Case Information

*1 PD-0233-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/27/2015 2:05:32 PM Accepted 3/2/2015 11:21:31 AM ABEL ACOSTA No. PD-______-14 CLERK I N THE COURT OF CRIMINAL APPEALS A USTIN , T EXAS TATE OF T EXAS , Appellant-Petitioner I RMA C LAUDIA G Appellee-Respondent On the State’s petition for discretionary review from The Fourth Court of Appeals, San Antonio, Texas Appellate Cause No. 04-14-00101-CR Tried in the 144th Judicial District Court, Bexar County, Texas Trial Cause No. 2012-CR-8677 STATE’S PETITION FOR DISCRETIONARY REVIEW N ICHOLAS “N ICO ” L A H OOD Criminal District Attorney N ATHAN E. M OREY Assistant Criminal District Attorney State Bar No. 24074756 RIMINAL D ISTRICT TTORNEY ’ S O FFICE Bexar County, Texas 101 West Nueva, Suite 370 San Antonio, Texas 78205 Voice: (210) 335-2414 Fax: (210) 335-2436 Email: nathan.morey@bexar.org Attorneys for the State of Texas I DENTITY OF THE P ARTIES AND OUNSEL

The parties to the suit are as follows:

Defendant/Appellee/Respondent

Irma Claudia Garcia

Counsel for Defendant/Appellee/Respondent

Adam Crawshaw – counsel at trial and appeal

Hallye Casey Braud – counsel on appeal

Attorneys at Law

San Antonio, Texas

State of Texas

Nathan E. Morey – counsel on appeal and discretionary review Melissa Saenz – counsel at trial

Assistant Criminal District Attorneys

Bexar County, Texas

Trial Judge

Honorable Andrew Carruthers

Criminal Law Magistrate

Bexar County, Texas

Court of Appeals Panel

Honorable Sandee Bryan Marion, Chief Justice

Honorable Karen Angelini, Justice

Honorable Marialyn Barnard, Justice (author of the opinion) Fourth Court of Appeals District of Texas

San Antonio, Texas

ii *3 S T ABLE OF C ONTENTS I DENTITY OF THE P ARTIES AND C OUNSEL .................................................................. ii T ABLE OF C ONTENTS ................................................................................................ iii I NDEX OF A UTHORITIES ............................................................................................. iv S TATEMENT OF THE C ASE ........................................................................................... v S TATEMENT OF P ROCEDURAL H ISTORY .................................................................... vi G ROUNDS FOR R EVIEW ............................................................................................... 1

Sole Ground: Is a warrantless, nonconsensual blood draw

administered in compliance with Transportation Code section 724.012(b)(3)(B) reasonable under the Fourth Amendment? ......................................................................... 1 A RGUMENT ................................................................................................................. 2 P RAYER FOR R ELIEF .................................................................................................... 3 C ERTIFICATE OF ERVICE ............................................................................................ 4 ERTIFICATE OF C OMPLIANCE .................................................................................... 5 A PPENDIX A: Court of Appeals’ Opinion.................................................................. A PPENDIX B: Order Denying Rehearing ................................................................... B

iii I NDEX OF A UTHORITIES Statutes:

T EX . P ENAL C ODE § 49.09(b)(2) .......................................................................... vi T EX . T RANSP . ODE § 724.012(b)(3)(B) ................................................................ 2 Cases:

Holidy v. State ,

No. PD-0622-14 ................................................................................................. 2 Missouri v. McNeely ,

133 S. Ct. 1552 (2013) ....................................................................................... 2 Reeder v. State ,

No. PD-0601-14 ................................................................................................. 2 Smith v. State ,

No. PD-1615-14 ................................................................................................. 2 State v. Garcia ,

No. 04-14-00101-CR, 2015 Tex. App. LEXIS 1022

(Tex. App.—San Antonio Feb. 4, 2015, pet. filed) ................................. vi, 2, 3 State v. Villarreal ,

No. PD-0306-14 ................................................................................................. 2 Rules:

T EX . R. A PP . P. 6.3(a) ............................................................................................ 4 T EX . R. A PP . P. 9.4(i)(3) ........................................................................................ 5 T EX . R. A PP . P. 9.5(b) ............................................................................................ 4 T EX . R. A PP . P. 68.1 ............................................................................................. vi T EX . R. PP . P. 68.11 ............................................................................................. 4

iv *5 S TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Now comes the State of Texas, by and through Nicholas “Nico” LaHood, Criminal District Attorney of Bexar County, Texas, and the undersigned assistant criminal district attorney, with the filing of the following petition for discretionary review: TATEMENT OF THE ASE

Irma Claudia Garcia, hereinafter referred to as Appellee, was arrested for the offense of driving while intoxicated. The arresting officer ordered her to submit to a warrantless blood draw pursuant to Texas Transportation Code section 724.012(b) because Appellee refused to provide a specimen of breath and because the officer discovered that she had two prior convictions for DWI. The trial court granted Appellee’s motion to suppress the results of the blood draw on the ground that the warrantless blood draw was not supported by exigent circumstances. The Fourth Court of Appeals held that section 724.012(b) does not allow for a warrantless, nonconsensual blood draw absent exigent circumstances.

v *6 S TATEMENT OF P ROCEDURAL H ISTORY A grand jury indicted Appellant for the felony offense of driving while intoxicated (C.R. at 19). See T EX . P ENAL C ODE § 49.09(b)(2). The State appealed the trial court’s order suppressing the results of a blood draw (C.R. at 37, 42-44). See T EX . ODE C RIM . P ROC . art. 44.01(a)(5). The Fourth Court of Appeals issued a published opinion affirming the trial court’s order. State v. Garcia , No. 04-14- 00101-CR, 2015 Tex. App. LEXIS 1022 (Tex. App.—San Antonio Feb. 4, 2015, pet. filed). The court of appeals denied the State’s motion for rehearing on February 23, 2015 (Appendix B). The State now petitions this Court to review the opinion and judgment of the court of appeals. See T EX . R. PP . P. 68.1.

vi G ROUNDS FOR R EVIEW Sole Ground: Is a warrantless, nonconsensual blood draw administered in

compliance with Transportation Code section 724.012(b)(3)(B) reasonable under the Fourth Amendment?

1 RGUMENT The court of appeals concluded that a blood draw administered pursuant to the Transportation Code was not a reasonable search under the Fourth Amendment because it did not qualify under any previously recognized exception. Garcia , at *3–4. The State continues to insist that the holding in Missouri v. McNeely , 133 S. Ct. 1552 (2013), does not affect the reasonableness of a search administered on a person with prior convictions for DWI—regardless of a warrant or consent. See T EX . T RANSP . ODE § 724.012(b)(3)(B).

This petition raises the same ground for review that has previously been raised by petitions in State v. Villarreal , No. PD-0306-14; Reeder v. State , No. PD- 0601-14; Holidy v. State , No. PD-0622-14; and Smith v. State , No. PD-1615-14— all of which have been granted by this Court. Each of these cases concern the impact of the Supreme Court’s holding in McNeely on those drunk-driving investigation with suspects who have prior convictions for DWI. This Court recently granted rehearing in Villarreal on February 25, 2015—only a few days after the court of appeals denied the State’s motion for rehearing in the present case.

This case does not contain any material factual disputes; the issue at every stage has been whether the statute permits reasonable searches under the Fourth Amendment (Jan. 16, 2014 R.R. at 4–22). The court of appeals, in a published

2 opinion, decided that it did not. Garcia , at *3–4. The State has nothing to say that has not already been said in previous briefs and petitions. There being no material distinction between these cases, the State respectfully asks this Court to dispose of this petition in a manner consistent with the petitions in Villarreal , Reeder , Holidy , and Smith once those cases have been finally decided and a mandate issued.

P RAYER FOR R ELIEF WHEREFORE, PREMISES CONSIDERED, Appellant-Petitioner State prays the Court grant the State’s petition for discretionary review and dispose of this case in a manner consistent with its dispositions in Villarreal , No. PD-0306- 14; Reeder , No. PD-0601-14; Holidy , No. PD-0622-14; and Smith , No. PD-1615- 14.

Respectfully submitted, N ICHOLAS “N ICO ” L H OOD Criminal District Attorney Bexar County, Texas /s/ Nathan E. Morey N ATHAN E. M OREY Assistant Criminal District Attorney State Bar No. 24074756 101 West Nueva, Suite 720 San Antonio, Texas 78205 Voice: (210) 335-2414 Fax: (210) 335-2436 Email: nathan.morey@bexar.org Attorneys for the State of Texas 3

S C ERTIFICATE OF ERVICE I, Nathan E. Morey, assistant district attorney for Bexar County, Texas, certify that a copy of the foregoing petition has been delivered by email to Hallye Casey Braud and Lisa McMinn on Friday, February 27, 2015 in accordance with Rules 6.3(a), 9.5(b), and 68.11 of the Texas Rules of Appellate Procedure.

/s/ Nathan E. Morey N ATHAN E. M OREY Assistant Criminal District Attorney State Bar No. 24074756 101 West Nueva, Suite 370 San Antonio, Texas 78205 Voice: (210) 335-2414 Fax: (210) 335-2436 Email: nathan.morey@bexar.org Attorney for the State of Texas cc: H ALLYE C ASEY B RAUD

Attorney at Law

State Bar No. 24081402

L AW O FFICES OF J AMIE B ALAGIA , P.C.

313 South Main Avenue

San Antonio, Texas 78204

Voice: (210) 394-3833

Fax: (210) 271-3833

Email: hallye@dwidude.com

Attorney for Appellee-Respondent

L ISA M M INN

State Prosecuting Attorney

State Bar No. 13803300

P.O.Box 13046

Austin, Texas 78711

Email: Lisa.McMinn@SPA.texas.gov

4

ERTIFICATE OF C OMPLIANCE I, Nathan E. Morey, certify that, pursuant to Texas Rules of Appellate Procedure 9.4(i)(2)(D) and 9.4(i)(3), the above petition for discretionary review contains 1,317 words according to the “word count” feature of Microsoft Office.

/s/ Nathan E. Morey N ATHAN E. M OREY Assistant Criminal District Attorney State Bar No. 24074756 101 West Nueva, Suite 370 San Antonio, Texas 78205 Voice: (210) 335-2414 Fax: (210) 335-2436 Email: nathan.morey@bexar.org Attorney for the State of Texas 5

PPENDIX A: Court of Appeals’ Opinion A *13 Fourth Court of Appeals

San Antonio, Texas OPINION No. 04-14-00101-CR The STATE of Texas, Appellant v.

Irma Claudio GARCIA , Appellee From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2012CR8677 The Honorable Andrew Wyatt Carruthers, Judge Presiding ^[1] Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Karen Angelini, Justice

Marialyn Barnard, Justice

Delivered and Filed: February 4, 2015

AFFIRMED

The State appeals from the trial court’s order granting appellee Irma Claudio Garcia’s motion to suppress. The State contends the trial court erred in granting the motion to suppress because the Supreme Court’s decision in Missouri v. McNeely , __ U.S. __, 133 S.Ct. 1552 (2013) does not require the existence of exigent circumstances before a police office can require a *14 04-14-00101-CR warrantless, nonconsensual blood draw pursuant to section 724.012(b) of the Texas Transportation Code. We affirm the trial court’s order granting the motion to suppress.

B ACKGROUND A detailed rendition of the facts is unnecessary given the issue and our disposition. We therefore provide only a brief factual and procedural background.

The record from the hearing on Garcia’s motion to suppress establishes that Officer Christopher Dech of the San Antonio Police Department was dispatched to an automobile collision. When the officer arrived, two individuals told him that a pickup truck driven by Garcia crashed into the back of their vehicle as both vehicles were traveling along the roadway. Officer Dech testified he smelled a strong odor of alcohol coming from Garcia, and that she had blood shot eyes and was unsteady on her feet. Garcia admitted to consuming intoxicants at a party. The office administered the HGN test and noted signs of intoxication. Thereafter, Officer Dech arrested Garcia and took her to the magistrate’s office for booking.

Garcia declined to provide a breath or blood specimen, but according to Officer Dech, she admitted she had two prior DWI convictions from Harris County, Texas. As a result of these admissions, the officer requested Garcia’s criminal history and verified the prior convictions. Based on the verified, prior convictions, Officer Dech mandated that Garcia provide a blood specimen pursuant to section 724.012(b) of the Transportation Code. Officer Dech did not obtain a warrant nor did Garcia consent to the blood draw. There was no evidence presented at the suppression hearing regarding any possible exigent circumstances — or other exception to the warrant requirement — that would have permitted the officer to take the blood draw without first obtaining a warrant.

Garcia was indicted and prior to trial filed a motion to suppress the results of the blood draw, arguing that the Supreme Court’s decision in Missouri v. McNeely mandated that in the

- 2 - *15 04-14-00101-CR absence of a warrant, the State demonstrate the existence of exigent circumstances prior to obtaining a nonconsensual blood draw. After hearing the evidence and considering the arguments of counsel, the trial court agreed and granted Garcia’s motion to suppress. The State then perfected this appeal.

A NALYSIS As noted above, the State contends the Supreme Court’s decision in Missouri v. McNeely did not require the trial court to grant Garcia’s motion to suppress. More specifically, the State contends the Supreme Court’s decision does not require the existence of exigent circumstances before a blood draw may be compelled when law enforcement has failed to obtain a warrant or consent. Rather, the State contends section 724.012(b), specifically subsection (3)(B) — which states that an officer shall take a blood draw if a person arrested for DWI has two prior DWI convictions — permits a warrantless blood draw whether exigent circumstances exist or not. See T EX . T RANSP . ODE NN . § 724.012(b)(3)(B) (West 2011).

In several cases, this court analyzed McNeely and concluded section 724.012(b) does not constitute a valid exception to the warrant requirement of the Fourth Amendment. See, e.g., Aviles v. State , 443 S.W.3d 291, 294 (Tex. App.—San Antonio 2014, pet. filed); McNeil v. State , 443 S.W.3d 295, 300 (Tex. App.—San Antonio 2014, pet. filed); Weems v. State , 434 S.W.3d 655, 665 (Tex. App.—San Antonio 2014, pet. granted). Moreover, the Texas Court of Criminal Appeals has now addressed the issue, reaching the same conclusion. See State v. Villarreal , No. PD-0306- 14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014). ^[2]

*16 04-14-00101-CR In Villarreal , the court held the provisions in the Texas Transportation Code — including section 724.012(b) — do not provide a constitutionally valid exception to the warrant requirement of the Fourth Amendment. Id. at *20. The court explained that the McNeely holding made it clear that drawing an individual’s blood in a DWI case without a warrant “‘is reasonable only if it falls within a recognized exception’ to the warrant requirement.” Id. (quoting McNeely , 133 S.Ct. at 1558) (emphasis added). Accordingly, based on its interpretation of McNeely , the court rejected the State’s contention that a warrantless, nonconsensual blood draw conducted pursuant to the provisions of the Texas Transportation Code falls under a “recognized” exception to the Fourth Amendment’s warrant requirement. Villarreal , 2014 WL 6734178, at *20. The court likewise rejected the State’s contention that a search pursuant to the mandates of the Transportation Code could be upheld under a general Fourth Amendment balancing test. Id.

Accordingly, based on the analysis and holding in Villarreal , as well as the analyses and holdings in our prior opinions, we hold the trial court did not err in granting Garcia’s motion to suppress. See Villarreal , 2014 WL 6734178, at *20; Aviles , 443 S.W.3d at 294; McNeil , 443 S.W.3d at 300; Weems , 434 S.W.3d at 665. Contrary to the State’s sole assertion, McNeely requires the existence of exigent circumstances or some other recognized exception to the warrant requirement before a police officer can order a warrantless, nonconsensual blood draw pursuant to the provisions of the Texas Transportation Code, including section 724.012(b). See Villarreal , 2014 WL 6734178, at *20 (quoting McNeely , 133 S.Ct. at 1558) (emphasis added). Here, the State did not attempt to establish a recognized exception to the warrant requirement of the Fourth Amendment, relying only on section 724.012(b). We therefore overrule the State’s issue and affirm the trial court’s order.

Marialyn Barnard, Justice Publish

- 4 - PPENDIX B: Order Denying Rehearing B *18 Irma Claudio GarciaAppellee Fourth Court of Appeals San Antonio, Texas Monday, February 23, 2015 No. 04-14-00101-CR The STATE of Texas, Appellant v.

Irma Claudio GARCIA , Appellee From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2012CR8677 The Honorable Andrew Wyatt Carruthers, Judge Presiding O R D E R Sitting: Sandy Bryan Marion, Chief Justice

Karen Angelini, Justice

Marialyn Barnard, Justice The panel has considered the Appellant’s Motion for Rehearing and the motion is DENIED.

_________________________________ Marialyn Barnard, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 23rd day of February, 2015.

___________________________________ Keith E. Hottle Clerk of Court

[1] The Honorable Lorina Rummel is the presiding judge of the 144th District Court, Bexar County, Texas. However, the order granting the motion to suppress which is at issue in this appeal was signed by the Honorable Andrew Wyatt Carruthers, the judge of the Magistrate Court, Bexar County, Texas.

[2] In Flores v. State , 04-13-00754-CR, 2014 WL 7183481, at *2 (Tex. App.—San Antonio Dec. 17, 2014, no pet. h.) (mem. op.) (not designated for publication) (citing Villarreal , 2014 WL 6734178, at *2), this court first recognized that the court in Villarreal held the provisions in the Texas Transportation Code do not provide a valid exception to the warrant requirement. - 3 -