Forsyth v. State

• Decision Date: 05 November 2014
• Docket Number: No. 11–12–00198–CR.,11–12–00198–CR.
• Citation: 438 S.W.3d 216
• Parties: Haley FORSYTH, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

438 S.W.3d 216

Haley FORSYTH, Appellant

v.The STATE of Texas, Appellee.

No. 11–12–00198–CR.

Court of Appeals of Texas, Eastland.

July 31, 2014.

Discretionary Review Refused Nov. 5, 2014.

David B. Frank, Austin, for Appellant.

Rosemary Lehmberg, District Attorney, Angie Creasy, Assistant District Attorney, Austin, for Appellee.

Panel consists of: WRIGHT, C.J., WILLSON, J., and BAILEY, J.

OPINION

JIM R. WRIGHT, Chief Justice.

The grand jury indicted Haley Forsyth for the felony offense of driving while intoxicated.SeeTex. Penal Code Ann. §§ 49.04, 49.09(b)(2) (West Supp. 2013). Appellant moved to suppress the results of her blood draw and argued that the officer seized her blood in violation of the Fourth Amendment. The trial court denied her motion to suppress. Appellant pleaded guilty to the offense, and the trial court assessed Appellant's punishment at confinement for a term of six years and a fine of $500. The trial court suspended Appellant's sentence and placed Appellant on community supervision for a term of three years. This appeal ensued. On appeal, Appellant contends that the trial court erred when it denied her motion to suppress the results of the blood draw. Because we find that the officer seized Appellant's blood in violation of the Fourth Amendment, we reverse and remand.

In a single issue, Appellant asserts that Section 724.012(b)(3)(B) of the Texas Transportation Code is unconstitutional as applied because the statute requires police to forcibly take a blood sample from a DWI arrestee without a search warrant and without demonstrating an exception to the warrant requirement.¹Section 724.012 of the Texas Transportation Code provides that an officer “shall require the taking of a specimen of the person's breath or blood ... if the officer arrests the person for [DWI] and the person refuses the officer's request to submit to the taking of a specimen voluntarily” and, “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person” has been twice convicted of DWI. Tex. Transp. Code Ann. § 724.012(b)(3)(B) (West 2011). Section 724.011 provides that, if a person is arrested for DWI, the person is deemed to have consented to the submission of a specimen of breath or blood for analysis in order to determine the alcohol concentration in the person's body. Id. § 724.011.

Appellant specifically argues that the trial court erred when it denied her motion to suppress the blood draw results because the officer took her blood without a warrant, without her consent, and without any exigent circumstances present. We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give great deference to the trial court's findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997). Because the trial court is the exclusive factfinder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court's ruling. Carmouche, 10 S.W.3d at 327. We also give deference to the trial court's rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court's actions de novo. Id.

The evidence at the suppression hearing showed that Sergeant Christine Jacobson of the Austin Police Department stopped Appellant for failing to signal her intent to turn right. At some point in the stop, Appellant was suspected of DWI. Officer Steven McDaniel assisted Sergeant Jacobsonin her investigation. Officer McDaniel conducted several field sobriety tests, and as a result of Appellant's performance, Officer McDaniel arrested Appellant for DWI. A criminal history check and Appellant's own admissions revealed that Appellant had two prior convictions for DWI. Appellant refused to submit to a breath or blood test. Relying on Section 724.012 of the Texas Transportation Code, Officer McDaniel transported Appellant to Brackenridge Hospital for a mandatory blood draw. He estimated that it took approximately thirty to forty-five minutes for hospital personnel to draw Appellant's blood. Appellant's blood alcohol level was 0.18.

Officer McDaniel testified that the hospital was “[a] couple of miles” from the stop and that it was “[m]aybe a ten-minute drive.” The central booking facility was also about a ten-minute drive from the scene of the stop. Officer McDaniel acknowledged that there were magistrates available to issue a search warrant twenty-four hours a day, but stated that he could not have secured a warrant because that “is not what you do according to law or policy.” There were no other circumstances that caused him to go directly to the hospital to take Appellant's blood instead of first going to a judge to get a warrant.

Sergeant Glen Kreger testified that it could take up to one and one-half hours to get a warrant for a blood draw, but that he had obtained a warrant almost immediately when the magistrate was available in his office. On average, from the time of the stop to the time the blood is drawn, it takes two hours to get a blood draw with a warrant. Sergeant Kreger stated that, based on his training and experience, it is always faster to get a blood draw without a warrant than it is with a warrant.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. The Supreme Court has held that a warrantless search of the person is reasonable only if it falls within a recognized exception to the warrant requirement. Missouri v. McNeely, –––U.S. ––––, 133 S.Ct. 1552, 1558, 185 L.Ed.2d 696 (2013).

Here, the trial court found that Officer McDaniel did not make an attempt to obtain a warrant even though the officer was aware that there were magistrates available twenty-four hours a day at the central booking facility located about the same distance away from the stop as the hospital. The trial court further found that there were no exigent circumstances established by the evidence except for the natural dissipation of alcohol in Appellant's bloodstream. The court also discussed the issue of implied consent, even though it was not expressly relied on by the State, and stated that “under present law a driver is apparently agreeing to the use of physical force to extract his blood based on a single police officer's opinion without any review by an independent magistrate.” Recognizing that the court had to defer to higher authority, the court denied Appellant's motion to suppress.

We first note that, at the time of its ruling on Appellant's motion to suppress, the trial court did not have the benefit of the United States Supreme Court's decision in Missouri v. McNeely. The Supreme Court held in McNeely that the natural dissipation of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the warrant requirement for nonconsensual blood testing in all DWI cases. 133 S.Ct. at 1561–63. The Court explained that lower courts must determine on a case-by-case basis whether exigent circumstances exist beyond the natural dissipation of alcohol in the bloodstream. Id.

In this case, the trial court found that there were no exigent circumstances beyond the natural dissipation of alcohol in Appellant's bloodstream. Although Sergeant Kreger testified that in certain situations an officer may have to wait over one and one-half hours for a warrant, there was no evidence presented by the State in this particular case of how long Officer McDaniel would have had to wait on a warrant. Because the State failed to present evidence of any other exigent circumstances beyond the natural dissipation of alcohol in Appellant's bloodstream, we cannot uphold the trial court's ruling on the ground that exigent circumstances existed.

The State makes three main arguments throughout its supplemental briefs as to why the trial court did not err when it denied Appellant's motion to suppress even if the search was not conducted pursuant to the exigent circumstances exception to the warrant requirement. First, the State argues that implied consent is a valid exception to the warrant requirement and that implied consent under the Transportation Code is irrevocable. The State asserts that a person can refuse to submit a specimen but that a person cannot withdraw consent. Second, the State argues that mandatory blood draws are not unreasonable searches under the Fourth Amendment; therefore, no warrant is required. Under this argument, the State asks us to conduct a traditional Fourth Amendment balancing test and weigh the government's interest against the individual's privacy interests. Third, the State argues that, even if mandatory blood draws are no longer permitted, mandatory blood draws were permitted at the time that the officer drew Appellant's blood. The State contends that McNeely created a more restrictive rule than what was in place at the time of the blood draw. Thus, because the officer did not violate the law when he drew Appellant's blood, the evidence should not be suppressed under the Texas exclusionary rule.

We note that the State did not make any of these arguments to the trial court below. However, because neither the parties nor the trial court had the benefit of the Supreme Court's decision in McNeely during the suppression hearing, we will address each of the State's arguments in turn. The San Antonio Court has recently addressed and rejected each of these arguments in Weems v. State, 434 S.W.3d 655 (Tex.App.-San Antonio 2014, pet. filed). ² In Weems, the court held...