*1 Texas, Appellant, The STATE RUIZ, Appellee.
Jose NUMBER 13-13-00507-CR Texas, Appeals
Court of Corpus Christi-Edinburg. August Delivered filed Rehearing September Overruled Discretionary Review Granted 2, 2016
March *2 County
Keri L. Assistant Attor- Miller TX, ney, Gonzales, appellant. Law, Symms, Attorney Mark Luling, TX, for Appellee.
Before Chief Justice Valdez and Justices Benavides Perkes OPINION
Opinion Benavides by Justice
In this appeal, challenges appellee, granting court’s Jose Ruiz’s, suppress motion to blood alcohol test following results that seized his arrest for driving while intoxicated. We affirm. Background
I. 9, 2012, September On Gonzales Police Sergeant Bethany McBride arrived on the shortly midnight scene of an after accident County a collision Gonzales discover Navigator between Lincоln a Ponti- told ac. scene Witnesses McBride of the Navigator, that the driver Ruiz, later as had fled scene identified and had run a car wash. behind into looked Navi- paperwork in gator insurance found name, Light well as “several Bud cans, exploded ... [had] [front] located seat.” officers later Other car wash that witnesses field behind the had described earlier. was admitted to the overnight due “unresponsive” described Ruiz as his sustained unconsciousness and did and further observed appear that he not flight to be a risk. open eyes.” “couldn’t Additionally, his suppression At the hearing, *3 body “strong emitted a odor [alcohol].” stipulated it had a warrant- conducted McBride, According Sergeant to Ruiz did draw, less argued but that the blood appear injured, to “just but was (1) draw was nevertheless valid because: unresponsive to due the amount of alcohol 724.014 code in system.” provides implied consent of an accused Emergency personnel medical eventual- unconscious, (2) iswho and circum- arrived, ly attempted and also to elicit stances existed. The granted court responses from by performing sever- suppress, Ruiz’s to motion and issued the rubs, al sternum but such tests were un- following findings relevant of fact con- result, successful. As a by Ruiz was taken clusions law: ambulanсe to Hospital. Memorial Gonzales At the hospital, unrespon- Ruiz remained Findings of Fact Sergeant sive. testified that she 1. in was involved [Ruiz] accident enough probable had place cause to late at to early morning on under arrest for driving while intoxicated September 2013. Gonzales Police completed paperwork at Department Sgt. Bethany McBride for lab technicians to administer a blood responded. draw. McBride also discovered prior that Ruiz had four convictions for driving while intoxicated. Once Ruiz’s Following 4. [Ruiz’s] arrest drawn, Sergeant blood was took attending physicians McBride the in- custody of Ruiz’s blood evidence and re- they keep dicated wanted to [Ruiz]
turned the Gonzales Police Station. overnight. examination, On cross 5. There was concern that [Ruiz] McBride testified it that would have been hospital. from the would flee unreasonable obtain a search warrant 6. A warrant could have been obtained reasons, a number of within 2 to 3 hours. namely: magis- was difficult to find a or judge sign trate a search warrant night, that late at required and she was performed 8. McBride a criminal histo- judge’s drive to the house to retrieve the ry check on and found four [Ruiz]
warrant; (2) only two officers were previous Rely- convictions for DWI. duty night, McBride did ing on Penal Texas Code 724.012 not want to take one of the officers off and 724.014 McBride ordered the duty to work on the warrant. According [Ruiz], McBride, to Sergeant she estimated that it 9. remained in [Ruiz] custodial arrest would have taken her “about two or three during time the blood was hours” to obtain a search drawn. night. Sergeant McBride also admitted time, that at no procedures were 10. The finds Officer McBride’s place to obtain testimony search warrants be credible all re- draws. The record also shows that Ruiz spects. required it is to establish where
Conclusions Law pursuant conducted the search was of all judicial notice court takes 1. The exception, under reasonable [the] promulgated statutes (citing Bishop v. Id. Transportation Code Texas (Tex.Crim.App.2002)). times relevant during all effect ruling on a reviewing In a trial court’s this case. the evi suppress, motion to must view it is bound The court finds that light favorable dence most — U.S.-, Missouri State, 414 ruling. trial court’s Johnson 1552, 1558, 185 L.Ed.2d (Tex.Crim.App.2013); (2013). Garcia-Cantu, State v. *4 consent to not revoke 3. did [Ruiz] the trial (Tex.Crim.App.2008). 241 When under section 724.011 draw blood findings of explicit not make court does Transportation Code. of the Texas fact, the factual find necessary we infer existed exigent circumstances 4. No if ruling the trial court’s ings supрort this case. (viewed light most the record evidence Believing itself to be bound 5. ruling) supports these im to the favorable mo- granted the McNeely, the court Johnson, 414 at 192. plied facts. S.W.3d suppress. tion to pursu suppress to are reviewed Motions the exigent If circumstances existed 6. under which ant a bifurcated standard McNeely not court believes would of histori judge’s determinations suppress the motion apply and questions of law and cal facts mixed be denied. granted rely credibility fact that on are supported by total deference when almost followed. appeal This questions of when mixed record. But Suрpress II. Motion on evalua depend fact not law and do demeanor, credibility and we review tion of issue, By the State contends that its sole (citing Id. judge’s ruling de novo. the trial by granting Ruiz’s erred the trial court (Tex. 270, Kerwick, 273 v. State S.W.3d impliedly he suppress motion to because State, 955 Crim.App.2013); Guzman draw, if even to the blood consented 85, (Tex.Crim.App.1997)). S.W.2d consent, not there were sufficient he did justify war- exigent circumstances B. Discussion blood rantless draw. stipulated
In this
the State
of Re-
Applicable
and Standard
without a
A.
Law
was drawn
Therefore,
view
the burden shifted
the search was
to establish that
the State
alleged
suppress
To
evidenсe
a warrantless
reasonable. Whether
violation, the defen
Fourth Amendment
suspect
drunk-driving
of a
is reason
test
producing
bears the initial burden
dant
by case
case
able must
determined
presumption
evidence that rebuts
totality
on the
the circumstances.
based
State, 158
Ford v.
proper police conduct.
— U.S.-,
Missouri
488,
(Tex.Crim.App.2005).
(2013).
1552, 1563, 185
L.Ed.2d
This
burden is
establish
initial
satisfied
its
that the warrantless
To meet
burden
occurred
ing that a search
without war
reasonable,
this
makes this
search in
case
Id. Once a
rant.
defendant
implied consent
Texas’s
proof
asserts that
showing, the
shifts
State
burden
Transp.
724.011;
law,
§§
disagree
position.
see We
Stаte’s
Ann.
(West,
through
724.014
Ch. 46 The
undisputed
Westlaw
record is
that Ruiz was
R.S.),
consent to
hospitalized
established Ruiz’s
during
unconscious and
alternative,
draw;
course of
investigation
McBride’s
justify
existed to
on September
Regardless
2012.
of this
fact,
of Ruiz’s
ana-
blood. We will
appears
rely upon
lyze
argument
724.014(a)
each
below.
to unlock
key
recog-
exception
nized consent
to the warrant
Implied
Consent
requirement.
We do
read the
(a)
Section 724.011
expansively
consent statutes as
as the
implies
code
consent for an
who
individual
appeal.
advances on
has been arrested for
while intoxi
724.011(a);
§
cated. See id.
seе State v.
seeks
rely
When the State
Villarreal,
58-61,
2014 WL
upon
justify
consent to
lawfulness
(Tex.App-Corpus
at *11
Christi
search,
was,
prove
must
that the consent
2014)
aff'd, 475
Jan.
814-
fact,
freely
voluntarily given.
(Tex.Crim.
15, 2014
*21
WL 6734178
Carolina,
Bumper
North
26, 2014)
(Feb.
App.
reh’g granted,
Nov.
(1968).
1788, 20
L.Ed.2d 797
*5
2015).
25,
consent, however,
This
Additionally,
person
a
who consents to a
revoked,
may
exceptions.
be
absent certain
may
search
limit or
specifically
revoke
§
(“Except
provided by
id.
See
724.013
as
State,
such
Miller
consent. See
v.
393
724.012(b), specimen may not
Section
a
255,
(Tex.Crim.App.2012);
S.W.3d
266
Val
if a
to
to
person
taken
refuses
submit
State,
442,
(Tex.
v.
tierra
310
450
S.W.3d
taking
designated
peace
of a specimen
by a
question
Crim.App.2010). The
of whether
officer.”). Thus,
drunk-driving suspect
if a
question
a consent
is a
was valid
fact
refuses
submit to the
of a speci
to
prove by
that
the State must
clear and
men,
from
prohibited
doing
are
so
State,
convincing evidence.
390
Fienen v.
However,
a
Id.
if
without warrant.
328,
(Tex.Crim.App.2012).
S.W.3d
333
“dead,
is
drunk-driving suspect
uncon The
totality
fact
finder
consider
must
scious,
refusal,”
incapable of
or otherwise
in determining
circumstances
implied consent
“not to have
is considered
given voluntarily.
whether consent was
provided by
as
section
[been withdrawn]
Thus,
Id.
cannot meet
the State
its bur
724.014(a).
§
724.011.” See
This im
id.
if
den to
one consented
such
establish that
framework,
law
however
plied-consent
freely
given
consent was not
and voluntari
give
ability
not
to forci
“does
officers
546,
ly. See
88
Bumper, 391 U.S.
S.Ct.
anyone
obtain blood
ar
bly
samples
Here,
trial court found
that
intoxicated],”
[driving
rested
but
respond
did not
was-unconscious and
ability
pres
to
“gives
instead
officers the
to
It
is
that
McBride.
clear
magistrate
every
ent an
to a
affidavit
facts,
upon
Ruiz was
based
these
unable
case, just
every other
DWI
like
criminal
give
freely
voluntarily,
or
consent
State,
86
offense.” See Beeman
S.W.3d have
to revoke such
opportunity
con
613,
(Tex.Crim.App.2002).
616
Jimeno,
id.)
sent. See
see also Florida
case,
248, 252,
1801,
111
upon
In this
relies
500
114
these
implied-consent
(holding
suspect
that
statutes
establish
L.Ed.2d 297
may
scope
effectively
consented
the warrant-
delimit the
of a search for
draw,
consented);
State,
recognized
is
less blood
which
which he has
Miller
255,
exception
requirement.
(Tex.Crim.App.2012)
the warrant
393 S.W.3d
warrant);
(“[l]t
may police
take
without
undisputed that
... consent
12-13-00168-CR,
State,
revoked”).
No.
Therefore,
Gentry v.
or
be limited
4215544,
(Tex.App.-Tyler
at *4
724.011(a)
2014 WL
to hold that sections
decline
filed) (mem.
2014,
not
27,
op.,
Aug.
pet.
724.014(a)
transportation
code is
(“the implied
designated
publication)
voluntary
recog
consent
equivalent to
as
mandatory blood draw statu
consent and
require
exception to the warrant
nized
transportation
tory
schemes found
State,
Forsyth v.
ment.
exceptions to the warrant
code are not
pet.
(Tex.App.-Eastland
Amend
the Fourth
requirement under
d) (holding
implied consent under
ref
State,
ment”);
Aviles v.
equiva
is not the
Transportation
2014, pet.
(Tex.App.-San
Antonio
recognized
consent
voluntary
as
lent
filed)
(holding requirement).
exception to the warrant
not
implied consent statutes were
code’s
Additionally,
implied consent
exceptions
to the Fourth
permissible
at issue
this case do
ad
statutes
requirement);
Amendment’s
dispense
purport
or
with the
dress
(Tex.
State,
Reeder v.
428 S.W.3d
require
Fourth Amendment’s
(hold
granted)
App.-Texarkana
pet.
Villarreal,
for blood draws.
ments
ing
of warrant
the absence
58-61, 2014
1257150 at
WL
circumstances, taking defendant’s
(holding
*11
the same as it relates
724.012(b)(3)(B)
pursuant to
Section
724.012(b)(3)(B)). These statutes
Transportation
Code violated
the Texas
totality of the
not take into account the
do
rights); Suther
his Fourth Amendment
present
(Tex.
each
land v.
by McNeely,
filed) (“To
consider
mandated
pet.
App.-Amarillo
*6
(1)
person
724.012(b)(3)(B)
was the
certain facts—that
can be
is:
extent that Section
intoxicated;
nonetheless,
a
permit,
for
warrantlеss
arrested
read
As
in the absence
implied
suspect’s
consent revoked?
seizure of a
and
sus
result,
implied
exigent
consent
of such
circumstances
the
hold
the
a
we
consent, it runs afoul of the Fourth
pect’s
in this
not rec
case are
statutes involved
requirement.”).
warrant
require Amendment’s
to the warrant
ognized exceptions
Amendment,
Fourth
and
the
ment under
Furthermore,
disagree
respectfully
on these statutes
reliance
the State’s
analysis
implied
the dissent’s
consent
that the warrantless
this case
establish
First,
respects.
the dissent asserts
two
constitutionally
is
search
reasonable
“contrary
the
requiring
that we are
State
id.;
State,
see also Perez v.
See
statute,
infirm.
plain language
of the
(Tex.App-Houston [1st
freely
consent was
and vol
prove that the
(“the
filed)
pet.
warrantless
However,
Dist.]
require
this
untarily given.”
sample pursu
of
appellant’s
imposition by
not a novel
ment
is
consent/mandatory
implied
ant
required by
one
majority, but rather
statutory
not satis
Bumper,
scheme did
Fourth
See
Amendment.
fy
requirements
(holding
of
the Fourth
that to
U.S. at
88 S.Ct.
of
showing
rely
justify
Amendment
a
some
the lawfulness
without
on consent to
exception
search,
re
that consent
established
must show
Anderson,
voluntarily given.”); see
“freely
quirement applied”); State
Beeman,
(imрlied
at 616
(Tex.App.-Beaumont
nothing
officers
gives “police
pet.) (holding
nothing
sec
consent law
already gives
than the
require
nor
more
Constitution
tion 724.011
section 724.012
ability to
apply
them—the
a search
facts of this
and the totality
case
warrant,
if magistrate
proba
circumstances,
and the
finds
Ruiz never consented to
warrant,
cause to issue that
ability
ble
trigger
applicable provisions
of Chap-
it. This
give
effectuate
does not
offi
of
ter 724 the
code.
ability to forcibly
cers the
obtain blood
In summary, we conclude that the State
anyone
DWI).
samples
arrested
did not meet its burden to establish the
give
To
thе State carte blanche authority,
drawing
reasonableness of
Ruiz’s blood
by
adopted
as advanced
the State
without a
pursuant
to sections
dissent,
to draw suspected
uncon 724.011(a)
724.014(a)
transporta-
scious drunk driver’s blood without a war
Ford,
tion
code.1
long as sufficient care is taken in
in-
Perkes,
T.
preserve
dividual case to
the same or
Dissenting Opinion by Justice Perkes
equivalent solemnizing
to
function
I
corporal presence accomplishes).2
dissent from the majority’s opinion
which
First,
two reasons.
I
Sergeant
believe
case,
In
exigency argu-
this
the Statе’s
McBride obtained the blood sample with
ment
to Sergeant
relates
timing
McBride’s
appellee
Jose Ruiz’s
consent. Sec-
of obtaining
concerns
the warrant. While
ond,
totality
I
of the circum-
believe
recognize
proce-
we
that factors
as
such
permit
stances
this case
of a
place
warrant,
for obtaining
dures
sample
without
of
necessity
availability
magistrate judge,
of a
as
practical
well
problems
obtaining
warrant within a timeframe
pre-
still
Background
I.
opportunity
serves the
to obtain reliable
McBride,
Sergeant Bethany
may
exigency
permit
evidence
establish
to
with the
searсh,
Department,
a warrantless
Gonzales Police
must still look
was dis-
we
particular
patched
facts
and circumstances
two vehicle accident around
each
midnight
case. See
on September
hospital, placed she under where The trial Ruiz’s motion to granted court rest intoxicated. When In its suppress evidence. com- the blood Sergeant ran Ruiz’s criminal his- McBride prehensive of fact findings and conclusions Ruiz tory, prior she learned that had four law, court concluded that trial Ruiz driving while convictions for intoxicated. did not his consent to the revoke necessary prepared McBride draw under 724.011 Texas hospital to obtain a paperwork blood sam- Transportation The court fur- Code. ple, qualified lab technician ther it that was bound concluded Mis- Ruiz drew Ruiz’s blood. remained unre- souri v. sponsive the entire time. was indict- exigent and that no circumstances existed. offense, or more ed for DWI—third felony enhanced to a third-degree habitual II. Blood Evidence felony offender. See Tex. Penal Code Ann. issue, By its sole State asserts that 49.09(b)(2) (West, 49.04, §§ Westlaw it granted the trial erred when R.S.). 46 2015 through Following Ch. suppress. Specifically, motion indictment, a motion suppress Ruiz filed argues was unconscious the blood evidence. and thus incap- the time blood draw hearing on During the Ruiz’s motion withdrawing able of his consent to the suppress, explained Transрorta- the Texas one two she was officers Alternatively, tion Code. the State argues duty Department Police for the Gonzales there were circum- sufficient time, at the and that it would have been present justified stances which war- one impracticable to remove officer sample. rantless I taking of Ruiz’s duty to secure arguments. agree with the State’s both of pro- that there McBride testified were place obtain search cedures Implied A. Consent and that blood draws have premised judge may midnight been difficult to locate Warrantless searches Transp. night. Sergeant on a on consent. Saturday Code Ann. 724.012(b) (West, 724.011, §§ if she were Westlaw further testified able R.S.); warrant, through get a have Ch. 46 2015 it would taken two or Schneckloth
461 219, Bustamonte, 218, 412 The uncontroverted evidence shows 2041, that Ruiz (1973). throughout was unconscious the L.Ed.2d 854 enforcement, entire encounter with law Transportation pro- The Texas Code including the hospital. that: vides testimony supports The the trial court’s (a) person If a is for an arrested offense never finding that Ruiz affirmatively re- arising alleged out of have acts been voked consent under section 724.011. person operat- was committed while the type precisely person—a ing public place, a motor in a vеhicle or person incapable of refusal—contemplated watercraft, intoxicated, or an State, by section See 724.014. Miller v. 106.041, offense Alcoholic under Section 873, (Tex.App.-Amar- 387 S.W.3d 880-81 Code, Beverage is person deemed to pet.) (holding illo that because consented, subject chapter, have to this incapacitated, defendant was he was con- taking to submit to of one or sidered to have more not withdrawn consent 724.011); provided by Amaya, section specimens of breath person’s or at 802. This factual scenario is for to determine the alco- analysis type implied of situation where con- hol presence concentration or the perfect sent makes sense. To hold other- substance, person’s body of a controlled wise would render ineffective the entire drug, dangerous drug, or other sub- implied statutory consent scheme. stance. majority The states refuses to Transp. 724.011(a).1 § See Tex. Code Ann. “expan read the consent statute Additionally, 724.014 states that: sively”, requires State, but then con (a) dead, unconscious, person A who is statute, trary language plain incapable or refusal otherwise is to prove freely that the consent was have withdrawn considered voluntarily given. rеading encum Such by provided consent Section the impossible bers the State task of freely obtaining 724.011. voluntarily consent person. from an unconscious While the majority correctly states that must consent (c) If person incapa- alive but is is voluntarily given, freely be the cases it refusal, specimen may ble of distinguishable. factually relies are taken authorized person Carolina, Bumper v. North 391 U.S. Section 724.016 724.017.2 1788, 20 L.Ed.2d 797 Ann, Transp. 724.014(a), §§ (examining the context of consent (c) (West, through Ch. Westlaw State, coercion); Miller R.S.). presumption The consent is so (Tex.Crim.App.2012) (explaining de dead, strong person that a uncon who fendant revоked consent officers to scious, incapable or otherwise refusal is apartment enter after domestic violence considered not to the con complete); have withdrawn investigation Valtierra provided sent State v. 452 (Tex.Crim.App. Section 724.011. 2010) Amaya, (Tex.App- (holding drug pos in context of 'd). permitted session into a pet. Fort Worth ref resi “[o]nce procedures specifically 1. The trial found involve These sections taking qualifications prior taking sample per- of the under arrest sample. son *11 462 impractical
dence,
may
only
obtaining warrant
such
officer
take action
make
a
a
of
that
alcohol
purpose
dissipation
which
with the
accordance
exigency justi-
an
bloodstream will support
resi
he
invited
allowed into the
was
a
State,
fying
properly conducted warrantless
328,
dence.”);
390
Fienen v.
test.” Id. at 1561.
blood
(holding
(Tex.Crim.App.2012)
that trial
finding
court
not abuse its discretion
did
McNeely
finding of
supports
exigency
a
gave consent for
that
breath
defendant
to justify
sufficient
the warrantless blood
sample
defendant
between
when
vacillated
arriving
in this
test
case. After
at the
withdrawing consent in con
granting and
scene
an
in the middle
accident
State,
officer); Forsyth
versation
with
night, Sergeant
required to
was
222 (Tex.App.-Eastland
of the
only investigate
not
the scene
acci-
ref'd)
(holding that circum
pet.
required
find Ruiz
but
dent
required
warrant
to collect
stances
search
identify him
involved in the
driver
explicitly
defendant
blood
where
evidence
Additionally,
accident.
when
during
provide
sample
refused
Ruiz,
to locate
he
finally
McBride was
able
investigation).
DWI
was unconscious
in need
medical
attention.
McBride testified that
pursuant
sample
was taken
magistrate
duty,
and that
it
was
provided
implied
consent as
one,
would have
time
find
taken
drive
See code.
Trans.
to their
warrant
residence
have
724.011,
§§
im
724.014.
Because
Ann.
signed,
then return to the
plied
in this
сonsent laws
instance do
estimated
serve
She
Amendment, I
offend
Fourth
obtaining
taken
have
warrant would
two
sample
ob
the blood
conclude
impractical
or three
that it
hours
Miller,
legally.
tained
to remove one of
officers on
two
880-81;
see also Anderson
No.
duty
prepare
in order
03-09-00041-CR,
at *3
WL
cir-
search warrant affidavit. Under these
26, 2010,
ref'd)
Aug.
pet.
(Tex.App.-Austin
cumstances,
for Sergeant
reasonable
it was
(mem.
(not designated
publication).
op.)
facing
she was
believe that
imminent destruction
evidence. See
Exigency
B.
Schmerber,
fornia, 384 U.S. (1966)). McNeely L.Ed.2d 908 contem- plates where situations “circumstances will