Clayton Dean REEDER, Appellant v. The STATE of Texas, Appellee.
No. 06-13-00126-CR.
Court of Appeals of Texas, Texarkana.
Decided April 29, 2014.
Submitted Feb. 4, 2014.
Accordingly, we hold that the deadlines in health and safety code sections 821.022(b) and 821.025(d) are not jurisdictional.2 See, e.g., In re E.D.L., 105 S.W.3d 679, 688 (Tex.App.-Fort Worth 2003, pet. denied) (holding that although family code section 262.201(a) requires a trial court to conduct a full adversary hearing within fourteen days of the date a governmental entity takes possession of a child, the requirement is procedural, not jurisdictional). We deny relator‘s petition for writ of mandamus.
Michael E. Jimerson, District/County Attorney, Richard Kennedy, Assistant District Attorney, Henderson, for Appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Opinion by Chief Justice MORRISS.
When, in early September 2012, Clayton Dean Reeder swerved his vehicle to miss a deer and skidded sideways off a rural Rusk County highway and into a tree, Reeder had already been, twice before, convicted of driving while intoxicated (DWI), a third degree felony.1 After Reeder refused to give his consent to have his blood drawn and tested for alcohol, law enforcement officials took a blood specimen anyway and tested it under the authority of Section 724.012(b)(3)(B) of the Texas Transportation Code. See
While investigating this accident, Texas Department of Public Safety Officer Zach Mills spoke with Reeder and noticed signs of intoxication. Mills followed the ambulance transporting Reeder to a local hospital where he continued to speak with Reeder concerning the accident. During the interview, Mills noticed that Reeder‘s speech was slurred, the odor of alcohol was on his breath, and his eyes were glassy and bloodshot. Reeder indicated that he had consumed only “two beers,” but then stated that he could not recall exactly how much he drank and that he consumed a mixed alcoholic beverage before driving.2
Based on this interview, Mills determined that Reeder did not have the normal use of his mental or physical faculties due to the introduction of alcohol into his system.3 Reeder was informed of the DWI statutory warning contained in the DIC-24 form,4 but refused to provide a blood specimen. Because Reeder had two previous DWI convictions, a mandatory blood specimen was obtained in accordance with Section 724.012(b)(3)(B) of the Texas Transportation Code. See
Reeder filed a motion to suppress any evidence pertaining to the blood specimen, claiming, among other things, that the specimen was unconstitutionally seized without a warrant. The trial court denied Reeder‘s motion to suppress evidence. Reeder was thereafter found guilty by the court after entering his plea of guilt and was sentenced to six years’ confinement.
We review a trial court‘s ruling on a motion to suppress evidence under a bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim. App.2013). A trial court‘s determination of historical facts is given almost total deference, while the trial court‘s application of the law to those facts is reviewed de novo. Carmouche v. State, 10 S.W.3d 323,
Reeder relies on Missouri v. McNeely, — U.S. —, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), for the proposition that a warrant for the extraction of his blood was required in this case. In McNeely, the United States Supreme Court addressed the issue of whether the Fourth Amendment requires police to get a warrant before taking a blood sample from a nonconsenting driver suspected of being under the influence of alcohol. Id. at 1556. The Court concluded that the natural dissipation of alcohol in the bloodstream does not always present a per se exigency that justifies an exception to the warrant requirement for nonconsensual blood testing in DWI cases. Id. Instead, the Court recognized that, sometimes, exigent circumstances, based in part on the rapid dissipation of alcohol in the body, may allow law enforcement to obtain a blood sample without a warrant. Courts must determine on a case-by-case basis whether exigent circumstances exist, considering the totality of the circumstances. Id.
Reeder contends that, effectively, the statute unconstitutionally requires blood testing “in all felony cases.”5 He claims that, in this case, the State failed to demonstrate the existence of exigent circumstances which would forgive the lack of a warrant. He therefore claims the blood specimen was taken in violation of his Fourth amendment rights and should be suppressed.
The withdrawal of a blood specimen is a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The Fourth Amendment to the United States Constitution protects the right to be free from unreasonable searches.
Here, the State does not claim an exigency exception to the warrant requirement. Instead, the State relies on Section 724.012(b)(3)(B) of the Texas Transportation Code as its authority for obtaining the blood specimen. As applicable to this case, that section requires a peace officer to take a specimen of blood or breath of a
The existence of exigent circumstances is one exception to the requirement of a search warrant. It is, however, “equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Section 724.012 of the Texas Transportation Code is one section under which Texas implies the consent of the person being tested. See
Pursuant to Section 724.011 of the Texas Transportation Code, a person who has been arrested for DWI in a public place is considered to have consented to submit to the taking of a breath or blood specimen for analysis to determine the alcohol concentration in the person‘s body. See
“The implied consent law does just that—it implies a suspect‘s consent to a search in certain instances. This is important when there is no search warrant, since it is another method of conducting a constitutionally valid search.” Beeman v. State, 86 S.W.3d 613, 615 (Tex.Crim.App. 2002). Further,
The 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
(b) A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person‘s alcohol concentration.
While this reasoning has been used by intermediate appellate courts to uphold the validity of a warrantless blood draw, the United States Supreme Court‘s McNeely decision casts grave doubt on such reasoning. In a recent case, our sister court of appeals in San Antonio held, under existing precedent, that a warrantless blood draw conducted according to the Texas Transportation Code did not violate the defendant‘s Fourth Amendment rights. See Aviles v. State, 385 S.W.3d 110, 112 (Tex.App.-San Antonio 2012, pet. ref‘d), vacated, — U.S. —, 134 S.Ct. 902, 187 L.Ed.2d 767 (2014). The United States Supreme Court vacated the Aviles judgment and remanded the case to the Court of Appeals for further consideration in light of McNeely. Aviles v. Texas, — U.S. —, 134 S.Ct. 902, 187 L.Ed.2d 767 (2014).
Aviles was arrested for DWI with two prior DWI convictions. After he was given the appropriate statutory warnings, Aviles refused to provide a breath or blood sample. As in this case, the arresting officer, in reliance on Section 724.012(b)(3)(B) of the Texas Transportation Code, obtained a mandatory nonconsensual blood draw. Aviles, 385 S.W.3d at 112-13. On appeal, Aviles challenged the denial of his motion to suppress, arguing that the trial court erred by admitting his blood specimen into evidence because the specimen was obtained without consent and without a warrant. Id. at 112. In rejecting this contention, the court relied on the implied-consent provision of the Texas Transportation Code. It reasoned that the mandate of Section 724.012(b)(3)(B) was one of the “circumstances” referenced in Beeman in which blood may be drawn without a warrant. Id. at 116. The fact that the officer could have gotten a warrant for the blood draw was “immaterial given the mandate of [S]ection 724.012(b)(3)(B).” Id.8
In a post-McNeely decision, the Corpus Christi Court of Appeals recently held that “the constitutionality of the repeat offender provision of the mandatory blood draw law must be based on the previously recognized exceptions to the Fourth Amendment‘s warrant requirement.” State v. Villarreal, No. 13-13-00253-CR, — S.W.3d —, 2014 WL 1257150, at *11 (Tex.App.-Corpus Christi Jan. 23, 2014, pet. filed).
In Villarreal, the court was confronted with a factual scenario similar to that presented here. Villarreal, who was arrested for DWI with three prior DWI convictions, did not consent to a blood draw, and a blood warrant was not obtained. The State conceded that there were no exigent circumstances. Id. at *1. The test showed Villarreal was over the legal limit, and he was charged with third-degree felony DWI. Id. The State appealed the grant of Villarreal‘s suppression motion, claiming that, because it established the blood draw was performed pursuant to Section 724.012(b)(3)(B) of the Texas Transporta-
neither the United States Supreme Court nor the Texas Court of Criminal Appeals has recognized the repeat offender provision of the mandatory blood draw law...as a new exception to the Fourth Amendment‘s warrant requirement separate and apart from the consent exception and the exception for exigent circumstances[,]...the constitutionality of the repeat offender provision of the mandatory blood draw law must be based on the previously recognized exceptions to the fourth Amendment‘s warrant requirement.
Id. at *11. Very recently, a different sister court aptly stated the resulting situation:
By vacating and remanding Aviles, it would seem that the United States Supreme Court has rejected any position that would treat Section 724.012(b)(3)(B) as an exception to the Fourth Amendment, separate and apart from the traditional, well-established exceptions. Similarly, it would seem that the position advanced in Aviles that the Texas Transportation Code‘s implied-consent provision applies to justify the warrantless mandatory blood draw of Section 724.012(b)(3)(B) is also constitutionally infirm.
Sutherland v. State, No. 07-12-00289-CR, — S.W.3d —, 2014 WL 1370118, at *8 (Tex.App.-Amarillo Apr. 7, 2014, no pet. h.) (concluding no exigent circumstances support warrantless seizure of appellant‘s blood specimen).
In light of the United States Supreme Court‘s remand of Aviles and in light of the reasoning in Villarreal10 and Sutherland, we conclude that, in the absence of a warrant or exigent circumstances, taking Reeder‘s blood pursuant to Section 724.012(b)(3)(B) of the Texas Transportation Code violated his Fourth Amendment rights.11 See Villarreal, — S.W.3d at —, 2014 WL 1257150, at *11; see Schmerber, 384 U.S. at 767, 86 S.Ct. 1826 (“Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned.“). It was error, therefore, to deny Reeder‘s motion to suppress.
We reverse the judgment of the trial court and remand for a new trial consistent with this opinion.