State v. Molden

• Decision Date: 17 February 2016
• Docket Number: NO. 03–14–00166–CR,03–14–00166–CR
• Citation: 484 S.W.3d 602
• Parties: The State of Texas, Appellant v. Carlos Molden, Appellee
• Court: Texas Court of Appeals

484 S.W.3d 602

The State of Texas, Appellant

v.Carlos Molden, Appellee

NO. 03–14–00166–CR

Court of Appeals of Texas, Austin.

Filed: February 17, 2016

M. Scott Taliaferro, Angie Creasy, Assistant District Attorney, Rosemary Lehmberg, District Attorney, Austin, TX, for State.

Christopher M. Perri, Austin, TX, for Appellee.

Before Chief Justice Rose, Justices Goodwin and Bourland

OPINION

Melissa Goodwin

, Justice

The State appeals from the trial court's order granting appellee Carlos Molden's motion to suppress. In four points of error, the State argues that the trial court abused its discretion by suppressing the blood test evidence that was obtained in accordance with section 724.012(b) of the Texas Transportation Code

, commonly known as the mandatory blood draw statute. See Tex. Transp. Code § 724.012(b). We will affirm the trial court.

BACKGROUND

Prior to trial, Molden filed a motion to suppress entitled Motion to Suppress Blood Alcohol Test Results Obtained Without Consent or a Valid Search Warrant. Both sides filed trial briefs, addressing whether the seizure of Molden's blood pursuant to the mandatory blood draw statute was unconstitutional in light of Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013)

.¹ The arresting officer was the State's sole witness at the suppression hearing. In his testimony, the officer admitted that the sole authority for drawing Molden's blood was section 724.012(b)(3)(B) of the Transportation Code.² At the conclusion of the hearing, the trial court stated that "absent consent or exigent circumstances, the State's got to have a warrant before obtaining a sample of a person's blood" and granted the motion to suppress. In its findings of fact and conclusions of law, the court concluded, in relevant part, that Molden did not consent to providing a specimen of his blood, that there were no exigent circumstances, and that no search warrant was obtained for the taking of Molden's blood.

DISCUSSION

Standard of Review

We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion, Arguellez v. State, 409 S.W.3d 657, 662 (Tex.Crim.App.2013)

; State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006), and overturn the ruling only if it is outside the zone of reasonable disagreement, State v. Story, 445 S.W.3d 729, 732 (Tex.Crim.App.2014) ; Dixon, 206 S.W.3d at 590. We apply a bifurcated standard of review, giving almost total deference to a trial court's findings of historical fact and credibility determinations that are supported by the record, but review questions of law de novo. Delafuente v. State, 414 S.W.3d 173, 177 (Tex.Crim.App.2013) ; Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App.2010). We view the evidence in the light most favorable to the trial court's ruling, State v. Robinson, 334 S.W.3d 776, 778 (Tex.Crim.App.2011), and uphold the ruling if it is correct on any theory of law applicable to the case, Absalon v. State, 460 S.W.3d 158, 162 (Tex.Crim.App.2015) ; Young v. State, 283 S.W.3d 854, 873 (Tex.Crim.App.2009), even if the trial judge made the ruling for a wrong reason, Story, 445 S.W.3d at 732.

General Balancing Test

In its first point of error, the State maintains that the trial court erred in suppressing the blood draw evidence because Molden has not shown that the mandatory blood draw statute is unconstitutional. The State urges this Court to find that the statute is constitutional under a traditional Fourth Amendment "reasonableness" analysis.

However, while Molden maintained that the mandatory blood draw statute was unconstitutional to the extent that it creates (or purports to create) an exception to the warrant requirement, he did not seek to have the statute declared unconstitutional. Rather, Molden asserted that obtaining his blood pursuant to section 724.012(b)(3)(B) of the Transportation Code

under the circumstances of this case—without a warrant, without express consent, and in the absence of exigent circumstances—violated his Fourth Amendment rights, and sought suppression of the blood draw evidence on that basis. Moreover, the trial court did not hold the statute unconstitutional or otherwise address its constitutionality. Consequently, the State's first point of error, arguing that Molden has failed to prove the statute unconstitutional, does not challenge the trial court's order in this case and we do not address the merits of that argument.

We overrule the State's first point of error.

Implied Consent

In its second point of error, the State argues that the warrantless blood draw in this case should be upheld as reasonable under the consent exception to the warrant requirement because Texas's implied consent law established Molden's consent to the blood draw.

A blood draw conducted at the direction of a law enforcement officer is a search subject to the reasonableness requirement of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)

; State v. Villarreal, 475 S.W.3d 784, 796–97 (Tex.Crim.App.2014). A warrantless search of a person is unreasonable unless it falls within a recognized exception to the warrant requirement. Villarreal, 475 S.W.3d at 796

(citing McNeely, 133 S.Ct. at 1558 ); see also Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (warrantless search or seizure is per se unreasonable unless it falls under recognized exception to warrant requirement). Voluntary consent to search is an established exception to the warrant requirement. McNeely, 133 S.Ct. at 1558 ; Villarreal, 475 S.W.3d at 796.

Under the implied consent statute a person arrested for driving while intoxicated "is deemed to have consented" to the taking of a blood sample, see Tex. Transp. Code § 724.011(a)

; and consent "deemed" to have been given under section 724.011(a) may not be withdrawn or revoked under the mandatory blood draw statute if, among other things, the arrestee has two prior convictions for driving while intoxicated, see id. § 724.012(b)(3)(B).³ Relying on this statutory scheme, the State essentially argues that by getting arrested for driving while intoxicated, Molden impliedly consented to the blood draw and could not withdraw that consent because of his two previous convictions for DWI. The Texas Court of Criminal Appeals has rejected this implied-irrevocable-consent argument.

While this case has been pending on appeal, the Court of Criminal Appeals considered the question of whether a warrantless search of a DWI suspect's blood conducted pursuant to section 724.012(b) of the Transportation Code

complied with the Fourth Amendment. See Villarreal, 475 S.W.3d at 793–813. In doing so, the Court rejected the argument that a warrantless, nonconsensual blood test obtained under the Transportation Code provisions should be upheld as categorically reasonable under the consent exception, applicable in the form of a prior waiver through implied consent. Id. at 798–804. The Court concluded that "[the] explicit refusal to submit to blood testing overrides the existence of any implied consent" and further that "implied consent that has been withdrawn or revoked by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires." Id. at 800. "[I]n the context of a nonconsensual, warrantless bodily search of a person suspected of criminal activity, a statute providing for irrevocable implied consent cannot supply the type of voluntary consent necessary to establish an exception to the Fourth Amendment warrant requirement." Id. at 805

.

In this case, it is undisputed that Molden refused to provide a blood specimen after failing to provide a valid breath sample at the time he was arrested for DWI. Such refusal revoked any prior implied consent. Thus, Molden did not provide consent to the blood draw consistent with the requirements of the Fourth Amendment. See id. at 800

; see also Perez v. State, 464 S.W.3d 34, 47 (Tex.App.–Houston [1st Dist.] 2015, pet. ref'd) (appellant who refused to provide breath or blood specimen after arrest for DWI had revoked or withdrawn any implied consent to blood draw at time of search; thus, appellant did not provide consent consistent with requirements of Fourth Amendment); State v. Arredondo, No. 13–13–00589–CR, 2015 WL 5895072, at *2–3 (Tex.App.–Corpus Christi Oct. 8, 2015, pet. filed) (mem. op., not designated for publication) ("[T]he Fourth Amendment requires ‘actual’ consent; statutorily ‘implied’ consent does not obviate the need for a warrant and does not trump a suspect's actual refusal to consent to a blood draw."); Forsyth v. State, 438 S.W.3d 216, 223 (Tex.App.–Eastland 2014, pet. ref'd) (declining "to hold that implied consent under the Transportation Code is the equivalent to voluntary consent as a recognized exception to the warrant requirement").

Because Molden did not provide consent, and because the Court of Criminal Appeals told us in Villarreal

that the two-DWI exception under Texas's implied consent law cannot provide the consent necessary to satisfy the Fourth Amendment, we overrule the State's second point of error.

Exclusionary Rule

Finally, in its third and fourth points of error, the State contends that even if the blood draw violated Molden's Fourth Amendment rights, the trial court nevertheless erred in suppressing the evidence because the federal and state exclusionary rules are inapplicable.

The federal exclusionary rule is a judicially created remedy that has several good faith exceptions. See Davis v. United States, 564 U.S. 229, 237–40, 131 S.Ct. 2419, 2427–28, 180 L.Ed.2d 285 (2011)

. For example, under the federal exclusionary rule, when a law enforcement officer relies in good faith upon a statute authorizing a warrantless search, and the statute is later found to be unconstitutional, the exclusionary rule does not bar the government from using the evidence it obtained. See Illinois v. Krull, 480 U.S. 340, 360, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987)....