Aliff v. State

• Decision Date: 03 February 1982
• Docket Number: No. 60578,60578
• Citation: 627 S.W.2d 166
• Parties: Charles Edward ALIFF, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 166

627 S.W.2d 166

Charles Edward ALIFF, Appellant, v. The STATE of Texas, Appellee.

No. 60578.

Court of Criminal Appeals of Texas.

Feb. 3, 1982.

Frank O. McClendon, III, Tyler, for appellant.

A. D. Clark, III, Dist. Atty. and William D. Saban, Asst. Dist. Atty., Tyler, Robert Huttash, State's Atty., Austin, for the State.

Before ROBERTS, DALLY and TEAGUE, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of involuntary manslaughter. The punishment is imprisonment for five years.

The appellant presents seven grounds of error; he contends: results of a blood sample were improperly admitted because the sample was obtained in an unlawful search and seizure; appellant's cross-examination of a state witness was unduly limited; results of an out-of-court experiment were improperly admitted; there was a fatal variance between the allegations in the indictment and the proof presented at trial; appellant's requested jury charge on a lesser included offense was erroneously denied; the prosecution incorrectly implied that the appellant had been in prior trouble with the law; the prosecutor engaged in improper jury argument during the punishment stage of the trial.

The appellant contends that the taking of a sample of blood from his body was an unlawful search and seizure under the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. Additionally the appellant asserts that the sample was obtained in violation of Article 6701l -5, V.A.C.S.

The evidence reveals that the appellant was traveling along a highway driving in an erratic manner at high speeds. Officer Sellers of the Department of Public Safety observed the appellant's erratic driving and saw him drive on the shoulder of the road and pass another car on the righthand side; the officer pursued the appellant at speeds in excess of 100 miles per hour. The appellant failed to stop for a red light and collided with another vehicle. The driver of the other vehicle died a few hours later. The appellant was also severely injured and was transported to a nearby hospital. The supervising officer, after being informed of the circumstances surrounding the collision, requested that a blood sample be taken from the appellant. The appellant was semi-conscious at the time and did not give his consent to the taking. Testing revealed that the appellant's blood contained 0.14 per cent alcohol by weight. This evidence was admitted at trial.

The appellant first argues that the taking of his blood sample was in violation of Article 6701l -5, supra, formerly Article 802f, V.A.P.C. The article states in part:

"Section 1.... Any person arrested may consent to the taking of any other type of chemical test, or tests, to determine alcoholic content of his blood, but he shall not be deemed, solely on the basis of his operation of a motor vehicle upon the public highways of this state, to have given consent to any type of chemical test other than a chemical test, or tests of his breath."

While consent to obtain a blood sample is not constitutionally required when an accused is under arrest, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) the statute has enlarged upon what is constitutionally required. The statute requires that consent be obtained from those individuals under arrest. However the statute has been construed to apply only to those persons under arrest, it does not apply to persons not under arrest. Darland v. State, 582 S.W.2d 452 (Tex.Cr.App.1979); Bennett v. State, 522 S.W.2d 507 (Tex.Cr.App.1975). In the case at bar the appellant was not under arrest when the blood sample was taken. Therefore, Article 6701l -5 has no application to the present case and appellant's contention is without merit. Darland v. State, supra; Bennett v. State, supra.

The appellant contends that the taking of the blood was an unlawful search and seizure under both the Texas and United States Constitutions. The withdrawal of blood from a person is a search. The Supreme Court in Schmerber v. California, supra, stated:

"But if the compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment ... It could not reasonably be argued ... that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of 'persons,' and depend antecedently upon seizures of 'persons,' within the meaning of that Amendment."

Additionally, the taking of a blood sample is a search and seizure under the Texas Constitution. Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1978), cert. denied 442 U.S. 934, 99 S.Ct. 2870, 61 L.Ed.2d 304 (1979); Smith v. State, 557 S.W.2d 299 (Tex.Cr.App.1977); Escamilla v. State, 556 S.W.2d 796 (Tex.Cr.App.1977).

While the taking of a blood sample is a search and seizure, as was noted above, not every warrantless search is constitutionally impermissible. In Schmerber the defendant was convicted of the offense of driving an automobile under the influence of an intoxicating liquor. At the direction of a police officer a blood sample was obtained over the defendant's objections. The Supreme Court concluded the search was not unlawful. The Court noted that the percentage of alcohol in the blood diminishes as soon as a person stops drinking and the evidence could not be secured if an officer had to wait until a search warrant was obtained. Thus the Court stated that since the defendant was under arrest when the sample was taken and because of the already ongoing destruction of evidence, the warrantless search was "an appropriate incident to petitioner's arrest."

However in the present case the facts do not squarely fall within the holding of Schmerber. Here the appellant was unconscious and not under arrest when the blood sample was taken. The Court in Schmerber reached its conclusion only on the facts of that record and the Court added:

"That we today hold that the Constitution does not forbid the State's minor intrusions in an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions."

However, we find it unnecessary to determine whether the holding of Schmerber extends to the facts of the present case.

In the case at bar we find that the reasoning and holding of Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) control. In that case the defendant was not under arrest when police officers obtained a scraping from his fingernails. The police at the time had probable cause to arrest the defendant but had not done so. The police believed that the defendant was involved in the strangulation murder of his wife. The officers observed a dark spot on one of the defendant's fingers and were aware that in strangulation offenses residue is often left on the offender's fingernails. The police asked if they could get a scraping and the defendant refused and started rubbing his hands together. The police nonetheless obtained the scraping and it was used in evidence against the defendant at his trial.

The Supreme Court determined that the obtaining of the fingernail scraping was a search but that it was lawful. The Court concluded that because of the existence of probable cause to arrest, the very limited nature of the intrusion upon the defendant and the readily destructibility of the evidence there was no violation of the Fourth Amendment.

Similarly the warrantless taking of a blood sample despite the lack of an arrest does not violate the Fourth Amendment. First, as with the scraping of a fingernail, the taking of a blood sample is very unintrusive. Indeed the taking of blood is "routine in our everyday life." Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). Second, alcohol in blood is quickly consumed and the evidence would be lost forever. Finally, even though the appellant was not under arrest and the officers were still investigating there was probable cause to arrest the appellant for involuntary manslaughter. Therefore we conclude that the exigencies of the situation in Cupp v. Murphy, supra, which justified the warrantless search also existed in the present case. Several other jurisdictions have reached similar results. Minnesota v. Oevering, 268 N.W.2d 68 (1978); DeVaney v. Indiana, 259 Ind. 483, 288 N.E.2d 732 (1972); Van Order v. Wyoming, 600 P.2d 1056 (Wyo.1979); Oregon v. Heintz, 286 Or. 239, 594 P.2d 385 (1979); Montana v. Campbell, 615 P.2d 190 (Mont.1980). See Annot. 72 A.L.R.3rd 325 (1976). Therefore we conclude that the taking of the blood sample was not an unreasonable search and seizure.

The appellant in his brief relies upon our holdings in Ferguson v. State, supra; Smith v. State, supra; Escamilla v. State, supra. In each of those cases we noted that under the Texas Constitution that the taking of blood was a search and seizure. However those decisions should not be construed as enlarging the scope of the Article I, Section 9 of the Texas Constitution beyond the scope of the Fourth Amendment. In each of those cases the obtaining of a blood sample without consent or warrant were held to be error. No exigencies existed as in Schmerber or Cupp v. Murphy, which justified the warrantless searches. The samples were taken to determine blood type, which would remain constant. Thus under either the Texas Constitution or the United States Constitution the searches would have been unlawful. In the present case the exigency of rapidly dissipating alcohol justified the search. The appellant's ground of error is overruled.

The appellant next argues that his cross-examination of a state witness was improperly limited. Joe Hogan, a chemist, testified as the State's expert on testing for and the effects of alcohol at various levels of...