State v. Gerardo Jerry Ayala ( 2015 )

ACCEPTED
03-14-00651-CR
3718009
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/9/2015 3:28:00 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00651-CR
FILED IN
3rd COURT OF APPEALS
In the AUSTIN, TEXAS
Court of Appeals 1/9/2015 3:28:00 PM
Third District JEFFREY D. KYLE
Austin, Texas Clerk
The State of Texas,
Appellant
v.
Gerardo Jerry Ayala,
Appellee
Appeal from the 167th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-13-200850
STATE’S BRIEF
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Oral argument is requested
Identity of Parties and Counsel
Trial Judge: P. David Wahlberg
167th Judicial District Court
P.O. Box 1748
Austin, Texas 78767
Trial Counsel for State: Aurora Perez
Travis County District Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Appellate Counsel for State: Angie Creasy
Travis County District Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Defendant/Appellee: Gerardo Jerry Ayala
2531 Berkeley Avenue
Austin, Texas 78745
Counsel for Defendant: Christina Tagle1
812 San Antonio Street
Austin, Texas 78701
1 Ms. Tagle has filed a letter with the Third Court of Appeals stating that she is
not representing Mr. Ayala on appeal.
i
Table of Contents
Identity of Parties and Counsel ............................................................ i
Index of Authorities............................................................................ iii
Statement of the Case ...........................................................................v
Statement of Facts ................................................................................1
Summary of the State’s Argument....................................................... 5
Standard of Review.............................................................................. 5
Argument............................................................................................. 6
Point One: The evidence is admissible because the blood draw was
mandated by statute, and the statute is constitutionally reasonable
under the Fourth Amendment.......................................................... 7
Point Two: Alternatively, the blood draw evidence is admissible
because the defendant is deemed to have consented to the taking of
a specimen, per Tex. Transp. Code § 724.011(a)..............................12
Point Three: Assuming, arguendo, that the blood draw is
unconstitutional, the Texas exclusionary rule still does not bar
admission of the evidence................................................................14
Point Four: The federal exclusionary rule does not bar admission of
the evidence either...........................................................................18
Prayer .................................................................................................21
Certificate of Compliance and Service............................................... 22
ii
Index of Authorities
Cases
Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) .................15, 20
Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448
(1957)...............................................................................................10
Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 180 L. Ed. 285
(2011)...............................................................................................19
Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)
.........................................................................................................18
Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002)..................... 11
Md. v. King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013)
.......................................................................................................... 8
McCambridge v. State, 778 S.W.2d 70 (Tex. Crim. App. 1989).........13
Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) ..................... 7
Neesley v. State, 239 S.W.3d 780 (Tex. Crim. App. 2007)............ 8, 10
People v. Youn, 2014 Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15,
2014)............................................................................................... 20
Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d.
250 (2006)........................................................................................ 8
Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008) .................. 8
Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) ............... 6
South Dakota v. Neville, 459 U.S. 553, 103 s. Ct. 916, 74 L. Ed. 2d 748
(1983) ..............................................................................................10
State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680 (App. Div. Dec. 20,
2013)................................................................................................ 17
State v. Johnson, 871 S.W.2d. 744 (Tex. Crim. App. 1994)................16
State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ...............10
State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000, pet. ref’d) . 20
State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet.
ref’d) ................................................................................................15
State v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d)
......................................................................................................... 11
State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS
1898 (Tex. Crim. App. Nov. 26, 2014)............................... 6, 8, 12, 14
te v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d) ....10
United States v. Brooks, No. PWG-14-0053, 2014 U.S. Dist. LEXIS
67417 (D. Md. May 16, 2014) (mem. op.) ....................................... 20
iii
United States v. De Angelo, 584 F.2d 46 (4th Cir. 1978) ...................13
United States v. Herzbrun, 723 F.2d 773 (11th Cir. 1984) .................13
United States v. Spriggs, 827 F. Supp. 372 (E.D. Va. 1993) ..............13
Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013)..........16
Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985)
.........................................................................................................10
Statutes
Tex. Code Crim. Proc. art. 38.23 ........................................................14
Tex. Penal Code § 49.04 .......................................................................v
Tex. Penal Code § 49.09 .......................................................................v
Tex. Transp. Code § 724.011 ...............................................................12
Tex. Transp. Code § 724.012........................................................... 7, 18
Tex. Transp. Code § 724.017............................................................... 11
iv
Statement of the Case
A grand jury indicted the defendant for driving while intoxicated
with two prior convictions. CR 12-13; Tex. Penal Code § 49.04,
49.09(b)(2). The trial court granted the defendant’s motion to
suppress the blood test results, and the State gave notice of appeal.
CR 79, 84-86, 89.
v
No. 03-14-00651-CR
In the
Court of Appeals
Third District
Austin, Texas
The State of Texas,
Appellant
v.
Gerardo Jerry Ayala,
Appellee
Appeal from the 167th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-13-200850
STATE’S BRIEF
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief, and in support
thereof respectfully shows the following:
Statement of Facts
After a hearing, the trial court made the following findings of fact:
1. The court finds Brian Brejcha’s, Adam Master’s,
Brandon Kunkel’s and Judge Olivia Ruiz’s testimony
credible.
1
2. On February 9, 2013, the defendant was involved in a
collision involving two other cars. The scene of the
collision was approximately 5-7 miles away from the
Travis County Jail. No one in the accident was injured
and EMS was declined. No one was transported to the
hospital. Officer Masters made contact with the
defendant who seemed confused and had an odor of
alcohol on his breath. He called for another unit to
assist in the investigation. Other units were already on
scene working the collision. Officer Brejcha arrived on
scene with his field training officer Kunkel. They took
over the DWI investigation. After asking a series of
questions Brejcha requested that defendant perform a
series of standardized field sobriety tests. Brejcha
observed 6 out of 6 clues on the horizontal gaze
nystagmus test and the defendant declined to perform
the other tests.
3. Officer Brejcha arrested the defendant for driving while
intoxicated.
4. Officer Brejcha read the DIC 24 (statutory warnings) to
the defendant.
5. The defendant refused Officer Brejcha’s request to
voluntarily submit to the taking of a blood specimen.
6. Shortly after the arrest, Officer Brejcha received
reliable information from a credible source that the
defendant had been previously convicted, on two
occasions, of driving while intoxicated.
7. Relying on Tex. Transp. Code §§ 724.011 and
724.012(b), Officer Brejcha directed a phlebotomist at
the Travis County Jail to take a blood sample from the
defendant.
2
8. A magistrate is available 24 hours a day, every day at
the central booking facility for Travis County, which is
located in the basement of the Travis County Jail.
9. It would take an additional 30 minutes for the officers
to get a search warrant for blood.
10. Officer Brejcha was aware that a magistrate was on
duty and available but did not attempt to get a search
warrant to draw blood.
CR 88-89.
The defendant argued that the warrantless blood draw violated
the Fourth Amendment because there was neither consent nor
exigent circumstances. CR 34-36.
The State argued that the evidence is admissible because the blood
draw was mandated by Tex. Transp. Code § 724.011(b), and the
statute is constitutionally reasonable under the Fourth Amendment.
CR 43-47.
The State also argued that the blood draw evidence is admissible
because the defendant is deemed to have consented to the taking of a
specimen, per Tex. Transp. Code § 724.011(a). CR 40-42.
Finally, the State argued that, even if the blood draw was
unconstitutional, (1) The Texas exclusionary rule does not apply
because the police did not violate the law as it existed at the time of
3
the search, and (2) The federal exclusionary rule does not bar
admission of the evidence either because the police were acting in
good faith reliance on both statutes and appellate precedent. CR 48-
49.
The trial court made the following conclusions of law and granted
the motion to suppress:
11. Officer Brejcha had probable cause to arrest the
defendant.
12. Officer Brejcha acted in good faith when he relied on
Tex. Transp. Code §§ 724.011 and 724.012(b) to draw
blood.
13. The officer did not obtain a search warrant.
14. The Defendant did not consent to the taking of a
specimen of his breath or blood.
15. There were not exigent circumstances in this case.
16. Because there was no warrant and no exigent
circumstances, the blood draw in the defendant's case
violated the Fourth Amendment to the U.S.
Constitution. See Missouri v. McNeely, 133 S. Ct.
1552 (2013).
On the basis of the above findings and conclusions, the
motion to suppress the blood draw evidence is GRANTED.
CR 79, 89. The State is appealing this order. CR 84-86.
4
Summary of the State’s Argument
Point One: The evidence is admissible because the blood draw
was mandated by Tex. Transp. Code § 724.011(b), and the statute is
constitutionally reasonable under the Fourth Amendment.
Point Two: Alternatively, the blood draw evidence is admissible
because the defendant is deemed to have consented to the taking of a
specimen, per Tex. Transp. Code § 724.011(a).
Point Three: Even if the blood draw was unconstitutional, the
Texas exclusionary rule does not apply because the police did not
violate the law as it existed at the time of the search.
Point Four: The federal exclusionary rule does not bar
admission of the evidence either because the police were acting in
good faith reliance on both statutes and appellate precedent.
Standard of Review
The appellate court reviews a ruling on a motion to suppress
evidence for an abuse of discretion. The appellate court views the
facts in the light most favorable to the trial court's decision. The
appellate court reviews de novo the trial court's application of the law
5
of search and seizure to those facts. Shepherd v. State, 273 S.W.3d
681, 684 (Tex. Crim. App. 2008).
Argument
As a starting point, the State acknowledges that the Texas Court of
Criminal Appeals recently held that a warrantless blood draw,
conducted pursuant to the mandatory blood draw statute, violated the
Fourth Amendment because it did not fall under any recognized
exception to the warrant requirement. The court held that implied
consent that has been withdrawn by a suspect cannot serve as a
substitute for the free and voluntary consent that the Fourth
Amendment requires. State v. Villarreal, No. PD-0306-14, 2014 Tex.
Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014).
The court’s decision in Villarreal directly contradicts the
arguments made by the State in Points One and Two. The State is
making these arguments to preserve error because Villarreal is not
yet final, but in light of Villarreal, the State asks this Court to focus
on Points Three and Four.
6
Point One: The evidence is admissible because the blood
draw was mandated by statute, and the statute is
constitutionally reasonable under the Fourth Amendment.
The warrantless blood draw was mandated by statute.
Tex. Transp. Code § 724.012(b)(3)(B) mandated the warrantless
blood draw in this case. The statute does not specifically state that the
blood draws should be undertaken without a warrant, but when a
statute mandates that the police do something, it is incompatible to
read in a requirement that they get approval from a magistrate as
well. What happens when the magistrate refuses to issue a warrant?
Should the police comply with the statute’s mandate to draw blood or
abide by the magistrate’s decision? Because it would lead to absurd
results, the mandatory blood draw statute cannot be interpreted to
require warrants. Muniz v. State, 851 S.W.2d 238, 244 (Tex. Crim.
App. 1993) (stating that courts should prefer an interpretation of a
statute that does not yield absurd results).
The court should conduct a traditional balancing test to
evaluate the constitutionality of the statute.
Because the search in this case was mandated by statute, the State
asks this Court to apply a traditional Fourth Amendment balancing
7
test, which weighs the statute’s promotion of legitimate government
interests against the intrusion on individual privacy. See Maryland v.
King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013); Segundo v.
State, 270 S.W.3d 79, 96-99 (Tex. Crim. App. 2008); Samson v.
California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d. 250 (2006).
A balancing test is consistent with the plain language of the
Fourth Amendment, which does not actually require a warrant or
warrant exception, but rather, prohibits unreasonable searches.
The State acknowledges, however, that the Court of Criminal
Appeals declined to conduct a balancing test in Villarreal, holding
instead that the mandatory blood draw must fall under a recognized
warrant exception. Villarreal, 2014 Tex. App. LEXIS 1898, at *59-75.
A traditional balancing test weighs in favor of the
constitutionality of Section 724.012(b)(3)(B).
The primary purpose of Section 724.012(b) is to save lives and
decrease the number of casualties caused by drunken drivers. Neesley
v. State, 239 S.W.3d 780, 785 (Tex. Crim. App. 2007). Mandatory
draws identify intoxicated drivers, so that the State can remove them
8
from the roads through administrative license revocations.
Mandatory draws also promote safety through their deterrent effect.
The State also has a legitimate interest in preserving evidence,
both for administrative licensing hearings and criminal prosecutions.
Timely blood alcohol evidence is indisputably the most probative
evidence of intoxication, far more so than subjective observations or
field sobriety tests, or retrograde extrapolation. The Texas Legislature
acted reasonably in passing a law that requires police to secure this
evidence, in serious cases, before it dissipates.
Reasonableness is also shown in that the statute does not leave
blood draws to the discretion of the officer on the scene. Instead, the
circumstances requiring blood draws are clearly set out in the statute,
which was enacted by the Legislature, which is itself a neutral and
detached body. Clear guidelines also further the State’s legitimate
interest in readily applicable rules for officers in the field, which are
not subject to second-guessing months and years down the road.
The law is narrowly tailored in scope. The statute only allows one
useable blood draw, and it only applies to drivers, who are arrested,
based on probable cause, for driving, while intoxicated, on public
9
roads. Neesley, 239 S.W.3d at 786; State v. Mosely, 348 S.W.3d 435,
444 (Tex. App.—Austin 2011, pet. ref’d).
The law also takes the gravity of the crime into consideration by
mandating draws only in serious cases.
Additionally, the search specified by the statute (a blood draw) is
reasonable because blood testing is a highly effective means of
determining the degree to which a person is under the influence of
alcohol. State v. Johnston, 336 S.W.3d 649, 659-60 (Tex. Crim. App.
2011).
Also, blood tests are commonplace and involve virtually no risk,
trauma, or pain, and the Supreme Court has stated time and again
that a blood draw is a minimally intrusive search that does not
constitute an unduly extensive imposition on an individual's privacy
and bodily integrity. See Schmerber, 384 U.S. at 771; Skinner 489
U.S. at 625; Winston v. Lee, 470 U.S. 753, 761-62, 105 S. Ct. 1611, 84
L. Ed. 2d 662 (1985); South Dakota v. Neville, 459 U.S. 553, 563, 103
s. Ct. 916, 74 L. Ed. 2d 748 (1983); Breithaupt v. Abram, 352 U.S.
432, 436-37, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957); but see McNeely,
133 S. Ct. at 1558.
10
The Transportation Code also limits who can draw blood and
where it can be drawn. Tex. Transp. Code § 724.017; Johnston, at 661
(noting that Section 724.017 is reasonable under the Fourth
Amendment).
Additionally, the law mandates testing only on people who are
already under arrest. Arrestees have significantly diminished
expectations of privacy. And arrestees are not free to leave, so the
testing’s interference with their freedom to move does not infringe on
significant privacy interests. Drivers are likewise subject to extensive
regulations and have a reduced expectation of privacy.
Finally, the defendant bears the burden of establishing that
statutes are unconstitutional, courts presume that statutes are
constitutional and resolve all reasonable doubts in favor of their
constitutionality, and the mere fact that opinions regarding
constitutionality may differ is not a sufficient basis to strike down a
statute. Luquis v. State, 72 S.W.3d 355, 363, 365-66 (Tex. Crim. App.
2002). The presumption of constitutionality afforded legislation
should not to be disposed of lightly. Laws passed by elected
representatives represent the will of the people. Of course, courts
11
must safeguard against violations of the Constitution, but in
determining what is “reasonable” under the Fourth Amendment, the
fact that the Legislature has passed laws mandating these searches
speaks volumes as to what the people of Texas believe is reasonable.
In sum, the search mandated by Section 724.012(b)(3)(B) is
constitutionally reasonable, and the trial court erred in suppressing
the blood evidence obtained pursuant to the statute.
The Court of Criminal Appeals stated in Villarreal, however, that
a DWI suspect's privacy interest outweighs the State's interest in
preventing drunk driving through warrantless searches. Villarreal,
2014 Tex. App. LEXIS 1898, at *67-69.
Point Two: Alternatively, the blood draw evidence is
admissible because the defendant is deemed to have
consented to the taking of a specimen, per Tex. Transp.
Code § 724.011(a).
Under Tex. Transp. Code § 724.011(a), the defendant is deemed to
have consented to the blood draw.
As a matter of statutory construction, the consent implied by
Section 724.011(a) cannot be revoked. Forte v. State, 759 S.W.2d 128,
12
138-139 (Tex. Crim. App. 1988), overruled on other grounds in
McCambridge v. State, 778 S.W.2d 70, 76 (Tex. Crim. App. 1989).
Additionally, implied consent is irrevocable because it is given in
exchange for the privilege to drive on public roads. The defendant was
driving pursuant to this bargain, but he wants to withdraw consent
when convenient for him. Allowing him to withdraw his consent when
the red and blue lights come on would render this exchange a one-
way street for the benefit of the defendant.
Finally, irrevocable implied consent can satisfy the consent
exception to the warrant requirement. See, e.g., United States v.
Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984) (regarding airport
screening searches); United States v. De Angelo, 584 F.2d 46, 48 (4th
Cir. 1978) (same); United States v. Spriggs, 827 F. Supp. 372, 375
(E.D. Va. 1993) (regarding prison visitor searches).
In sum, the defendant is deemed to have consented to the blood
draw, and he cannot withdraw that consent. Since consent is a well-
established exception to the warrant requirement, the trial court
erred in suppressing the blood draw evidence.
13
The Court of Criminal Appeals held in Villarreal, however, that
implied consent that has been withdrawn by a suspect cannot serve as
a substitute for the free and voluntary consent that the Fourth
Amendment requires. Villarreal, 2014 Tex. App. LEXIS 1898, at *34-
37.
Point Three: Assuming, arguendo, that the blood draw is
unconstitutional, the Texas exclusionary rule still does not
bar admission of the evidence.
The Texas exclusionary rule is codified in Tex. Code Crim. Proc.
art. 38.23, which states:
(a) No evidence obtained by an officer or other person
in violation of any provisions of the Constitution or
laws of the State of Texas, or of the Constitution or
laws of the United States of America, shall be admitted
in evidence against the accused on the trial of any
criminal case.
In any case where the legal evidence raises an issue
hereunder, the jury shall be instructed that if it
believes, or has a reasonable doubt, that the evidence
was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard
any such evidence so obtained.
(b) It is an exception to the provisions of Subsection (a)
of this Article that the evidence was obtained by a law
enforcement officer acting in objective good faith
reliance upon a warrant issued by a neutral magistrate
based on probable cause.
14
The evidence is not barred by article 38.23 because the police
officer did not obtain the evidence in violation of the Constitution
because, at the time the evidence was obtained, Texas case law clearly
held that alcohol dissipation alone constituted exigent circumstances
in DWI cases. See Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App.
1982); and State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin
2000, pet. ref’d) (stating, “It is a well-settled fact that alcohol in the
blood dissipates quickly constitutes exigent circumstances”). Thus, at
the time of the blood draw in this case, the search clearly fell under
the exigent circumstances exception, which means the police did not
obtain the evidence in violation of the Fourth Amendment, which
means the Texas exclusionary rule does not apply.
To be clear, the State is not arguing for a good faith exception to
article 38.23. Rather, the State is arguing that article 38.23 does not
apply because the officer did not obtain the evidence in violation of
the law.2
2 The State will argue that there are applicable good faith exceptions to the
federal exclusionary rule, below, but this is distinct from its arguments
regarding the Texas exclusionary rule.
15
The State’s argument may appear to be a backdoor good faith
argument, but the argument is in line with other statutory
construction cases that have held that Article 38.23 does not apply
when the evidence was not actually obtained in violation of the law.
See State v. Johnson, 871 S.W.2d. 744, 750-51 (Tex. Crim. App. 1994)
(no exclusion when there is attenuation of taint); Wehrenberg v.
State, 416 S.W.3d 458, 467-70 (Tex. Crim. App. 2013) (no exclusion
when there is an independent source).
In other words, the defendant cannot backdate a change in law to
exclude evidence. To do so would twist the plain language of the
statute because the evidence was not actually “obtained” in violation
of the law. Rather, it was obtained in compliance with the law, which
later changed.
Some courts have held that there was no change in the law and
that McNeely merely clarified existing constitutional law. That may
be true in other jurisdictions, but it is not true in Texas. In Texas, case
law had clearly established a per se exigency in DWI cases. See Aliff,
627 S.W.2d at 170; Laird, 38 S.W.3d at 713. McNeely specifically
granted certiorari to resolve the split of authority among states on the
16
question of whether the natural dissipation it the bloodstream
establishes a per se exigency. See McNeely, 133 S. Ct. at 1558.
McNeely decided that there is no per se exigency. Thus, McNeely
clearly overturned (i.e., changed) the law in several jurisdictions,
including Texas. Cf. State v. Adkins, 433 N.J. Super. 479, 484-93, 81
A.3d 680 (App. Div. Dec. 20, 2013) (stating that McNeely
dramatically changed the legal landscape when the Supreme Court
issued a new search and seizure rule that was more restrictive than
state court precedent, and holding that the State was not seeking to
admit the fruits of unlawful police conduct because the police fully
complied with the law in effect at the time they acted).
In conclusion, the State asks this Court to hold that Article 38.23
does not bar admission of evidence when the police scrupulously
adhered to the statutes and Constitutional case law that were in effect
at the time of the search because, in such a case, the evidence was not
actually obtained in violation of the law.
17
Point Four: The federal exclusionary rule does not bar
admission of the evidence either.
The purpose of the judicially-created federal exclusionary rule is
to safeguard Fourth Amendment rights by deterring police
misconduct. Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L.
Ed. 2d 364 (1987). With this purpose in mind, the Supreme Court has
created good faith exceptions.
The police relied in good faith on a statute.
One exception is when an officer acts in good faith reliance on a
statute that is later held to be unconstitutional, because “Unless a
statute is clearly unconstitutional, an officer cannot be expected to
question the judgment of the legislature that passed the law. If the
statute is subsequently declared unconstitutional, excluding evidence
obtained pursuant to it prior to such a judicial declaration will not
deter future Fourth Amendment by an officer who has simply fulfilled
his responsibility to enforce the statute as written.” Krull, 480 U.S. at
349-50.
In this case, the officer relied on the mandatory blood draw
statute in Section 724.012(b)(3)(B). Moreover, the law was not
18
“clearly unconstitutional.” Indeed, Texas’s police officers,
prosecutors, defense attorneys, and judges have had mandatory blood
draw cases for years without questioning their constitutionality.
Therefore, under Krull, the federal exclusionary rule does not bar
admission of the evidence, and the trial court erred in granting the
motion to suppress.
The police acted in good faith reliance on binding appellate
precedent.
Another exception applies when the police act in good faith
reliance on binding precedent, because “It is one thing for the
criminal to go free because the constable has blundered. It is quite
another to set the criminal free because the constable has
scrupulously adhered to governing law. Excluding evidence in such
cases deters no police misconduct and imposes substantial social
costs.” Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 2423-24,
2434, 180 L. Ed. 285 (2011).
The blood draw in this case was done prior to the Supreme Court’s
decision in McNeely. At that time, Texas case law held that
dissipation alone constituted exigent circumstances in DWI cases.
19
Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App. 1982); State v.
Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref’d).
Exigency is an established exception to the warrant requirement, so
the search in this case was constitutional under binding Texas
precedent at the time it was done. Therefore, under Davis, the good
faith exception for reliance on precedent applies, and the trial court
erred in granting the motion to suppress. See People v. Youn, 2014
Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15, 2014) (applying the
good faith exception for reliance on state court precedent to pre-
McNeely blood draws); United States v. Brooks, No. PWG-14-0053,
2014 U.S. Dist. LEXIS 67417, at *5-15 (D. Md. May 16, 2014) (mem.
op.) (same).
20
Prayer
The State asks this Court to sustain its points of error, reverse the
trial court’s order suppressing the results of the blood analysis, and
remand this case to the trial court for further proceedings.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
21
Certificate of Compliance and Service
I hereby certify that this brief contains 3,598 words, based upon
the computer program used to generate this brief and excluding
words contained in those parts of the brief that Texas Rule of
Appellate Procedure 9.4(i) exempts from inclusion in the word count,
and that this brief is printed in a conventional, 14-point typeface.
I further certify that, on the 9th day of January, 2015, a true and
correct copy of this brief was served, by U.S. mail, electronic mail,
facsimile, or electronically through the electronic filing manager, to:
Gerardo Jerry Ayala, 2531 Berkeley Avenue, Austin, Texas 78745.
Christina Tagle, 812 San Antonio Street, Austin, Texas 78701.3
Angie Creasy
3 Ms. Tagle has filed a letter with the Third Court of Appeals stating that she
is not representing Mr. Ayala on appeal.
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