Douds, Kenneth Lee, PD-0857-14

Background

Officer Rivas stopped Michael Lyssy for a traffic violation, performed sobriety tests, and arrested him for DWI; Lyssy refused breath test and Rivas requested a warrantless blood draw.
Dispatcher (using TCIC/NCIC) reported Lyssy had a “DWI 2nd” conviction; Rivas relied on that report to invoke Tex. Transp. Code § 724.012(b) and order blood without a warrant.
At suppression hearing it emerged Lyssy in fact had only one prior DWI; the TCIC/NCIC printout labeled the 2004 DWI as “DWI 2nd.”
Lyssy moved to suppress the blood evidence arguing (1) § 724.012(b) is unconstitutional post‑McNeely and (2) the dispatcher’s information was unreliable/contradictory so statutory predicate for implied consent was not met.
Trial court denied suppression; Lyssy pled nolo contendere and appealed. The court of appeals affirmed, holding Lyssy waived the constitutional challenge by failing to present it specifically at trial and that the dispatcher’s report gave Rivas reliable information from a credible source.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 724.012(b) is unconstitutional post‑McNeely	Lyssy: McNeely shows warrantless blood draws require exigency; implied‑consent statute cannot substitute for warrant requirement	State: Lyssy did not raise a specific constitutional challenge at trial; McNeely does not invalidate the statute on its face	Court: Waived — Lyssy failed to preserve a constitutional challenge; assumed constitutionality for appeal and did not decide McNeely’s applicability
Whether the officer had "reliable information from a credible source" of two prior DWIs (statutory predicate)	Lyssy: TCIC/NCIC report was internally inconsistent (labeled single prior as “DWI 2nd”), so information was unreliable and officer should have further investigated	State: Dispatcher’s report from TCIC/NCIC was a credible source; officer entitled to rely on it in the field without independent verification	Court: Held the dispatcher’s report qualified as reliable information from a credible source; officer entitled to rely on it; statutory predicate satisfied
Whether blood evidence should be suppressed as unlawfully obtained	Lyssy: Because statutory predicate failed or statute is unconstitutional, blood draw was unreasonable and evidence must be excluded	State: Blood draw lawful under § 724.012(b) given reliable report; procedure upheld	Court: Denied suppression; evidence admissible under statutory implied consent as applied given preserved issues
Preservation of appellate issues (specificity requirement)	Lyssy: argued general warrantless/search Fourth Amendment problems at hearing and in motion	State: Objection at trial was limited to statutory compliance; constitutional attack not presented concretely to trial court	Court: Held appellant’s arguments did not correspond to specific grounds required under TEX.R.APP.P. 33.1(a); constitutional claim forfeited

Key Cases Cited

Lyssy v. State, 429 S.W.3d 37 (Tex. App.—Houston [1st Dist.] 2014) (opinion affirming denial of suppression; holding defendant waived constitutional challenge and officer entitled to rely on TCIC/NCIC report)
Missouri v. McNeely, 133 S. Ct. 1552 (U.S. 2013) (warrantless blood draws require exigent circumstances; natural dissipation of alcohol not per se exigency)
Schmerber v. California, 384 U.S. 757 (U.S. 1966) (blood draw is a search under Fourth Amendment)
Schneckloth v. Bustamonte, 412 U.S. 218 (U.S. 1973) (standards for consent searches)
Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009) (specificity requirement for preserving appellate complaints; contextual preservation rules)
Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010) (standards of review for suppression rulings; deference to trial court fact findings)
Comperry v. State, 375 S.W.3d 508 (Tex. App.—Houston [14th Dist.] 2012) (officer entitled to rely on TCIC report despite display irregularities)
Terrazas v. State, 406 S.W.3d 689 (Tex. App.—El Paso 2013) (reliance on criminal history reports by officers)
Flores v. State, 392 S.W.3d 229 (Tex. App.—San Antonio 2012) (trial court must find reliability of database information on the record)
Johnston v. State, 336 S.W.3d 649 (Tex. Crim. App. 2011) (two‑step analysis for warrantless blood draws; reasonableness under Fourth Amendment)
Katz v. United States, 389 U.S. 347 (U.S. 1967) (general Fourth Amendment search/seizure principles)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective assistance of counsel standard)