*1 sentencing vant to the crime at
phase and cannot enlist the defendant process expense at the of the self- privilege.
incrimination States, 314,
Mitchell v. United 526 U.S.
322-30, S.Ct. L.Ed.2d
(1999). The Court Carroll II did not anything
mention these considerations or
remotely like them. As the court of last
resort for criminal law matters in the State Texas, we ought concerning to be our- with addressing exactly types
selves these questions. Whether we would have ulti-
mately reached the same conclusions as Supreme
the United States Court did in point;
Mitchell is not the but ought we
have recognized at least and discussed to
some extent the constitutional principles
implicated. comments, join
With these opinion
of the Court. Wyman BADGETT, Appellant,
Thomas of Texas. STATE
No. 119-00. Texas,
Court of Criminal
En Banc.
April *2 Kerr ar- Ritchie, Houston, vehicle when Officer his appellant. Herb H. beside of the accident. Ser- rived on the scene DA, Houston, Mat- MeCrory, Dan Asst. acci- working the the officer geant Traylor, Paul, Austin, Atty., for the thew State’s appellant’s Kerr night, that handed dent State. was appellant told Kerr that license and accident, he in the that of the drivers
one intoxicated, might Kerr and that might be sobriety test. Af- a field perform want to OPINION tests, sobriety field performing ter several J., JOHNSON, of opinion delivered the be in- appellant might believed that Kerr PRICE, Court, MEYERS, arrest. placed him under which toxicated and experi- based on his Kerr testified that HOLCOMB, JJ., HOLLAND, joined. and ence, appel- time of he also believed at the Following his involvement in an automo appellant that could have been lant’s arrest collision, Wyman Thomas appellant bile appellant the accident because at fault for suspicion of Badgett was arrested for At the time Kerr left was intoxicated. give sample He refused to a blood DWI. the accident recon- appellant, scene with at a voluntarily, hospital, so one was taken determined yet team had not struction § allegedly appellant to that was not at fault. pursuant objec Transportation Texas over his Baytown to the Po- Appellant was taken Appellant suppress tion. filed motion Station, give he declined to lice where sample, the blood which the trial court appellant Kerr then took sample. blood negoti Appellant denied. then entered sample appel- where a hospital, a local “no plea appealed ated contest” and objection. his lant’s blood was drawn over suppress. denial of his motion to DWI, with appellant charged After appeals court of affirmed the trial court’s suppress the results of he filed a motion to Badgett judgment. S.W.3d that test. The motion asserted his blood (Tex.App [14th Dist.] . —Houston accident, and not witness the Kerr did granted appellant’s petition for discre We therefore, have be- could not tionary “[t]he review determine whether that the collision was caused lieved appeals holding court of erred in Appel- alleged offense of DWI. appellant’s 724.12(b)(2) 724.013 of the Texas that, therefore, provisions argued lant Code did not Transportation law Transporta- of the Texas personnel specific to possess enforcement violated, and that this tion had been Code defendant was evidence that intoxicated his required suppression violation an accident before a causing at fault denied the sample. The trial court blood specimen involuntarily, can be taken blood entered suppress, appellant motion to merely involving an but that an accident plea. negotiated no-contest re intoxicated driver is sufficient.” We
verse and remand. OF APPEALS COURT alia, inter appellant argued, appeal, On
FACTS
appellant’s
Officer Kerr had neither
nor
sample
was involved in an automobile
Appellant
to take
permission
reasonably believe
standing
any basis to
May
of 1997. He was
collision
accident occurred
a result
appellant
as
It noted that under certain circum-
stances,
driving
completion
while intoxicated.
of an accident investi-
gation
likely
and identification of the
caus-
724.012(b)provides
Section
that:
may
ative factors of the accident
not be
*3
peace
“[a]
officer shall
the tak-
possible in a time frame in which a defen-
of a
ing
specimen
person’s
of the
breath
may reasonably
dant
be detained or a
or blood if:
meaningful
him.
specimen be taken from
(1) the
person
officer arrests the
for
Id. It also reasoned that because intoxi-
Chapter
offense under
Penal
widely
impair
cation is
known to
a driver’s
operation
involving the
of a motor
ability
safely,
to drive
the fact that an
watercraft;
vehicle or a
accident occurred in which a driver was
a
supports
intoxicated
reasonable infer-
(2)
person
operator
the
was the
of a
ence that the
intoxicated condition
motor vehicle or a watercraft
involved
driver contributed to the accident.
Id.
reasonably
an accident that the officer
724.012(b)(2)
Therefore,
it held that
believes occurred as a result
the
of
of-
im-
reasonably
interpreted
could not
be
fense;
pose
obligation
per-
on law enforcement
(3) at the time of the arrest the offi-
possess specific
sonnel to
evidence that an
cer
person
believes that a
intoxicated defendant was at fault in caus-
has died will
a
or
die as
direct result of
ing
specimen may
the accident before a
be
accident;
and
instead,
involuntarily;
it
taken
authorized
(4)
person
refuses the officer’s re-
specimen
a
to be taken when an accident
quest
taking
speci-
to submit to the
of a
in which an
has occurred
intoxicated driver
voluntarily.”
men
was involved. Id.
added.)
(Emphasis
ANALYSIS
provides
724.013
that: “[e]xcept
Section
statute,
interpreting
When
a
we
724.012(b),
provided by
as
Section
a speci-
look to the literal text of the statute for its
men
if
may
not be taken
a
refuses
meaning,
ordinarily give
and we
effect to
taking
specimen
to submit
to the
of a
plain meaning,
application
unless
designated by peace
officer.”
plain
lead to
language
the statute’s
appeals
The court
held that
the re-
consequences
Legislature
absurd
sobriety
provided
sults of Kerr’s field
tests
intended,
if
possibly
could not
have
or
appellant
reasonable belief that
had com-
ambiguous. Boykin
v.
operating
mitted the offense of
the vehicle
(Tex.Crim.App.
818 S.W.2d
Badgett,
while
at
intoxicated.
S.W.3d
648-49.
It then focused on whether the
involuntary taking
mere fact that
appellant had been involved
order for
authorized,
specimen
in an accident
intoxi-
to be
driving
while
while
of a blood
724.012(b), by
plain language,
cated was sufficient to establish a reason-
its
sets
(1)
specific requirements:
able belief that the
occurred as a
out three
there
accident
(2)
offense,
accident;
life-threatening
result
whether was
for an intoxication
required
showing
further
defendant was arrested
(3)
49;
Chapter
that facts were known at the time of tak-
offense under
arresting
“reasonably
that affir-
ing appellant’s
specimen
believed[d]”
matively
as a
appellant
indicated
was at fault
that the accident occurred
result of
at
held that
causing
appeals
the accident. Id.
The court of
offense.
accident occurred as
belief’ that the
widely
intoxication is
known to
able
“because
must be based
safely,
the result of the offense
ability
a driver’s
to drive
impair
fact of the
more than the mere
something
in which
fact that an accident has occurred
arrest of the
the officer’s
a reason
accident and
supports
a driver was intoxicated
offense.
an intoxication
that the intoxicated condi defendant
able inference
Therefore,
a belief must
we hold that such
tion of the driver contributed to the acci
rationale,
facts
upon specific and articulable
dent.” Id. at 649.
be based
Under
Dickerson,
themselves,
of causation.
Minnesota
the first two
Cf.
2130, 2136,
366, 374, 113
automatically
the third factor
508 U.S.
S.Ct.
establish
(“reasonable
(1993)
suspicion”
“reasonably
that L.Ed.2d 334
the officer
believe”
*4
facts”)
“specific and articulable
upon
the accident occurred as a result
the based
of
Ohio,
1, 88
reasoning effectively
(citing Terry
This
nulli
v.
392 U.S.
S.Ct.
offense.
1868,
(1968));
is,
v.
by
By making
legislature
belief’ re- The
could have chosen
“reasonable
if
involuntary drawing of blood
quirement separate
requirements
from the
thorize the
life-threatening
a
accident
life-threatening
there be a
accident
there has been
an
one or more of the drivers is arrested
and that there be an arrest for
intoxi-
and
offense,
driving while intoxicated.
suspicion
cation
addition,
Instead,
require,
it chose to
statute indicates that the officer’s “reason-
street,
not,
major
example,
that the
which did
struck
1. For
if the officer observes
broadside, experience
stop-
vehicle
driver was rear-ended at a
other
intoxicated
the accident
light, experience
produce a reasonable belief that
would indicate that the acci-
by
Other
the intoxicated driver.
dent was not caused
the intoxicated driver.
was caused
clear-cut,
However,
will be less
but will still
that the intox-
scenarios
if the scene indicates
expe-
based on
pulled
permit articulable conclusions
icated driver’s car
into an intersection
street,
the collision.
stop sign,
rience as to the cause of
from a side
which had a
onto
reasonable belief that
the accident oc-
involving
operation of a motor
(2)
watercraft;
curred as a result
the suspected
intoxi- vehicle or a
operator
cation offense.
was the
of a motor
negate
We are not free to
vehicle
the statute’s
watercraft involved
an accident that the
plain language because of our
believes occurred as a
concern over time limits.2
TRAnsp.
result of the offense.” Tex.
Code
Finally, we note that our interpretation
724.12(b). Thus,
the State must show
§of
does not lead to an ab-
requirements
these
have been met in order
surd
legislature
result that the
could not
justify
involuntary taking
of a blood
possibly
nothing
have intended. There is
specimen.1
requiring
absurd in
than
more
the bare oc-
The Court of
held that section
currence of an accident and an intoxi-
“reasonably
could not
be in
cation-offense arrest before the state is
terpreted to impose
obligation
on law
allowed to make an seizure as intrusive as
enforcement personnel
possess specific
the involuntary drawing of blood.
evidence that an intoxicated defendant was
Appellant’s ground for review is sus-
in causing
at fault
the accident
before
tained. The judgment
ap-
of the court of
specimen may
involuntarily,
be taken
but
*5
reversed,
peals is
and the cause is remand-
only that an
in
accident has occurred
ed to that
proceedings
court for
consistent
which an intoxicated driver was involved.”
with
opinion.
(Tex.
645,
Badgett v.
S.W.3d
1999).
App.
[14th Dist.]
Under
— Houston
MEYERS, J.,
concurring
filed this
Appeals’ holding,
the Court of
the State
opinion.
only
need
show that the driver
intoxi
was
join
I
opinion
the
of the Court.
I write
cated in
meet
order to
the additional statu
point
out that
the
of Appeals’
Court
tory requirement
that the officer have a
holding writes into the controlling statute
reasonable belief that the
intoxi
driver’s
that,
established,
presumption
a
once
cation was the cause of the accident. The
a
places
burden on the defendant to over- State’s burden is met on the causation
it, in
plain
come
contravention of the
lan-
shown;
element
it
once intoxication is
need
guage.
Presumably,
not show more.
a defendant
The
Code
that
Transportation
provides
by
could overcome the State’s case
show
police
taking
ing
a
the
of a
that he did not cause the accident.
shall
if,
other
specimen
among
require-
But the burden would be on the defendant
ments, “(1)
person
already
the officer arrests the
because the State has
shown all it
Penal
in
Chapter
for
under
needs to
order to establish a valid
offense
event,
problematic
any
subject
legisla-
note
2. We
the
best left to the
also
standard set
is
724.012(b)(3),
out in
ture.
provides
which
"at the
arrest
time of
the officer
the
reason-
defendant bears the initial burden on
ably
person
believes that a
has died or will die
suppress
his motion
evidence to
establish
(Emphasis
result
as a direct
of the accident."
Fourth
basis for his
Amendment claim.
added.)
requirement
The latter
seems rather
Mercado,
(Tex.Crim.
State v.
probable consequences particular of a these even if the other elements of terpretation.6 met, were the officer would permitted not be to demand a blood sam- majority The holds that the Court of ple because he could not form a reasonable Appeals’ opinion plain violates the statute’s belief that the suspect caused the accident language reasoning because its nullifies any due intoxication or other reason. 724.012(b)(2).7 requirements I Appeals’ holding, Under the Court of agree. According to the Appeals, Court of officer be sam- would able take only the officer would to reasonably need ple suspect’s permission without the sim- intoxicated, believe that the driver was ply because the accident involved an intoxi- any without evidence of causation. This holding cated But that completely driver. give carte blanche to officers to ignores require- the statute’s causation samples demand blood from intoxicated ment. drivers. But the majority also holds that contains category third cases
plain language of the statute dictates that lie somewhere in the middle —cases the officer’s “reasonable belief’ that the which the officer has no evidence of causa- accident occurred must be based some- tion, other, way apart one or the from the thing more than In reaching intoxication. suspect’s evidence of the intoxication. conclusion, majority looks at the cases, these the officer’s sole reason for construction of the statute. But there is believing suspect that the the acci- caused no indication that requires the statute as a suspect dent would be because the matter lawof there be evidence in that in intoxicated. find these cases it addition to intoxication to establish causa- can be reasonable for the officer believe Instead, tion. of this that an accident occurred because the sus- simply section indicates that the officer pect was intoxicated and for that reason must believe the accident was a alone. (caused by) result of (driving the offense intoxicated).
while attempt Officers to discern who should An what caused the accident.
Absurd, results could form a belief as to causa- reasonable variety tion based on a such as I believe that there are three categories experience, position the officer’s the 724.012(b)(2). of cases that fall under vehicles, findings, accident reconstruction category The first consists of cases in drivers, from emergency or statements the which the has officer sufficient articulable personnel, or witnesses. But there will be apart suspect’s facts from the intoxication complexity cases in which the of the acci- to form a reasonable belief that the sus- dent, injuries, the need to tend to fatal the In pect caused the accident. these cases emergency personnel number of on the suspect’s blood can be taken without the scene, difficulty investigating, permission provided remaining involved, physical condition of those sub-sections of are met. The conflicting prevent witness statements will category oppo- cases at second are forming from a reasonable belief officer spectrum site end of the which —cases independent as to causation of intoxication specific the officer has evidence that the In defendant did not cause the accident. within a time frame he can extract a Ante, Id. at 138-139. 6. 7. Indeed,
meaningful blood sample.8 there ication could never be the basis of an may be accidents where the cause never officer’s belief about causation. reasonable known. these cases it is job reasonable But it of an court appellate is"not an officer to determine that the accident to decide as matter of law certain suspect’s caused intoxication. facts can or cannot ever be reasonable. judges Trial must look at all of the facts rationale, But under the majority’s at and circumstances known to officer would stripped ability be of his the time of arrest to determine if the reason use and common sense the case officer had a reasonable belief as to causa- in which simply there is no additional in- tion. formation available as to causation. For
example, an officer could arrive at respectfully dissent.
scene of a two-car accident. One driver is
dead. He does not smell of alcohol. The injured,
other driver is not but smells of
alcohol, speech, has slurred and cannot up.
stand There are no other witnesses. apparently head-on,
The cars have collided around,
spun ditch, are now in a and it is unclear who was at fault. In cases like Christopher JONES, Appellant, Lamont this, I believe an officer could form a rea- belief, sonable based on his experience and intoxication,
the evidence of that the acci- Texas, Appellee. The STATE of dent occurred as a result of the intoxicated No. 07-98-0411-CR. driver. Nothing in prohibits the statute this. Texas, Court of
It is ridiculous say that an officer Amarillo. cannot reasonably believe that the driver Aug. walk, talk, who cannot or even stand up, caused the exactly accident. But that is
what the majority says. It holds that this, law,
cases like as a matter of
officer is not able to form a reasonable
belief that the intoxicated driver caused
the accident. The officer would be forbid- taking
den from the intoxicated driver’s
blood sample. And consequently, *8 prevented
State would be obtaining from against
critical evidence that driver. The
majority opinion is unreasonably restric-
tive and leads to absurd results. phrase belief,”
The key is “reasonable
and that must be case-by- determined on a According
case basis. majority, to the as a law,
matter of conclusive evidence of intox- S.W.3d at 649. Badgett, See