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Galveston Biker Rally 2014 DWI DUI Lawyers - GALVESTON DECLARES NO REFUSAL WEEKEND

Each year Galveston, Texas is host to Lone Star Biker Rally. During this four day event, thousands of people visit Galveston Island on motorcycles. This year, Galveston County has declared biker weekend a "no refusal weekend.”

 Galveston DWI DUI Motorcycle Lawyers
Galveston DWI DUI Motorcycle Lawyers

During a no refusal weekend, judges, prosecutors, and nurses will be on standby to sign warrants and draw your blood if you are suspected of drinking and driving your vehicle or motorcycle.

If you were pulled over by a police officer who suspected that you may be under the influence of drugs or alcohol, you may have been subjected to a blood draw. Just because the state got a warrant for your blood doesn’t automatically make it admissible in court; that’s just the beginning of the fight.

If you have been charged with Driving While Intoxicated (DWI) in Galveston County (Bayou Vista, Clear Lake Shores, Dickinson, Friendswood, Galveston, Hitchcock, Jamaica Beach, Kemah, La Marque, League City, Santa Fe, Texas City, Tiki Island, Bacliff, Bolivar Peninsula, San Leon, Algoa, Bayview, Crystal Beach, Gilchrist, High Island, or Port Bolivar), you need an experienced Galveston County DWI defense lawyer on your side.

If you have been charged with Driving While Intoxicated (DWI) in Galveston County, read our DWI page and call our office today. Calls are answered 24/7 by a live operator. Don’t wait; call today. 409-740-1111.

What should you do if you have already been arrested for DWI during biker rally? CLICK HERE http://www.galvestonjustice.com/dwi/

Bayou Vista DWI DUI Defense Lawyers, Clear Lake Shores DWI DUI Defense Lawyers, Dickinson DWI DUI Defense Lawyers, Friendswood DWI DUI Defense Lawyers, Galveston DWI DUI Defense Lawyers, Hitchcock DWI DUI Defense Lawyers, Jamaica Beach DWI DUI Defense Lawyers, Kemah DWI DUI Defense Lawyers, La Marque DWI DUI Defense Lawyers, League City DWI DUI Defense Lawyers, Santa Fe DWI DUI Defense Lawyers, Texas City DWI DUI Defense Lawyers, Tiki Island DWI DUI Defense Lawyers, Bacliff DWI DUI Defense Lawyers, Bolivar DWI DUI Defense Lawyers, San Leon DWI DUI Defense Lawyers, Algoa DWI DUI Defense Lawyers, Bayview DWI DUI Defense Lawyers, Crystal Beach DWI DUI Defense Lawyers, Gilchrist DWI DUI Defense Lawyers, High Island DWI DUI Defense Lawyers


Posted Fri, November 07, 2014 - 7:46:15

Murray v. State - Running Parked Car Insufficient to Prove “Operation” of Vehicle for DWI

Murray v. State, No 07-13-00356-CR (Texas. App. – Amarillo June 26, 2014) – The evidence at trial was legally insufficient to support a conviction of Murray Driving While Intoxicated. No direct or circumstantial evidence appeared of record enabling a reasonable fact finder to infer that Murray operated his vehicle while intoxicated. Conviction overturned.

The state must prove its DWI case beyond a reasonable doubt. The state must prove that Murray was “intoxicated while operating a motor vehicle in a public place.” Texas Penal Code 49.04(a).

Here, DPS Troopers found Murray with his seat reclined in his truck, parked in a private driveway with the radio on. A portion of the truck extended into the shoulder of the roadway, but not the roadway. The truck’s transmission was in park, although the engine was running.

There were no open containers in or around the truck. It was unknown how long the vehicle had been there, and the trooper did not see the appellant operating the truck. Because the transmission was not engaged, there were no admissions by the appellant to driving, the truck was not actually in the roadway, the truck was not in a lane of traffic, and because there was no evidence that the appellant tried to “manipulate the vehicle’s controls,” there was not enough evidence for the State to prove the case beyond a reasonable doubt. There was no evidence as to when or how the truck ended up where it did, and therefore no evidence as to who was driving and whether he or she was intoxicated.

Murray’s DWI conviction was overturned by the Court of Appeals

If you have been charged with Driving While Intoxicated (DWI) in Galveston County, read our DWI page and call our office today. Calls are answered 24/7 by a live operator. Don’t wait; call today. 409-740-1111.

Bayou Vista DWI DUI Defense Lawyers, Clear Lake Shores DWI DUI Defense Lawyers, Dickinson DWI DUI Defense Lawyers, Friendswood DWI DUI Defense Lawyers, Galveston DWI DUI Defense Lawyers, Hitchcock DWI DUI Defense Lawyers, Jamaica Beach DWI DUI Defense Lawyers, Kemah DWI DUI Defense Lawyers, La Marque DWI DUI Defense Lawyers, League City DWI DUI Defense Lawyers, Santa Fe DWI DUI Defense Lawyers, Texas City DWI DUI Defense Lawyers, Tiki Island DWI DUI Defense Lawyers, Bacliff DWI DUI Defense Lawyers, Bolivar DWI DUI Defense Lawyers, San Leon DWI DUI Defense Lawyers, Algoa DWI DUI Defense Lawyers, Bayview DWI DUI Defense Lawyers, Crystal Beach DWI DUI Defense Lawyers, Gilchrist DWI DUI Defense Lawyers, High Island DWI DUI Defense Lawyers


Posted Mon, October 27, 2014 - 1:02:36

Galveston County Declares No Refusal For Labor Day Weekend 2014

 Galveston County DWI Lawyers
Galveston County DWI Lawyers
 Galveston County DWI Lawyers
Galveston County DWI Lawyers
Top Galveston DWI Lawyer
Top Galveston DWI Lawyer

Galveston County Declares "No Refusal Weekend" During Labor Day Weekend 2014

This year Galveston County has decided to participate in a "No Refusal Weekend" for driving while intoxicated (DWI) this year’s Labor Day weekend. Under the no refusal program, if an officer has probable cause to believe that you are driving while intoxicated in Galveston County then he may apply for a search warrant for your blood. Prosecutors, judges and nurses will be working through the night to sign search warrants for the blood draws and to take your blood.

If you have been pulled over for DWI in Galveston County, you need an experienced Galveston DWI defense lawyer. Read more info on Driving While Intoxicated, then call our office to discuss your options. Also read our blog entry entitled "Arrested for DWI in Galveston County, Texas - KNOW YOUR RIGHTS AND KNOW THE LAW".

If you are arrested for driving while intoxicated in Galveston, you have only 15 days after your arrest to request a hearing on the suspension of your driver's license. Contrary to popular belief, your driver's license is not automatically suspended.

If you have been charged with Driving While Intoxicated (DWI) in Galveston County, you need an experienced Galveston County DWI defense lawyer on your side.

If you have been charged with Driving While Intoxicated (DWI) in Galveston County, read our DWI page and call our office today. Calls are answered 24/7 by a live operator. Don’t wait; call today. 409-740-1111.

Bayou Vista DWI DUI Defense Lawyers, Clear Lake Shores DWI DUI Defense Lawyers, Dickinson DWI DUI Defense Lawyers, Friendswood DWI DUI Defense Lawyers, Galveston DWI DUI Defense Lawyers, Hitchcock DWI DUI Defense Lawyers, Jamaica Beach DWI DUI Defense Lawyers, Kemah DWI DUI Defense Lawyers, La Marque DWI DUI Defense Lawyers, League City DWI DUI Defense Lawyers, Santa Fe DWI DUI Defense Lawyers, Texas City DWI DUI Defense Lawyers, Tiki Island DWI DUI Defense Lawyers, Bacliff DWI DUI Defense Lawyers, Bolivar DWI DUI Defense Lawyers, San Leon DWI DUI Defense Lawyers, Algoa DWI DUI Defense Lawyers, Bayview DWI DUI Defense Lawyers, Crystal Beach DWI DUI Defense Lawyers, Gilchrist DWI DUI Defense Lawyers, High Island DWI DUI Defense Lawyers


Posted Fri, August 29, 2014 - 5:17:10

Mandatory Blood Draw is Invalid - Warrant Required for Blood Draw in Texas

Antonio Aviles was arrested for suspicion of DWI. Police stopped him after swerving across lanes of traffic. Upon contact the officer noted bloodshot eyes, slurred speech, and that Aviles was unsteady on his feet when the officer asked him to get out of the car. The officer performed HGN, walk and turn, and one leg stand SFSTs. After doing so, the officer arrested Aviles on suspicion of DWI.

After discovering Aviles had two prior convictions for DWI, the officer asked Aviles if he would voluntarily submit to a breath or blood specimen. Aviles declined. The officer then took Aviles for a blood draw under the mandatory blood draw statute in Texas. The statute allowed for law enforcement to obtain a specimen without consent when a person has two prior DWI convictions.

After initially upholding the ruling of the trial court denying his motion to suppress the blood result, the Fourth Court of Appeals overturned that ruling. The court stated that the statute created a categorical rule that is impermissible under McNeely v. Missouri. The statute does not take into account the totality of the circumstances. The state must prove that a warrantless blood draw is reasonable under the totality of the circumstances, and that an exception to the warrant requirement exists. The statute alone is not a permissible exception to the warrant requirement. Because of this, the blood draw in this case was an impermissible search and seizure.

The court reversed the ruling of the trial court, and remanded for a new trial. The blood evidence is not admissible at his DWI trial.

If you have been charged with Driving While Intoxicated (DWI) in Galveston County, read our DWI page and call our office today. Calls are answered 24/7 by a live operator. Don’t wait; call today. 409-740-1111.

Bayou Vista DWI DUI Defense Lawyers, Clear Lake Shores DWI DUI Defense Lawyers, Dickinson DWI DUI Defense Lawyers, Friendswood DWI DUI Defense Lawyers, Galveston DWI DUI Defense Lawyers, Hitchcock DWI DUI Defense Lawyers, Jamaica Beach DWI DUI Defense Lawyers, Kemah DWI DUI Defense Lawyers, La Marque DWI DUI Defense Lawyers, League City DWI DUI Defense Lawyers, Santa Fe DWI DUI Defense Lawyers, Texas City DWI DUI Defense Lawyers, Tiki Island DWI DUI Defense Lawyers, Bacliff DWI DUI Defense Lawyers, Bolivar DWI DUI Defense Lawyers, San Leon DWI DUI Defense Lawyers, Algoa DWI DUI Defense Lawyers, Bayview DWI DUI Defense Lawyers, Crystal Beach DWI DUI Defense Lawyers, Gilchrist DWI DUI Defense Lawyers, High Island DWI DUI Defense Lawyers


Posted Wed, August 27, 2014 - 2:08:38

Galveston Declares No Refusal Weekend During Mardi Gras 2014 - Galveston DWI Lawyer

 Galveston DWI DUI Lawyers
Galveston DWI DUI Lawyers

Galveston County Declares "No Refusal Weekend" During Mardi Gras 2014

Mardi gras is a fun time for Galveston. Galveston hosts the third largest mardi gras celebration in the country. Hundreds of thousands of people are expected to attend this year, especially considering the nice weather that is expected.

This year Galveston County has decided to participate in a "No Refusal Weekend" for driving while intoxicated (DWI) during both weekends of mardi gras. Under the no refusal program, if an officer has probable cause to believe that you are driving while intoxicated in Galveston County then he may apply for a search warrant for your blood. A mobile station with a prosecutor and judge will be preparing and signing search warrants for the blood draws.

If you have been pulled over for DWI in Galveston County, you need an experienced Galveston DWI defense lawyer. Read more info on Driving While Intoxicated, then call our office to discuss your options. Also read your blog entry entitled "Arrested for DWI in Galveston County, Texas - KNOW YOUR RIGHTS AND KNOW THE LAW".

If you are arrested for driving while intoxicated in Galveston, you have only 15 days after the arrest to request a hearing on the suspension of your driver's license. Contrary to popular belief, your driver's license is not automatically suspended.

Call our office if you are caught having too much fun during mardi gras on Galveston Island.

Our phones are answered 24/7 and a live receptionist is waiting for your call. Don't delay, seek competent legal representation today.  (409) 740-1111.


Posted Fri, February 21, 2014 - 10:04:33

Johnson v. State - Defendant Was Detained And Entitled to Fourth Amendment Protections

The officer's actions in using a loud authoritative voice to speak with the defendant, asking "what's going on," and demanding identification, manifested a detention that implicated Fourth Amendment protections. Johnson v. State, No. PD-0209-12 (Tex.Crim.App. Dec 11, 2013).

On review of the denial of the defendant’s motion to suppress evidence that led to his marijuana conviction, the Court of Appeals erred in holding that the officer did not detain the defendant.

The Court of Criminal Appeals, the highest criminal court in the State of Texas, held that under the totality of the circumstances, as properly reviewed de novo, a reasonable person would not have felt free to leave.

The officer shined a high-beam spotlight onto a the defendant, who was sitting in a parked vehicle, and parked the police car in such a way as to at least partially block the vehicle such that the defendant would have had to "maneuver" around the police car to drive away. The officer also used a "loud authoritative voice" in speaking with the defendant, asking "what's going on," and demanded identification. Given these facts, under the totality of the circumstances, the defendant was “detained” for fourth amendment purposes.

The Court of Criminal Appeals reversed the Court of Appeals and remanded the case to the Court of Appeals to consider the trial court's determination that officer had reasonable suspicion to detain the defendant, and to decide whether that detention was valid.


Posted Tue, January 14, 2014 - 7:21:28

Galveston County Declares No Refusal Weekend During 2013 - 2014 Holidays - Galveston DWI Lawyer

 Galveston County DWI DUI Lawyers
Galveston County DWI DUI Lawyers

Galveston County has again this year declared the holidays a "no refusal weekend" now through the beginning of the new year (2014). During a no refusal weekend, judges, prosecutors, and nurses will be on standby to sign warrants and draw your blood if you are suspected of drinking and driving.

If you were pulled over by a police officer who suspected that you may be under the influence of drugs or alcohol, you may have been subjected to a blood draw. Just because the state got a warrant for your blood doesn’t automatically make it admissible in court;  that is just the beginning of the fight.

If you have been charged with Driving While Intoxicated (DWI) in Galveston County (Bayou Vista, Clear Lake Shores, Dickinson, Friendswood, Galveston, Hitchcock, Jamaica Beach, Kemah, La Marque, League City, Santa Fe, Texas City, Tiki Island, Bacliff, Bolivar Peninsula, San Leon, Algoa, Bayview, Crystal Beach, Gilchrist, High Island, or Port Bolivar), you need an experienced Galveston County DWI defense lawyer on your side.

If you have been charged with Driving While Intoxicated (DWI) in Galveston County, read our DWI page and call our office today. Calls are answered 24/7 by a live operator. Don’t wait; call today. 409-740-1111.

What should you do if you have already been arrested for DWI during the holidays? CLICK HERE http://www.galvestonjustice.com/dwi/


Posted Sat, December 28, 2013 - 6:59:16

Douds v. State - One Court’s Interpretation of Missouri v. NcNeely

DOUDS V. STATE Kenneth Lee Douds, Appellant v. The State of Texas, Appellee No. 14-12-00642-CR.

Galveston County Driving While Intoxicated (DWI) Lawyers.

MAJORITY OPINION

Appellant Kenneth Lee Douds was charged with driving while intoxicated; after the trial court denied his motion to suppress evidence, he pleaded guilty to a reduced charge as part of a plea agreement. In this appeal, he challenges the trial court's order denying his motion to suppress and argues that a section of the Texas Transportation Code is unconstitutional. We affirm.

BACKGROUND

At about 2:34 a.m. on May 16, 2010, Officer Andre Tran of the Pasadena Police Department responded to a call regarding an automobile accident. Two vehicles were involved in the accident; the occupants of both vehicles were friends who recently had left the same party. The appellant and his wife were in one vehicle, and the appellant was driving when he struck the other vehicle. The appellant appeared to be highly intoxicated.

Pearland EMS was called to address injuries at the scene. The appellant's wife complained of chest and rib pain, and she said that she could not move her right arm. The appellant's wife refused to be taken to the hospital by Pearland EMS; according to testimony, the driver of the other vehicle told Officer Tran that she would take the appellant's wife in for medical treatment.

Galveston County Driving While Intoxicated (DWI) Lawyers.

After the appellant's wife left with her friends, the appellant was arrested and taken to the Pearland Police Department. Video from the police car's dashboard camera indicates that Officer Tran arrived at the accident scene at 2:36 a.m., and that he helped appellant get out of a police car at the Pearland Police Department at 3:33 a.m. Once at the police department, Officer Tran read a statutory warning to appellant regarding his ability to refuse to voluntarily supply a breath sample. When Officer Tran requested a breath sample, the appellant refused to consent. At that point, Officer Tran took the appellant to a local medical center for a mandatory blood draw.

The appellant filed a motion to suppress the blood specimen taken during the mandatory blood draw. At a hearing on that motion, Officer Tran testified that he ordered the mandatory blood draw “based on the [totality] of the circumstances and based on my belief that [the appellant's] wife was hurt and that [sic] need medical attention.” Also during that hearing, video clips taken from the dashboard camera recording of the incident were played. In response to questions from the appellant's counsel, Officer Tran testified that the appellant's wife had not promised to go to a hospital but stated that he still believed she would seek medical attention that night.

The trial court denied the appellant's motion to suppress, and the appellant pleaded guilty to a reduced charge as part of a plea agreement. In this appeal, the appellant challenges the trial court's denial of his motion to suppress and alleges that section 724.012(b)(1)(C) of the Texas Transportation Code is unconstitutional.

ANALYSIS

Motion to Suppress

The appellant argues that the trial court should have granted his motion to suppress because the evidence “[does] not allow for any support for the possible assertion that anyone had ‘been transported to a hospital or a medical facility for medical treatment.’

Galveston County Driving While Intoxicated (DWI) Lawyers.

“We review a trial court's ruling on a motion to suppress under a bifurcated standard. Vasquez v. State, 324 S.W.3d 912, 918 (Tex.App.-Houston [14th Dist.] 2010, pet. ref'd) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)). The trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented at a suppression hearing. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.Crim.App.2007). We give almost total deference to the trial court's determination of historical facts, but we review de novo the court's application of the law to the facts. Id. at 25. When the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

Officer Tran ordered the mandatory blood draw under the authority of section 724.012 of the Texas Transportation Code. In relevant part, that section provides:

(b) A peace officer shall require the taking of a specimen of the person's breath or blood under any of the following circumstances if the officer arrests the person for [driving while intoxicated] and the person refuses the officer's request to submit to the taking of a specimen voluntarily:

(1) the person was the operator of a motor vehicle or watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident:

* * *

(C) an individual other than the person has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment. Tex. Transp. Code Ann. § 724.012(b) (Vernon 2011). The appellant's argument misstates statutory requirements for a mandatory blood draw. The Transportation Code does not require that someone actually be transported to a hospital or medical facility for medical treatment; rather, it requires that the police officer ordering the mandatory blood draw reasonably believe that someone was transported to a hospital or medical facility for medical treatment. See id.; see also Mitchell v. State, 821 S.W.2d 420, 424–25 (Tex.App.-Austin 1991, pet. ref'd) (concluding, based on a predecessor of section 724.012, that a police officer was justified in obtaining an involuntary blood sample when the officer could reasonably believe that a person injured in the accident “was likely to die,” even though the injured person actually survived). Therefore, the critical issue is whether Tran reasonably believed that the appellant's wife had suffered an injury and had been transported to a medical facility for treatment. An officer's reasonable beliefs are issues of fact. See e.g., Holmes v. State, 248 S.W.3d 194, 200 (Tex.Crim.App.2008) (noting that contested fact issues included “that Officer Frank did not reasonably believe that the defendant was holding a garden hoe; that Officer Frank did not reasonably believe that the defendant might have been involved in a ‘disturbance’ with Alice Manning; [and] that Officer Frank did not reasonably believe that the defendant was attempting to evade detention by trotting or running away”).

Because the trial court denied the appellant's motion to suppress, we assume that the trial court implicitly determined that Officer Tran possessed the reasonable belief required to justify the mandatory blood draw as long as that determination is supported by the record. See Ross, 32 S.W.3d at 855. Officer Tran's testimony and the video taken at the scene of the accident both support the determination that Officer Tran reasonably believed the appellant's wife had suffered an injury and had been transported to a medical facility by the time he ordered the appellant's mandatory blood draw. We give almost total deference to that determination. See Wiede, 214 S.W.3d at 25; Ross, 32 S.W.3d at 855.

Accordingly, we overrule the appellant's first issue.

Galveston County Driving While Intoxicated (DWI) Lawyers.

Constitutional Challenge

In his second issue, the appellant argues that section 724.012(b)(1)(C) is “unconstitutional when employed to require a blood draw in an arrest for the misdemeanor offense of driving while intoxicated.”

The constitutionality of a statute is a question of law we review de novo. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App.2007); McMillian v. State, 388 S.W.3d 866, 870 (Tex.App.-Houston [14th Dist.] 2012, no pet.). We begin with the presumption that the statute is valid and that the legislature did not act arbitrarily and unreasonably in enacting it. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002); McMillian, 388 S.W.3d at 871. If a statute can be construed in two different ways, one of which sustains its validity, we apply the interpretation that sustains its validity. McMillian, 388 S.W.3d at 871. The burden rests upon the person who challenges a statute to establish its unconstitutionality. Id. We must uphold a statute if we can determine a reasonable construction which will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App. [Panel Op.] 1979); McMillian, 388 S.W.3d at 871.

The withdrawal of a blood specimen from a person is considered a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767 (1966). The Fourth Amendment to the United States Constitution, and Article I, Section 9 of the Texas Constitution, protect against unreasonable searches and seizures. U .S. Const. Amend. IV; Tex. Const. art. I, § 9. A search or seizure conducted without a warrant is per se unreasonable absent a recognized exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000).

Chapter 724 of the Texas Transportation Code, which governs this case, mandates the taking of blood samples from persons suspected of driving while intoxicated in certain circumstances. See Beeman v. State, 86 S.W.3d 613, 616 (Tex.Crim.App.2002); Aviles v. State, 385 S.W.3d 110, 115 (Tex.App.-San Antonio 2012, pet. ref'd). Chapter 724 “gives officers an additional weapon in their investigative arsenal, enabling them to draw blood in certain limited circumstances even without a search warrant.” Beeman, 86 S.W.3d at 616.

Galveston County Driving While Intoxicated (DWI) Lawyers.

A person who has been arrested for the offense of operating a motor vehicle while intoxicated and in a public place is deemed to have consented to the taking of one or more specimens of blood or breath to analyze the alcohol concentration amount or presence of a controlled substance. Tex. Transp. Code Ann. § 724.011 (Vernon 2011); Aviles, 385 S.W.3d at 115. The person retains the right, subject to automatic suspension of his license, to refuse to give a specimen. Tex. Transp. Code Ann. 724.013 (Vernon 2011); Aviles, 385 S.W.3d at 115–16. However, if the person refuses to provide a specimen voluntarily and the arresting officer reasonably believes an individual other than the person has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment, then the officer “shall require the taking of a specimen of the person's breath or blood.” Tex. Transp.Code Ann. § 724.012(b)(1)(C).

The appellant contends that section 724.012(b)(1)(C) is unconstitutional in this context because it is objectively unreasonable to order a mandatory blood draw in non-felony cases. The entirety of appellant's argument reads as follows:

In Schmerber, the Court's analysis that allowed for the warrantless seizure of a blood specimen hinged specifically on the officer's belief that he was confronted with an emergency in which a delay to obtain a warrant may have allowed for the destruction of evidence. Obviously, it is not 1966. Obviously, the expedited availability of blood seizure warrants is common knowledge amongst Texas law enforcement. More importantly, Officer Tran testified that this was never an intoxication assault investigation. No emergency. No felony. Not constitutionally cognizable.

We construe this contention liberally as an argument that the State failed to discharge its burden to establish an exception to the warrant requirement. We reject this argument.

Galveston County Driving While Intoxicated (DWI) Lawyers.

The Supreme Court recently addressed “whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Missouri v. McNeely, 133 S.Ct. 1552, 1556 (2013). McNeely involved a driver who refused to give a breath sample when he was stopped for erratic driving; police drove him directly to a hospital and obtained a warrantless blood draw less than 30 minutes after the initial stop. Id. at 1556–57. The Court held that the fact of alcohol dissipation over time, standing alone, did not support a per se rule authorizing warrantless blood draws. Id. at 1568. “Because this case was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant.” Id. “[W]e hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.” Id. at 1556.

In so holding, the Supreme Court in McNeely discussed its earlier decision in Schmerber. The petitioner in Schmerber was arrested at a hospital while receiving treatment for injuries suffered in an accident involving the car he had been driving. Schmerber, 384 U.S. at 758. The arrest occurred within two hours of the accident. Id. at 769. At the hospital, a police officer ordered a physician to take a blood sample from the driver without obtaining a warrant. Id. at 758, 768. After acknowledging that “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great,” the Court found the blood draw to be constitutionally valid:

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ Preston v. United States, 376 U.S. 364, 367 (1964). We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest. Schmerber, 384 U.S. at 770–71.

McNeely states that “our analysis in Schmerber fits comfortably within our case law applying the exigent circumstances exception.” McNeely, 133 S.Ct. at 1560. “In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.” Id. “[B]ecause an individual's alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results.” Id. at 1561. “This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence.” Id. (citing Schmerber, 384 U.S. at 770).

Applying the teaching of McNeely and Schmerber, we reject appellant's constitutional challenge to section 724.012(b)(1)(C) and its operation under the circumstances presented in this case.

Galveston County Driving While Intoxicated (DWI) Lawyers.

Nothing in McNeely or Schmerber suggests that the characterization of the offense at issue as a misdemeanor or a felony affects the constitutional analysis. The statute does not purport to authorize a warrantless blood draw based solely on the natural metabolization of alcohol in the bloodstream; instead, it sets forth multiple, specific circumstances in which a blood draw is required. The circumstances here do not involve solely the natural metabolization of alcohol in the bloodstream.

The specific circumstances at issue here involved the officer's reasonable belief that an individual suffered bodily injury that warranted transportation to a hospital or another medical facility for treatment. As in Schmerber, time had to be taken to investigate the scene of the accident and determine the need for medical treatment. Video from the dashboard camera shows that at least 57 minutes elapsed from the time Officer Tran arrived on the accident scene until he and the appellant arrived at the Pearland Police Department. Officer Tran read the statutory warnings after their arrival, and the appellant refused to voluntarily give a breath sample; the blood was drawn thereafter. These facts parallel Schmerber, and they demonstrate that the warrantless blood draw in this case did not violate appellant's constitutional rights. This holding, which is tied to the specific facts presented on this record, comports with the Supreme Court's recognition that “some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test.” McNeely, 133 S.Ct. at 1561.

We overrule the appellant's second issue.

CONCLUSION

Having overruled both of the appellant's issues, we affirm the judgment of the trial court.

DISSENTING OPINION

I agree with the majority's holdings that (1) the trial court did not err in concluding the statutory prerequisite to a mandatory blood draw was met under section 724.012(b)(1)(C) of the Texas Transportation Code; and (2) this statute is not unconstitutional simply because it mandates the taking of blood specimens in certain non-felony cases. But appellant also argues that “[n]o emergency” justified the warrantless seizure of his blood specimen, which violated the Fourth Amendment to the United States Constitution. In light of the United States Supreme Court's recent opinion in Missouri v. McNeely, 133 S.Ct. 1552 (2013), I agree with appellant that the State has not carried its burden to prove exigent circumstances that justify an exception to the warrant requirement. Accordingly, on this record, I would hold that the taking of appellant's blood sample was an unreasonable warrantless seizure, and the trial court should have granted appellant's motion to suppress the blood test results. Because the majority opinion does not hold the State to its burden, I respectfully dissent.

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Analysis

“A defendant who alleges a violation of the Fourth Amendment has the burden of producing evidence that rebuts the presumption of proper police conduct. He may carry this burden by establishing that the seizure occurred without a warrant. The burden then shifts to the State to prove the reasonableness of the seizure.” State v. Robinson, 334 S.W.3d 776, 778–79 (Tex.Crim.App.2011) (footnotes omitted); see also id. at 780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005). Here, it is undisputed that police drew appellant's blood without a warrant. Accordingly, the State bears the burden to prove the reasonableness of the seizure. On this record, it has not carried that burden.

As the majority recognizes, the United States and Texas Constitutions protect the people against unreasonable seizures by the government, and courts have held that a warrantless seizure is reasonable only if it falls within a recognized exception. Ante, at 6. A warrantless seizure of a blood sample can be constitutionally permissible if the State proves that “officers have probable cause to arrest a suspect, exigent circumstances exist, and a reasonable method of extraction is available.” State v. Mosely, 348 S.W.3d 435, 440 (Tex.App.-Austin 2011, pet. ref'd) (citing Schmerber v. California, 384 U.S. 757, 767–68 (1966); Aliff v. State, 627 S.W.2d 166, 169–170 (Tex.Crim .App.1982)).

In its brief, the State argues that the exigent circumstances requirement has been met here because “the need to quickly obtain a blood sample is great. The alcohol in a person's blood quickly dissipates and unless this evidence is obtained immediately, it is lost forever.” But the United States Supreme Court recently rejected this very argument that “the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133 S.Ct. at 1556. Instead, “exigency in this context must be determined case by case based on the totality of the circumstances.” Id. Thus, the court observed that “[i]n finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.” Id. at 1560.

McNeely holds that courts should apply the following rule in analyzing the particular facts presented: “In those drunk driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id. at 1561 (emphasis added).

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McNeely also sheds light on particular facts that are pertinent to the case-by-case inquiry. The supreme court agreed that metabolization of alcohol is one factor to consider: “[B]ecause an individual's alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results.” Id. But the court also recognized that “because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant.” Id. If the “warrant process will not significantly increase [this] delay ․ because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer,” the court reasoned, “there would be no plausible justification for an exception to the warrant requirement.” Id.

In addition, the court noted “advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple.” McNeely, 133 S.Ct. at 1561–62. The court explained that “technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge's essential role as a check on police discretion, are relevant to an assessment of exigency,” particularly given that blood alcohol evidence “is lost gradually and relatively predictably.” Id. at 1562–63. The court also noted, however, that “exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.” Id. at 1563.

Considering the facts of this case in light of McNeely's guidance, the State has not carried its burden to show exigent circumstances. The majority observes that the police needed time to investigate the accident scene and determine the need for medical treatment, that Officer Tran and appellant arrived at the police department at least 57 minutes after the accident, and that Officer Tran later took appellant to a local medical center, where a sample of his blood was drawn. Ante, at 2, 10. But there is no evidence that obtaining a warrant would have further delayed the blood draw. For example, there is no evidence of what technologies or procedures were available to the police to expedite the warrant application process. Cf. McNeely, 133 S.Ct. at 1561–63. Moreover, the record shows there were three officers as well as EMS personnel at the accident scene, and there is no evidence that another officer could not have taken reasonable steps to secure a warrant while Officer Tran was transporting appellant to the police station and later to the medical center. Cf. id. at 1561. Finally, even if there were evidence that it would have taken police additional time to obtain a warrant, there is no evidence that the delay would have been long enough to undermine the probative value of the blood test results significantly given the predictable rate at which blood alcohol evidence is lost.

Because the State failed to prove that officers could not reasonably obtain a warrant before drawing appellant's blood sample without significantly undermining the efficacy of the blood alcohol test, the sample was taken in violation of the Fourth Amendment. See id. Accordingly, on this record, the trial court erred in denying appellant's motion to suppress the test results.

It is perhaps unsurprising that the record in this case does not anticipate the considerations that the supreme court found significant in McNeely, which was decided after the parties filed their appellate briefs. In a recent habeas corpus case, our court remanded in the interest of justice to permit further development of the record in light of significant legal developments. See Aguilar v. State, 375 S. W.3d 518, 526 (Tex.App.-Houston [14th Dist.] 2012), rev'd on other grounds, 393 S.W.3d 787 (Tex.Crim.App.2013). In this case, however, no party has requested that relief or addressed whether it would be appropriate to reverse the judgment and remand, allowing the parties to offer additional evidence and the trial court to reconsider its ruling on the motion to suppress in light of McNeely. Nor does the majority opinion address the possibility of such a remand. Accordingly, I do not reach that issue.

Conclusion

For these reasons, I would hold that the trial court erred in denying appellant's motion to suppress the blood test results, reverse the judgment, and remand the case for further proceedings. I respectfully dissent from the majority's decision to affirm the judgment.

FOOTNOTES

“The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.’ “ Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); see also Jones v. United States, 357 U.S. 493, 499 (1958) (“[t]he exceptions to the rule that a search must rest upon a search warrant have been jealously and carefully drawn”).

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Prior to McNeely, some Texas courts appear to have agreed with the State's argument here and adopted the very per se rule that McNeely rejects. E.g., Blumenstetter v. State, 135 S.W .3d 234, 243 (Tex.App.-Texarkana 2004, no pet.) (“[E]xigent circumstances exist in cases such as these because alcohol in blood is quickly consumed and the evidence may be lost forever.”); State v. Laird, 38 S.W.3d 707, 713 (Tex.App.-Austin 2000, pet. ref'd) (“It is a well-settled fact that alcohol in the blood dissipates quickly constitut[ing] exigent circumstances.”); Hayes v. State, 634 S.W.2d 359, 362 (Tex.App.-Amarillo 1982, no pet.).

McNeely does not hold that the State must provide evidence on all of these matters in every case, nor does it provide an exclusive list of matters that could be relevant in an exigent circumstances analysis. In this case, however, the State failed to provide evidence on any of these matters, and it directs us to no other evidence tending to show exigent circumstances on these particular facts. Thus, the State has not carried its burden.

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Posted Thu, November 28, 2013 - 9:26:22

Galveston Biker Rally DWI DUI Lawyers - GALVESTON DECLARES NO REFUSAL WEEKEND

Each year Galveston, Texas is host to Lone Star Biker Rally. During this four day event, hundreds of thousands of people visit Galveston on motorcycles. This year, Galveston County has declared biker weekend a "no refusal weekend.”

 Galveston DWI DUI Motorcycle Lawyers
Galveston DWI DUI Motorcycle Lawyers

During a no refusal weekend, judges, prosecutors, and nurses will be on standby to sign warrants and draw your blood if you are suspected of drinking and driving your vehicle or motorcycle.

If you were pulled over by a police officer who suspected that you may be under the influence of drugs or alcohol, you may have been subjected to a blood draw. Just because the state got a warrant for your blood doesn’t automatically make it admissible in court; that’s just the beginning of the fight.

If you have been charged with Driving While Intoxicated (DWI) in Galveston County (Bayou Vista, Clear Lake Shores, Dickinson, Friendswood, Galveston, Hitchcock, Jamaica Beach, Kemah, La Marque, League City, Santa Fe, Texas City, Tiki Island, Bacliff, Bolivar Peninsula, San Leon, Algoa, Bayview, Crystal Beach, Gilchrist, High Island, or Port Bolivar), you need an experienced Galveston County DWI defense lawyer on your side.

If you have been charged with Driving While Intoxicated (DWI) in Galveston County, read our DWI page and call our office today. Calls are answered 24/7 by a live operator. Don’t wait; call today. 409-740-1111.

What should you do if you have already been arrested for DWI during biker rally? CLICK HEREhttp://www.galvestonjustice.com/dwi/

 Galveston DUI DWI Motorcycle Lawyers
Galveston DUI DWI Motorcycle Lawyers

Posted Tue, October 29, 2013 - 1:31:26
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