Case Information
*1 Fourth Court of Appeals San Antonio, Texas
OPINION
No. 04-13-00366-CR
Daniel James WEEMS ,
Appellant
v.
The STATE of
The STATE of Texas,
Appellee From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR6570 Honorable Sid L. Harle, Judge Presiding [1] Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: May 14, 2014
REVERSED AND REMANDED
At issue in this appeal is whether the warrantless blood draw administered to Daniel James Weems violated his rights under the Fourth Amendment to the Constitution. Because we hold that Weems’s rights under the Fourth Amendment were violated, we reverse the judgment of the trial court and remand for a new trial.
B ACKGROUND
Weems was charged with the felony offense of driving while intoxicated with a “repeat felony offender” enhancement allegation. At trial, the arresting officer, Jimmy Bustamante of the Bexar County Sheriff’s Office, testified that on June 4, 2011, around midnight, he was dispatched for a major automobile crash. A vehicle had hit a telephone pole and was turned upside down on its roof. Witnesses reported that the driver, who was wearing a Harley Davidson shirt and tan pants, ran from the scene. The passenger of the vehicle had been transported to the hospital by ambulance.
The driver, Weems, was found about a quarter mile east from the crash site hiding underneath a car. Weems had cuts, scrapes, and bruises consistent with the crash. Officer Bustamante testified that a strong odor of alcohol emanated from his breath, and Weems had bloodshot eyes. Weems was unsteady and swaying, and had slurred speech. The officer handcuffed Weems and read the DIC-24 form requesting a breath or blood specimen. Weems refused to provide a specimen. According to Officer Bustamante, no field sobriety tests were performed because Weems had been involved in a car crash and was complaining of back and neck pains. Because of his medical complaints, Weems was transported to the hospital, and a mandatory blood draw was taken there, instead of at the San Antonio Magistrate’s Office. No warrant was procured for the blood draw. Officer Bustamante testified that a mandatory blood draw was taken because Weems was driving a car involved in a crash and the passenger was injured. According to Officer Bustamante, two to three hours passed between the time of the crash and the time a specimen of Weems’s blood was taken.
The passenger of the car, Scott Noland, also testified. According to Noland, on June 4, 2011, he and Weems had been drinking beer and working on Weems’s car. At around 10:45 p.m., they went down the street to a bar. Weems drove. At the bar, they each had two mixed drinks. They left the bar around 11:30 p.m., intending to go back to Weems’s home. Weems was driving the car when “he slowly started to veer off the road” and a “second later we were just tumbling around and spinning around and the accident happened.” The vehicle “had flipped over on to its roof” and “the front end of the car was facing towards the road.” Noland got out of the car, and some people who had been passing by helped him to sit down. Noland testified that Weems also got out of the car and then he noticed that Weems had left the scene. At the hospital, Noland “had to get some stiches and staples on the side of [his] head.”
Veronica Hargrove, who is employed at the Bexar County Medical Examiner’s Office in the toxicology lab, testified that at 2:30 a.m., Weems’s blood ethanol concentration was 0.18 grams per deciliter. According to Hargrove, on average, a person eliminates alcohol at about 0.02 grams per deciliter per hour. So, on average, a person who was at 0.18 at 2:30 a.m. and did not drink any additional alcohol would have had a blood ethanol concentration of 0.24 at 11:30 p.m. Hargrove testified that because Weems took his last drink at around 11:30 p.m. and his blood was drawn at 2:30 a.m., if he “only had a couple of drinks at 11:30, it would be unlikely that [he was] below 0.08” at the time of the accident. Hargrove estimated that Weems had consumed about twelve drinks.
After hearing the evidence, the jury found Weems guilty of driving while intoxicated.
Weems appeals.
D ISCUSSION
Weems argues the trial court erred in failing to suppress the results of the warrantless blood
draw. Before trial, Weems filed a pretrial motion to suppress, but there was no pretrial hearing and
the trial court did not rule on the pretrial motion. Before Hargrove testified during trial, however,
Weems moved to suppress any evidence related to the blood draw, explaining that the Supreme
Court had that day issued its opinion in
Missouri v. McNeely
,
A. Warrantless searches are not reasonable under the Fourth Amendment unless they fall within a recognized exception to the warrant requirement.
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. C ONST . amend. IV. The
Supreme Court has held that a warrantless search of the person is reasonable only if it falls within
a recognized exception.
See, e.g., McNeely
,
B. Does Texas’s implied consent and mandatory blood draw statutory scheme constitute an exception to the Fourth Amendment’s warrant requirement?
The implied consent statute, found in section 724.011(a) of the Texas Transportation Code provides the following:
If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated . . ., the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.
T EX . T RANSP . C ODE A NN . § 724.011(a) (West 2011). Section 724.013, in turn, states that “[e]xcept as provided by section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.” § 724.013. Section 724.012(b) requires a peace officer to take a specimen of a person’s breath or blood, even if the person refuses, if the person is arrested for an intoxication offense under chapter 49 of the Penal Code involving the operation of a motor vehicle or watercraft and
(1) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident: (A) an individual has died or will die; (B) an individual other than the person has suffered serious bodily injury; or (C) an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment; (2) the offense for which the officer arrests the person is [driving while intoxicated with a child passenger]; or
(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person (A) has been previously convicted of or placed on community supervision for [driving while intoxicated with a child passenger, intoxication assault, or intoxication manslaughter]; or (B) has been on two or more occasions previously convicted of or placed on community supervision for [driving while intoxicated, flying while intoxicated, boating while intoxicated, or assembling or operating an amusement ride while intoxicated].
Id. § 724.012(b). In this case, Officer Bustamante testified that the blood draw was administered because a person other than Weems suffered bodily injury and was transported to a hospital for medical attention. The State also points out that the THP-51 form, which was admitted in evidence, indicates that the blood draw was also ordered because Weems had two prior DWI convictions.
In support of its argument that the warrantless blood draw was reasonable pursuant to the
implied consent and mandatory blood draw statutes, the State relies on the following dicta from
Beeman v. State
,
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 . On the other hand, if the State has a valid search warrant, it has no need to obtain the suspect’s consent. 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 limited circumstances even without a search warrant . (emphasis added). Although this language is dicta, the Texas Court of Criminal Appeals did recognize in Beeman that the implied consent statute expanded the State’s authority to draw a DWI suspect’s blood in the absence of a warrant.
We relied on this dicta in
Beeman
in
Aviles v. State
,
C. The Supreme Court’s decision in McNeely prohibits per se rules that justify an exception to the Fourth Amendment’s warrant requirement.
In McNeely , 133 S. Ct. at 1556, the Supreme Court addressed “whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk- driving cases.” The Court concluded that it did not and rejected the State’s suggested per se rule. Id. Instead, the Court held that “consistent with general Fourth Amendment principles,” “exigency in this context must be determined case by case based on the totality of the circumstances.” [3] Id.
McNeely dealt with a typical DWI traffic stop where the driver, McNeely, failed field- sobriety tests and refused to use a portable breath-test device to measure his blood-alcohol concentration (BAC). Id. at 1557. After McNeely was placed under arrest for DWI, he was taken to a nearby hospital for blood testing. No warrant was obtained. Id. Less than thirty minutes after McNeely was first stopped by the officer, his blood was taken without his consent by a hospital lab technician. The results of the blood test measured McNeely’s BAC at 0.154. McNeely moved to suppress the blood test results, arguing the warrantless blood draw violated his rights under the Fourth Amendment. Id. The State argued the exigency exception to the warrant requirement applied. The Supreme Court “granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.” at 1558.
The Court first emphasized that in
Schmerber v. California
,
After reaffirming its holding in Schmerber , which it emphasized was based on the totality of the circumstances presented in that case, the Court then criticized the State for proposing a per se rule: “The State contends that whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent.” “As a result, the State claims that so long as the officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant.” Id. (emphasis added). The Court recognized that “as a result of the human body’s natural metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated.” Id. Thus, “because an individual’s alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results.” at 1561. The Court emphasized that this “fact was essential” to its holding in Schmerber , as it had recognized in Schmerber “that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence.” But, the Court concluded that it did not follow that it “should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici . ” Id. (emphasis added). According to the Court, “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” While the Court did “not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test,” such circumstances are reasons “to decide each case on its facts,” “not to accept the considerable overgeneralization that a per se rule would reflect.” (citations omitted).
The Court stressed that unlike “circumstances in which the suspect has control over easily disposable evidence,” “BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner.” “Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant.” Id.
The Court further emphasized that the State’s proposed per se rule “fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple.” Id. at 1561-62. “Well over a majority of [s]tates allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.” Id. at 1562. “And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard- form warrant applications for drunk-driving investigations.” Id. The Court explained that it was “by no means” claiming that “telecommunications innovations have, will, or should eliminate all delay from the warrant-application process.” Id. “Warrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review.” “But technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to an assessment of exigency.” at 1562-63. “That is particularly so in this context, where BAC evidence is lost gradually and relatively predictably.” at 1563. The Court concluded with the following: “In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber , it does not do so categorically .” (emphasis added). “Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances .” (emphasis added).
In considering the totality of circumstances in its case, the Court noted that the State had relied on a per se, categorical approach and had not created a record supporting exigency in this particular case. “In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant.” Id. at 1567. “He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was ‘sure’ a prosecuting attorney was on call and even though he had no reason to believe that a magistrate judge would have been unavailable.” Id. “The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty.” “He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant.” The Court noted that factors present “such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search.” at 1568. “The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case.”
The Court reasoned that “[b]ecause this case was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant.” The Court concluded with its holding that “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Id.
C. In light of McNeely , Texas’s implied consent and mandatory blood draw statutory scheme cannot be considered an exception to the Fourth Amendment’s warrant requirement.
We must now consider the effect the Supreme Court’s decision to remand Aviles in light of McNeely has on our holding in Aviles that a warrantless blood draw of a DWI suspect, which was conducted according to the prescriptions of the Transportation Code, does not violate the suspect’s rights under the Fourth Amendment. This determination necessarily affects the result in this case.
The State urges that the facts of McNeely differ from those presented in Aviles . Indeed, there are factual distinctions to be made between Aviles and McNeely . Aviles concerned Texas’s implied consent and mandatory blood draw statutes while McNeely concerned the exigency exception to the warrant requirement. And, before Aviles was vacated and remanded in light of McNeely , many courts of appeal had made such a factual distinction, holding that because McNeely concerned the exigency exception, it was not applicable to the implied consent and mandatory blood draw statutes. See Reeder v. State , No. 06-13-00126-CR, 2014 WL 60162 (Tex. App.— Texarkana Jan. 8, 2014, reh’g granted) (reasoning that McNeely did not apply to mandatory blood draw statute because McNeely dealt with the exigent circumstances exception to the warrant requirement); Smith v. State , No. 13-11-00694-CR, 2013 WL 5970400 (Tex. App.—Corpus Christi Oct. 13, 2013, op. withdrawn & appeal resubmitted) (reasoning McNeely did not invalidate Texas’s implied consent statute but merely clarified the exigency exception). Once Aviles was remanded in light of McNeely , these courts decided to reconsider their previous opinions. See Reeder , 2014 WL 60162 (motion for rehearing granted); Smith , 2013 WL 5970400 (opinion withdrawn and appeal resubmitted). We conclude that ’s prohibition on per se, categorical exceptions to the Fourth Amendment’s warrant requirement did not solely apply to the exigency exception, but also applies to the facts presented in Aviles .
One of our sister courts has recently come to the same conclusion. In
Sutherland v. State
,
No. 07-12-00289-CR,
Similarly, the Corpus Christi Court of Appeals held in
State v. Villarreal
, No. 13-13-00253-
CR,
We agree with both the Amarillo and the Corpus Christi Court of Appeals that the implied
consent and mandatory blood draw statutes are not exceptions to the Fourth Amendment’s warrant
requirement. The State urges that we balance the public and private interests that are implicated in
serious DWI cases and find that Texas’s mandatory blood draw statute, section 724.012(b), is a
reasonable substitute for the Fourth Amendment’s warrant requirement.
McNeely
, however,
clearly proscribed what it labeled
categorical
or
per se
rules for warrantless blood testing,
emphasizing over and over again that the reasonableness of a search must be judged based on the
totality of the circumstances presented in each case.
See McNeely
,
D. Did exigent circumstances justify the warrantless blood draw?
As an alternative argument, the State also argues that exigent circumstances existed in this
case to support the warrantless blood draw under the totality of the circumstances. We disagree.
As in
McNeely
, this record does not support exigent circumstances, as this record was based on
the officer relying on the mandatory blood draw and implied consent statutes to authorize the blood
draw.
See McNeely
, 133 S. Ct. at 1567 (explaining because the State had relied on a
per se
approach, “the arresting officer did not identify any other factors that would suggest he faced an
emergency or unusual delay in securing a warrant”). The State argues that because this case
involved an accident, these facts are like those found permissible in
Schmerber
. However, as noted
in
McNeely
, much technological advancement has occurred since
Schmerber
was decided in 1966.
See McNeely
,
E. Good Faith of Officer
Finally, the State argues that the evidence should not be excluded pursuant to the federal
exclusionary rule or pursuant to article 38.23 of the Texas Code of Criminal Procedure because
the arresting officer relied on the implied consent statute and mandatory blood draw statute in good
faith. Under the federal exclusionary rule, if a law enforcement officer relies in good faith on a
statute authorizing his warrantless search and the statute is later determined to be unconstitutional,
the exclusionary rule does not apply.
Illinois v. Krull
,
First, we note that the implied consent and mandatory blood draw statutes do not explicitly
provide for a warrantless search.
See Villarreal
,
F. Harm
Because the warrantless mandatory blood draw violated Weems’s rights under the Fourth Amendment, we must reverse the judgment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. T EX . R. A PP . P. 44.2(a). The jury was instructed the following in this case:
“Intoxicated” means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more .
(emphasis added). Veronica Hargrove of the Bexar County Medical Examiner’s Office testified that Weems’s blood ethanol concentration was 0.18 grams per deciliter at 2:30 a.m. According to Hargrove, on average, a person who was at 0.18 at 2:30 a.m. and did not drink any more alcohol would have a blood ethanol concentration of 0.24 at 11:30 p.m. Hargrove testified that because Weems took his last drink at around 11:30 p.m. and his blood was drawn at 2:30 a.m., if he “only had a couple of drinks at 11:30 p.m., it would be unlikely that [he was] below 0.08” at the time of the accident. Given this testimony and the jury’s instruction, we cannot determine beyond a reasonable doubt that the error did not contribute to Weems’s conviction.
C ONCLUSION
Because the warrantless blood draw violated Weems’s rights under the Fourth Amendment and because we cannot determine beyond a reasonable doubt that the erroneous admission of the results of the blood draw did not contribute to his conviction, we reverse the judgment of the trial court and remand the cause for a new trial.
Karen Angelini, Justice PUBLISH
Notes
[1] The Honorable Sid Harle signed the trial court’s judgment. The Honorable George Goodwin, sitting as a visiting judge, presided over the trial.
[2] On appeal, the State argues Weems did not preserve this issue for appeal. We disagree and hold that Weems preserved the issue by arguing his suppression motion before Hargrove testified. See Everitt v. State ,407 S.W.3d 259 , 263 (Tex. Crim. App. 2013) (criticizing the court of appeals’s “parsing of appellant’s objections” as “the kind of hyper-technical analysis that we have repeatedly rejected”).
[3] Justice Sotomayor was the author of
McNeely
. Parts I, II-A, II-B, and IV of the opinion were joined by Justices
Scalia, Kennedy, Ginsburg, and Kagan and thus constitute the majority opinion of the Court. Parts II-C and III were
joined only by Justices Scalia, Ginsburg, and Kagan and thus constitute a plurality opinion. Justice Kennedy wrote a
separate concurrence. Chief Justice Roberts wrote an opinion concurring in part and dissenting in part, which was
joined by Justices Breyer and Alito. Justice Thomas wrote a dissenting opinion. The plurality portions of
McNeely
are
directed toward Chief Justice Robert’s opinion that he would adopt a
per se
rule, just a different one from the State.
In Part III of
McNeely
, the plurality notes that the general importance of the government’s interest in eradicating DWI
“does not justify departing from the warrant requirement without showing exigent circumstances that make securing
a warrant impractical in a particular case.” ,