Haley Diana Forsyth v. State , 438 S.W.3d 216 ( 2014 )

Opinion filed July 31, 2014
In The
Eleventh Court of Appeals
__________
No. 11-12-00198-CR
__________
HALEY FORSYTH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 167th District Court
Travis County, Texas
Trial Court Cause No. D1DC10203431
OPINION
The grand jury indicted Haley Forsyth for the felony offense of driving
while intoxicated. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp.
2013). Appellant moved to suppress the results of her blood draw and argued that
the officer seized her blood in violation of the Fourth Amendment. The trial court
denied her motion to suppress. Appellant pleaded guilty to the offense, and the
trial court assessed Appellant’s punishment at confinement for a term of six years
and a fine of $500. The trial court suspended Appellant’s sentence and placed
Appellant on community supervision for a term of three years. This appeal ensued.
On appeal, Appellant contends that the trial court erred when it denied her motion
to suppress the results of the blood draw. Because we find that the officer seized
Appellant’s blood in violation of the Fourth Amendment, we reverse and remand.
In a single issue, Appellant asserts that Section 724.012(b)(3)(B) of the
Texas Transportation Code is unconstitutional as applied because the statute
requires police to forcibly take a blood sample from a DWI arrestee without a
search warrant and without demonstrating an exception to the warrant
requirement. 1 Section 724.012 of the Texas Transportation Code provides that an
officer “shall require the taking of a specimen of the person’s breath or blood . . . if
the officer arrests the person for [DWI] and the person refuses the officer’s request
to submit to the taking of a specimen voluntarily” and, “at the time of the arrest,
the officer possesses or receives reliable information from a credible source that
the person” has been twice convicted of DWI. TEX. TRANSP. CODE ANN.
§ 724.012(b)(3)(B) (West 2011). Section 724.011 provides that, if a person is
arrested for DWI, the person is deemed to have consented to the submission of a
specimen of breath or blood for analysis in order to determine the alcohol
concentration in the person’s body. Id. § 724.011.
Appellant specifically argues that the trial court erred when it denied her
motion to suppress the blood draw results because the officer took her blood
without a warrant, without her consent, and without any exigent circumstances
1
We note that Appellant argued in a supplemental brief that the statute was also unconstitutional
on its face. The State argued that Appellant did not present that argument below and cannot present a
facial challenge to the statute for the first time on appeal. We agree with the State’s position and,
therefore, will not address Appellant’s facial challenge to TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B)
(West 2011). See TEX. R. APP. P. 33.1; Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009)
(holding that defendant may not raise a facial challenge to the constitutionality of a statute for the first
time on appeal).
2
present. We review a trial court’s ruling on a motion to suppress under a
bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.
Crim. App. 2000). We give great deference to the trial court’s findings of
historical facts as long as the record supports the findings. Guzman v. State, 955
S.W.2d 85, 87 (Tex. Crim. App. 1997). Because the trial court is the exclusive
factfinder, the appellate court reviews evidence adduced at the suppression hearing
in the light most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at
327. We also give deference to the trial court’s rulings on mixed questions of law
and fact when those rulings turn on an evaluation of credibility and demeanor.
Guzman, 955 S.W.2d at 87. Where such rulings do not turn on an evaluation of
credibility and demeanor, we review the trial court’s actions de novo. Id.
The evidence at the suppression hearing showed that Sergeant Christine
Jacobson of the Austin Police Department stopped Appellant for failing to signal
her intent to turn right. At some point in the stop, Appellant was suspected of
DWI. Officer Steven McDaniel assisted Sergeant Jacobson in her investigation.
Officer McDaniel conducted several field sobriety tests, and as a result of
Appellant’s performance, Officer McDaniel arrested Appellant for DWI. A
criminal history check and Appellant’s own admissions revealed that Appellant
had two prior convictions for DWI. Appellant refused to submit to a breath or
blood test. Relying on Section 724.012 of the Texas Transportation Code, Officer
McDaniel transported Appellant to Brackenridge Hospital for a mandatory blood
draw. He estimated that it took approximately thirty to forty-five minutes for
hospital personnel to draw Appellant’s blood. Appellant’s blood alcohol level was
0.18.
Officer McDaniel testified that the hospital was “[a] couple of miles” from
the stop and that it was “[m]aybe a ten-minute drive.” The central booking facility
was also about a ten-minute drive from the scene of the stop. Officer McDaniel
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acknowledged that there were magistrates available to issue a search warrant
twenty-four hours a day, but stated that he could not have secured a warrant
because that “is not what you do according to law or policy.” There were no other
circumstances that caused him to go directly to the hospital to take Appellant’s
blood instead of first going to a judge to get a warrant.
Sergeant Glen Kreger testified that it could take up to one and one-half hours
to get a warrant for a blood draw, but that he had obtained a warrant almost
immediately when the magistrate was available in his office. On average, from the
time of the stop to the time the blood is drawn, it takes two hours to get a blood
draw with a warrant. Sergeant Kreger stated that, based on his training and
experience, it is always faster to get a blood draw without a warrant than it is with
a warrant.
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause.” U.S. CONST. amend. IV. The Supreme Court has held that a warrantless
search of the person is reasonable only if it falls within a recognized exception to
the warrant requirement. Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013).
Here, the trial court found that Officer McDaniel did not make an attempt to
obtain a warrant even though the officer was aware that there were magistrates
available twenty-four hours a day at the central booking facility located about the
same distance away from the stop as the hospital. The trial court further found that
there were no exigent circumstances established by the evidence except for the
natural dissipation of alcohol in Appellant’s bloodstream. The court also discussed
the issue of implied consent, even though it was not expressly relied on by the
State, and stated that “under present law a driver is apparently agreeing to the use
of physical force to extract his blood based on a single police officer’s opinion
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without any review by an independent magistrate.” Recognizing that the court had
to defer to higher authority, the court denied Appellant’s motion to suppress.
We first note that, at the time of its ruling on Appellant’s motion to suppress,
the trial court did not have the benefit of the United States Supreme Court’s
decision in Missouri v. McNeely. The Supreme Court held in McNeely that the
natural dissipation of alcohol in the bloodstream does not present a per se exigency
that justifies an exception to the warrant requirement for nonconsensual blood
testing in all DWI cases. 133 S. Ct. at 1561–63. The Court explained that lower
courts must determine on a case-by-case basis whether exigent circumstances exist
beyond the natural dissipation of alcohol in the bloodstream. Id.
In this case, the trial court found that there were no exigent circumstances
beyond the natural dissipation of alcohol in Appellant’s bloodstream. Although
Sergeant Kreger testified that in certain situations an officer may have to wait over
one and one-half hours for a warrant, there was no evidence presented by the State
in this particular case of how long Officer McDaniel would have had to wait on a
warrant. Because the State failed to present evidence of any other exigent
circumstances beyond the natural dissipation of alcohol in Appellant’s
bloodstream, we cannot uphold the trial court’s ruling on the ground that exigent
circumstances existed.
The State makes three main arguments throughout its supplemental briefs as
to why the trial court did not err when it denied Appellant’s motion to suppress
even if the search was not conducted pursuant to the exigent circumstances
exception to the warrant requirement. First, the State argues that implied consent
is a valid exception to the warrant requirement and that implied consent under the
Transportation Code is irrevocable. The State asserts that a person can refuse to
submit a specimen but that a person cannot withdraw consent. Second, the State
argues that mandatory blood draws are not unreasonable searches under the Fourth
5
Amendment; therefore, no warrant is required. Under this argument, the State asks
us to conduct a traditional Fourth Amendment balancing test and weigh the
government’s interest against the individual’s privacy interests. Third, the State
argues that, even if mandatory blood draws are no longer permitted, mandatory
blood draws were permitted at the time that the officer drew Appellant’s blood.
The State contends that McNeely created a more restrictive rule than what was in
place at the time of the blood draw. Thus, because the officer did not violate the
law when he drew Appellant’s blood, the evidence should not be suppressed under
the Texas exclusionary rule.
We note that the State did not make any of these arguments to the trial court
below. However, because neither the parties nor the trial court had the benefit of
the Supreme Court’s decision in McNeely during the suppression hearing, we will
address each of the State’s arguments in turn. The San Antonio Court has recently
addressed and rejected each of these arguments in Weems v. State, No. 04-13-
00366-CR, 2014 WL 2532299 (Tex. App.—San Antonio May 14, 2014, pet.
filed).2 In Weems, the court held that the implied consent and mandatory blood
draw statutory scheme found in the Texas Transportation Code were not
exceptions to the Fourth Amendment’s warrant requirement. Weems, 2014 WL
2532299, at *8. In reaching its decision, the court pointed out that the Supreme
Court had granted certiorari in an earlier opinion in which the San Antonio Court
held that a warrantless blood draw of a DWI suspect that was conducted according
to the prescriptions of the Transportation Code did not violate the suspect’s rights
under the Fourth Amendment. Id. at *4 (discussing Aviles v. State, 385 S.W.3d
110 (Tex. App.—San Antonio 2012, pet. ref’d), vacated, 134 S. Ct. 902 (2014)).
2
We note that this a transfer case from the Austin Court of Appeals, but that the Austin court has
not ruled on the issue before us. Therefore, we will review other courts’ rulings for guidance. See
TEX. R. APP. P. 41.3; Sutherland v. State, No. 07-12-00289-CR, 2014 WL 1370118, at *9 n.4 (Tex.
App.—Amarillo Apr. 7, 2014, pet. filed) (noting Austin had not spoken on the issue).
6
The court in Aviles, relying on dicta from Beeman v. State, 86 S.W.3d 613, 615
(Tex. Crim. App. 2002), explained that the implied consent law allows officers to
draw blood in certain situations without a search warrant and that whether an
officer could obtain a warrant prior to the blood draw was immaterial given the
mandate of the Transportation Code. Aviles, 385 S.W.3d at 115–16. The United
States Supreme Court remanded the case to the San Antonio court for further
consideration in light of McNeely. Aviles v. Texas, 134 S. Ct. 902 (2014). Citing to
several intermediate appellate court opinions for guidance, the court in Weems
agreed that, by remanding Aviles, the Supreme Court had rejected the argument
that the implied consent statute under the Transportation Code was an exception to
the warrant requirement. Weems, 2014 WL 2532299, at *7–8 (citing Sutherland,
2014 WL 1370118; State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150
(Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted)).
The State in this case urges us not to adopt the reasoning and holding of our
sister courts regarding whether implied consent is a recognized exception. The
State argues that the Supreme Court routinely remands cases to lower courts, so
that lower courts can have an opportunity to review the holdings in such cases in
light of the recent Supreme Court opinion, but that these routine remands do not
imply that the Supreme Court has rejected the holdings of such cases. The State
asks us to follow the precedent set by the Texas Court of Criminal Appeals in
Beeman.
The trial court noted in its ruling that the Texas Court of Criminal Appeals
appears to have adopted the view that implied consent is an exception to the
warrant requirement. The Court of Criminal Appeals has stated that the implied
consent law “implies a suspect’s consent to a search in certain instances,” which
“is important when there is no search warrant, since it is another method of
conducting a constitutionally valid search.” Beeman, 86 S.W.3d at 615. The court
7
explained that “[t]he implied consent law expands on the State’s search capabilities
by providing a framework for drawing DWI suspects’ blood in the absence of a
search warrant. It gives officers an additional weapon in their investigative
arsenal, enabling them to draw blood in certain limited circumstances even without
a search warrant.” Id. at 616. The State argues that, under the language of
Beeman, implied consent is a valid exception to the warrant requirement. Thus,
because Officer McDaniel seized Appellant’s blood under the implied consent
statute, the State asserts that Officer McDaniel did not seize Appellant’s blood in
violation of the Fourth Amendment.
In Beeman, however, the officers obtained a warrant and, thus, the court
found that compliance with the implied consent statute was not necessary. Id. at
615–16. The court stated that consent, express or implied, was a moot issue. Id. at
616. Furthermore, the implied consent statute, at the time Beeman was issued, did
not contain a provision directing officers to take the blood of a DWI arrestee that
had previously been twice arrested for DWI. See Act of June 19, 2009, 81st Leg.,
R.S., ch. 1348, § 18, 2009 Tex. Sess. Law Serv. 4262, 4267–68 (West) (amending
TEX. TRANSP. CODE ANN. § 724.012(b) to include repeat offender language). The
court’s explanation of implied consent law in Beeman is dicta; therefore, we are
not bound by it. Regardless of whether the Supreme Court’s remand of Aviles
indicates the Court’s rejection of implied consent as an exception, we decline to
rely on Beeman for the proposition that implied consent is a valid exception to the
warrant requirement.
The State also contends that the Supreme Court cited favorably to implied
consent statutes throughout the country in its McNeely opinion. McNeely did not
address whether implied consent was a valid exception to the warrant requirement;
however, McNeely did refer to implied consent laws as an example of a tool that
the States have “to secure BAC evidence without undertaking warrantless
8
nonconsensual blood draws.” 133 S. Ct. at 1566. The Court stated, “Such laws
impose significant consequences when a motorist withdraws consent,” such as the
suspension of the motorist’s driver’s license and the right of the State to use the
motorist’s refusal against the motorist in a subsequent criminal prosecution. Id.
However, the Court did not indicate whether an officer could take a person’s blood
based on implied consent alone. The Court’s language does suggest, however, that
an accused can withdraw his or her consent to submit a specimen for testing in
direct contradiction to the State’s argument that implied consent is irrevocable. 3
The Supreme Court has held that a suspect may delimit the scope of the
search to which she consented. Florida v. Jimeno, 500 U.S. 248, 252 (1991). In
addition, the Fifth Circuit has held that consent may be limited, qualified, or
withdrawn. Mason v. Pulliam, 557 F.2d 426, 428–29 (5th Cir. 1977). The Texas
Court of Criminal Appeals has also recognized that a person is free to limit the
scope of the consent she gives. Valtierra v. State, 310 S.W.3d 442, 449 (Tex.
Crim. App. 2010). However, the State directs us to Forte v. State, 759 S.W.2d
128, 138 (Tex. Crim. App. 1988), overruled on other grounds by McCambridge v.
State, 778 S.W.2d 70, 76 (Tex. Crim. App. 1989), for the proposition that a DWI
suspect cannot withdraw implied consent. In Forte, the court stated that “consent
being implied by law, a driver may not legally refuse. A driver, however, can
physically refuse to submit, and the implied consent law, recognizing that practical
reality, forbids the use of physical force to compel submission.” 759 S.W.2d at
138 (quoting State v. Spencer, 750 P.2d 147, 153 (Or. 1988)). The Court of
Criminal Appeals quoted this same language in Fienen v. State, 390 S.W.3d 328,
333 (Tex. Crim. App. 2012), but then went on to explain that a suspect’s consent to
a breath or blood test must be freely and voluntarily given. When a person refuses
3
We note that Justice Sotomayor’s reference and discussion of implied consent laws was not
joined by a majority of the Court.
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to submit, we can see no way to legitimately find that the suspect consented to the
mandatory blood draw voluntarily. Thus, regardless of whether the Transportation
Code forecloses a suspect’s ability to legally withdraw implied consent, a person
cannot be said to have consented for the purpose of satisfying the voluntary
consent exception to the warrant requirement. But see Chapa v. State, No. A14-
87-00796-CR, 1988 WL 137628, at *1 (Tex. App.—Houston [14th Dist.] Dec. 22,
1988, pet. ref’d) (not designated for publication) (holding defendant could not
complain that she involuntarily gave consent to take the breath test because, under
holding in Forte, defendant could not revoke her implied legal consent to take the
test).
For consent to search to be valid as an exception to the warrant requirement,
the consent must be given voluntarily, without coercion by threats or force and not
as the result of duress. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 224–25,
229, 233, 248 (1973). Moreover, when the State seeks to rely upon consent to
justify a warrantless search, the State has the burden of proving that the consent
was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548
(1968). The State cannot meet this burden when the suspect has refused to give a
specimen of breath or blood because the suspect has clearly not given consent
freely and voluntarily. The suspect may very well acquiesce to the officer’s
authority and allow medical personnel to draw his or her blood; however, mere
acquiescence to a claim of lawful authority does not discharge the burden imposed
upon the State to show that the suspect freely and voluntarily consented. See id. at
548–49. We decline to hold that implied consent under the Transportation Code is
the equivalent to voluntary consent as a recognized exception to the warrant
requirement.
For all of the reasons we have discussed above, we agree with our sister
courts’ holdings that implied consent under the Texas Transportation Code is not a
10
recognized exception to the warrant requirement. See Weems, 2014 WL 2532299
(holding that the implied consent and mandatory blood draw statutory scheme
found in the Transportation Code are not exceptions to the Fourth Amendment’s
warrant requirement; warrantless blood draw must be based on a well-recognized
exception to the Fourth Amendment); Holidy v. State, No. 06-13-00261-CR, 2014
WL 1722171 (Tex. App.—Texarkana Apr. 30, 2014, pet. filed) (mem. op., not
designated for publication) (holding that officer violated defendant’s Fourth
Amendment rights when he took defendant’s blood pursuant to Section
724.012(b)(3)(B) without a warrant or exigent circumstances); Reeder v. State, 428
S.W.3d 924 (Tex. App.—Texarkana 2014, pet. filed) (op. on reh’g) (holding
warrantless blood draw pursuant to repeat offender provision of implied consent
statute violated the Fourth Amendment in absence of warrant or exigent
circumstances); Sutherland, 2014 WL 1370118 (holding warrantless blood draw
pursuant to repeat offender provision of implied consent statute violated Fourth
Amendment’s warrant requirement in the absence of exigent circumstances or the
suspect’s consent); Villarreal, 2014 WL 1257150 (holding repeat offender
provision of the mandatory blood draw law did not constitute an exception to the
Fourth Amendment’s warrant requirement). Therefore, we cannot uphold the trial
court’s ruling on the ground of implied consent.
The State’s second argument as to why the trial court did not err when it
denied Appellant’s motion to suppress is that a warrant is not required for
mandatory blood draws because mandatory blood draws are reasonable searches
under the Fourth Amendment. The State urges us to conduct a traditional Fourth
Amendment balancing test and weigh the government’s interest against the
individual’s privacy interests. In so doing, the State contends that we will find that
the government’s interest is greater than the privacy interests of any given
individual. The San Antonio court rejected this argument in Weems. 2014 WL
11
2532299, at *8. The court found that the implied consent and mandatory blood
draw statutes created categorical or per se rules for warrantless blood testing
because the statutes did not take into account the totality of the circumstances
present in individual cases. Id. The court further found that McNeely clearly
proscribed the use of per se rules and that the Supreme Court emphasized that the
reasonableness of a search must be determined by the totality of the circumstances
presented in the case. Id. (citing McNeely, 133 S.Ct. at 1560–63).
In Section III of the McNeely opinion, Justice Sotomayor weighed the
interests of both the government and the individual in relation to a per se exigency
rule and determined that the government’s interests did not outweigh the privacy
interests of the individual. 133 S. Ct. at 1556, 1564–67. Although Section III was
not joined by the majority of the Court, the majority of the Court did state, “Our
cases have held that a warrantless search of the person is reasonable only if it falls
within a recognized exception.” Id. at 1558. The majority described blood draws
as “a compelled physical intrusion beneath [the accused’s] skin and into his veins
to obtain a sample of his blood for use as evidence in a criminal investigation.” Id.
The Court further stated, “Such an invasion of bodily integrity implicates an
individual’s ‘most personal and deep-rooted expectations of privacy.’” Id.
(quoting Winston v. Lee, 470 U.S. 753, 760 (1985)). The Court went on to discuss
its decision in Schmerber v. California, 384 U.S. 757 (1966), and said, “Noting
that ‘[s]earch warrants are ordinarily required for searches of dwellings,’ we
reasoned that ‘absent an emergency, no less could be required where intrusions
into the human body are concerned,’ even when the search was conducted
following a lawful arrest.” Id. (alteration in original) (quoting Schmerber, 384
U.S. at 770).
Based on the language in McNeely and the reasoning of our sister court in
Weems, we decline to hold that mandatory blood draws under the Texas
12
Transportation Code are per se reasonable and further decline to hold that an
officer is not required to obtain a warrant for the blood draw or show that the blood
draw was conducted under a recognized exception to the warrant requirement.
Therefore, we also cannot uphold the trial court’s denial of Appellant’s motion to
suppress on this ground.
The State’s final argument is that, even if mandatory blood draws are no
longer permitted, mandatory blood draws were permitted at the time that Officer
McDaniel seized Appellant’s blood. Specifically, the State contends that McNeely
created a more restrictive rule than what was in place at the time of Appellant’s
blood draw. Thus, because Officer McDaniel did not violate the law when he drew
Appellant’s blood, the evidence should not be suppressed under the Texas
exclusionary rule. We disagree.
Officer McDaniel did violate the Fourth Amendment when he took
Appellant’s blood without a warrant and without showing that he did so under a
valid exception to the warrant requirement. While the Supreme Court may have
clarified its decision in Schmerber with its decision in McNeely, the law did not
change. There was never a per se rule that the natural dissipation of alcohol in a
person’s bloodstream was enough, standing alone, to satisfy the exigency
exception to the warrant requirement. That is precisely what the State of Missouri
was asking for in McNeely and precisely what the Supreme Court declined to
adopt.
Furthermore, as the Corpus Christi court pointed out, Section 724.012 does
not instruct an officer to take a person’s blood without a warrant or in violation of
the Fourth Amendment. Villarreal, 2014 WL 1257150, at *11. And, as the San
Antonio court pointed out, there is no exception under the Texas exclusionary rule
for a good faith reliance upon a statute. Weems, 2014 WL 2532299, at *9.
“Article 38.23 provides for an exception to the exclusionary rule only when an
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officer relies in good faith upon a warrant issued by a neutral magistrate based on
probable cause.” Id. (citing TEX. CODE CRIM. PROC. ANN. art. 38.23(b) (West
2005)). Therefore, we do not agree with the State’s argument that Officer
McDaniel’s good faith reliance on the implied consent statute created an exception
to the exclusionary rule. Thus, the exclusionary rule applies, and we cannot
uphold the trial court’s ruling on the basis that Officer McDaniel did not violate the
law at the time of Appellant’s blood draw.
In conclusion, we hold that in this case there were no exigent circumstances
presented by the State to justify its warrantless seizure of Appellant’s blood. We
also hold that implied consent is not a recognized exception to the warrant
requirement and that the idea that implied consent cannot be revoked is in direct
conflict with the voluntary consent exception to the warrant requirement. We
further hold that the government’s interests in combatting drunk drivers does not
outweigh the privacy interests of individuals to the extent that individuals arrested
for DWI, who have already been twice convicted of DWI, should be forced to
submit a breath or blood specimen without requiring the arresting officer to secure
a warrant or rely on an exception to the warrant requirement. And finally, we hold
that the Texas exclusionary rule does require that the results from the blood draw
in this case be suppressed. Therefore, the trial court erred when it denied
Appellant’s motion to suppress.
Because the warrantless blood draw violated Appellant’s rights under the
Fourth Amendment, we must reverse the judgment unless we determine beyond a
reasonable doubt that the trial court’s error did not contribute to the conviction or
punishment. See TEX. R. APP. P. 44.2(a). Here, Appellant pleaded guilty to the
third degree felony offense of DWI, under a plea bargain with the State, after the
trial court denied her motion to suppress. We cannot say, beyond a reasonable
doubt, that the trial court’s error did not contribute to Appellant’s decision to plead
14
guilty to the offense. Therefore, we must reverse the judgment. Appellant’s sole
issue on appeal is sustained.
We reverse the judgment of the trial court and remand this cause to the trial
court for further proceedings consistent with this opinion.
JIM R. WRIGHT
CHIEF JUSTICE
July 31, 2014
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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