated, is reasonable under the Fourth Amendment.

      The Fourth Amendment to the United States Constitution states, “[t]he right of

the people to be secure in their persons, houses, papers and effects, against

unreasonable searches and seizures, shall not be violated…” U.S. CONST. amend.

IV (emphasis added). A blood draw of a DWI suspect is undoubtedly a search

under the Fourth Amendment. See Missouri v. McNeely, ___ U.S. ___, 133 S.Ct.
                                          16
1552, 1558 (2013).        However, the Fourth Amendment only prohibits

unreasonable searches. Vernoia School Dist. 47J v. Acton, 515 U.S. 646, 652

(1995) (“As the text of the Fourth Amendment indicates, the ultimate measure of

the constitutionality of a governmental search is ‘reasonableness.’”). The Supreme

Court has held:

      In some circumstances, such as when faced with special law
      enforcement needs, diminished expectations of privacy, minimal
      intrusions or the like, the Court has found that certain general, or
      individual circumstances may render a warrantless search or seizure
      unreasonable. Those circumstances diminished the need for a
      warrant, either because the public interest is such that neither a
      warrant nor probable cause is required or because the individual is
      already on notice, for instance because of his employment, or the
      conditions of his release from government custody, that some
      reasonable police intrusion on his privacy is to be expected.

Maryland v. King, 133 S.Ct. 1958, 1969-70 (2013) (internal citations and
quotations omitted).

      Where the public interest is high and the defendant’s reasonable expectation

of privacy is low, the Supreme Court has often found that a search without a

warrant is not an “unreasonable search” under the Fourth Amendment. See United

States v. Knights, 534 U.S. 112, 119-21 (2001) (search of probationer’s home

based on reasonable suspicion and without a warrant was not prohibited by the

Fourth Amendment because the lesser degree of suspicion and lack of a warrant

“satisfies the Constitution when the balance of governmental and private interest

makes such a standard reasonable.”).

                                       17
Samson v. California

      In Samson v. California, the defendant was on parole when officers searched

his home and found the methamphetamine that was the basis for his conviction.

Samson v. California, 547 U.S. 843, 846-47 (2006). The search was solely based

on the defendant’s status as a parolee. Id. The Supreme Court, citing Knights,

upheld the warrantless search as reasonable. Id. at 857. The Supreme Court

found, that the defendant had a lesser expectation of privacy than normal, law

abiding citizens because of his status as a parolee. Id. at 852. Furthermore, the

State had a “substantial” interest in monitoring individuals on parole, as parolees

are more likely to commit crimes and a State has a valid interest in reducing

recidivism.   Id. at 853.     Therefore, “promoting reintegration and positive

citizenship among probationers and parolees warrant privacy intrusions that would

not otherwise be tolerated under the Fourth Amendment.” Id.

Maryland v. King

      Similarly, in Maryland v. King, the defendant was arrested for assault and

booked into custody. King, 133 S.Ct. at 1966. When he was booked into custody,

detectives obtained a DNA sample from the defendant without a warrant and

placed the results into a DNA database. Id. The defendant’s DNA matched an

unsolved rape case. Id. As a result, the defendant was convicted of the unsolved

rape and sentenced to life in prison. Id. On appeal, the defendant claimed the

                                        18
warrantless search, which obtained his DNA, was unreasonable under the Fourth

Amendment. Id.

        The Supreme Court held that such a search was constitutional under the

Fourth Amendment because the governmental interest in obtaining the DNA – “the

need for law enforcement officers in a safe and accurate way to process and

identify the persons and possessions they must take into custody” – was high. Id.

at 1970. Furthermore, the legitimate expectations of privacy of someone who has

been arrested and is in the process of being booked into custody is low. Id. at

1978. Consequently, this combination rendered the search constitutional. Id. at

1980.

Government Interest in Warrantless Search

        Like Samson and King, the governmental interest in allowing the warrantless

blood draw of a defendant who 1) has been validly arrested under probable cause

for driving while intoxicated and 2) has been twice convicted of driving while

intoxicated, is high. Nation-wide, thirty-one percent of fatal crashes involve an

alcohol-impaired driver. See NATHAN WARREN-KIGENYI & HEIDI COLEMAN, DWI

RECIDIVISM    IN THE   UNITED STATES: AN EXAMINATION       OF   STATE-LEVEL DRIVER

DATA    AND THE   EFFECT   OF   LOOK-BACK PERIODS   ON   RECIDIVISM PREVALENCE, 1

(National Highway Traffic Safety Administration, 2014) (attached as Appendix 1).

Fifty-five percent of individuals arrested for driving while intoxicated in Texas

                                         19
have been arrested before for driving while intoxicated. See LIANG Y. LIU, DWI

RECIDIVISM   IN   TEXAS 1987-1990, 13 (Texas Commission on Alcohol And Drug

Abuse, 1993) (attached as Appendix 2). Thirty-one percent of individuals who

have been arrested two times for DWI will be arrested for an additional DWI

within four years. Id. That number increases to thirty-nine percent for individuals

who have been arrested at least three times. Id. Additionally, individuals who have

been arrested at least twice for driving while intoxicated are more likely to refuse

to submit a blood or breath sample when arrested for a subsequent DWI and more

likely to be involved in a fatal crash. James Fell, Repeat DWI Offenders in the

United States, in TRAFFIC TECH: TECHNOLOGY TRANSFER SERIES (National

Highway Traffic Safety Administration 1995) (attached as Appendix 3); Warrant-

Kigenyi, supra at 2-5; Liu, supra at 2-5, 12-13, 17-18.          Consequently, the

government interest in finding and protecting the public from the danger posed by

repeat DWI offenders is high.

Reasonable Expectation of Privacy

      Defendants who have been validly arrested for driving while intoxicated and

have two or more previous convictions for driving while intoxicated have a lesser

expectation of privacy in the alcohol content of their blood or breath. “Once an

individual has been arrested on probable cause for a dangerous offense that may

require detention before trial … his or her expectations of privacy and freedom

                                        20
from police scrutiny are reduced.” King, 133 S.Ct. at 1970. The fact that these

defendants have also been previously convicted for driving while intoxicated at

least twice before further diminishes any reasonable expectation of privacy in their

blood or breath. See Samson, 547 U.S. at 848 (defendant on parole had a lesser

expectation of privacy in his home to justify officers’ warrantless search); Knights,

534 U.S. at 119 (“Just as other punishments for criminal convictions curtail an

offender’s freedoms, a court granting probation may impose reasonable condition

that deprive the offender of some freedoms enjoyed by law-abiding citizens.”);

Vernoia School Dist. 47J, 515 U.S. at 654 (“[T]he legitimacy of certain privacy

expectations vis-à-vis the State may depend upon the individual’s legal

relationship with the State.”). Just as the parolee in Samson and probationer in

Knights had a lesser expectation of privacy in their homes because of their criminal

history, a defendant with two or more convictions for driving while intoxicated has

a lesser expectation of privacy in the alcohol content of their blood.

      Like King and Samson, when the substantial government interest in

protecting the public against the danger posed by repeat DWI offenders is weighed

against the privacy interests of a defendant in custody for DWI, who has at least

twice before been convicted of DWI, it is clear that a warrantless blood draw in

these circumstances does not offend the Fourth Amendment. See King, 133 S.Ct.

at 1978-80; Samson, 547 U.S. at 854; New Jersey v. T.L.O., 469 U.S. 325, 337

                                          21
(1985) (“Although the underlying command of the Fourth Amendment is always

that searches and seizures be reasonable, what is reasonable depends on the context

within which a search takes place.”).           Consequently, Tex. Transp. Code §

724.012(b)(3)(B) is facially constitutional, because the warrantless blood draw of an

individual who (1) is arrested under valid probable cause for driving while

intoxicated, and (2) has at least two prior convictions for driving while intoxicated, is

reasonable under the Fourth Amendment.

                                          PRAYER


      Wherefore, premises considered, the State of Texas respectfully prays that

this Court find that Appellant’s point of error be overruled, and that the conviction

be in all things affirmed.

                                                Respectfully submitted,

                                                JARVIS PARSONS
                                                DISTRICT ATTORNEY
                                                BRAZOS COUNTY, TEXAS



                                                _/s/ Jessica Escue
                                                Jessica Escue
                                                Assistant District Attorney
                                                State Bar No. 24059726




                                           22
                         CERTIFICATE OF SERVICE

       I do hereby certify that a true and correct copy of the above and foregoing
State's Brief was electronically served on Mary Jo Holloway, Attorney for Appellant
at mjholloway44@hotmail.com, on this 30th day of March, 2015.



                                             /s/   Jessica Escue
                                             Jessica Escue


      CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

      I certify that the foregoing document has a word count of 4,928 based on the

word count program in Word 2010.




                                             /s/   Jessica Escue
                                             Jessica Escue




                                        23
                   PD-1263-14
  COURT OF CRIMINAL APPEALS
                   AUSTIN, TEXAS
Transmitted 3/30/2015 5:15:30 PM
  Accepted 3/31/2015 9:29:45 AM
                    ABEL ACOSTA
                            CLERK
