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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.

Galveston County Driving While Intoxicated (DWI) Lawyers.

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).

Galveston County Driving While Intoxicated (DWI) Lawyers.

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”).

Galveston County Driving While Intoxicated (DWI) Lawyers.

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.

Galveston County Driving While Intoxicated (DWI) Lawyers.
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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

Missouri v. McNeely - US Supreme Court Says Warrantless Blood Draws are Unconstitutional

Tyler G. McNeely was arrested for drunk driving on October 3, 2010. After McNeely refused a breathalyzer and blood tests, Officer Mark Winder, acting without a warrant, directed hospital personnel to remove blood from McNeely. McNeely asserts that this action violated his Fourth Amendment right to be free from unreasonable searches and seizures. The State of Missouri responds that Winder’s action was constitutional because it fell into the “exigent circumstances” exception to the Fourth Amendment’s warrant requirement because the blood evidence was likely to be destroyed during the time it would take to obtain a warrant. McNeely also argues that bodily integrity is the core of the Fourth Amendment, that warrantless blood draws are unnecessary because other states have required warrants for blood draws and have not encountered difficulties enforcing DUI laws, and that judges and prosecutors overwhelmingly support warrants for blood draws. Missouri responds that blood testing is the best method of obtaining probative, relevant evidence of drunk driving, that blood draws typically involve little risk and pain, and that because alcohol naturally dissipates in a person’s bloodstream, evidence of drunk driving is continually destroyed.

Questions as Framed for the Court by the Parties

Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.

Issue

Is there an exception to the Fourth Amendment warrant requirement for forcibly drawing blood from a person suspected of drunk driving?

Facts

On October 3, 2010, at approximately 2:08 A.M., patrolman Mark Winder stopped Tyler G. McNeely for speeding. During the routine traffic stop, Winder thought McNeely showed signs of intoxication, including bloodshot eyes, slurred speech, and the smell of alcohol on his person. As a result, Winder had McNeely perform multiple field-sobriety tests. According to Winder’s later testimony, because McNeely performed poorly on each of these tests, Winder arrested McNeely for driving while intoxicated. Winder then asked McNeely to take a breathalyzer test, but McNeely refused.

Winder, relying on an article he had recently read in Traffic Safety News that was written by a prosecutor in the Missouri Attorney General’s Office, took McNeely to the local hospital for a blood test without first getting a search warrant. Upon arrival at the hospital, Winder read an implied consent advisory form to McNeely, in which he warned McNeely that he would lose his driver’s license for one year if he refused to consent to a blood test, and that such refusal would be admissible evidence in a future prosecution against McNeely. After McNeely refused the blood test, Winder then instructed a staff member to draw blood without McNeely’s permission. The result of the test was a blood-alcohol level of 0.154 percent, well above the legal limit of 0.08.

After the state charged McNeely with driving while intoxicated, McNeely filed a motion to suppress evidence due to a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. The trial court sustained this motion. On June 21, 2011, the Missouri Court of Appeals, Eastern District, reversed the trial court, holding that the exigent circumstances exception to the Fourth Amendment applied so Winder did not need a warrant. Subsequently, in light of the “general interest and importance of the issue,” the Court of Appeals sua sponte transferred the case to the Missouri Supreme Court. The Missouri Supreme Court reversed the Court of Appeals and affirmed the trial’s ruling in a per curiam opinion. The U.S. Supreme Court granted certiorari on September 25, 2012, on the question of whether the natural dissipation of alcohol in the bloodstream triggers the exigent circumstances exception to the Fourth Amendment.

Discussion

This case centers on the consequences of allowing warrantless and nonconsensual blood tests for suspicion of drunk driving. The State of Missouri and its Amici argue that the government needs to have the ability to perform nonconsensual blood tests to effectively enforce laws against drunk driving, and Fourth Amendment privacy interests are minimal for motorists. McNeely and Amici counter that there are significant privacy implications in a person’s body, that warrantless blood draws are unnecessary to enforce drunk driving laws, and that the warrant process can be streamlined, removing any exigent circumstances.

The Right Against Bodily Intrusion

The state of Missouri and Mothers Against Drunk Driving (“MADD”) both note the extent of drunk driving in the United States: in 2010, the nationwide death toll as a result of drunk drivers was 10,228. Missouri also considers drunk driving a serious crime, with a first offense authorizing a prison sentence of up to six months, and a fifth offense authorizing a sentence of up to fifteen years. Furthermore, MADD notes that the estimated annual cost of drunk-driving crashes is $132 billion, even before accounting for long-term health care and lost output costs. Missouri also argues that blood testing is the best method of getting probative, relevant evidence of drunk driving. The National District Attorney’s Association (“NDAA”) points out that blood tests are necessary for a variety of events in modern life, such as medical exams, marriage licenses, entry for some colleges, and joining the military. The United States adds that blood draws typically involve “virtually no risk, trauma, or pain.”

McNeely responds that bodily integrity is the heart of human dignity and privacy. McNeely compares drawing blood to practices such as taking fingernail scrapings and searching a person’s clothing for evidence, which have been held to “inflict great indignity and arouse strong resentment.” McNeely is also concerned about the environment of the blood draw, pointing out that some states authorize officers to draw blood at the location of the arrest, a circumstance he asserts is much more likely to cause pain or serious injury. The National College for DUI Defense (“NCDD”) and the National Association of Criminal Defense Lawyers (“NACDL”) argue that warrantless blood draws are unnecessary. They note that twenty-one states, including Missouri, have typically obtained warrants for blood draws involving alcohol tests, and they assert that these warrant requirements have not created difficulties in enforcing drug laws. In addition, the NCDD and NACDL cite a National Highway Traffic Safety Administration study, which found that judges and prosecutors overwhelmingly support warrants for blood draws because they constitute better evidence and lead to “more guilty pleas, fewer trials, and more convictions.”

The Destruction of Evidence

Missouri argues that because blood naturally dissipates in a person’s bloodstream, evidence of drunk driving is continually and inevitably destroyed. The NDAA asserts that the process for obtaining a warrant is time-consuming because the warrant-seeker must locate a judge and the judge must review the warrant request. Moreover, the time it takes to obtain a warrant can depend on multiple factors, including the day of the week and the time of the day. The NDAA also claims that increases in technology to streamline the process of obtaining a warrant will not be available in every jurisdiction and that such disparity is unviable.

The NCDD and NACDL assert that the process for obtaining a warrant and drawing blood typically takes less than two hours. They respond to the inevitable destruction of evidence argument by pointing out that the rate of dissipation is predictable and provides police a reasonable “window of opportunity” in which to obtain a warrant. McNeely notes that many states allow for methods of electronic warrant transmission, such as submitting affidavits by telephone, e-mail warrants, or text messaging, which expedites the process. McNeely cites a publication of the Kansas County and District Attorneys Association that concludes that technology can decrease the time to obtain a warrant from three hours to forty-five minutes.

Analysis

Both parties start from the Supreme Court’s repeatedly stated maxim that the “ultimate touchstone of the Fourth Amendment is reasonableness.” Both parties agree that warrantless searches and seizures are presumptively unreasonable. Nevertheless, the Supreme Court has recognized that exigent circumstances may justify a warrantless search. Some examples of judicially recognized exigent circumstances include “hot pursuit” of a fleeing suspect, the need to fight a fire, and the need to render emergency assistance to an injured individual. Moreover, the Supreme Court recently confirmed that imminent destruction of evidence is an exigent circumstance that may justify a warrantless search. Ultimately, the analysis balances the expectations of individual privacy against the legitimacy of the government’s asserted interests.

The Reasonableness of Obtaining Warrantless Blood Tests from Suspected Drunk Drivers

Missouri argues that the facts in this case are a reasonable application of the “imminent destruction of evidence” exception to the Fourth Amendment’s warrant requirement. Specifically, Missouri emphasizes that the exception is particularly appropriate here because the human body always eliminates alcohol, whereas most other evidence is only subject to likely destruction or disappearance. Moreover, Missouri argues that this evidence is the “best and most probative” evidence in a drunk driving investigation.

Missouri also argues that significant precedent favors its position. First, Missouri notes that numerous state courts, including those in Wisconsin, Minnesota, and Oregon, have held that law enforcement may perform a warrantless blood test in these circumstances. These state courts have essentially recognized a “blood alcohol exception” as an extension of the Supreme Court’s holding in Cupp v. Murphy where the Court held that police justifiably removed – without a warrant – a substance that appeared to be dried blood from underneath a suspect’s fingernails. Similarly, Missouri distinguishes this case from Vale v. Louisiana, where the Supreme Court refused to find exigency when the police, acting without a warrant, searched a home for heroin after confirming that no individuals were inside the home. While the facts in Vale indicate essentially no probability of destruction of evidence, here, by contrast, the human body always eliminates blood alcohol evidence, so the exigency always exists. Missouri also states that a ruling for McNeely would effectively force police to allow this evidence to disappear and would be “wholly inconsistent with . . . the Fourth Amendment.”

Conversely, McNeely argues that the Supreme Court disfavors per se exceptions to the Fourth Amendment’s warrant requirement and that a per se rule in this case is unreasonable. To support this assertion, McNeely cites language from the Court’s recent decision in United States v. Banks, where the Court stated that “no template is likely to produce sounder results than examining the totality of the circumstances in a given case.” While acknowledging that exigent circumstances sometimes justify exceptions to the warrant requirement, McNeely argues that the Supreme Court requires a “totality-of-the-circumstances” balancing test.

McNeely argues that courts should consider how far the police must take the suspect to have his or her blood drawn, how long it typically takes to obtain a warrant in the relevant jurisdiction, and whether state evidentiary rules impose strict requirements on the time interval between arrest and testing for blood-alcohol content. Finally, McNeely questions Missouri’s reliance on precedent that Missouri cited. Indeed, McNeely notes that Cupp supported an exception to the warrant requirement because the suspect there was rubbing his hands together to remove the dried blood from underneath his fingernails.

Balancing the State’s Legitimate Interests Against the Individual’s Privacy Interests

Missouri asserts that a state’s interest in preventing drunk driving and enforcing laws is both legitimate and essential. Missouri notes that, in 2010 alone, drunk driving caused at least 10,228 deaths and approximately $132 billion in damage. Additionally, Missouri cites language from Winston v. Lee, where Justice William J. Brennan stressed that “especially given the difficulty of proving drunkenness by other means, . . . results of the blood test were of vital importance if the State were to enforce its drunken driving laws.”

Similarly, Missouri asserts that the state’s interest outweighs any countervailing, individual privacy concerns. First, Missouri argues that a blood test poses only a minor intrusion because the Supreme Court has described blood tests as both commonplace and presenting little risk of trauma or pain. Furthermore, Missouri cites the Supreme Court’s decision in New York v. Class for the proposition that automobile use is already heavily regulated by the government, so all drivers assume a lower expectation of privacy. Missouri argues that this reduced expectation of privacy is particularly important in state efforts to stop drunk driving which poses a serious threat to public safety.

McNeely discounts the importance of the governmental interest at stake in this case. First, McNeely responds that at least half of the states prohibit warrantless blood draws and that no evidence indicates that these states have a greater problem with drunk driving enforcement. As an additional matter, McNeely argues that the state’s need for blood withdrawals is insubstantial because more than 80% of suspected drunk drivers consent to breathalyzer tests. Finally, McNeely argues that studies which indicate that those who refuse blood-alcohol content testing face higher average sanctions further undermines the need for a per se exception.

Conversely, McNeely argues that the privacy interest at stake here is substantial because the right to bodily integrity lies at the heart of the Fourth Amendment. In support of this claim, McNeely cites the ancient legal treatise by William Blackstone who stated that individuals have an absolute right against intrusion of his life or body. Similarly, McNeely argues that Justice Sandra Day O’Connor’s language in Cruzan v. Director, Missouri Dept. of Health echoes Blackstone’s earlier arguments: “[T]he Court has often deemed state incursions into the body repugnant to the interests protected by . . . Fourth Amendment jurisprudence.” As a final matter, McNeely disagrees with Missouri’s interpretation of Class and highlights the Supreme Court’s distinction between cars and people in terms of the privacy expectation.

Conclusion

McNeely asserts that a warrantless blood test violated his Fourth Amendment right to be free from unreasonable searches and seizures, and that a contrary ruling poses a grave threat to bodily integrity. Furthermore, McNeely argues that the state’s need for warrantless blood tests is insubstantial because most drunk driving suspects consent either to breathalyzer or blood tests. Missouri responds that allowing warrantless blood draws in these cases allows the state to more effectively pursue a vital interest in enforcing drunk driving laws and that the blood test constitutes only a minor intrusion which involves virtually no health risks. Furthermore, Missouri asserts that warrantless blood tests may be necessary because the delay in obtaining a warrant may allow the drunk driving suspect to partly or wholly metabolize the alcohol and thus destroy the most probative evidence of drunk driving. While both parties agree that drunk driving is a serious problem, they disagree sharply over whether allowing warrantless blood draws will enable states to more effectively enforce drunk driving laws and prosecute individuals suspected of violating those laws. Summary credit to Cornell Law.


Posted Sun, October 20, 2013 - 10:14:31

A Recap of Missouri v. McNeely - The Supreme Court’s Decision on Warrantless Blood Draws in DWIs

Missouri v. McNeely - A recap of the decision of the United States Supreme Court.

A police officer out on patrol who stops a driver who seems to be drunk may not have read through four new Supreme Court opinions and counted the Justices’ votes accurately, but that officer would probably do the sensible thing by getting a warrant before having the driver’s blood tested without consent.

That would be the best thing to do because the bottom line of the Court’s decision Wednesday in Missouri v. McNeely (11-1425) was that every case will be judged on its own facts, so the officer can never know whether failure to get a warrant will scuttle a drunk-driving case altogether.

None of the Court’s four opinions — a majority, two separate opinions supporting the result, and one dissenting opinion — said that officers investigating drunk-driving cases must always get a warrant. But the majority did say that the Constitution does not allow police to get a blood sample without ever having to get a warrant, in any case (as the dissenting opinion suggested). So that sets up the case-by-case approach, suggesting that getting a warrant very likely would remove the doubt.

Because the vote of Justice Anthony M. Kennedy was necessary to make a majority for the requirement that each case be judged on its own facts, his separate opinion may have special importance for local governments and their police forces as they decided how to react to the new ruling.

Justice Kennedy suggested that local officials still retain the authority to work out “rules and guidelines that give important, practical instruction to arresting officers,” and that those kinds of rules might well allow blood testing without a warrant “in order to preserve the critical evidence” of blood alcohol content. As further cases develop, Kennedy wrote, the Court itself might find it worthwhile “to provide more guidance than it undertakes to give today.”

His fifth vote supported this bare conclusion: “always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment.”

With his qualifications stated, Kennedy joined most of the Court opinion written by Justice Sonia Sotomayor and supported in full by Justices Ruth Bader Ginsburg, Elena Kagan, and Antonin Scalia.

The Sotomayor opinion stressed that getting a warrant should be the default protocol in drunk-driving cases where officers decide to have a blood test made. That opinion said that the mere fact that alcohol in the blood does dissipate over time is not enough, by itself, to do away totally with the requirement for a search warrant — the position that the state of Missouri took in this case.

The lead opinion sought to make the point that the Court was simply applying standard Fourth Amendment doctrine, and that the Court’s precedents simply did not support a blanket rule that blood could be drawn by the government without ever having to seek a warrant from a judge first.

That opinion also stressed that state and local governments have adopted a number of new procedures that make it easier, and faster, to get blood-test warrants, and that those procedures will help to assure that blood alcohol evidence does not disappear before a test could be made. “Our ruling will not severely hamper law enforcement,” Justice Sotomayor wrote.

Chief Justice John G. Roberts, Jr., in an opinion joined by Justices Samuel A. Alito, Jr., and Stephen G. Breyer, argued for a more-or-less flat constitutional rule that an officer must seek a warrant before having a DUI or DWI blood test made, if there is time, but not otherwise. If there is not time, in the officer’s judgment, that opinion said, there is no warrant requirement. That is an exigency, the Chief Justice wrote, because of “the imminent destruction of evidence” that results from the way the blood absorbs alcohol. Those four would have sent the case back to Missouri’s state courts to apply the approach recited by the Chief Justice.

Justice Clarence Thomas, in a dissenting opinion voicing only his own views, argued that the chemical breakdown of blood alcohol was sufficient to justify never having to get a warrant before an officer ordered a DUI orDWI blood test.

SCOTUSblog / CC BY-NC-ND 3.0

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.


Posted Sun, October 20, 2013 - 10:05:37
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