Loredana Bertolotti Gore v. State
451 S.W.3d 182
| Tex. App. | 2014Background
- Appellant Loredana Bertolotti Gore was arrested for DWI with a minor in the car after a July 4, 2012 accident in Friendswood, Texas.
- Two child passengers were temporarily separated from Gore to safety, causing approximately 25 minutes of transfer time before the blood draw.
- Officer McIntyre conducted field sobriety tests, arrested Gore, advised her of the options, and transported her to a hospital for a blood draw over her objection to a blood test.
- Gore consented to a breath test but expressly refused a blood draw; blood was drawn at 12:34 a.m., about 49 minutes after McIntyre began investigating the incident.
- The officer relied on Texas Transportation Code sections 724.011–724.013 and 724.012(b) to justify a mandatory blood draw without a warrant.
- The trial court denied the suppression motion; on appeal, the court reversed and remanded, holding the warrantless blood draw violated the Fourth Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the implied consent/mandatory blood draw statutes exception to the warrant requirement as applied? | Gore’s implied consent/mandatory-blood-draw regime creates per se exception. | Statutes provide consent/mandatory draw as a valid exception under McNeely’s totality approach. | Not an automatic per se exception; not constitutionally applied here. |
| Does McNeely require a warrantless blood draw to be justified by exigent circumstances in this case? | Exigency existed due to dissipation of BAC and public safety concerns. | Exigency applies; warrants are not always required when waiting would destroy evidence. | Exigency not shown; no practical difficulty obtaining a warrant. |
| Was consent valid under the circumstances to justify a blood draw without a warrant? | Implied consent under the Transportation Code may justify the draw. | Consent cannot be irrevocable or coerced; Morrison/downgraded by McNeely’s ruling. | Consent cannot be used as a blanket exception; Gore withdrew consent, so no valid consent. |
Key Cases Cited
- Schmerber v. California, 384 U.S. 757 (Supreme Court 1966) (upheld warrantless blood draw under exigent circumstances)
- Missouri v. McNeely, 133 S. Ct. 1552 (Supreme Court 2013) (exigency must be assessed case-by-case; no per se rule)
- Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012) (implied consent/mandatory draw not per se exception; vacated, remanded)
- Weems v. State, 434 S.W.3d 655 (Tex. App.—San Antonio 2014) (implied consent not a blanket Fourth Amendment exception; withdrawal possible)
- Forsyth v. State, 438 S.W.3d 216 (Tex. App.—Eastland 2014) (consent must be voluntary; cannot be forced by implied-consent rules)
- Douds v. State, 434 S.W.3d 842 (Tex. App.—Houston (14th Dist.) 2014) (no exigency shown; warrantless draw invalid without proper exception)