Dromgoole v. State
| Decision Date | 23 July 2015 |
| Docket Number | NO. 01–13–00931–CR,01–13–00931–CR |
| Parties | Melissa Dromgoole, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Norman J. Silverman, Houston, TX, for Appellant.
Devon Anderson, District Attorney, Carly Dessauer, Assistant District Attorney, Houston, TX, for State.
Panel consists of Justices Jennings, Higley, and Huddle.
Appellant, Melissa Dromgoole, was charged by information with driving while intoxicated.1 Appellant pleaded not guilty. The jury found her guilty. The trial court found an enhancement paragraph to be true and assessed punishment at one year's confinement—probated for one year—and a fine of $500. In four issues on appeal, Appellant argues the trial court abused its discretion by (1) denying her motion to suppress and (2) admitting the blood-test evidence over her challenge to the reliability of the evidence.
On June 4, 2015, we issued our original opinion in this case. Dromgoole filed an amended motion for rehearing. We deny the amended motion for rehearing, withdraw our prior opinion and judgment, and issue this opinion and a new judgment in their place. Our disposition remains the same.
We modify the judgment and affirm as modified.
Officer D. Nunn, an officer with the Houston Police Department, had pulled someone over some time after 2:00 A.M. on July 21, 2012. After he was done with that person, he walked back to his car. On his way back, Appellant drove past him and nearly hit him. Officer Nunn got in his patrol car and pursued Appellant. During the pursuit, he saw Appellant drive through two red lights. After Appellant pulled over, Officer Nunn approached her car. Appellant had glassy eyes and slurred speech and smelled moderately of alcohol. Appellant acknowledged that she had consumed two alcoholic drinks in the evening.
Officer Nunn decided to perform a field sobriety test on Appellant. Before conducting the test, he asked Appellant if she had any medical conditions. Appellant responded that she had syncope, which she described as low blood pressure. Specifically, she explained that, with syncope, her “blood pressure drops and then [she] faints.”
As part of the field sobriety test, Officer Nunn performed three specific tests: a horizontal-gaze-nystagmus test, a one-leg-stand test, and a walk-and-tum test. Appellant exhibited indications of intoxication on each test. Officer Nunn arrested Appellant and drove her to the police station.
At the police station, Appellant said she could not get out of the car because she was having difficulty with her syncope. In a later affidavit, Appellant asserted that, when she was in the police car, her condition worsened Officer Nunn testified that, when they arrived at the police station, Appellant said she could not get out because of her low blood pressure. Ten minutes later, she was able to get out of the car.
Once inside the police station, Appellant was placed in a holding cell with other people. While there, Appellant got into a fist fight with another woman in the cell. Officer Nunn broke up the fight. At the end of the fight, Appellant did not exhibit any dizziness or lightheadedness.
At some point, Officer Nunn decided to obtain a blood draw from Appellant. Appellant refused to submit to a blood draw. As a result, Officer Nunn sought and obtained a search warrant for a blood draw on Appellant. The video of the blood draw shows that Officer Nunn led Appellant into the room. Appellant sat in an inclined chair. Officer Nunn explained to Appellant that he had obtained a warrant for the withdrawal of a sample of her blood. Appellant presented her arm to the nurse, who then drew Appellant's blood.
L. Mayor, a criminalist at the Houston Police Department Crime Laboratory, performed the analysis on Appellant's blood. The report from the test indicated that appellant's blood contained a concentration of alcohol of 0.17 grams of alcohol per 100 milliliters of blood.
Before trial, Appellant filed a motion to suppress the blood test results, arguing, among other things, that the blood draw was a violation of her rights under the Fourth Amendment of the United States Constitution against unreasonable searches and seizures. Specifically, Appellant argued that the affidavit in support of the warrant failed to identify that she had syncope; that the effects of pre-syncope could account for why she failed the field sobriety test; and that her medical condition of syncope rendered the blood draw unreasonable as it applied to her.
At the hearing on the motion to suppress, Appellant presented her physician, Dr. J. Varon. Dr. Varon testified that he diagnosed Appellant with syncope about five years before the trial. Syncope is the condition of being subject to fainting spells. A person who has syncope will also have pre-syncope, or symptoms that can signal the possible onset of fainting. The pre-syncope symptoms can vary widely among people, but can include dizziness, weakness in the legs, chest pains, or a sense of “pulling of the blood.” Contrary to Appellant's description of syncope to Officer Nunn, Dr. Varon testified that Appellant does not, in fact, have low blood pressure. Her blood pressure is normal, and her syncope does not affect her blood pressure.
Dr. Varon also testified that, after viewing the video of Appellant's field sobriety test, it was possible that Appellant was experiencing pre-syncope during the field sobriety test. He asserted that, as a result, it was possible that her troubles with the three field sobriety tests were influenced by the pre-syncope. For the walk-and-tum test, Dr. Varon testified it was “more likely than not” that Appellant's troubles with the test were “related to a pre-syncope equilibration.” For the other two, he only testified it was possible that the difficulties were related to pre-syncope.
Finally, Dr. Varon testified that syncope could create some risk with a blood draw. While he acknowledged that he had performed numerous blood draws on Appellant, he testified that Appellant had complete syncope (that is, she fainted) during one blood draw. During a second blood draw, Appellant had a “pre-syncopal episode,” meaning that she complained of “feeling fainty” and turned white. During this second incident, Dr. Varon resolved this by having Appellant lie down. Dr. Varon testified that it is not reasonable to perform a blood draw from a person with syncope without having the person lie down.
The trial court denied the motion to suppress.
At trial, the State called Mayor to discuss the results of the test on Appellant's blood. After a question about whether the machine that tested Appellant's blood was working properly on the day of the test, Appellant raised another objection to the admissibility of the blood test. During the hearing on this objection, Appellant argued that the blood draw technique was not properly applied because the machine that performed the blood test had not been properly validated. Based on documents produced at the time of the validation test, Appellant argued that, during three of the four days of the validation test, the machine's vial oven had been set at 60 degrees Celsius when it was intended to be set at 70 degrees Celsius.
The State presented the testimony of Mayor and W. Arnold, a police administrator for the Houston Police Department Crime Laboratory, at the hearing on the second motion to suppress. Both Mayor and Arnold testified that the discrepancy in the oven temperature did not affect the ultimate validation of the machine. Arnold explained that the test results are not obtained from a measurement of only the alcohol released by the heating, but instead from a determination of the ratio between measurements of the alcohol and a control compound added to the sample. Because the change in temperature would have resulted in a proportional change to both chemicals being released by the heating, the measurements remained accurate, and, accordingly, the validation test was reliable.
Additionally, both Mayor and Arnold testified that samples with known concentrations of alcohol were tested every time a suspect's blood was tested. Any deficiencies in the machine's ability to accurately measure the concentration of alcohol in Appellant's blood would have been detected in measuring the known quantity samples.
Appellant subpoenaed Irma Rios, the lab director for the Houston Police Department, to testify. Like Mayor and Arnold, Rios testified that the difference in temperature would not affect the reliability of the validation test. She testified that the known concentration samples would have detected any problems with the measurement of the machine.
Appellant also presented her own expert witness, A. Culbertson. Culbertson had many years of experience with performing blood tests and consulting on reviewing blood test results. She testified that, in order for a machine to produce reliable results, it must be validated first. She asserted that the measurement of controls (known concentration samples) during regular testing could not establish that the machine had been properly validated “[b]ecause you have to have a valid method before you can even speak to the results of a control or a sample.”
The trial court denied Appellant's second motion to suppress. At the time of the ruling, the court expressly found that Mayor and Arnold were credible and that the blood test results were reliable.
In her first two issues, Appellant argues the trial court abused its discretion by denying her motion to suppress the blood-draw evidence because Appellant's medical condition was omitted from the affidavit in support of the warrant for the blood draw and the blood...
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