Munoz, Vicente, PD-1276-15

Munoz, Vicente

PD-1276-15

| Tex. App. | Sep 30, 2015

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Case Information

*1 PD-1276-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/25/2015 2:39:05 PM Accepted 9/30/2015 11:56:42 AM ABEL ACOSTA NO.PD-__ CLERK IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS APPELLANT v.

VICENTE MUNOZ APPELLEE THE STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE COURT OF APPEALS, EIGHTH DISTRICT OF TEXAS

CAUSE NUMBER 08-13-00164-CR JAIME ESPARZA DISTRICT ATTORNEY 34th JUDICIAL DISTRICT DOUGLAS K. FLETCHER ASST. DISTRICT ATTORNEY DISTRICT ATTORNEY'S OFFICE 500 E. SAN ANTONIO, ROOM 201 EL PASO, TEXAS 79901 (915) 546-2059 ext. 4402 FAX: (915) 533-5520 SBN: 24006412 ATTORNEYS FOR THE STATE *2 IDENTITY OF PARTIES AND COUNSEL APPELLANT: The State of Texas, 34th Judicial District Attorney's Office, represented in the trial court by:

Jaime Esparza, District Attorney

Ghalib A. Serang, Assistant District Attorney

Dolores Reyes, Assistant District Attorney

On appeal by:

Jaime Esparza, District Attorney

Douglas K. Fletcher, Assistant District Attorney

and on petition for discretionary review by:

Jaime Esparza, District Attorney

Douglas K. Fletcher, Assistant District Attorney

500 E. San Antonio, Room 201

El Paso, Texas 79901

(915) 546-2059

APPELLEE: Vicente Munoz, represented in the trial court by:

Cary Antwine

8732 Alameda St.

El Paso, Texas 79901

(915) 85 8-0665

and on appeal by:

Matthew DeKoatz

P.O. Box 1886

El Paso, Texas 79950 TRIAL COURT: 171 st District Court, Honorable Judge Bonnie Rangel, presiding COURT OF APPEALS: Eighth Court of Appeals, Honorable Chief Justice Ann Crawford McClure, Honorable Justice Yvonne T. Rodriguez, and Honorable Justice Steven Hughes

TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL 11 INDEX OF AUTHORITIES v STATEMENT REGARDING ORAL ARGUMENT Vl STATEMENT OF THE CASE Vll STATEMENT OF PROCEDURAL HISTORY Vlll 1 GROUNDS FOR REVIEW FACTUAL SUMMARY 1-2 GROUND FOR REVIEW ONE: 3 The Eighth Court of Appeals erred in holding that a nonconsensual blood draw pursuant to the mandatory-blood-draw and implied-consent provisions set forth in Chapter 724 of the Texas Transportation Code violated the Fourth Amendment.

GROUND FOR REVIEW TWO: 4-6 The Eighth Court of Appeals erred in holding that the pre-McNeely warrantless blood draw in this case violated the Fourth Amendment where the officer obtained the blood-draw evidence based upon an objectively reasonable, but ultimately mistaken belief that the mandatory blood-draw provisions fell under a constitutionally valid exception to the Fourth Amendment's warrant requirement.

PRAYER 7 SIGNATURES 7 CERTIFICATE OF COMPLIANCE 8 CERTIFICATE OF SERVICE 8 APPENDIX A

iii

APPENDIXB

iv *5 INDEX OF AUTHORITIES FEDERAL CASES

Heien v. North Carolina, _U.S._, 135 S.Ct. 530,

190 L.Ed.2d. 475 (2014) .................................................................................. 4-6 McNeely v. Missouri, _U.S._, 133 S.Ct. 1552,

185 L.Ed.2d 696 (2014) ...................................................................................... 3 Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627,

61L.Ed.2d343 (1979) ........................................................................................ 5 STATE CASES

Burcie v. State, No. 08-13-00212-CR, 2015 WL 2342876

(Tex. App.-El Paso 14 May 2015, pet. filed)

(not designated for publication) ..........................................................................

Munoz v. State, No. 08-13-00164-CR, 2015 WL 4719559

(Tex. App.-El Paso 31July2015, pet. filed)

(not released for publication) ........................................................................ viii, 3 State v. Villarreal, No. PD-0306-14, 2014 WL 6734178

(Tex. Crim. App. 26 November 2014, reh'g granted)...................................... 3, 6 STATUTES AND RULES

TEX PENAL CODE §38.23(a) ............................................................................ 4 TEX. R. APP. P. 68.2(a) .................................................................................... v111 TEX. TRANSP. CODE §724.012(b)(3)(B) ..................................................... 2, 5

v *6 STATEMENT REGARDING ORAL ARGUMENT The State does not believe that oral argument is necessary in this case, as the State's arguments are and will be set out fully in this petition and brief, should this Court grant review. However, should this Court determine that oral argument would be helpful in resolving the issue raised in this petition, the State would certainly welcome the opportunity to appear before the Court.

*7 STATEMENT OF THE CASE

On 5 September 2009, Vicente Munoz (hereinafter referred to as Munoz) was arrested for driving while intoxicated (DWI). (SX 15-16). 1 Munoz refused to perform any standardized field-sobriety tests (SFSTs) or submit a sample of his breath. (SX 1 at 15-16). As Munoz had seven prior convictions for DWI, the arresting officer took Munoz to a local hospital for a blood draw as mandated by Texas law. (SX 1 at 16-17, 22). Munoz' blood-alcohol level was .25. (Supp. RR at 12, 31 ). On 26 June 2012, Munoz was indicted for the felony offense of DWI, third or more. (CR at 3). The trial court denied Munoz' motion to suppress the evidence from his warrantless blood draw. (SX 1 of RR 4 at 30, RR 2 at 23). A jury trial began on 13 May 2013. (Supp. RR at 1). On 14 May 2013, the trial court, sua sponte, set aside its prior order denying Munoz' motion to suppress the blood-draw evidence and reopened the motion-to-suppress hearing. (RR 3 at 5, 10). After receiving testimony from the arresting officer, the trial court granted Munoz' motion to suppress, declared a mistrial, and dismissed the jury. (RR 3 at 6-17, 27).

*8 STATEMENT OF PROCEDURAL HISTORY On 16 May 2013, the State requested that the trial court reconsider its order granting Munoz' motion to suppress. (RR 4 at 4). The trial court denied the State's motion to reconsider on 20 May 2013. (CR at 115). On 22 May 2013, the trial court issued findings of fact and conclusions oflaw. (CR at 116-118). The State timely filed notice of appeal on 6 June 2013. (CR at 120).

On 31July2015, the Eighth Court of Appeals affirmed the trial court's granting of Munoz' motion to suppress the results of his mandatory blood draw.

See Munoz v. State, No. 08-13-00164-CR, 2015 WL 4719559 at *7 (Tex. App.-El Paso 31 July 2015, no pet. h.) (not yet released for publication). See (Appendix A).

On 14 August 2015, the State timely filed a request for rehearing. The Eighth Court of Appeals denied, without written opinion, the State's motion for rehearing on 26 August 2015.

The State now timely files this petition for discretionary review (PDR) pursuant to rule 68.2(a) of the Texas Rules of Appellate Procedure. See TEX. R.

APP. P. 68.2(a).

Vlll *9 GROUNDS FOR REVIEW GROUND FOR REVIEW ONE: The Eighth Court of Appeals erred in holding that a nonconsensual blood draw pursuant to the mandatory-blood draw and implied-consent provisions set forth in Chapter 724 of the Texas Transportation Code violated the Fourth Amendment.

GROUND FOR REVIEW TWO: The Eighth Court of Appeals erred in holding that pre-McNeely warrantless blood draw in this case violated the Fourth Amendment where the officer obtained the blood-draw evidence based upon an objectively reasonable, but ultimately mistaken belief that the mandatory blood-draw provisions fell under a constitutionally valid exception to the Fourth Amendment's warrant requirement.

FACTUAL SUMMARY On 5 September 2009, El Paso Police Department Officer Jordan was dispatched to investigate a report of a suspicious vehicle that had stopped and remained parked for a lengthy time with its engine off and its lights on. (SX 1 at 10). No one had entered or exited the vehicle. (SX 1 at 19). Officer Jordan observed Munoz asleep in the driver's seat with a large can of beer between his thighs. (SX 1 at 14 ). Officer Jordan detected a very strong odor of an unknown alcoholic beverage emanating from Munoz and the vehicle. (SX 1 at 14 ). Officer Jordan woke up Munoz. (SX 1 at 15). As Officer Jordan was talking with Munoz, she noted that he had slurred speech and red, bloodshot eyes. (SX 1 at 15). When Munoz exited the vehicle, Officer Jordan observed that he had an unsteady balance and that he looked disheveled. (SX 1 at 15). Munoz refused Officer Jordan's request that he perform some standardized field-sobriety tests (SFSTs) and provide *10 a sample of his breath. (SX 1 at 15-16). After being advised of his statutory rights, Munoz again refused to submit to a breath test. (SX 1 at 16). Munoz was taken into custody and transported to the police station. (SX 1 at 16). Officer Jordan learned that Munoz had seven prior convictions for DWI. (SX 1 at 16-17, 22). As required by section 724.012(b)(3)(B) of the Texas Transportation Code, Munoz was taken to a local hospital where a blood sample was drawn. (SX 1 at 1 7). TEX. TRANSP.

CODE §724.012 (b)(3). Officer Jordan did not seek a warrant for the blood draw due to the Texas mandatory blood-draw statute. (RR 3 at 14-15, 17). Munoz' blood-alcohol level was .25. (Supp. RR at 12, 31 ).

*11 GROUND FOR REVIEW ONE:The Eighth Court of Appeals erred in holding that a nonconsensual blood draw pursuant to the mandatory-blood draw and implied-consent provisions set forth in Chapter 724 of the Texas Transportation Code violated the Fourth Amendment.

ARGUMENT AND AUTHORITIES On 31 July 2015, the Eighth Court of Appeals rendered its decision affirming the trial court's granting of Munoz' motion to suppress the results of his mandatory blood draw. See Munoz, 2015 WL 4719559 at *7. See (Appendix A).

The Eighth Court of Appeals rejected the State's arguments that the United States Supreme Court's decision in McNeely v. Missouri, _U.S._, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2014), did not overrule the implied-consent provisions in the Texas Transportation Code. See Munoz, 2015 WL 4719559 at *5. This Court has granted the State's motion for rehearing in Villarreal ^[2] regarding some of the same issues presented by State in the present case. See (State's Motion for Rehearing and Amended Motion for Rehearing in Villarreal). (Appendix B). In light of the "uncertain precedential value" of Villarreal and the reasons set forth in the State's brief on original appeal, this Court should grant the State's Petition for Discretionary Review. See Munoz, 2015 WL 4719559 at *4 n.4, *5.

*12 GROUND FOR REVIEW TWO: The Eighth Court of Appeals erred in holding that the pre-McNeely warrantless blood draw in this case violated the Fourth Amendment where the officer obtained the blood-draw evidence based upon an objectively reasonable, but ultimately mistaken belief that the mandatory blood-draw provisions fell under a constitutionally valid exception to the Fourth Amendment's warrant requirement.

ARGUMENT AND AUTHORITIES I. Munoz' pre-McNeely warrantless blood draw did not violate the Fourth Amendment.

The Texas exclusionary rule, as set forth in article 38.23 of the Texas Code of Criminal Procedure, provides that "no evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas or of the Constitution or laws of the United States of America, shall be admitted in evidence against an accused on trial of any criminal case." TEX.

CODE CRIM PROC. art. 38.23(a). In the present case, the arresting officer acted in objectively reasonable compliance with a presumptively valid statute, and thus, there was no violation of the Fourth Amendment, and the exclusionary rule of article 38.23 is not applicable.

On 15 December 2014, the United States Supreme Court issued its opinion in Heien v. North Carolina, _U.S._, 135 S.Ct. 530, 190 L.Ed.2d. 475 (2014). In Heien, a North Carolina deputy sheriff conducted a traffic stop ofHeien after observing that his vehicle had only one operable brake light. Id. at 534. The deputy became suspicious when Heien and his passenger acted nervously and gave *13 inconsistent stories about their itinerary. Id. After Heien consented to a search of his vehicle, the deputy found a plastic baggie containing cocaine. Id. Heien's motion to suppress was denied by the trial court. Id. The North Carolina Court of Appeals reversed, however, after determining that the traffic stop was illegal because North Carolina law only required one working brake light. Id. at 535. The case eventually reached the United States Supreme Court. Id. Declaring that "the ultimate touchstone of the Fourth Amendment is reasonableness" and that "to be reasonable is not to be perfect," the Court held that a reasonable, mistaken belief as to the law does not violate the Fourth Amendment. Id. at 536.

At the time of Munoz' arrest for driving while intoxicated, Texas Transportation Code section 724.012(b)(3)(B) clearly mandated that, due to his prior DWI convictions, a sample of his blood be obtained. TEX. TRANSP. CODE §724.012(b)(3)(B). Officer Jordan acted under an objectively reasonable belief that the blood-draw statute was lawful. See Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S.Ct. 2627, 61 L.Ed.2d343 (1979) (finding that the enactment of a law forecloses speculation by law-enforcement officers concerning its constitutionality). As recently stated in Heien, when "the law turns out not to be what was thought, the result is the same," there is no violation of the Fourth Amendment. See Heien, 135 S.Ct. at 536. And because Munoz' blood draw was conducted in compliance with a *14 presumptively valid statute, the officers did not violate the law, and thus, there was no Fourth Amendment violation. See Heien, 135 S.Ct. at 536. 3

3 Nothing in the record indicates that Officer Jordan's badge came with a crystal ball attached, and thus, she would have had no reason to believe her actions on 5 September 2009, were unlawful based on court decisions five years in the future, See, e.g., Villarreal, 2014 WL 6734178 at *1, decided on 26 November 2014; Burcie v. State, No. 08-13-00212-CR, 2015 WL 2342876at*1 (Tex. App.-El Paso 14 May 2015, pet. filed) (not designated for publication).

*15 PRAYER

WHEREFORE, the State prays that this petition for discretionary review be granted, and that upon hearing, the Court reverse the judgment of the Court of Appeals and remand the case to the trial court for such proceedings as may be appropriate.

Respectfully submitted, JAIME ESPARZA DISTRICT ATTORNEY 34th JUDICIAL DISTRICT Isl Douglas Fletcher DOUGLAS K. FLETCHER ASST. DISTRICT ATTORNEY DISTRICT ATTORNEY'S OFFICE 500 E. SAN ANTONIO, ROOM 201 EL PASO, TEXAS 79901 (915) 546-2059 ext. 4402 FAX: (915) 533-5520 EMAIL: dfletcher@epcounty.com SBN: 24006412 ATTORNEYS FOR THE STATE *16 CERTIFICATE OF COMPLIANCE The undersigned does hereby certify that the foregoing petition for discretionary review contains 1192 words.

Isl Douglas Fletcher DOUGLAS K. FLETCHER CERTIFICATE OF SERVICE The undersigned does hereby certify that on 25 September 2015: ( 1) a copy of the foregoing petition for discretionary review was electronically served upon appellee's attorney, Matthew DeKoatz at mateodekoatz@yahoo.com, (2) a copy of the foregoing petition for discretionary review was electronically served upon the State's Prosecuting Attorney at Lisa.McMinn@spa.texas.gov

Isl Douglas Fletcher DOUGLAS K. FLETCHER *17 APPENDIX A *18 State v. Munoz, --- S.W.3d ---- (2015)

2015 WL 4719559 Affirmed. Only the Westlaw citation

is currently available.

NOTICE: THIS OPINION HAS NOT West Headnotes ( 4)

BEEN RELEASED FOR PUBLICATION

IN THE PERMANENT LAW REPORTS. [1] Criminal Law UNTIL RELEASED, IT IS SUBJECT ~ Theory and Grounds of Decision TO REVISION OR WITHDRAWAL. in Lower Court Appellate court must uphold the trial

Court of Appeals of Texas, court's ruling if it is supported by the El Paso. record and correct under any theory The State of Texas, Appellant, oflaw applicable to the case, and this

v. principal holds true even when the Vicente Munoz, Appellee. trial judge gives the wrong reason for

his decision, and is especially true No. 08-13-00164- with regard to admission of evidence. CR I July 31, 2015

Cases that cite this headnote Synopsis

Background: State appealed from decision [2] Automobiles

of the 171 st District Court, El Paso County, """" Right to take sample or conduct

granting defendant's suppression motion. test; initiating procedure Automobiles ~ Grounds or cause; necessity for Holdings: The Court of Appeals, Yvonne T. arrest Rodriguez, J., held that: Nonconsensual search of intoxicated driving suspect's blood conducted [ 1] nonconsensual search of defendant's pursuant to the rnandatory-blood blood conducted pursuant to the mandatory draw and implied-consent provisions blood-draw and implied-consent provisions in the Transportation Code, when in Transportation Code violated the Fourth undertaken in the absence of a Amendment, and warrant or any applicable exception to the warrant requirement, violated [2] statute, providing that evidence may not the Fourth Amendment; there were be admitted unless evidence was obtained by no exigent circumstances, and officer acting upon a warrant, did not apply Transportation Code's mandatory since no warrant was issued. blood-draw was not a valid exception *19 State v. Munoz, --- S.W.3d ---- (2015)

to the Fourth Amendment. U.S. Cases that cite this headnote

Const. Amend. 4; Tex. Transp. Code Ann.§ 724.012(b).

Cases that cite this headnote

Appeal from the 171 st District Court of El Paso County, Texas, (TC# 20120D03021) [3] Courts ~ In general; retroactive or Attorneys and Law Firms

prospective operation Supreme Court's holding m Jaime E. Esparza, District Attorney, El Paso, McNeely, 133 S.Ct. 1552, that TX, for State. natural metabolization of alcohol in the bloodstream does not Matthew DeKoatz, Attorney at Law, for present a per se exigency that Appellee.

justifies an exception to the Before McClure, C. J., Rivera, and Rodriguez,

Fourth Amendment's search warrant JJ. requirement for nonconsensual

blood testing in all drunk-driving

cases, applied to case on direct

appeal since case was not yet final OPINION when McNeely was decided. U.S.

Const. Amend. 4. YVONNE T. RODRIGUEZ, Justice Cases that cite this headnote *1 Vicente Munoz was charged by indictment

of Felony driving while intoxicated. The State ^[4] Criminal Law sought or yet obtained ~ Applicability when no warrant of Texas appeals the trial court's order granting Vicente Munoz's motion to suppress his blood test result that was obtained as a result of his arrest for DWI. The trial court's findings of fact Exception to statute excluding and conclusions of law reflect the sole basis unconstitutionally obtained for suppression of the blood test result was the evidence, when the evidence was State's failure to show exigent circumstances to obtained by a law enforcement support the warrantless, non-consensual blood officer acting in objective good faith draw. Finding the State failed to establish a reliance upon a warrant, did not valid exception to the warrant requirement, we apply to case in which no warrant affirm the trial court's suppression order. was issued. U.S. Const. Amend. 4;

Tex. Crim. Proc. Code Ann. art.

38.23(b).

FACTUAL SUMMARY *20 State v. Munoz, --- S.W.3d ---- (2015)

On September 5, 2009, about 8: 1 7 p.m., El Paso After Munoz was placed in custody, it was Police Officer Jordan was on patrol when she determined he had seven prior convictions for was dispatched to a call involving a suspicious DWI. Based on Munoz's prior convictions, he was immediately taken to the hospital for a vehicle. The reporter had observed a red pickup truck sitting in the street, with the engine off mandatory blood draw.

and the headlights on. Officer Jordan arrived

at approximately 8:20 p.m. and spoke with the reporter. Officer Jordan approached the truck PROCEDURAL BACKGROUND on the driver's side. The officer discovered Munoz asleep in the front seat with a can of On December 14, 2012, the trial court, after beer between his legs, the keys in the ignition, a hearing on a motion to suppress statements, the engine off, and the headlights on. Officer evidence, and the blood test result, orally Jordan woke Munoz up and smelled a strong denied the motion. On May 2, 2013, Munoz odor of an alcoholic beverage. When Munoz filed a second motion to suppress the blood test exited the truck, the officer observed him to result relying on Missouri v. McNeely, - U.S.

have an unsteady balance, red blood-shot eyes, - , 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). and exhibit slurred speech. Munoz refused to On May 6, 2013, the trial court heard argument submit to a breath test. Munoz was transported of counsel regarding Munoz's second motion

to the station at 9: 13 p.m. The station is about to suppress and denied it again. On the day five to six blocks away and it takes a couple of of Munoz's jury trial, May 14, 2013, the trial minutes from Munoz's vehicle to arrive there. court heard additional testimony from Officer magistrate on duty from 9:00 p.m. to 8:00 a.m. the Municipal Court building which houses a a warrant, she would have to go before the every night. Officer Jordan stated that to get that she could have obtained a warrant had one. Officer Jordan testified that she was aware a warrant nor was she prevented from getting magistrate, "get it signed and get the warrant." On the way to the station, Officer Jordan passed She acknowledged she did not attempt to get The were shown and a warrantless blood draw could not be permitted under Munoz argued that no exigent circumstances Jordan and suppressed the blood test result. which had legislatively-mandated blood draws did not apply in states McNeely State argued McNeely. State contended the blood test result should not be excluded because the officers were acting in for repeat offenders such as Texas. Next, the good-faith reliance upon the law. she wanted. Officer Jordan explained to the The trial court heard the initial motion to suppress in

court that she did not get a warrant because at December 2014. McNeeZv was decided in April 2013, that time the law allowed a mandatory blood and the trial court's suppression order was rendered a draw if an individual had two prior convictions. month later. She stated the only reason she failed to obtain *2 The trial court entered thirty-six findings the warrant was because she relied on the of fact and six conclusions of law. The relevant mandatory blood draw statute. Findings of Fact are as follows: *21 State v. Munoz, --- S.W.3d ---- (2015)

5. At 8:22 p.m., Detective Jordan arrived at 34. At 10:25 p.m., Officer Art Senclair the scene. followed Texas Transportation Code

section 724.012(b )(3)(B), and transported Defendant to Las Palmas hospital for a blood draw.

18. Defendant declined to submit to Standardized Field Sobriety Tests (SFSTs) 35. Registered nurse Michael Windham and the breath test. drew Defendant's blood at Las Palmas

hospital.

36. The lab result revealed that Defendant's 26. Approximately 10 minutes elapsed from blood alcohol level was 0.23.

the time Detective arrived at the scene to the time Detective arrested the Defendant. The relevant Conclusions of Law are as

follows: 1. Missouri v. McNeely, 133 S.Ct. 1552

28. At 9: 15 p.m., Defendant arrived at the requires exigent circumstances in order to station. conduct a warrantless blood draw.

29. At the station, EPPD Officer Art

Senclair discovered that the Defendant had

at least two prior Driving While Intoxicated 3. The State did not present any evidence that convictions. constituted exigent circumstances.

30. EPPD did not acquire a warrant to draw

blood from the Defendant.

5. Texas Transportation Code, section 31. On September 5, 2009, Detective Jordan 724.012(b)(3)(B) allows for a warrantless could have acquired a warrant for a blood blood draw on an individual with two or draw, if she wanted to get one on that date. more previous DWI convictions.

32. On September 5, 2009, nothing 6. Pursuant to McNeely, this governmental prevented Detective Jordan from acquiring a interest does not justify a departure from warrant for a blood draw. obtaining a warrant, unless there are exigent

circumstances present.

33. There is a magistrate on duty every

night from 9:00 p.m. to 6:00 a.m. at the 2 In 2013, at the time of the hearing, Officer Jordan had Municipal Court building which was closer been promoted to Detective.

to the location where Defendant was arrested

than the Police station where Defendant was

transported.

Works.

State v. Munoz, --- S.W.3d ---- (2015)

Section 724.012(b), so therefore, the blood test result are not subject to the Fourth DISCUSSION Amendment's exclusionary rule. The State further argues Munoz's 2009 blood test result The State in a single point of error raises was not obtained in violation of the law, two sub-issues. First, the State contends that because the blood draw occurred prior to the the trial court erred by relying on Missouri issuance of McNeely in April 2013. The State v. McNeely in suppressing the warrantless asserts that in 2009, the officers acted in blood test result obtained pursuant to the "objective reasonable reliance" under existing implied-consent and mandatory-blood-draw precedent and Munoz's warrantless blood draw provisions in the Texas Transportation Code § was proper and therefore, not subject to 724.012(b). 3 SeeTEX.TRANSP.CODE ANN. exclusion under the Fourth Amendment. § 724.012(b)(West 2011). According to the State, McNeely decided the narrow issue of Munoz responds that under McNeely, a whether the dissipation of alcohol constituted a warrantless blood draw is reasonable only per se exigency that allowed for a warrantless if it falls within a recognized exception to blood draw in DWI cases. Therefore, the State the Fourth Amendment's warrant requirement. concludes McNeely is inapplicable here given Munoz contends, under these facts, the State that the State relied on the Texas Transportation has failed to secure a warrant or prove any Code for implied consent of a warrantless permissible constitutional exception applies. blood-draw in DWI cases involving an accident or prior convictions. TEX.TRANSP.CODE

ANN.§§ 724.011, 724.012(b).

STANDARD OF REVIEW 3 TEX.TRANSP.CODE ANN.§ 724.012(b) provides: When reviewing a motion to suppress, (b) a peace officer shall require the taking of a

specimen of the person's breath or blood under any we apply a bifurcated standard of review.

of the following circumstances if the officer arrests SeeCrain v. State, 315 S.W.3d 43, 48 the person for an offense under Chapter 49, Penal (Tex.Crim.App.2010); State v. Terrazas, 406 Code, involving the operation of a motor vehicle ... S.W.3d 689, 692 (Tex.App.-El Paso 2013,

and the person refuses the officer's request to submit to the taking of a specimen voluntarily: no pet.). We afford almost total deference to the trial court's findings of historical (3) at the time of the arrest, the officer possesses or fact that are supported by the record, and receives reliable information from a credible source that the person: to mixed questions of law and fact that tum on an assessment of a witnesses' (B) on two or more occasions, has been previously credibility or demeanor. Valtierra v. State, convicted of or placed on community supervision for an offense under Section 49.04 [misdemeanor 310 S.W.3d 442, 447 (Tex.Crim.App.2010); DWI] .... Amador v. State, 221 S.W.3d 666, 673 *3 Second, even if McNeely applies, the State (Tex.Crim.App.2007); Guzman v. State, posits, the officers acted in objective reasonable S.W.2d 85, 89 (Tex.Crim.App.1997). The trial reliance upon then-binding precedent and court's determination of legal questions and its *23 State v. Munoz, --- S.W.3d ---- (2015)

In Schmerber v. California, 384 U.S. 757, application of the law to facts that do not tum upon a determination of witness credibility and 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the demeanor are reviewed de nova. See Valtierra, United States Supreme Court held that an 310 S.W.3d at 447; Amador, 221 S.W.3d at involuntary blood draw is permissible under 673; Kothe v. State, 152 S.W.3d 54, 62-63 a Fourth Amendment analysis. Initially, the Court noted that the taking of a blood specimen (Tex.Crim.App.2004); Guzman, 955 S.W.2d at 89. from a person is a search and seizure under

the Fourth Amendment. Id. at 767, 86 S.Ct. at ^[1] When, as here, the trial judge makes 1834. The Court outlined "special facts" under express findings of fact, we must first which an involuntary blood draw is reasonable. Id. at 770-771, 86 S.Ct. at 1835-36. The determine whether the evidence, when viewed in the light most favorable to the trial court's Court's analysis concluded that, in light of the ruling, supports those findings. Valtierra, potential for the destruction of alcohol evidence 310 S.W.3d at 447; State v. Kelly, 204 in a person's body, and involuntary blood S.W.3d 808, 818 (Tex.Crim.App.2006). We draw is permitted under the Fourth Amendment review a trial court's legal ruling de nova. where there is a delay by law enforcement in State v. Iduarte, 268 S.W.3d 544, 548-49 investigating an accident; and there is no time (Tex.Crim.App.2008). Furthermore, we must to apply for a warrant and locate a magistrate. uphold the trial court's ruling if it is supported Id.

by the record and correct under any theory of

law applicable to the case. State v. White, 306 *4 In Missouri v. McNeely, the Court S.W.3d 753, 757 n. 10 (Tex.Crim.App.2010). expounded further, explicitly stating that a "This principal holds true even when the warrantless blood draw must fall under one trial judge gives the wrong reason for his of the recognized exceptions to the Fourth decision, and is especially true with regard to Amendment. 133 S.Ct. at 1558. The Court admission of evidence." State v. Esparza, held that the dissipation of alcohol from the S.W.3d 276, 282 (Tex.App.-El Paso 2011, pet. body per se is insufficient to create an exigent granted), ajj'dState v. Esparza, 413 S.W.3d 81 circumstance to justify a warrantless seizure (Tex.Crim.App.2013), quotingRomero v. State, of a defendant's blood. McNeely, 133 S.Ct. at 800 S.W.2d 539, 543 (Tex.Crim.App.1990). 1560-61. The Court instructed us that whether "The evident purpose of this rule is to ensure the exigent circumstances exception is satisfied that a trial court ruling will be upheld if the must be viewed case by case in light of the appellate court has assurance that the ruling totality of the circumstances. Id.

was just and lawful." Esparza, 353 S.W.3d at

282, quotingWhite, 306 S.W.3d at 757 n. 10. The Texas Court of Criminal Appeals finally

addressed the tension between our statutory implied consent, Texas Transportation Code section 724.012(b)(3)(B) and McNeely in State SUPPRESSION OF v. Villarreal. 4 State v. Villarreal, No. PD- BLOOD TEST RESULT

0306-14, - S.W.3d - - , - - , 2014 WL *24 State v. Munoz, --- S.W.3d ---- (2015)

6734178, at *1 (Tex.Crim.App. Nov. 26, consent or a warrant. Id. Villarreal argued 2014)(reh'g granted). In Villarreal, the facts are McNeely applied and thus the blood draw was almost identical to the case at hand. unconstitutional. Id. The State contended that

McNeely did not apply to mandatory blood draws because of our implied consent statutes. 4 We note the Texas Court of Criminal Appeals has Id.

granted the State's motion for rehearing in this case

on February 25, 2015, but has not withdrawn its

opinion on original submission. While Villarreal's future The Court, after extensive analysis, held precedential value is not certain, we believe the opinion "that a nonconsensual search of a DWI is persuasive and absent any other guidance from the Texas Court of Criminal Appeals, we will continue to suspect's blood conducted pursuant to the apply its reasoning. See Perez v. State, No. 01- l 2- mandatory-blood-draw and implied-consent 0 I OO l--CR, - S.W .2d - , - , 2015 WL 1245469, provisions in the Transportation Code, when at *6 (Tex.App.-Houston [!st Dist.] Mar. 17, 2015, pet. filed) (applying the Villarreal holding after the Texas undertaken in the absence of a warrant Court of Criminal Appeals granted rehearing). or any applicable exception to the warrant

In 2012, Villarreal was stopped for a traffic requirement, violates the Fourth Amendment." violation and observed to be swaying back Id., at - - , 2014 WL 6734178, at *21. Our and forth, had red, watery eyes, and slurred sister courts in applying Villarreal have joined speech, in addition to a strong odor of alcohol. the Texas Court of Criminal Appeals in soundly Id. Villarreal was placed under arrest for rejecting the State's argument that McNeely DWI. Id. After the discovery of Villarreal's has limited applicability when construed in several previous convictions of DWI, the conjunction with the Texas Transportation officer took Villarreal to a hospital for a blood Code§ 724.012(b)(3)(B). SeeState v. Tercero, draw. Id., at - - , 2014 WL 6734178, at -S.W.3d-, No. 01-14-00120-CR, 2015 *2. Villarreal's blood test result indicated "a WL 1544519 (Tex.App.-Houston [1st Dist] blood-alcohol concentration of. 16 grams of April 2, 2015, pet. filed); Chidyausiku v.

alcohol per hundred milliliters of blood." Id. State, 457 S.W.3d 627 (Tex.App.-Fort Worth Due to Villarreal's prior convictions, he was 2015, pet. filed); State v. Garcia, 457 S.W.3d subsequently indicted for a felony DWI. Id. 546 (Tex.App.-San Antonio 2015, pet. filed);

Lloyd v. State, 453 S.W.3d 544 (Tex.App. At the evidentiary hearing on Villarreal's Dallas 2014, pet. ref d); Cole v. State, motion to suppress, the State's sole witness S.W.3d 89 (Tex.App.-Texarkana 2014, pet. testified he "could have" obtained a warrant granted); Clement v. State, 461 S.W.3d 274 but did not and relied on "the mandatory (Tex.App.-Eastland 2015, pet. filed); State v. blooddraw provision in the Code."Id.; TEX. Martinez, No. 13-14-00117-CR, 2015 WL TRANSP. CODE ANN. § 724.012(b). Further, 1957087 (Tex.App.-Corpus Christi April 30, the officer stated his decision to conduct the 2015, no pet. h.)(mem. op., not designated blood draw was based only on the statutory for publication); Evans v. State, No. 14- authority and not on any emergency or exigent 13-00642-CR, 2015 WL 545702 (Tex.App. circumstances. Villarreal, - S.W.3d at--, Houston [14th Dist.] Feb. 10, 2015, pet. filed) 2014 WL 6734178, at *2. The parties stipulated (mem. op., not designated for publication). Villarreal's blood draw was taken without his *25 State v. Munoz, --- S.W.3d ---- (2015)

(West 2005). That statute provides evidence *5 [2] Likewise, our prev10us approach may not be used or admitted in the criminal trial has followed Villarreal. SeeBurcie v. State, against the defendant if the evidence is obtained by "an officer or other person in violation of No. 08-13-00212-CR, 2015 WL 2342876 any provisions of the Constitution or laws of the (Tex.App.-El Paso May 14, 2015, pet. filed)(not designated for publication). In State of Texas, or of the Constitution or laws of Burcie, like the case before us, the facts the United States of America[.]" TEX.CODE were not in dispute and the State had failed CRIM. PROC. ANN. art. 38.23(a). Moreover, the State contends, in 2009, at the time of to raise any recognizable exception to the Munoz's blood draw, the officers acted in Fourth Amendment. The record here shows objective reasonable reliance of the existing the officer relied on the implied consent under the Texas Transportation Code and could have law.

obtained a warrant but chose not to. Like First, the State argues that Munoz's blood test

Villarreal and Burcie, the State relies on the was not obtained in contravention of then implied consent and mandatory-blood-draw existing federal precedent and therefore, even provisions of the Texas Transportation Code to support the admission of the blood test if McNeely applies, the blood test should result. The trial court concluded as a matter of not be excluded. The State cites Davis v. United States, for the proposition that the

law the State failed to present "any evidence that constituted exigent circumstances." The "exclusionary rule is limited to situations in record supports that conclusion. Given that which deterrence is 'thought most efficaciously the Texas Transportation Code's mandatory served.' " Davis v. United States, - U.S. - , 131 S.Ct. 2419, 2426, 180 L.Ed.2d

blood-draw is not a valid exception to the 285 (2011), citingU.S. v. Calandra, 414 U.S. Fourth Amendment, the trial court did not err in suppressing the blood test result. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d

561 (1974). As the State correctly points out, We find under Missouri v. McNeely and Davis made clear a constitutional violation State v. Villarreal the State's first sub-issue is does not always mandate the applicability of overruled. exclusionary rule. The Davis court explained

the exclusionary rule never applies to the suppression of evidence when it was obtained "as a result of nonculpable, innocent police GOOD-FAITH RELIANCE conduct." 131 S.Ct. at 2429. The State also pointed to the holdings in Krull, Leon, and The State, in their second sub-issue, urges us Peltier to illustrate that the United States to find the trial court erred because in 2009 the Supreme Court has prohibited the application blood draw was not obtained in violation of of the Fourth Amendment's exclusionary rule federal Fourth Amendment exclusionary rule when an officer has in good-faith, objectively nor Texas' exclusionary rule found in Article and reasonably relied on a then constitutional 38.23 of the Texas Code of Criminal Procedure. statute or valid search warrant. Illinois v. Krull, TEX.CODE CRIM.PROC.ANN. art. 38.23 *26 State v. Munoz, --- S.W.3d ---- (2015)

that the exclusionary rule does not apply in 480 U.S. 340, 347, 350, 107 S.Ct. 1160, 1165- 66, 94 L.Ed.2d 364 (1987); United States v. this case." Elias, 2012 WL 4392245, at *7. SeeArizona v. Gant, 556 U.S. 332, 129 S.Ct. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 1710, 173 L.Ed.2d 485 (2009). Thus, Swink 82 L.Ed.2d 677 (1984); United States v. Peltier, refused to apply Mincey retroactively. Swink, 422 U.S. 531, 537, 95 S.Ct. 2313, 2317-18, 45 L.Ed.2d 374 (1975). 617 S.W.2d at 210. Likewise, Elias did not

apply Gant retroactively, relying on the federal doctrine of the officers' good faith reliance Relying on Swink v. State and Elias v. under Davis. Elias, 2012 WL 4392245, at

State, the State contends that McNeely should not be applied retroactively. Swink *7. Neither case alludes to or discusses the v. State, 617 S.W.2d 203, 209-210 Texas exclusionary rule under Article 38.23 and its application to an officer's good faith (Tex.Crim.App.l98l)(overruled on other reliance on then-constitutional statutes and grounds byGriffin v. State, 765 S.W.2d 422 former binding precedent. TEX.CODE CRIM. (Tex.Crim.App.1989)); State v. Elias, No. 08-08-00085-CR, 2012 WL 4392245, at *7 PROC. ANN.ODE CRIM. PROC. ANN. art. (Tex.App.-El Paso Sept. 26, 2012, pet. refd) 38.23. We note that Swink and Elias are (not designated for publication). In Swink, the specifically limited to the application of Mincey Texas Court of Criminal Appeals held "that the and Gant. Our research has failed to uncover warrantless search and seizure of the premises any Texas case, under these facts, declining to retroactively apply McNeely and the State has by the officers was permissible at the time of their actions and that the holding of Mincey not cited to any.

will not be applied retroactively to this case." [3] The United States Supreme Court in

Swink, 617 S. W.2d at 210. The Court explained the "search was conducted some six months Griffith explained that "failure to apply a before the decision in Mincey while the trial newly declared constitutional rule to criminal was held six months after the decision .... Thus, cases pending on direct review violates basic at the time officers conducted the warrantless norms of constitutional adjudication." Gr(ffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, search of the murder scene, their actions did not run afoul of the holding in Mincey." Id. at 209. 713, 93 L.Ed.2d 649 (1987). The Griffith Court SeeMincey v. Arizona, 437 U.S. 385, 98 S.Ct. held that a newly announced constitutional 2408, 57 L.Ed.2d 290 ( 1978). rule for conducting criminal prosecutions must

be applied retroactively to all cases, state or federal, pending on direct review or not yet *6 In Elias, relying on Davis v. United States, - U.S. - - , 131 S.Ct. 2419, 180 final when the rule was announced regardless L.Ed.2d 285 (2011 ), we held that "the search whether they constitute a clear break from of Elias's van was unconstitutional under the past. Griffith, 479 U.S. at 328, 107 S.Ct.

Gant, [however] the police conducted the at 716. SeeMcClintock v. State, 444 S.W.3d search in 2007 in good faith reliance on 15 (Tex.Crim.App.2014). The Supreme Court's appellate precedent authorizing the search retroactivity analysis for federal constitutional incident to arrest. Accordingly, we conclude errors is binding upon the states when federal *27 which only applies when a warrant issued by constitutional errors are involved. James B. a neutral magistrate, based on probable cause,

Beam Distilling Co. v. Georgia, 501 U.S. 529, and is relied upon by the officer in good 535, 111 S.Ct. 2439, 2443, 115 L.Ed.2d 481 faith. TEX.CODE CRIM. PROC. ANN. art. (1991 ). This case was not yet final when 38.23(b). As a result of the lack of a warrant McNeely was decided in April 2013 and it being issued, the statutory exception in Article applies here on direct appeal.

38.23(b) does not apply here. Douds, 434 S.W.3d at 861; Anderson, 445 S.W.3d at 912; The court in Douds v. State, held the good Tercero, - S.W.3d at - - - - - , 2015 WL faith reliance exception does not apply in 1544519, at *6-7; Burks v. State, 454 S.W.3d Texas. Douds v. State, 434 S.W.3d 842, 705, 709 (Tex.App.-Fort Worth 2015, pet. 861 (Tex.App.-Houston [14th Dist.] 2014, filed); Martinez v. State, No. 04-13-00764- pet. granted)(en bane). The Texas Supreme CR, 2014 WL 5837162, at *2 (Tex.App. Court has resisted efforts to expand the San Antonio Nov. 12, 2014, pet. filed)(mem. good-faith exception using federal precedent, op., not designated for publication); Weems especially in those instances when the v. State, 434 S.W.3d 655, 666 (Tex.App. federal exceptions conflict with our statutory San Antonio 2014, pet. granted); State v. exclusionary rule. Howard v. State, 617 S.W.2d Stewart, No. 09-13-00421-CR, 2014 WL 191, 193 (Tex.Crim.App.1979)(op. on reh'g) 5855905, at *4 (Tex.App.-Beaumont Nov. 12, (rejecting the federal good-faith doctrine of 2014, pet. ref d)(mem. op., not designated for Michigan v. DeFillippo, 443 U.S. 31, 99 publication). S.Ct. 2627, 61 L.Ed.2d 343 (1979)); also

seeState v. Daugherty, 931 S.W.2d 268 *7 We overrule the State's second sub-issue.

(Tex.Crim.App.1996). Other Texas Courts of Appeals have come to that same conclusion ' specifically when evaluating the admissibility

of blood test results under McNeely. Doud~, CONCLUSION 434 S.W.3d at 862; see alsoState v. Anderson, 445 S.W.3d 895, 912 (Tex.App.-Beaumont We conclude the trial court did not abuse her 2014, no pet.); Tercero, - S.W.3d at--, discretion in determining there were no exigent 2015 WL 1544519, at *6. We decline the circumstances that justified a warrantless blood State's invitation to create a good-faith reliance draw from Munoz. We affirm the trial court's exception to the application of McNeely. order granting the motion to suppress.

[4] Lastly we consider whether Texas's

exclusionary rule as codified in the Code Rivera, J., Not Participating of Criminal Procedure article 38.23 allows

for the admission of the blood test result. All Citations The exception to Texas's exclusionary rule

is legislative and found in Article 38.23(b) --- S.W.3d----, 2015 WL 4719559 *28 State v. Munoz, --- S.W.3d ---- (2015) 2015wC4119559 - - - - - - - - - - ----------- ------~-----·----~--~·-----·-----·- @2015 Thomson Reuters. No claim to original U.S. Government Works.

End of Document *29 APPENDIXB *30 ABEL ACOSTA SHARO'll Kt:l.l.ER COURT OF CRIMINAL APPEALS CLERK PKl·S\Dlt-;(i JLIXi~ (512)46.'-15:'1 P.O. BOX 12308, CAPITOL STATION LAWREl\CI!: E. MF.YF.RS AUSTIN, TEXAS 78711 SIAN SCHILHAB CtlERYLJOllNSOI' <iFNF.RAL COUNSEL MIKE KEASLl:R 1~1:?)46)·1597 BARBARA P. llERVEY ELSA ALCALA BF.RT RICHAIWSON KE\'IN P. V EARY DAVIJJ 'llE\VELL JL'DGlS Wednesday. February 25, 2015 District Attorney Nueces County Jacqueline Rae Mark Skurka

Assistant District Attorney

901 Leopard, Room 206 90 I Leopard Room 206

Corpus Christi, TX 78401 Corpus Christi, TX 7840 I * DELIVERED VIA E-MAIL *

* DELIVERED VIA E-MAIL * Douglas K. Nonnan

Fred Jimenez Assistant District Attorney

ATTORNEY AT LAW

509 Lawrence St., Suite 30 I 901 Leopard, Room 206 Corpus Christi, TX 78401

Corpus Christi. TX 7840 I *DELIVERED VIA E-MAIL*

*DELIVERED VIA E-MAIL*

Re: STATE OF TEXAS VS. DAVID VILLARREAL

CCA No. PD-0306-14

Trial Court Case No. 12-CR-l 000-H

Dear Counselors:

The Court has this day granted the State's motion for rehearing.

The case will be submitted to the Court on Wednesday, March 18, 2015.

Sinmely, ~ A~Ierk_,-......==----=---- SLPR~ME COURT BUll.1)11\Ci. ^[201] \VfSI 14HI STRHT. ROOM 106. Al;STIN. TFXAS WrnSITI· WWW.TXl"lllJRTS.CiOVICCA.ASPX *31 PD-0306-14 FILED IN COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS December)(°2014 Transmitted 12/17/2014 2:52:50 PM Accepted 12/18/2014 8:54:31 AM 'Cl\ ABEL ACOSTA ABELACOSTA,CLERK NO. PD-0306-14 CLERK (Appellate Court Cause No. 13-13-253-CR) § THE STATE OF TEXAS, IN THE § Petitioner,

§ v. § COURT OF CRIMINAL APPEALS §

DAVID VILLARREAL, §

Respondent. § OF TEXAS PETITIONER'S AMENDED MOTION FOR REHEARING TO THE HONORABLE COURT OF CRIMINAL APPEALS: Comes now the State of Texas, by and through the District Attorney for the I 05th Judicial District of Texas, and submits this amended motion for rehearing, pursuant to Tex. R. App. P. 79. l & 79.3, and requests that the Court reconsider its November 26, 2014, opinion in this case, grant this motion, and resubmit this case.

For the reasons set forth in the State's briefs, as well as those set forth in the dissenting opinions, the State believes that rehearing and reconsideration are appropriate in the present case.

I. WAIVER. Specifically, the State contends that the majority opinion too quickly dismissed the State's argument that Texas drivers have validly waived their right to object to a warrantless blood draw under the limited circumstances set out in the implied consent I mandatory draw statute.

*32 This Court's majority opinion stated, "we are aware of no Supreme Court cases approving of [the waiver] doctrine's applicability in a context similar to the one with which we are confronted today," distinguishing the present case from Supreme Court waiver cases based on federal regulations. (Slip. Op. at 25) Yet, the majority opinion made no persuasive argument why waiver in the context of state regulation of a highly regulated activity like driving should be treated differently from the federally regulated activities in Zap and Biswell.

In Zap, the Supreme Court relied upon both federal statutory authority and a government contract with the defendant to establish a waiver of that defendant's right to insist on a warrant before his records could be inspected by government officials with whom he chose to do business as a Navy contractor. See Zap v. United States, 328 U.S. 624, 626-27, 66 S. Ct. 1277 (1946), vacated on other grounds, 330 U.S. 800 (1947).

In Biswell, the Supreme Court relied upon statutory authority for the warrantless inspection of a gun dealer's records, firearms and ammunition. See United States v. Biswell, 406 U.S. 311, 316, 92 S. Ct. 1593 ( 1972). In the present case, the mere fact that the state, and not the federal government, regulates driving offers no principled reason for disallowing waiver. Nor should it matter that driving is engaged in for both personal and *33 business reasons. Moreover, a Texas driver is clearly on notice of the waiver in question. In addition to the statute and presumed knowledge of the law, the Texas Driver's Handbook clearly puts present and prospective drivers on notice of the implied consent law. See Texas Driver's Handbook, p. 60 (rev. July 2012).

Finally, this Court should not reject the waiver exception simply because it has never before been applied to the particular circumstances in the present case. Waiver remains a "well recognized exception" to the warrant requirement, even though waiver of the specific right of an impaired driver to object to a warrantless blood draw may not be a "well recognized application" of that exception.

II. SPECIAL NEEDS. Alternatively, with regard to "special needs," the majority opinion too quickly dismissed that exception on the ground that the primary purpose of such a blood draw was supposedly to collect evidence for a criminal trial. In doing so, the Court neglected the equally valid and compelling purpose of revoking the driving privilege of those who have shown themselves to be too irresponsible to continue to hold that privilege.

Under the mandatory draw provisions of the Texas Transportation Code, in addition to providing evidence for a criminal prosecution, the results *34 of the blood draw may be used in the administrative removal of drunken drivers from the public roadways. The Department of Public Safety must suspend the person's license if analysis of the blood reveals an alcohol concentration of 0.08 or greater. TEX. TRANSP. CoDE § 524.012(b)(l); TEX. PENAL CODE § 49.01(2)(B). The suspension is for a period of 90 days or one year, depending on whether the person has had any prior DWI arrests in the ten years preceding the current date of arrest. TEX. TRANSP. CODE § 524.022(a).

This Court has noted that the "primary purpose of the administrative license suspension statute is not to deter the licensee or to seek retribution, but is to protect the public from the carnage on the public roads of Texas caused by drunk drivers." Ex parte Tharpe, 935 S.W.2d 157, 159 (Tex. Crim. App. 1996); see also Tex. Dept. Pub. Safety v. Richardson, 384 S.W.2d 128, 132 (1964) ("But, it should be made abundantly clear that in this case [of driver's license revocation] we are not concerned with criminal penalties but rather with an administrative and regulative power vested in the Texas Department of Public Safety which power has for its purpose the protection of the lives and property of those using the highways."). Accordingly, the mandatory draw statute may be justified under the special needs exception, as applied to the closely regulated *35 activity of driving on public roads, and as a tool not only of criminal enforcement but also for administrative measures designed to protect the public from drunk drivers by removing their driving privileges.

III. GENERAL FOURTH AMENDMENT REASONABLENESS. In addition, both Presiding Judge Keller's Dissenting Opinion, and Judge Meyers' Dissenting Opinion appear to rely on a generalized reasonableness approach that looks to the totality of the circumstances, the needs of the public and law enforcement, and the lowered expectation of privacy that repeat offenders have in the minor inconvenience of a compelled blood draw. The State suggests that these considerations are entitled to more weight than was given to them in the majority opinion. IV. MISTAKE OF LAW.

Finally, the State believes that the very recent opinion by the United States Supreme Court in Heien v. North Carolina, --- U.S. ---, No. 13-604 (December 15, 2014), should be considered by this Court on rehearing. In Heien, the Supreme Court, arguably for the first time, recognized that an officer's reasonable mistake of law, like a reasonable mistake of fact, may render legal conduct that would otherwise amount to a Fourth Amendment violation. Specifically, in Heien, the Court held that it was "objectively reasonable for an officer in Sergeant Darisse's position to think that Heien's *36 faulty right brake light was a violation of North Carolina law. And because the mistake of law was reasonable, there was reasonable suspicion justifying the stop." Slip op. at 13.

On a broader level, the Supreme Court reasoned that, "[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them 'fair leeway for enforcing the law in the community's protection."' Slip op. at 5 (quoting Brinegarv. United States, 338 U.S. 160, 176 (1949)).

In the present case, Officer Williams clearly relied on what he reasonably believed to be a valid statutory mandate for him to require the blood draw in question. To that extent that he reasonably relied upon the implied consent I mandatory draw statute, he, like Sergeant Darisse, did not violate the Fourth Amendment by conduct that would later be shown to be a mistake of law.

Since this Court did not have the benefit of the Heien opinion at the time it handed down its November 26 ^[1] h opinion, the State believes that rehearing and reconsideration would be especially appropriate.

*37 PRAYER

For the foregoing reasons, the State requests that the Court reconsider its November 26, 2014, opinion in this case; grant this motion for rehearing; resubmit this case in order to address the State's contentions as set out in this motion; and, after doing so, reverse the judgment of the Thirteenth Court of Appeals and vacate the trial court's suppression order.

Respectfully submitted, 1s1V~~.~ Douglas K. Norman State Bar No. 15078900 1s1~L~ Jacqueline Lamerson State Bar No. 24074923 Assistant District Attorneys 105th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888-0410 (361) 888-0399 (fax) *38 . . .

RULE 9.4 (i) CERTIFICATION In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the number of words in this motion, excluding those matters listed in Rule 9.4(i)(1), is 1,271.

/sl1J~~.~ Douglas K. Norman CERTIFICATE OF SERVICE This is to certify that, pursuant to Tex. R. App. P. 6.3 (a), copies of this motion were e-mailed on December 17, 2014, to Respondent's attorney, Mr. Fred Jimenez, and to the State Prosecuting Attorney.

/sl1J~~.~ Douglas K. Norman g *39 PD-0306-14 FILED IN COURT OF CRIMINAL APPEALS

COURT OF CRIMINAL APPEALS AUSTIN. TEXAS Transmitted 12/10/2014 92507 AM December 10. 2014 Accepted 12110/2014 9:35:22 AM ABEL ACOSTA ABELACOSTA. CLERK NO. PD-0306-14 CLERK (Appellate Court Cause No. 13-13-253-CR) § IN THE THE ST ATE OF TEXAS,

Petitioner, §

§ § COURT OF CRIMINAL APPEALS

§ §

DA YID VILLARREAL, § OF TEXAS

Respondent. PETITIONER'S MOTION FOR REHEARING TO THE HONORABLE COURT OF APPEALS:

Comes now the State of Texas, by and through the District Attorney for the l 05th Judicial District of Texas, and submits this motion for rehearing, pursuant to Tex. R. App. P. 79.1, and requests that the Court reconsider its November 26, 2014, opinion in this case, grant this motion, and resubmit this case.

For the reasons set forth in the State's briefs, as well as those set forth m the dissenting opinions, the State believes that rehearing and reconsideration are appropriate in the present case.

*40 This Court's majority opinion stated. ·'we are aware of no Supreme Court cases approving of [the waiver] doctrine's applicability in a context similar to the one with which we are confronted today,'' distinguishing the present case from Supreme Court waiver cases based on federal regulations.

(Slip. Op. at 25) Yet, the majority opinion made no persuasive argument why waiver in the context of state regulation of a highly regulated activity like driving should be treated differently from the federally regulated activities in Zap and Biswell.

In Zap, the Supreme Court relied upon both federal statutory authority and a government contract with the defendant to establish a waiver of that defendant's right to insist on a warrant before his records could be inspected by government officials with whom he chose to do business as a Navy contractor. See Zap v. United States, 328 U.S. 624, 626-27, 66 S. Ct. 1277 (1946), vacated on other grounds, 330 U.S. 800 (1947).

In Biswell, the Supreme Court relied upon statutory authority for the warrantless inspection of a gun dealer's records, firearms and ammunition.

See United States v. Biswell, 406 U.S. 31 l, 316, 92 S. Ct. 1593 ( 1972).

In the present case, the mere fact that the state, and not the federal government, regulates driving offers no principled reason for disallowing waiver. Nor should it matter that driving is engaged in for both personal and *41 business reasons. Moreover, a Texas driver is clearly on notice of the waiver in question. In addition to the statute and presumed knowledge of the law, the Texas Driver's Handbook clearly puts present and prospective drivers on notice of the implied consent law. See Texas Driver's Handbook.

p. 60 (rev. July 2012).

II. SPECIAL NEEDS. Alternatively, with regard to "special needs.'' the majority opinion too quickly dismissed that exception on the ground that the primary purpose of such a blood draw was supposedly to collect evidence for a criminal trial. In doing so, the Court neglected the equally valid and compelling purpose of revoking the driving privilege of those who have shown themselves to be too irresponsible to continue to hold that privilege.

Under the mandatory draw provisions of the Texas Transportation Code, in addition to providing evidence for a criminal prosecution, the results *42 of the blood draw may be used in the administrative removal of drunken drivers from the public roadways. The Department of Public Safety must suspend the person's license if analysis of the blood reveals an alcohol concentration of 0.08 or greater. Tex. TRANSP. Cooc § 524.0 l 2(b )( 1 ); Ti::x.

PENAL Com-: § 49.01(2)(8). The suspension is for a period of 90 days or one year, depending on whether the person has had any prior DWI arrests in the ten years preceding the current date of arrest. TEX. TRANSP. Com~ § 524.022(a).

Accordingly, the mandatory draw statute may be justified under the special needs exception, as applied to the closely regulated *43 activity of driving on public roads, and as a tool not only of criminal enforcement but also for administrative measures designed to protect the public from drunk drivers by removing their driving privileges.

III. GENERAL FOURTH AMENDMENT REASONABLENESS. Finally, both Presiding Judge Keller's Dissenting Opinion, and Judge Meyers' Dissenting Opinion appear to rely on a generalized reasonableness approach that looks to the totality of the circumstances, the needs of the public and law enforcement, and the lowered expectation of privacy that repeat offenders have in the minor inconvenience of a compelled blood draw. The State suggests that these considerations are entitled to more weight than was given to them in the majority opinion.

PRAYER For the foregoing reasons, the State requests that the Court reconsider its November 26, 2014. opinion in this case; grant this motion for rehearing; resubmit this case in order to address the State's contentions as set out in this motion; and, after doing so, reverse the judgment of the Thirteenth Court of Appeals and vacate the trial court's suppression order.

Respectfully submitted, 1s1V~~-~ Douglas K. Norman State Bar No. 15078900 Isl~ .<'ae Jacqueline Lamerson State Bar No. 24074923 Assistant District Attorneys I 05th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888-0410 (361) 888-0399 (fax) *45 RULE 9.4 (i) CERTIFICATION In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certity that the number of words in this motion, excluding those matters listed in Rule 9.4(i)(l), is 972.

lsl'D~~.~ Douglas K. Norman CERTIFICATE OF SERVICE This is to certify that, pursuant to Tex. R. App. P. 6.3 (a), copies of this motion were e-mailed on December I 0, 2014, to Respondent's attorney, Mr. Fred Jimenez, and to the State Prosecuting Attorney.

/sl'D~~.~ Douglas K. Norman

[1] Throughout this brief, references to the record will be made as follows: references to the clerk's record will be made as "CR" and page number; references to the reporter's record will be made as "RR" and volume and page number; references to the supplemental reporter's record will be made as "Supp. RR" and page number; and references to exhibits will be made as either "SX" or "DX" and exhibit number. Vll

[2] State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. 26 November 2014, reh' g granted).

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