DOUDS V. STATE Kenneth Lee Douds, Appellant v. The State of Texas, Appellee No. 14-12-00642-CR.
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.
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.
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.
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.’
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.
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.
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.
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.
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.
Having overruled both of the appellant’s issues, we affirm the judgment of the trial court.
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.
“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).
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.
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.
“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”).
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.