Smith, William A/K/A Bill Smith ( 2015 )

PD-1615-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/17/2015 3:22:34 PM
February 17, 2015
Accepted 2/17/2015 3:26:13 PM
ABEL ACOSTA
No. PD-1615-14 CLERK
IN THE
TEXAS COURT OF CRIMINAL APPEALS
THE STATE OF TEXAS,
PETITIONER,
v.
WILLIAM SMITH,
RESPONDENT.
ON PDR FROM THE THIRTEENTH
COURT OF APPEALS
PETITIONER’S BRIEF
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
Attorney for Petitioner
IDENTITY OF PARTIES AND COUNSEL
State’s Trial Attorney:
Mr. William Patrick Delgado
State Bar No. 24064540
Assistant District Attorney
901 Leopard, Room 206
Corpus Christi, Texas 78401
State’s Appellate Attorney:
Mr. Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
douglas.norman@co.nueces.tx.us
Appellant:
William Smith
1203 El Cibolo Rd.
Edinburg, Texas 78542
Appellant’s Trial Attorney:
Mr. Mark DiCarlo
State Bar No. 05812510
722 Elizabeth Street
Corpus Christi, Texas 78404
Appellant’s Appellate Attorney:
Mr. Donald B. Edwards
State Bar No. 06469050
P.O. Box 3302
Corpus Christi, Texas 78463
(361) 887-7007
mxlplk@swbell.net
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .................................................. i
INDEX OF AUTHORITIES.......................................................................... iv
STATEMENT OF THE CASE ....................................................................... 1
ISSUES PRESENTED.................................................................................... 2
STATEMENT OF FACTS ............................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................. 3
ARGUMENT .................................................................................................. 4
I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement. .................................................... 4
I. THE IMPLIED CONSENT/MANDATORY DRAW
STATUTE. .......................................................................................... 4
II. THE McNEELY CASE.................................................................. 5
III. RECOGNIZED EXCEPTIONS TO THE WARRANT
REQUIREMENT. ............................................................................... 9
A. The Automobile Exception. ................................................ 9
B. The Special Needs Exception and Warrantless
Inspections of Closely Regulated Activities. ........................ 11
C. Consent and Waiver. ......................................................... 14
D. Search Incident to Arrest.................................................. 18
IV. OTHER SIGNIFICANT FACTORS. ...................................... 20
A. Legitimate Governmental Interest. ................................. 20
B. Gravity of the Offense. ...................................................... 21
C. Bright-Line Rule. ............................................................... 21
D. Presumption of Validity and Constitutionality. ............. 21
E. The Underlying Expectation of Privacy. ......................... 22
ii
F. Habitual Offenders Have a Diminished Expectation of
Privacy. .................................................................................... 23
G. The Specific Context of a Post-Arrest Mandatory
Draw......................................................................................... 24
H. Statutory Protections Concerning the Manner of
Drawing Blood. ....................................................................... 25
I. Mistake of Law. ................................................................... 27
V. THE UNIQUE NATURE OF THE INTRUSION – SEARCH
OR SEIZURE? .................................................................................. 28
VI. CONCLUSION. .......................................................................... 30
II. Whether the defendant preserves his Fourth Amendment objection
to blood evidence when he fails to object to testimony concerning the
results of testing done on that blood and only later objects to admission
of the blood sample itself. ........................................................................... 31
PRAYER ....................................................................................................... 34
RULE 9.4 (i) CERTIFICATION .................................................................. 35
CERTIFICATE OF SERVICE ..................................................................... 35
iii
INDEX OF AUTHORITIES
Cases
Arizona v. Gant, 556 U.S. 332, 338 (2009). ................................................. 19
Ex parte Arnold, 916 S.W.2d 640, 642 (Tex. App.—Austin 1996,
pet. ref’d). ................................................................................................ 15, 16
Atwater v. City of Lago Vista, 532 U.S. 318, 340-41, 121 S. Ct. 1536
(2001). ........................................................................................................... 28
United States v. Biswell, 406 U.S. 311, 316-17, 92 S. Ct. 1593 (1972). . 12, 15
Breithaupt v. Abram, 352 U.S. 432, 436 (1957). .......................................... 24
Brinegar v. United States, 338 U.S. 160, 176 (1949).................................. 27
California v. Carney, 471 U.S. 386, 105 S. Ct. 2066 (1985). ................... 9, 10
Carpenter v. Gage, 686 F.3d 644, 649-50 (8th Cir. 2012). ........................... 30
Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925). .................. 9, 10
City of Ontario v. Quon, 130 S. Ct. 2619, 2629-30 (2010). .................... 22, 23
Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970). ..... 12
Cook v. City of Bella Villa, 582 F.3d 840, 849-50 (8th Cir. 2009)................ 30
Cupp v. Murphy, 412 U.S. 291, 295, 93 S. Ct. 2000 (1973). .................. 19, 29
Donovan v. Dewey, 452 U.S. 594, 602 (1981). ........................................... 12
Dunaway v. New York, 442 U.S. 200, 213–14 (1979). ................................. 21
United States v. Edwards, 415 U.S. 800, 803 n.9 (1973). ............................ 19
Ford v. State, 919 S.W.2d 107, 117 (Tex. Crim. App. 1996). ..................... 33
iv
Griffin v. Wisconsin, 483 U.S. 868, 880 (1987). .......................................... 24
Heien v. North Carolina, --- U.S. ---, No. 13-604 (December 15, 2014). ....... 27
Horton v. California, 496 U.S. 128, 133, 110 S. Ct. 2301 (1990). ............... 28
Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946 (2001).............................. 9
United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652 (1984). ....... 28
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). ................ 22
United States v. Knights, 534 U.S. 112, 120, 122 S. Ct. 587 (2001). ...... 14, 23
Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). .................... 33
Life & Casualty Ins. Co. v. McCray, 291 U.S. 566, 572, 54 S. Ct. 482
(1934). ........................................................................................................... 22
Marshall v. Barlow’s, Inc., 436 U.S. 307, 323–25 (1978)........................... 12
Md. v. King, 133 S. Ct. 1958, 1970 (2013). ............................. 20, 27, 29
Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011). ........................ 14
Missouri v. McNeely, 133 S. Ct. 1552, 1556 (2013). ............................. passim
New York v. Burger, 482 U.S. 691, 702–03, 708 (1987). ........................... 11
Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012)......................................... 30
Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365
(1998). ........................................................................................................... 24
State v. Powell, 306 S.W.3d 761, 769 n.14 (Tex. Crim. App. 2010). .......... 28
Powell v. State, 898 S.W.2d 821, 829 (Tex. Crim. App. 1994). .................. 34
Samson v. California, 547 U.S. 843, 852, 126 S. Ct. 2193 (2006).... 14, 23, 24
v
Schmerber v. California, 384 U.S. 757, 769-70, 86 S. Ct. 1826
(1966). ......................................................................................... 19, 25, 26, 29
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041 (1973). ....... 14
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). .... 11
South Dakota v. Neville, 459 U.S. 553, 563 (1983)...................................... 24
Texas Dept. of Public Safety v. Richardson, 384 S.W.2d 128, 132 (Tex.
1964). ...................................................................................................... 13, 16
Texas Dept. of Public Safety v. Schaejbe, 687 S.W.2d 727, 728
(Tex. 1984). ................................................................................................... 15
Tharp v. State, 935 S.W.2d 157, 159 (Tex. Crim. App. 1996). ........ 13, 15, 16
State v. Villarreal, PD-0306-14 (Tex. Crim. App, November 26, 2014). ...... 4
Weems v. State, No. 04-13-00366-CR, (Tex. App.—San Antonio, May 14,
2014). .............................................................................................................. 7
Welsh v. Wisconsin, 466 U.S. 740, 751-52 (1984). ...................................... 21
Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297 (1999).............. 20
Zap v. United States, 328 U.S. 624, 627-28, 66 S. Ct. 1277 (1946)........ 14, 15
Statutes, Rules & Other Authorities
Tex. Penal Code § 49.01. .............................................................................. 12
Tex. Transp. Code § 524.012. ....................................................................... 12
Tex. Transp. Code § 524.022. ....................................................................... 13
Tex. Transp. Code § 724.011. ......................................................................... 5
Tex. Transp. Code § 724.012. ..................................................................... 5, 8
vi
Tex. Transp. Code § 724.013. ..................................................................... 5, 8
Tex. Transp. Code § 724.016. ......................................................................... 5
Tex. Transp. Code § 724.017. ................................................................... 5, 26
Tex. R. App. P. 33.1...................................................................................... 33
Texas Driver’s Handbook (rev. July 2012). ................................................. 16
Mo. Ann. Stat. § 577.020.1. ............................................................................ 6
Mo. Ann. Stat. § 577.041. ............................................................................... 6
National Highway Traffic Safety Administration [NHTSA], Alcohol and
Highway Safety: A Review of the State of Knowledge 167 (No. 811374,
Mar. 2011) [NHTSA Review]). .................................................................... 6
vii
NO. PD-1615-14
(Appellate Court Cause No. 13-11-694-CR)
THE STATE OF TEXAS, § IN THE
Petitioner, §
§
V. § COURT OF CRIMINAL APPEALS
§
WILLIAM SMITH, §
Respondent. § OF TEXAS
PETITIONER’S BRIEF
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through the District Attorney
for the 105th Judicial District of Texas, and respectfully urges this Court to
reverse the judgment of the Thirteenth Court of Appeals in the above named
cause for the reasons that follow:
STATEMENT OF THE CASE
William Smith was indicted for felony driving while intoxicated based
on two prior DWIs, further enhanced to a habitual felony offender by two
prior felonies. The trial court found Smith guilty and assessed punishment at
25 years in prison. Smith filed a timely notice of appeal.
A panel of the Thirteenth Court of Appeals reversed Smith’s
conviction based on the supposedly improper admission of blood evidence
1
that had been obtained pursuant to the implied consent and mandatory draw
provisions of the Texas Transportation Code.
ISSUES PRESENTED
I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement.
II. Whether the defendant preserves his Fourth Amendment objection
to blood evidence when he fails to object to testimony concerning the
results of testing done on that blood and only later objects to admission
of the blood sample itself.
STATEMENT OF FACTS
State trooper David Anguiano stopped Smith for driving without
wearing a seat belt. (RR vol. 1, p. 22) Upon approaching Smith’s car,
Anguiano smelled the strong odor of some sort of alcoholic beverage
coming from him and saw numerous open alcoholic beverages spread
throughout the vehicle. Anguiano observed that Smith’s movements were
slow and that he had glassy, blood-shot eyes. After further investigation,
including administering the standardized field sobriety tests, Anguiano
arrested Smith for driving while intoxicated. (RR vol. 1, pp. 23-32)
Anguiano testified that Smith made “a statement to the fact that it was
a felony D.W.I. for him.” (RR vol. 1, p. 43) After Anguiano confirmed
Smith’s criminal history, a different officer transported him to the hospital
while Anguiano followed. (RR vol. 1, p. 43) At the hospital, Anguiano
2
tried to obtain Smith’s consent to take a blood specimen, but when he
refused consent, Anguiano informed Smith that the blood draw was
mandatory. (RR vol. 1, pp. 44-45) Approximately one hour after the initial
traffic stop, a certified medical technologist took a sample of Smith’s blood.
(RR vol. 1, p. 49)
SUMMARY OF THE ARGUMENT
Issue No. 1 – The implied consent / mandatory draw provisions of the
Texas Transportation Code are a constitutionally valid alterative to the
warrant requirement based on several related justifications, most of which
balance the need to rid public roads of drunk drivers against the lessened
expectation of privacy that impaired drivers have concerning the drawing of
a sample of their blood, and on the driver’s implied consent/waiver of the
warrant requirement under narrowly specified circumstances.
Issue No. 2 – Smith waived error on his constitutional challenge to the
blood evidence in question by failing to object timely on Fourth Amendment
grounds when the state offered the critical testimony of the forensic scientist
concerning the incriminating results of the blood test.
3
ARGUMENT
I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement.
Although this issue has recently been decided against the State in
State v. Villarreal, PD-0306-14 (Tex. Crim. App, November 26, 2014), that
decision has not yet become final, and the State respectfully requests that the
Court reconsider Villarreal, and hold as well in the present case that the
implied consent and mandatory blood draw provisions of the Texas
Transportation Code are a constitutionally valid alternative to the warrant
requirement, and that the decision of the Thirteenth Court of Appeals to the
contrary should be reversed, for the following reasons.
I. THE IMPLIED CONSENT/MANDATORY DRAW STATUTE.
Driving on a roadway is a privilege, not a right; by doing so, a
defendant impliedly consents to providing a breath or blood sample when
suspected of intoxication-related crimes. The Transportation Code
provides as follows:
If a person is arrested for an offense arising out of acts alleged
to have been committed while the person was operating a motor
vehicle in a public place, or a watercraft, while intoxicated, or
an offense under Section 106.041, Alcoholic Beverage Code,
the person is deemed to have consented, subject to this chapter,
to submit to the taking of one or more specimens of the person's
breath or blood for analysis to determine the alcohol
4
concentration or the presence in the person's body of a
controlled substance, drug, dangerous drug, or other substance.
Tex. Transp. Code § 724.011 (emphasis added). A person retains the right
under most routine circumstances, subject to an automatic license
suspension, to refuse to provide a specimen. Tex. Transp. Code § 724.013.
However, the Legislature extinguished a defendant’s right to refuse in cases
where an officer possesses probable cause to believe that certain
enumerated, egregious circumstances existed. Id. at § 724.012(b). In those
narrow instances, the Transportation Code requires the arresting officer to
"require the taking of a specimen of the person's breath or blood." See Tex.
Transp. Code § 724.012(b). The Transportation Code then provides for the
breath or blood specimen to be taken "at the request or order of" the officer
in question. See Tex. Transp. Code § 724.016 (a) & § 724.017 (a).
II. THE McNEELY CASE.
The Supreme Court’s McNeely decision focused on the narrow
question of “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 questions.” Missouri v. McNeely, 133 S. Ct. 1552, 1556
(2013). The five-vote majority reversed the warrantless seizure in McNeely,
5
holding that the State may not rely on a per se exigency premised solely on
the natural dissipation of alcohol from the bloodstream. Id. at 1568.1
McNeely’s disposition resulted in four separate opinions, including the
5-4 majority by Justice Sotomayor. However, only part of her decision
garnered a majority; Justice Kennedy did not join in the last part of Section
II, nor did he join Section III. Justice Kennedy’s separate concurrence
signaled – in express language – that the majority only decided the per se
exigency issue on which certiorari had been granted, and nothing more.
McNeely, 133 S. Ct. at 1569 (J. Kennedy, concurring in part). Justice
Kennedy did not agree with Justice Sotomayor’s Section III discussion
discounting law enforcement’s concerns regarding the need for a bright-line
rule, nor did he join in the remaining plurality’s minimization of the
government’s interest in preventing and prosecuting drunk-driving offenses.
Id. at 1564-67 (Part III). While five justices voted against a per se
application of exigency, all of the justices recognized some blood draws will
be compelled, and there appears to be a differently-constituted-five-vote
1
Missouri has an implied-consent statute, as do all fifty states. See, e.g.,
Mo. Ann. Stat. §§ 577.020.1, 577.041; see also McNeely, 133 S. Ct. at 1566
(citing National Highway Traffic Safety Administration [NHTSA], Alcohol
and Highway Safety: A Review of the State of Knowledge 167 (No. 811374,
Mar. 2011) [NHTSA Review]). Yet, the Missouri prosecutors did not rely
on their State’s implied-consent statute or, for that matter, any other
exception to the Fourth Amendment’s warrant preference.
6
block that remains open to a modified rule departing from the warrant
requirement in circumstances other than a per se blood-alcohol exigency.
See id. at 1568-77 (J. Kennedy, concurring; Chief Justice Roberts,
concurring and dissenting, joined by Justices Breyer and Alito; and Justice
Thomas, dissenting). It should also be noted that the McNeely majority did
not reject all “per se” or “categorical” exceptions to the warrant requirement,
but rather only “per se” or “categorical” determinations of the exigent
circumstances exception under consideration in that case. Id. at 1556-60;
but see Weems v. State, No. 04-13-00366-CR, slip op. at 14 (Tex. App.—
San Antonio, May 14, 2014) (misinterpreting McNeely in this manner).
Moreover, the McNeely opinions contain positive references to the
implied-consent provisions enacted across this country. Part III of Justice
Sotomayor’s opinion, for instance, stated:
States have a broad range of legal tools to enforce their drunk-
driving laws and to secure BAC evidence without undertaking
warrantless nonconsensual blood draws. For example, all 50
States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within
the State, to consent to BAC testing if they are arrested or
otherwise detained on suspicion of a drunk-driving offense.
See NHTSA Review 173; supra, at 1556 (describing Missouri's
implied consent law).
McNeely, 133 S. Ct. at 1566 (emphasis added). The opinion continues by
recognizing the “significant restrictions” States have placed on when an
7
officer may obtain a compelled sample. See McNeely, 133 S. Ct. at 1566 n.9
(listing mandatory-draw provisions countrywide as an example of how states
have placed “significant restrictions” on when officers may obtain
compelled samples). The Court even cites Texas’ mandatory blood-draw
statute. Id. at n.9 citing Tex. Transp. Code §§ 724.012(b), 724.013.
Moreover, Justice Kennedy, who provided the crucial fifth vote in McNeely,
states in his concurrence that States “can adopt rules, procedures, and
protocols that meet the reasonableness requirements of the Fourth
Amendment and give helpful guidance to law enforcement officials.” Id. at
1569. These opinions in no way disapproved of the States’ carefully
tailored implied consent schemes where only specified and limited situations
authorized compelled blood draws after refusal. See id. at 1566 & n.9.
In addition, the language in each of the McNeely opinions, including
the majority, assumes the gravity of the dangers faced by the traveling public
due to intoxicated drivers. For example, the majority asserts as follows:
“No one can seriously dispute the magnitude of the drunken
driving problem or the States' interest in eradicating it.”
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110
S. Ct. 2481, 110 L. Ed. 2d 412 (1990). Certainly we do not.
While some progress has been made, drunk driving continues to
exact a terrible toll on our society. See NHTSA, Traffic Safety
Facts, 2011 Data 1 (No. 811700, Dec. 2012) (reporting that
9,878 people were killed in alcohol-impaired driving crashes in
2011, an average of one fatality every 53 minutes).
8
McNeely, 133 S. Ct. at 1565 (emphasis added). Nothing in any of the various
McNeely opinions signals that any member of the Supreme Court would
look unfavorably on implied consent provisions.
III. RECOGNIZED EXCEPTIONS TO
THE WARRANT REQUIREMENT.
Aside from exigent circumstances, the Supreme Court recognizes that
there are exceptions to the warrant requirement, such that "[w]hen faced
with special law enforcement needs, diminished expectations of privacy,
minimal intrusions, or the like, the Court has found that certain general, or
individual, circumstances may render a warrantless search or seizure
reasonable." Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946 (2001).
A. The Automobile Exception.
The automobile exception to the warrant requirement, first set out in
Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925) and later
repeated in numerous cases including California v. Carney, 471 U.S. 386,
105 S. Ct. 2066 (1985), recognized that, although the privacy interests in an
automobile are constitutionally protected, its ready mobility and capacity to
be "quickly moved" justifies a lesser degree of protection, noting also that
there had been a long-recognized distinction between stationary structures
and vehicles. Carney, 471 U.S. at 390. The Court in Carney recognized that
the reduced expectations of privacy that justify the automobile exception
9
also derive from "the pervasive regulation of vehicles capable of traveling
on the public highways." 471 U.S. at 392.
When the automobile exception had originally been recognized in
Carroll, the Supreme Court looked to statutes contemporary with the
adoption of the Fourth Amendment which allowed law enforcement
officials, without a warrant, "to stop, search, and examine any vehicle, beast,
or person on which or whom they should suspect [of a violation]." 267 U.S.
151 (quoting Act of March 3, 1815, 3 Stat. 231, 232) (emphasis added).
Arguably, the driver of an automobile in transit is just as mobile as his
vehicle, just as subject to pervasive licensure and regulation, and,
historically, was subject to search without warrant under the same terms as a
vehicle or vessel. Accordingly, the Courts should recognize a driver
exception to the warrant requirement coextensive with the vehicle exception.
However, even short of a full-fledged and free-standing exception of
this nature, the Courts should allow the States to craft such an exception
based both on these considerations, on the substantial public interest in
ridding the road of drunk drivers, and on implied consent statutes like the
Texas version, which condition the privilege of driving on the acceptance of
a warrantless search under very limited circumstances.
10
As in Carney, the driving public is on notice of the lessened degree of
privacy protection in matters that concern the safety of the roads on which
they drive. They know that their cars can be stopped and searched on
probable cause alone; likewise, under common mandatory blood draw
statutes, they should know that their blood can be drawn without a warrant,
on probable cause of DWI alone, under specified conditions. In both
situations, the normal expectation of a warrant yields to common concerns
inherent in a highly regulated activity in which the driver freely chooses to
engage.
B. The Special Needs Exception and Warrantless
Inspections of Closely Regulated Activities.
In Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 619
(1989), the Supreme Court articulated a “special needs” exception to the
warrant preference. In Skinner, the Court found certain “well-defined
circumstances” authorized warrantless, suspicionless blood draws to test
railroad employees for drugs and alcohol; the protocol relied upon in Skinner
arose out of a concern about serious public-transportation-safety issues
involving railways. In other contexts as well, the Supreme Court has found
that warrantless and suspicionless searches of closely regulated activities
are reasonable when there is a substantial governmental interest and a
regulatory scheme that forwards that interest. New York v. Burger, 482
11
U.S. 691, 702–03, 708 (1987) (warrantless entry and inspection of junk
yards is reasonable); Donovan v. Dewey, 452 U.S. 594, 602 (1981) (same
with mining sites); United States v. Biswell, 406 U.S. 311, 316–17 (1972)
(same with federally licensed gun dealers). The Supreme Court has o n l y
found s u c h regulatory searches unreasonable when the regulation does not
sufficiently limit the discretion of the government agent, Marshall v.
Barlow’s, Inc., 436 U.S. 307, 323–25 (1978), or when agents completely
disregard the parameters of the regulation or statute. See Colonnade
Catering Corp. v. United States, 397 U.S. 72, 77 (1970) (concluding that
the liquor industry is subject to regulation, suggesting that Congress
could allow for warrantless inspection, but concluding that federal agents
breaking into a liquor distributor’s premises at night violated the Fourth
Amendment absent special authorization under the regulation).
Under the mandatory draw provisions of the Texas Transportation
Code, in addition to providing evidence for a criminal prosecution, the
results of the blood draw may be used in the administrative removal of
drunken drivers from the public roadways. The Department of Public
Safety must suspend the person’s license if analysis of the blood reveals an
alcohol concentration of 0.08 or greater. TEX. TRANSP. CODE §
524.012(b)(1); TEX. PENAL CODE § 49.01(2)(B). The suspension is for a
12
period of 90 days or one year, depending on whether the person has had
any prior DWI arrests in the ten years preceding the current date of arrest.
TEX. TRANSP. CODE § 524.022(a).
This Court has noted that the “primary purpose of the administrative
license suspension statute is not to deter the licensee or to seek retribution,
but is to protect the public from the carnage on the public roads of
Texas caused by drunk drivers.” Ex parte Tharpe, 935 S.W.2d 157,
159 (Tex. Crim. App. 1996); see also Tex. Dept. Pub. Safety v.
Richardson, 384 S.W.2d 128, 132 (1964) (“But, it should be made
abundantly clear that in this case [of driver’s license revocation] we are
not concerned with criminal penalties but rather with an administrative
and regulative power vested in the Texas Department of Public Safety
which power has for its purpose the protection of the lives and property of
those using the highways.”).
Accordingly, the mandatory draw statute may be justified
under the special needs exception, as applied to the closely
regulated activity of driving on public roads, and as a tool not only
of criminal enforcement but also for administrative measures
designed to protect the public from drunk drivers by removing their
driving privileges.
13
C. Consent and Waiver.
Another recognized exception to the warrant requirement is a search
conducted with the person's voluntary consent, which may be communicated
to law enforcement in a variety of ways, including by words, action, or
circumstantial evidence showing implied consent. Meekins v. State, 340
S.W.3d 454 (Tex. Crim. App. 2011) (citing Schneckloth v. Bustamonte, 412
U.S. 218, 219, 93 S. Ct. 2041 (1973)) Such consent must ordinarily be
carefully scrutinized for its knowing, intelligent and voluntary character.
See Id.
However, the Supreme Court has long recognized a parallel exception
in the form of a prior waiver of the Fourth Amendment rights to probable
cause and a warrant, as a condition for some benefit extended to the suspect
from the State. Zap v. United States, 328 U.S. 624, 627-28, 66 S. Ct. 1277
(1946), vacated on other grounds, 330 U.S. 800, 67 S. Ct. 857 (1947) (the
benefit of doing business as a Navy contractor). 2 The waiver applies,
2
Governmental and quasi-governmental bodies often condition the granting
of a privilege upon the waiver of certain constitutional rights. The decision
to participate in an activity is a prime example of this same give-and-take
privilege. See Board of Education v. Earls, 536 U.S. at 828 (no Fourth
Amendment violation where school board policy conditioned participation
in extracurricular activities on random drug testing). Even in the criminal
context, suspicion searches promoting a legitimate government interest pass
Fourth Amendment muster based upon an offender’s parolee status which
invokes statutorily-required conditions agreeing to such searches. Samson v.
14
moreover, in spite of the suspect's protest at the time of the search in
question. See Id. In the same way, acceptance of a license to engage in a
pervasively regulated activity may carry with it an obligation to allow
statutorily authorized inspections of that activity that would otherwise
require a warrant. See United States v. Biswell, 406 U.S. 311, 316-17, 92
S. Ct. 1593 (1972) (gun dealer who chose to engage in this pervasively
regulated business and to accept a federal license was subject to warrantless
inspection of his business records and firearms).
A long line of Texas cases hold that “a driver's license is not a right,
but a privilege.” Tharp v. State, 935 S.W.2d 157, 159 (Tex. Crim. App.
1996) (quoting Ex parte Arnold, 916 S.W.2d 640, 642 (Tex. App.—Austin
1996, pet. ref’d)); Texas Dept. of Public Safety v. Schaejbe, 687 S.W.2d 727,
728 (Tex. 1984) (license suspension proceeding). Elaborating on this
principle, this Court has quoted with approval statements made by that
Austin Court of Appeals that “[a] license to drive an automobile on the
California, 547 U.S. 843 (2006); see also United States v. Knights, 534 U.S.
112 (2001) (upholding warrantless search of probationer’s apartment where
authorized by probation condition). In this context, the Supreme Court has
suggested its approval of a bargained-for waiver in holding that "acceptance
of a clear and unambiguous search condition 'significantly diminished [the
suspect's] reasonable expectation of privacy,' … [such] that petitioner did
not have an expectation of privacy that society would recognize as
legitimate." Samson v. California, 547 U.S. 843, 852, 126 S. Ct. 2193 (2006)
(quoting United States v. Knights, 534 U.S. 112, 120, 122 S. Ct. 587 (2001)).
15
streets is ... a privilege subject to reasonable regulations formulated under
the police power in the interest of the welfare and safety of the general
public.” Tharp, 935 S.W.2d at 159 (quoting Arnold, 916 S.W.2d at 642).
The Texas Supreme Court has likewise acknowledged that “one making use
of the highways of the state is exercising a privilege which is subject to
regulation.” Texas Dept. of Public Safety v. Richardson, 384 S.W.2d 128,
132 (Tex. 1964).
With regard to public knowledge of the implied consent / mandatory
draw provisions, the State would point to the Texas Driver’s Handbook (rev.
July 2012),3 which is published by the Texas Department of Public Safety
and asserts as its primary purpose “1) to help you qualify for a Texas driver
license, and 2) to help you become a safer driver.” (Handbook Introduction
Page) In Chapter Ten: How Alcohol and Drugs Affect the Ability to Drive,
the Handbook includes the following paragraph:
The Alcohol Test
If you are arrested for an offense arising from acts allegedly
committed while operating a motor vehicle in a public place, a
watercraft while intoxicated, or another alcohol-related offense, you
are deemed to have consent to taking one or more specimens of breath
or blood for analysis to determine the alcohol concentration or the
presence in your body of a controlled substance, drug, or other
substance.
3
Available at http://www.txdps.state.tx.us/DriverLicense/documents/DL-
7.pdf).
16
(Handbook p. 60) Though perhaps not written as clearly as it could have
been, this paragraph clearly puts prospective drivers on notice of the implied
consent law.
In addition, there is no indication that the Navy contractor in Zap
actually read, much less consciously understood or knowingly agreed to, the
waiver in question. However, unlike the consent exception recognized in
Schneckloth, which on the one hand is unbargained-for and gratuitous on the
part of the waiving party, and on the other is subject to strict scrutiny
concerning its knowing and voluntary character, a bargained-for waiver, like
any other contractual provision, binds a party even though he neglected to
read the clause in question. In other words, unlike bare consent, a waiver
acts more like a bargained-for contract that binds a party even though he
neglected to read it, and it cannot later be withdrawn. In the case of a
mandatory draw statute, which the law presumes the driving public to have
read, the driver impliedly agrees ahead of time that, in exchange for the
privilege of driving on our roads, he is willing to waive the right to a warrant
in these limited circumstances. The deal is sealed when he gets behind the
wheel, and it can't later be revoked when he gets caught driving in an
impaired condition.
17
Moreover, implied consent statutes like the one in Texas do not apply
to all motorists, but only to objectively impaired ones. Accordingly, there
are two components over which the driver has control: (1) the choice to
drive a vehicle on Texas roads; (2) in an objectively impaired condition that
would create probable cause to believe he is intoxicated. A driver who
wishes to avoid the inconvenience of a warrantless search of his or her blood
may effectively do so simply by avoiding any alcohol or other drugs that
might tend to impair his driving or lead to probable cause to believe that he
is intoxicated. On the other hand, the driver who imbibes enough to raise
suspicion rightfully takes his chances and should fairly be held to his waiver.
Finally, this Court should not reject the waiver exception simply
because it has never before been applied to the particular circumstances in
the present case. Waiver remains a “well recognized exception” to the
warrant requirement, even though waiver of the specific right of an impaired
driver to object to a warrantless blood draw may not be a “well recognized
application” of that exception.
D. Search Incident to Arrest.
The blood draw should also have been valid pursuant to the search-
incident-to-arrest exception to the warrant preference, especially in light of
the recognized exigency regarding the dissipation of alcohol from the blood.
18
McNeely, 133 S. Ct. at 1568 (“in every case the law must be concerned that
evidence is being destroyed”); but see Schmerber v. California, 384 U.S.
757, 769-70, 86 S. Ct. 1826 (1966) (suggesting that search incident to arrest
may not extend so far as a forced blood draw). In Cupp v. Murphy, the
Supreme Court upheld the warrantless search of the defendant's body –
obtaining samples from underneath his fingernails – as a search incident to
arrest. The officers possessed probable cause to believe the defendant had
strangled the victim, and the circumstances also involved a potential
exigency. See Cupp v. Murphy, 412 U.S. 291, 294-95 (1973) (analogizing
the highly evanescent characteristic of the fingernail scrapings to the exigent
nature of blood alcohol described in Schmerber).4
In the search-incident-to-lawful-arrest scenario, a law enforcement
officer may conduct a full but reasonable search of a person, unlike the
scenario often seen where the search focuses on a vehicle. See, e.g., Arizona
v. Gant, 556 U.S. 332, 338 (2009). There is no limit on the scope of such a
search, other than the Fourth Amendment’s core reasonableness
requirement. 5 See United States v. Edwards, 415 U.S. 800, 803 n.9 (1973).
4
See Schmerber, 384 U.S. 757.
5
The McNeely majority acknowledged that, unlike the exigent
circumstances exception, the traditional warrant exception known as search-
incident-to-arrest applies categorically, not requiring a case-by-case analysis.
McNeely at 1558 n.3.
19
Here, the nexus between the crime being investigated and the search being
sought is beyond dispute. Additionally, the instant search-incident-to-arrest
responds to the need to preserve evidence.
IV. OTHER SIGNIFICANT FACTORS.
In addition to the specific exceptions into which a mandatory blood
draw might fit, a number of factors should be considered in determining the
overriding question – is it “reasonable” to allow this sort of warrantless
blood draw?
A. Legitimate Governmental Interest.
The Supreme Court has recently stated, concerning warrantless
searches, that the “application of ‘traditional standards of reasonableness’
requires a court to weigh ‘the promotion of legitimate governmental
interests’ against ‘the degree to which [the search] intrudes upon an
individual's privacy.’” Maryland v. King, 133 S. Ct. 1958, 1970 (2013)
(reasonable to require buccal swab as a legitimate police booking procedure)
(quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297 (1999)).
In the present case, the legitimate interests of the State in detering drunk
driving is thus a factor to weigh in favor of upholding the present mandatory
draw statute.
20
B. Gravity of the Offense.
In Welsh v. Wisconsin, the Supreme Court recognized that the Fourth
Amendment authorizes common-sense consideration of the gravity of the
underlying offense when weighing the existence of an exigency. Welsh v.
Wisconsin, 466 U.S. 740, 751-52 (1984). According to the Court, a crime’s
severity should be considered as an “important” or “principal” factor in the
exigency calculation. The mandatory-blood draw statute applies this legal
theory by authorizing compelled draws only in limited, serious cases
involving felony conduct or less-than-minor injuries.
C. Bright-Line Rule.
By providing a limited number of instances mandating compelled
blood draws, the implied-consent framework provides a standard "essential
to guide police officers, who have only limited time and expertise to reflect
on and balance the social and individual interests involved in the specific
circumstances they confront.” Dunaway v. New York, 442 U.S. 200, 213–14
(1979) (applying the Fourth Amendment to facts unrelated to the instant
scenario).
D. Presumption of Validity and Constitutionality.
Statutes are presumed constitutional until determined otherwise;
challengers to a statute’s constitutionality bear the burden of rebutting
21
presumed constitutionality. Karenev v. State, 281 S.W.3d 428, 434 (Tex.
Crim. App. 2009).
In addition, the Supreme Court has recognized that “[t]he presumption
of validity which applies to legislation generally is fortified by acquiescence
continued through the years.” Life & Casualty Ins. Co. v. McCray, 291 U.S.
566, 572, 54 S. Ct. 482 (1934). Implied consent statutes of the present nature
have been around in Texas and other states for the past 30 years without any
significant challenge to their constitutionality. The fact that these statutes
are widely accepted throughout the country and have survived for so long
without any such challenge should weigh heavily in favor of a presumption
that the mandatory draw is valid, reasonable, and constitutional.
E. The Underlying Expectation of Privacy.
While a state statute cannot contravene the Fourth Amendment
protection and requirements for a warrant, it may both represent and inform
the extent of the societal "reasonable expectation of privacy."
The Supreme Court has recognized that the extent to which society
recognizes an expectation of privacy in any particular context evolves with
changing conditions, and that state statutes themselves may represent and
mirror those expectations. See City of Ontario v. Quon, 130 S. Ct. 2619,
2629-30 (2010) (city’s review of employee’s text messages was reasonable,
22
and thus did not violate Fourth Amendment). In addition, clearly
communicated policies of someone in authority, such as an employer, may
shape the reasonable expectation of privacy for those subject to his or her
authority. See Quon, 130 S. Ct. at 2630. Likewise, clearly communicated
policies concerning the driving privilege may shape a driver's expectation of
privacy in his blood should he be stopped on suspicion of DWI.
Accordingly, to the extent that mandatory draw statutes represent a
lowering of the driving public's expectations concerning privacy in their
blood and what they may be required to do in certain circumstances, that
lowering of expectations may inform the debate concerning the extent to
which the Fourth Amendment privacy right continues to require a warrant.
Stated another way, the people have spoken, through their legislators,
concerning their expectations about privacy, and reasonable intrusions
thereon, when they are caught driving in an impaired condition.
F. Habitual Offenders Have a Diminished
Expectation of Privacy.
In addition, not all persons are equal under the Fourth Amendment.
Those with prior criminal convictions may be forced to abide by different
rules. See Samson v. California, 547 U.S. 843, 856 (2006) (random search
of parolee in California requires no suspicion); United States v. Knights,
534 U.S. 112, 121 (2001) (warrantless search of federal probationers
23
house requires only reasonable suspicion); Griffin v. Wisconsin, 483 U.S.
868, 880 (1987) (warrantless search of probationer’s house in Wisconsin
requires less than probable cause). Texas may further restrict the
privileges of those who have prior DWI convictions with the aim of
combatting recidivism. Samson, 547 U.S. at 853 (citing Pennsylvania
Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365 (1998)).
G. The Specific Context of a Post-Arrest Mandatory Draw.
As a practical matter, the suspect has already been arrested and cannot
complain that the blood draw is interfering with his freedom; he will sit
waiting either at the hospital or at the jail. He cannot complain that he is
being subjected to forced surgery or medication, or some risky or painful
medical procedure. He will receive the same pin prick that all patients come
to expect as a routine matter of occasional testing. 6 The testing of that blood
will not put his entire medical condition before the public eye, but will be
limited to testing for intoxicants to confirm or deny that he was driving
while intoxicated. In short, the privacy interest being invaded is slight in the
context of a post-arrest mandatory draw.
6
Blood tests have been described as commonplace, routine, and safe by the
Supreme Court. See South Dakota v. Neville, 459 U.S. 553, 563 (1983);
Breithaupt v. Abram, 352 U.S. 432, 436 (1957).
24
H. Statutory Protections Concerning the Manner of Drawing Blood.
Concurrent with the lack of a warrant requirement, the mandatory
draw statute provides added protection concerning the procedure for the
blood draw, which significantly alleviates the concerns expressed by
McNeely and Schmerber.
The Supreme Court in Schmerber v. California, 384 U.S. 757, 86
S. Ct. 1826 (1966), focused its concern not only on the initial justification for
the blood draw, but also, arguably primarily, on the means and procedures
employed and whether they involve “an unjustified element of personal risk
of infection and pain.” 384 U.S. at 772.
Assuming that the bodily invasion itself is the primary concern, that
invasion can be significantly ameliorated by a statutory framework that
requires the conditions of the draw to be sanitary and restricts those persons
who may draw blood to a qualified few.
The blood draw provisions in the Transportation Code require both
that the person drawing the blood be qualified and that it be taken in a
sanitary place, as follows:
(a) Only the following may take a blood specimen at the request or
order of a peace officer under this chapter:
(1) a physician;
(2) a qualified technician;
(3) a registered professional nurse;
(4) a licensed vocational nurse; or
25
(5) a licensed or certified emergency medical technician-intermediate
or emergency medical technician-paramedic authorized to take a
blood specimen under Subsection (c).
(a-1) The blood specimen must be taken in a sanitary place.
Tex. Transp. Code § 724.017.
Accordingly, blood drawn pursuant to this statutory mandate avoids
the concerns present in McNeely, where a favorable ruling would have
opened up the possible situations where blood could be drawn to any
environment that the officer might consider appropriate and any person that
the officer in his discretion might consider to be competent to draw it. Had
McNeely gone the other way, it is easy to imagine officers on patrol carrying
a little blood draw kit, with minimal training thereon, ready to take blood
wherever they encounter a drunk driver. See Schmerber v. California, 384
U.S. 757, 772, 86 S. Ct. 1826 (1966) (questioning the reasonableness of a
blood draw “administered by police in the privacy of the stationhouse”).
The Texas draw statute protects drivers against this sort of arbitrary
procedure and should ease their minds concerning the circumstances of a
required draw. These statutorily enhanced procedures should be considered
in balancing the reasonableness of the statutory mandate against the actual
intrusion allowed thereunder. In other words, to the extent that the statute
lessens the dangers of a painful or unsanitary draw, it should likewise lessen
the hurdle that the State must overcome in order to justify such a warrantless
26
draw. See Maryland v. King, 133 S. Ct. 1958, 1969 (2013) (“fact than an
intrusion is negligible is of central relevance to determining
reasonableness”).
I. Mistake of Law.
Finally, the State believes that the very recent opinion by the United
States Supreme Court in Heien v. North Carolina, --- U.S. ---, No. 13-604
(December 15, 2014), should be considered by this Court.
In Heien, the Supreme Court, arguably for the first time, recognized that
an officer’s reasonable mistake of law, like a reasonable mistake of fact, may
render legal conduct that would otherwise amount to a Fourth Amendment
violation. Specifically, in Heien, the Court held that it was “objectively
reasonable for an officer in Sergeant Darisse’s position to think that Heien’s
faulty right brake light was a violation of North Carolina law. And because
the mistake of law was reasonable, there was reasonable suspicion justifying
the stop.” Slip op. at 13.
On a broader level, the Supreme Court reasoned that, “[t]o be
reasonable is not to be perfect, and so the Fourth Amendment allows for
some mistakes on the part of government officials, giving them ‘fair leeway
for enforcing the law in the community’s protection.’” Slip op. at 5 (quoting
Brinegar v. United States, 338 U.S. 160, 176 (1949)).
27
In the present case, Trooper Anguiano clearly relied on what he
reasonably believed to be a valid statutory mandate for him to require the
blood draw in question. To that extent that he reasonably relied upon the
implied consent / mandatory draw statute, he, like Sergeant Darisse, did not
violate the Fourth Amendment by conduct that would later be shown to be a
mistake of law.
V. THE UNIQUE NATURE OF THE INTRUSION
– SEARCH OR SEIZURE?
Finally, the State would suggest that the Supreme Court has
mislabeled a blood draw as a “search,” when it more properly fits the legal
definition of a “seizure.” The distinction is more than merely academic, as
a seizure or arrest, unlike a search, generally does not require a warrant. See
Atwater v. City of Lago Vista, 532 U.S. 318, 340-41, 121 S. Ct. 1536 (2001).
The Supreme Court has distinguished searches from seizures as
follows: “A search compromises the individual interest in privacy; a seizure
deprives the individual of dominion over his or her person or property.”
Horton v. California, 496 U.S. 128, 133, 110 S. Ct. 2301 (1990) (citing
United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652 (1984)); see
also State v. Powell, 306 S.W.3d 761, 769 n.14 (Tex. Crim. App. 2010)
(citing Horton).
28
When Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826 (1966),
was decided some fifty years ago, the Supreme Court acknowledged the
unique nature of the intrusion in forced blood draws and stated, “Because we
are dealing with intrusions into the human body rather than with state
interferences with property relationships or private papers—‘houses, papers,
and effects'—we write on a clean slate.” 384 U.S. at 767-68. Recently, the
Supreme Court has continued to recognize forced blood draws as “an
invasion of bodily integrity [that] implicates an individual's ‘most personal
and deep-rooted expectations of privacy.’” Missouri v. McNeely, 133 S. Ct.
1552, 1558 (2013). Similarly, the Supreme Court has characterized buccal
swabs of the mouth as “an invasion of ‘cherished personal security’ that is
subject to constitutional scrutiny.” Maryland v. King, 133 S. Ct. 1958, 1969
(2013) (quoting Cupp v. Murphy, 412 U.S. 291, 295, 93 S. Ct. 2000 (1973)).
However, in writing on a “clean slate,” the Court has, in the State’s
view, too hastily categorized a blood draw as a search rather than a seizure.
In the present case, the interest being protected is, like an arrest,
grounded in an individual’s dominion over his own person, rather than on
the privacy of things carried on his person. Blood is not a briefcase, pocket,
or purse in which a person may carry private things, and it is not the private
nature of the blood being seized that gives rise to the Fourth Amendment
29
protection, but the manner of getting at that blood through an assault on the
skin and veins of the person in question. Accordingly, as with an arrest, the
Fourth Amendment here protects personal dominion rather than privacy.
Blood draws are comparable to the use of a taser as an incident of the
defendant’s arrest. See, e.g., Carpenter v. Gage, 686 F.3d 644, 649-50 (8th
Cir. 2012); Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012); Cook v. City of
Bella Villa, 582 F.3d 840, 849-50 (8th Cir. 2009). Both situations involve
forcing a metal object under the defendant’s skin – the taser being
significantly more severe – and both should be analyzed as a form or manner
of seizure, rather than as a search, for purposes of the Fourth Amendment.
Although the Supreme Court has summarily categorized a forced
blood draw as a search, the State would argue that it should re-examine this
analysis and hold that it amounts instead to a seizure - in the nature of an
extension or collateral part of the arrest of the person - and that, as such,
there is no warrant requirement if probable cause has already been
established.
VI. CONCLUSION.
Although the McNeely opinion arguably raised some uncertainty
concerning the constitutionality of mandatory draw statutes, there is every
reason to believe that one or more of the exceptions discussed above will be
30
sufficient to sustain the constitutionality of the Texas statute, which is
narrowly drawn to include only the most egregious offenders and situations.
The Thirteenth Court of Appeals erred in refusing to hold that the
mandatory blood draw provisions of the Texas Transportation Code are a
constitutionally valid alternative to the warrant requirement.
II. Whether the defendant preserves his Fourth Amendment objection
to blood evidence when he fails to object to testimony concerning the
results of testing done on that blood and only later objects to admission
of the blood sample itself.
Smith failed to object timely on Fourth Amendment grounds to
testimony concerning the results of the blood alcohol testing in question,
and, when he did later object, the trial court carried Smith’s constitutional
objection with the case and only conditionally admitted the blood evidence
itself, and Smith failed to renew this objection and secure a final ruling until
after he had rested and the evidence was complete.
When State Trooper David Anguiana testified concerning his
observation of the blood draw, Smith objected that there was no evidence
that the person who drew the blood was a qualified technician, which the
trial court purported to "sustain," but nevertheless allowed the witness to
testify as to what he saw. (RR vol. 1, p. 48) Trooper Anguiana testified that
he identified Anna Marie Quintanilla as a qualified technician and that she
31
drew Smith's blood. (RR vol. 1, p. 49) Trooper Anguiana then identified
the blood tube in question, which was marked as SX # 2. (RR vol. 1, pp. 50-
53)
DPS Forensic Scientist Emily Bonvino then testified concerning the
test results for SX #2. Specifically, Bonvino testified, without objection,
that the vial containing Smith’s blood tested at .21 grams of alcohol per 100
milliliters of blood, and that this showed Smith was likely over the legal
limit of .08 percent at the time he was driving. (RR vol. 1, pp. 78-80) Later,
Smith’s attorney did briefly raise a Fourth Amendment challenge based on
the lack of an order from a magistrate or judge for the blood draw in
question, but the trial court indicated that it would carry this objection and
reserve ruling on the admissibility of the evidence. (RR vol. 1, pp. 83-85,
93-95).
Anna Marie Quintanilla testified that she was a medical technologist
working for Northwest Regional, and that her duties there included
collecting blood, as well as testing specimens and maintaining the
instruments. (RR vol. 2, pp. 4-5) Quintanilla testified that the blood sample
was taken using reliable procedures that were recognized by the scientific
community, followed by the hospital, and required by State regulations.
(RR vol. 2, pp. 15-16) Smith raised no objection here to Quintanilla's
32
testimony or her qualification to draw the blood in question, nor did he
renew any previous objection.
At the close of the evidence on guilt-innocence and after both sides
rested (RR vol. 2, pp. 19-20), Smith's attorney made a motion for directed
verdict, arguing, among other things, that his blood was illegally seized
without a court order and in violation of Due Process. (RR vol. 2, pp. 20-21)
In order to preserve error, a party must make a timely objection and
obtain a ruling before the objectionable evidence has been admitted. See
Tex. R. App. P. 33.1. By failing to object on Fourth Amendment grounds to
Bonvino’s testimony concerning the result of the blood alcohol test, Smith
clearly waived error concerning the only evidence that really mattered in this
case – testimony that Smith’s blood tested over the limit. By analogy, an
objection to photographic evidence is waived if the same information
contained in the photograph is conveyed to the jury in some other form, such
as testimony concerning the contents of the photograph in question. See
Ford v. State, 919 S.W.2d 107, 117 (Tex. Crim. App. 1996) see also Leday
v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (The admission of
evidence over objection “will not result in reversal when other such evidence
was received without objection, either before or after the complained-of
ruling.”). Here, in order to preserve error, Smith likewise should have
33
objected not only to the physical blood evidence, but also to Bonvino’s
testimony concerning the results of the blood test.
Alternatively, by failing to renew his late objection and secure a final
ruling until after the close of the evidence, Smith also failed to preserve the
constitutional challenge that he relies upon on appeal. When evidence is
conditionally admitted, the opposing party must renew his original objection
by a motion to strike the conditionally admitted evidence before the close of
the evidence, and failure to do so constitutes waiver. See Powell v. State,
898 S.W.2d 821, 829 (Tex. Crim. App. 1994).
Accordingly, the Thirteenth Court of Appeals erred in even reaching
the constitutional challenge in view of Smith’s failure to preserve error.
PRAYER FOR RELIEF
For the foregoing reasons, the State requests that the Court reverse the
judgment of the Court of Appeals and remand for consideration of other
issues on appeal.
Respectfully submitted,
/s/Douglas K. Norman
___________________
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
34
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(1), is 6,807.
/s/Douglas K. Norman
___________________
Douglas K. Norman
CERTIFICATE OF SERVICE
This is to certify that, pursuant to Tex. R. App. P. 6.3 (a), copies of
this brief were e-mailed on February 17, 2015, to Respondent's attorney, Mr.
Donald B. Edwards, and to the State Prosecuting Attorney.
/s/Douglas K. Norman
___________________
Douglas K. Norman
35