NO. ____________
THE STATE OF TEXAS
V.
§
§
§
§
IN THE _____ JUDICIAL
DISTRICT COURT OF
State’s Trial Brief – Missouri v. McNeely
Page 2
_____________________
§
_______ COUNTY, TEXAS
STATE’S TRIAL BRIEF – MISSOURI V. MCNEELY
TO THE HONORABLE COURT:
COMES NOW THE STATE OF TEXAS by and through her Tarrant County
Criminal District Attorney and, in response to the Defendant’s Motion to Suppress,
requests that said motion be DENIED in consideration of the following:
For the reasons set out below, separately and when considered in concert, and
in light of the totality of the circumstances, the State contends that the blood draw
executed in this case was reasonable under the Fourth Amendment.
I.
History
A.
The instant case’s facts
The Defendant is charged with [ felony driving while intoxicated [DWI] / driving
while intoxicated with a child passenger, a felony / intoxication manslaughter /
intoxication assault / etc.]. Tex. Penal Code § 49.XXX.1 Following the instant arrest,
the Defendant’s blood was drawn pursuant to a mandatory provision of the Texas
Transportation Code. The Defendant urges suppression of all evidence obtained as a
result of this warrantless seizure, inter alia. Specifically, the Defendant asserts that the
instant compelled blood seizure runs afoul of the recent decision in Missouri v.
McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013). However, the Defendant is incorrect.
1
Statutory references cited throughout refer to the current version unless noted.
State’s Trial Brief – Missouri v. McNeely
Page 3
Specifically, law enforcement seized the Defendant’s blood relying on the
mandatory provisions of Texas Transportation Code Section 724.012(b) [hereinafter
described as the mandatory blood-draw statute]. Following the Defendant’s arrest, law
enforcement authorities obtained the Defendant’s blood sample in accordance with
section 724.012(b). Texas’ mandatory blood-draw statute states:
(a) One or more specimens of a person's breath or blood may be taken if
the person is arrested and at the request of a peace officer having
reasonable grounds to believe the person:
1) while intoxicated was operating a motor vehicle in a public
place, or a watercraft; or
(2) was in violation of Section 106.041, Alcoholic Beverage
Code.
(b) A peace officer shall require the taking of a specimen of the person's
breath or blood under any of the following circumstances if the officer
arrests the person for an offense under Chapter 49, Penal Code, involving
the operation of a motor vehicle or a watercraft and the person refuses the
officer's request to submit to the taking of a specimen voluntarily:
(1) the person was the operator of a motor vehicle or a
watercraft involved in an accident that the officer reasonably
believes occurred as a result of the offense and, at the time
of the arrest, the officer reasonably believes that as a direct
result of the accident:
(A) any individual has died or will die;
(B) an individual other than the person has suffered
serious bodily injury; or
(C) an individual other than the person has suffered
bodily injury and been transported to a hospital or
other medical facility for medical treatment;
State’s Trial Brief – Missouri v. McNeely
Page 4
(2) the offense for which the officer arrests the person is an
offense under Section 49.045, Penal Code; or
(3) at the time of the arrest, the officer possesses or receives
reliable information from a credible source that the person:
(A) has been previously convicted of or placed on
community supervision for an offense under Section
49.045, 49.07, or 49.08, Penal Code, or an offense
under the laws of another state containing elements
substantially similar to the elements of an offense
under those sections; or
(B) on two or more occasions, has been previously
convicted of or placed on community supervision for
an offense under Section 49.04, 49.05, 49.06, or
49.065, Penal Code, or an offense under the laws of
another state containing elements substantially similar
to the elements of an offense under those sections.
(c) The peace officer shall designate the type of specimen to be taken.
(d) In this section, “bodily injury” and “serious bodily injury” have the
meanings assigned by Section 1.07, Penal Code.
Tex. Transp. Code § 724.012.2 Since the officer relied on existing law, he heeded the
mandatory language of subsection (b), above, and did not obtain a search warrant for
the Defendant’s blood.
2
Statutes are presumed constitutional until determined otherwise; challengers to a
statute’s constitutionality bear the burden of rebutting presumed constitutionality. Karenev v.
State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Cf. Life & Casualty Ins. Co. v. McCray,
291 U.S. 566, 572 (1934) (a general “presumption of validity” applies to widely-accepted
statutes “fortified by acquiescence continued through the years”).
State’s Trial Brief – Missouri v. McNeely
Page 5
B.
The McNeely decision
1. Narrow decision
The Supreme Court’s McNeely decision focused on the narrow question of
“whether the natural metabolization of alcohol in the bloodstream presents a per se
exigency that justifies an exception to the Fourth Amendment’s warrant requirement for
nonconsensual blood testing in all drunk-driving questions.”
McNeely, 133 S.Ct. at
1556; see id. at 1558 (listing question presented and addressed); see id. at 1569 (J.
Kennedy, concurring in part) (acknowledging the holding’s limited scope).3 The fivevote majority reversed the warrantless seizure in McNeely, holding that the State may
not rely on a per se exigency premised solely on the natural dissipation of alcohol from
the bloodstream.
Id. at 1568.
Shunning application of such a per se Fourth
Amendment exception, the Supreme Court reiterated that courts must resolve the
validity
of
exigency-exception-seizure
issues
based
upon
the
totality-of-the-
circumstances when considered case-by-case. Id. at 1558-59 & n.3.
McNeely only addressed one legal issue: the Fourth Amendment exigency
exception. Id. at 1568 (rejecting the “sole argument presented”). Relying on that sole
argument, the McNeely prosecutors articulated the “broad proposition” that all
intoxicated-driving cases present a per se exigency authorizing compelled seizures in
every case. Id. Missouri law includes an implied-consent statutory framework, as do all
fifty states. See, e.g., Mo. Ann. Stat. §§ 577.020.1, 577.041; see also McNeely, 133
3
Justice Kennedy wrote that, based upon the case’s issue-related posture, the case
holds no more than “always dispensing with a warrant for a blood test” in a DWI scenario “is
inconsistent with the Fourth Amendment.” McNeely, 133 S.Ct. at 1569.
State’s Trial Brief – Missouri v. McNeely
Page 6
S.Ct. at 1566 (citing National Highway Traffic Safety Administration [NHTSA], Alcohol
and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011)
[NHTSA Review]).4 Yet, the Missouri prosecutors placed all their proverbial eggs in the
per se exigency basket and voiced no arguments relying on their State’s impliedconsent statute or, for that matter, any other exception to the Fourth Amendment’s
warrant preference. 5 Aside from exigent circumstances, the Supreme Court recognizes
that there are exceptions to the warrant requirement, such that "[w]hen faced with
special law enforcement needs, diminished expectations of privacy, minimal intrusions,
or the like, the Court has found that certain general, or individual, circumstances may
render a warrantless search or seizure reasonable." Illinois v. McArthur, 531 U.S. 326
(2001). In light of McNeely’s narrow procedural stance, the Supreme Court’s opinion
does not address nor impact the viability of any other doctrinal Fourth Amendment
exceptions -- especially the obviously-related, yet not raised, principle of implied
consent.
2. Schmerber’s viability continues
In rejecting a per se exigency rule regarding the transitory nature of blood
alcohol, the Court cited the totality of the circumstances test relied upon in Schmerber v.
4
5
This report may be found at www.nhtsa.gov/staticfiles/nti/pdf/811374.pdf.
Other courts agree that McNeely’s rejection of a categorical exigency exception to the
warrant requirement does not impact implied-consent provisions. See In re Hart, 2013 WL
2990658, slip op. at n.2 (Wis. App., June 18, 2013) (publication decision pending) (dicta); State
v. Flonnory, 2013 WL 3327526, at *6 (Del. Super. Ct., June 12, 2013) (not designated for
publication). See also State v. Osborne, 2013 WL 3213298, slip op. (Wis. App., June 27, 2013)
(publication decision pending).
State’s Trial Brief – Missouri v. McNeely
Page 7
California with approval, directing that this less rigid analysis be utilized when
determining whether exigent circumstances existed. McNeely, 133 S.Ct. at 1558 (citing
Schmerber v. California, 384 U.S. 757, 770-71 (1966)6). In other words, Schmerber’s
holding remains intact. Schmerber’s facts arose from a single-car wreck into a tree
resulting in the defendant’s needing medical treatment. Schmerber, 384 U.S. at 759
n.2, 770-71. The Court opined that the officer in that case “might reasonably have
believed that he was confronted with an emergency, in which the delay necessary to
obtain a warrant, under the circumstances, threatened the destruction of evidence . . .
because alcohol in the blood begins to diminish shortly after drinking stops,” based
upon elimination.
Id. at 770-71 (citation and punctuation omitted).
Faced with the
potential loss of blood-alcohol evidence over time, combined with the temporal cost of
accident-investigation, and taking the defendant to the hospital, the emergency
circumstances vitiated the need to seek a search warrant.
Id.
Reasonableness
controlled and reasonableness remains the overall Fourth Amendment test. See id.
McNeely did not overrule Schmerber. Justice Sotomayor’s decision expressly
recognized that, in light of the crush of DWI litigation nationwide, future prosecutions will
involve exigent circumstances justifying compelled blood draws because “in every case
6
Backtracking to Schmerber, in that case the Supreme Court recognized that a blood
draw constituted a search and seizure implicating the Fourth Amendment. Schmerber applied a
two-part reasonableness test under the Fourth Amendment: 1) whether the police had legal
justification to compel the blood draw, and 2) whether the officers employed reasonable means
and procedures to extract the blood. See State v. Johnston, 336 S.W.3d 649, 658 (Tex. Crim.
App. 2011), cert. denied, 132 S.Ct. 212 (2011). The Defendant’s claim herein only involves the
first prong regarding the legal validity for the officer’s decision to obtain the warrantless draw.
State’s Trial Brief – Missouri v. McNeely
Page 8
the law must be concerned that evidence is being destroyed.” McNeely, 133 S.Ct. at
1568. Again, Schmerber’s holding remains viable.
3. Various opinions
McNeely’s disposition resulted in four separate opinions, including the 5-4
majority by Justice Sotomayor. However, only part of her decision garnered a majority;
Justice Kennedy did not join in the last part of Section II, nor did he join Section III.
Reading the various opinions of a Supreme Court decision in order to discern the
decision’s impact on matters not expressly addressed therein is akin to the soft science
of reading tea leaves – imprecise at best. Justice Kennedy’s separate concurrence
signaled – in express language – that the majority only decided the per se exigency
issue on which certiorari had been granted, and nothing more. McNeely, 133 S.Ct. at
1569 (J. Kennedy, concurring in part). In addition to his proclaiming the limited focus of
the majority’s opinion, Justice Kennedy’s unwillingness to ink his signature to certain
passages of the Sotomayor decision appear to signal his unwillingness to differ, as
Justice Sotomayor does in Section II-C, with the Chief Justice’s rule that exigency be
measured by time-gap between arrest and a subsequent blood test. Id. at 1563-64 (Part
II-C). Justice Kennedy did not agree with Justice Sotomayor’s Section III discussion
discounting law enforcement’s concerns regarding the need for a bright-line rule, nor did
he join in the remaining plurality’s minimization of the government’s interest in
preventing and prosecuting drunk-driving offenses. Id. at 1564-67 (Part III). While five
justices voted against a per se application of exigency, all of the justices recognized
State’s Trial Brief – Missouri v. McNeely
Page 9
some blood draws will be compelled, and there appears to be a differently-constitutedfive-vote block that remains open to a modified rule departing from the warrant
requirement in circumstances other than a per se blood-alcohol exigency. See id. at
1568-77 (J. Kennedy, concurring; Chief Justice Roberts, concurring and dissenting,
joined by Justices Breyer and Alito; and Justice Thomas, dissenting).
II.
General applicable legal principles
In this pretrial suppression hearing, several general legal theories may be
invoked. First, the Rules of Evidence do not apply to a pretrial suppression hearing.
Granados v. State, 85 S.W.3d 217, 227-30 (Tex. Crim. App. 2002). Second, since this
case involves a compelled seizure of the Defendant’s blood, the burden to show that the
seizure was reasonable under the Fourth Amendment falls on the State. Third, a trial
court’s ruling on a motion to suppress is reviewed under a bifurcated manner; fact
findings based on an evaluation of credibility and demeanor receive deference while
rulings related to the law not dependent upon credibility assessments are considered de
novo on appeal. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Fourth, a trial court’s
ruling on a motion to suppress will be upheld if there is any valid legal theory supporting
the trial court’s ruling, even if the trial court did not base its decision on that theory.
State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).
III.
Warrantless blood seizure valid under
implied-consent framework
State’s Trial Brief – Missouri v. McNeely
Page 10
Several Fourth Amendment exceptions apply to this case and support the validity
of the warrantless seizure of the Defendant’s blood.
U.S.CONST. amend. IV.
The
ultimate touchstone of the Fourth Amendment is “reasonableness.” See Kentucky v.
King, 563 U.S. ___, 131 S.Ct. 1849 (2011). While warrantless searches are generally
considered unreasonable, recognized exceptions to the warrant preference exist.
Consent
is
a
long-standing,
well-recognized
Fourth
Amendment
exception.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Consent may be communicated
to law enforcement in a variety of ways, including by words, action, or circumstantial
evidence showing implied consent. Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App.
2011) (citing Bustamonte, 412 U.S. at 219). Whether an officer’s reliance on consent
was reasonable under the Fourth Amendment is a question to be determined by
examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 40 (1996);
Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Myriad factors should
apply to the reasonableness of implied-consent statutes authorizing mandatory blood
draws including, but not limited to, general consent principles, the automobile-related
aspect of DWI cases, the “special needs” doctrine, and consent-and-waiver rules where
consent has been conditioned on a benefit.
A.
Application of consent exception
Mr. Justice Frankfurter once wrote that consent “is itself an amphibian.”
Culombe v. Connecticut, 367 U.S. 568, 604-05 (1961). In the legal context, consent
cannot be taken literally to mean a “knowing” choice. Instead, “voluntariness” reflects
State’s Trial Brief – Missouri v. McNeely
Page 11
an accommodation of the complex ideals implicated by law enforcement practices. See
Bustamonte, 412, U.S. at 224-25. For instance, in Bustamonte, the Court noted the
opposing values it strives to balance:
At one end of the spectrum is the acknowledged need for . . . effective
enforcement of criminal laws. . . . Without such investigation, those who
were innocent might be falsely accused, those who were guilty might
wholly escape prosecution, and many crimes would go unsolved. In short,
the security of all would be diminished. . . . At the other end of the
spectrum is the set of values reflecting society's deeply felt belief that the
criminal law cannot be used as an instrument of unfairness, and that the
possibility of unfair and even brutal police tactics poses a real and serious
threat to civilized notions of justice.
Id., 412 U.S. at 224-25 (internal citations omitted).7
Pursuant to the Texas implied-consent statutory framework, a defendant’s
implied consent is valid as an exception to the warrant preference.
Driving on a
roadway (and obtaining a license, if applicable) is a privilege, not a right; by doing so, a
defendant impliedly consents to providing a sample when suspected of the intoxicationrelated crimes. See Tex. Transp. Code § 724.011.
Since the Defendant’s offense arises from his operation of a vehicle in a public
place, it is governed by Texas Transportation Code Chapter 724. According to the
7
Consent becomes further complicated in an intoxication-related scenario because, by
definition, the officer objectively believes that the defendant has lost the normal use of his
mental faculties. See Tex. Penal Code § 49.01(2)(A). The State’s need to rely on impliedconsent provisions in DWI scenarios is heightened since probable cause supports the possibility
that the DWI arrestee’s capacity to consider actual consent is diminished. Cf. Miller v. State,
387 S.W.3d 873, 880-81 (Tex. App.–Amarillo 2012, no pet.) (where the trial court could have
found incapacity under Tex. Transp. Code § 724.014, hence implied-consent had not been
withdrawn).
State’s Trial Brief – Missouri v. McNeely
Page 12
Court of Criminal Appeals’ Beeman-decision, the implied-consent statute “expands the
State’s search capabilities by providing a framework for drawing DWI suspects’ blood in
the absence of a search warrant . . . [giving] officers an additional weapon in their
investigative arsenal, enabling them to draw blood in certain limited circumstances even
without a search warrant.” Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App.
2002).
Section 724.011(a) provides the backdrop for Texas’ implied-consent provisions.
It provides:
If a person is arrested for an offense arising out of acts alleged to have
been committed while the person was operating a motor vehicle in a
public place, or a watercraft, while intoxicated, or an offense under Section
106.041, Alcoholic Beverage Code, the person is deemed to have
consented, subject to this chapter, to submit to the taking of one or more
specimens of the person's breath or blood for analysis to determine the
alcohol concentration or the presence in the person's body of a controlled
substance, drug, dangerous drug, or other substance.
Tex. Transp. Code § 724.011 (emphasis added). A person retains the right under most
routine circumstances, subject to an automatic license suspension, to refuse to provide
a specimen. Tex. Transp. Code § 724.013. However, the Legislature extinguished a
defendant’s right to refuse in cases where an officer possesses probable cause to
believe that certain enumerated, egregious circumstances existed. Id. at § 724.012(b).
Defendants lose their refusal right only under carefully circumscribed scenarios
involving felonious intoxication-related offenses and/or resultant injuries necessitating
hospitalization. Id.8 In those narrow instances, officers are legislatively mandated to
8
Transportation Code Sections 724.012(b)(1)(A)-(b)(1)(C) require mandatory draws
State’s Trial Brief – Missouri v. McNeely
Page 13
obtain a blood draw when they possess probable cause based upon credible
information that the suspect has been previously convicted twice of DWI. Tex. Transp.
Code § 724.012(b)(3)(B). See Aviles v. State, 385 S.W.3d 110, 116 (Tex. App.–San
Antonio 2012, pet. ref’d) (felony DWI mandatory draw did not violate Fourth
Amendment) (felony DWI mandatory draw did not violate Fourth Amendment; motion for
rehearing on pdr denied June 12, 2013).
These statutorily-limited circumstances for allowing mandatory blood draws in
only the most serious intoxication-related offenses codify a Supreme Court recognized
exigency unrelated to blood-alcohol dissipation. In Welsh v. Wisconsin, the Supreme
Court wrote that the Fourth Amendment authorizes common-sense consideration of the
gravity of the underlying offense when weighing the existence of an exigency. Welsh v.
Wisconsin, 466 U.S. 740, 751-52 (1984). According to the Court, a crime’s severity
should be considered as an “important” or “principal” factor in the exigency calculation.
The mandatory-blood draw statute applies this legal theory by authorizing compelled
draws only in limited, serious cases involving felony conduct or less-than-minor injuries.
Hence, this gravity-of-the-crime exigency, combined with the recognized dissipation-ofalcohol exigency warrants compelled draws in these more serious circumstances, with
when the offense caused death, serious bodily injury, or an injury requiring transport to a
medical facility for care; of the three, only subsection C potentially involves non-felonious
conduct. Section (b)(2) sets out felonious DWI where the intoxicated driver conveyed a child
passenger who was younger than fifteen. The final subsection of the mandatory draw
provisions, subsection (3), encompasses only the recidivistic DWI offenders who fall into a
felony category. See generally Tex. Transp. Code § 724.012(b).
State’s Trial Brief – Missouri v. McNeely
Page 14
the implied-consent framework setting out a neutral set of guidelines for applying such
exigencies in a reasonable manner.
The McNeely decision itself contains positive references to the implied-consent
provisions enacted across this country. The majority opinion, for instance, stated:
States have a broad range of legal tools to enforce their drunk-driving laws
and to secure BAC evidence without undertaking warrantless
nonconsensual blood draws. For example, all 50 States have adopted
implied consent laws that require motorists, as a condition of
operating a motor vehicle within the State, to consent to BAC testing
if they are arrested or otherwise detained on suspicion of a drunkdriving offense. See NHTSA Review 173; supra, at 1556 (describing
Missouri's implied consent law). Such laws impose significant
consequences when a motorist withdraws consent; typically the motorist's
driver's license is immediately suspended or revoked, and most States
allow the motorist's refusal to take a BAC test to be used as evidence
against him in a subsequent criminal prosecution. See NHTSA Review
173–175; see also South Dakota v. Neville, 459 U.S. 553, 554, 563–564,
103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (holding that the use of such an
adverse inference does not violate the Fifth Amendment right against selfincrimination).
McNeely, 133 S.Ct. at 1566 (emphasis added); accord State v. Flonnory, 2013 WL
3327526, at *6 (Del. Super. Ct., June 12, 2013) (not designated for publication) (noting
that McNeely did not alter application of Delaware’s implied consent laws when
upholding blood warrantless draw taken in accordance with state implied-consent
statute). The opinion continues by recognizing the “significant restrictions” States have
placed on when an officer may obtain a compelled sample. See McNeely, 133 S.Ct. at
1566 n.9 (listing mandatory-draw provisions countrywide as an example of how states
have placed “significant restrictions” on when officers may obtain compelled samples).
The Court’s language in no way disapproved of the states’ carefully tailored implied
State’s Trial Brief – Missouri v. McNeely
Page 15
consent schemes where only specified and limited situations authorized compelled
blood draws after refusal. See id. at 1566 & n.9.
Furthermore, pursuant to Texas’ implied-consent procedures, the Defendant
received detailed admonishments pertaining to the statutory provision in the form of an
effective warning. Tex. Transp. Code § 724.015. Although valid consent does not
generally hinge on officers imparting knowledge of consent requirements, such
admonitions are factors that weigh in favor of finding valid consent occurred.
Cf.
Bustamonte, 412 U.S. at 234.
The Court of Criminal Appeals has considered implied-consent provisions in
many cases. Looking at the provisions historically, the Court noted that this statutory
framework arose initially as a reaction to Rochin v. California, 342 U.S. 165 (1952).
Legislatures determined that, rather than resort to physical compulsion to compel a law
enforcement demand for a blood test, the various implied-consent statutes authorized
police to overcome refusal by the threat of an advance consequence, that is, license
suspension. The legislation sought to create a means of non-physical coercion in order
to obtain chemical samples with which to convict drunk drivers. See generally Forte v.
State, 759 S.W.2d 128 (Tex. Crim. App. 1988), overruled on other grounds,
McCambridge v. State, 778 S.W.2d 70 (Tex. Crim. App. 1989).
Borrowing liberally from another Court of Criminal Appeals’ decision, Subsection
(b) of § 724.012 can be traced back to Senate Bill 1 of the 68th Legislature. Act of
January 1, 1984, 68th Leg., R.S., ch. 303, 1983 Tex. Gen. Laws 1568, 1584 (amended
State’s Trial Brief – Missouri v. McNeely
Page 16
1993, 1995, 1997, 2003). The object sought to be attained by this bill was to "save lives
and decrease the number of casualties caused by drunken drivers." House Comm. On
Criminal Jurisprudence, Bill Analysis, Tex. S.B. 1, 68th Leg., R.S. (1983), quoted in
State v. Neesley, 239 S.W.3d 780, 785 (Tex. Crim. App. 2007).
Discussions
surrounding subsequent amendments focused on the fact that "Texas [had] the nation's
worst problem with drunk driving in terms of total deaths and injuries, with 50% of traffic
fatalities involving alcohol." House Comm. On Law Enforcement, Bill Analysis, Tex.
H.B. 292, 78th Leg., R.S. (2003). To this day, it goes without saying that Texas citizens
face a uniquely disproportionate risk of being killed or injured by drunk drivers,
compared to any other State.9
Even the language in each of the McNeely opinions, including the majority,
assumes the gravity of the dangers faced by the traveling public due to intoxicated
drivers. For example, the majority asserts as follows:
“No one can seriously dispute the magnitude of the drunken driving
problem or the States' interest in eradicating it.” Michigan Dept. of
State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412
(1990). Certainly we do not. While some progress has been made, drunk
driving continues to exact a terrible toll on our society. See NHTSA, Traffic
Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012) (reporting that 9,878
people were killed in alcohol-impaired driving crashes in 2011, an average
of one fatality every 53 minutes).
McNeely, 133 S.Ct. at 1565 (emphasis added). Nothing in any of the various McNeely
opinions signals that any member of the Supreme Court would look unfavorably on
implied consent provisions. Implied-consent provisions provide a deliberate, reasonable
9
See generally http://www.txdot.gov/government/enforcement/crash-reports.html for
DWI-related statistics regarding fatalities, crashes, inter alia, on Texas roadways.
State’s Trial Brief – Missouri v. McNeely
Page 17
framework with significant restrictions; this prevents law enforcement from compelling
blood draws in the vast majority of routine cases but, based upon probable cause, also
prevents defendants with aggravating DWI-related facts from reaping a windfall due to
the undeniable evanescent quality of blood alcohol. McNeely, 133 S.Ct. at 1566 n.9.
By providing a limited number of instances mandating compelled blood draws, the
implied-consent framework provides “[a] single, familiar standard is essential to guide
police officers, who have only limited time and expertise to reflect on and balance the
social and individual interests involved in the specific circumstances they confront.”
Dunaway v. New York, 442 U.S. 200, 213–14 (1979) (applying the Fourth Amendment
to facts unrelated to the instant scenario).
McNeely did not alter application of the Texas implied-consent provisions. See,
e.g., Flonnory, 2013 WL 3327526, at *6 (holding that McNeely did not implicate the
legality of Delaware’s implied-consent provisions when it rejected a per se application of
the exigency rule).
Therefore, McNeely does not alter the validity of the instant
compelled draw. The office followed the mandatory provisions of Chapter 724 of the
Transportation Code and, therefore, the valid mandatory draw should be upheld. 10
B.
10
Factoring in the automobile exception
The State additionally asserts that since the instant officer followed a mandatory
statutory provision which has not been held to be a violation of any provision of the state or
federal Constitution or state or federal laws, the Texas exclusionary rule does not apply here.
See Tex. Crim. Code Proc. 38.23; see also Tex. Penal Code §1.07(a)(30) (defining “law” as
meaning the state and federal constitution and statutes, in addition to the written opinions of a
court of record). Cf. Illinois v. Krull, 480 U.S. 340, 349–50 (1987) (federal exclusionary rule
inapplicable when police reasonably rely on a statute later deemed unconstitutional).
State’s Trial Brief – Missouri v. McNeely
Page 18
The automobile exception also impacts the analysis under the umbrella of the
implied-consent principles. First set out in Carroll v. United States, 267 U.S. 132 (1925)
and later repeated in numerous cases including California v. Carney, 471 U.S. 386
(1985), the automobile exception recognizes a limitation on the constitutional
protections afforded vehicles based upon their ready mobility, as opposed to structures.
Carney, 471 U.S. at 390.
The Court in Carney recognized that the reduced
expectations of privacy that justify the automobile exception also derive from "the
pervasive regulation of vehicles capable of traveling on the public highways." 471 U.S.
at 392.
When the automobile exception had originally been recognized in Carroll, the
Supreme Court looked to statutes contemporary with the adoption of the Fourth
Amendment which allowed law enforcement officials, without a warrant, "to stop,
search, and examine any vehicle, beast, or person on which or whom they should
suspect [of a violation]." 267 U.S. 151 (quoting Act of March 3, 1815, 3 Stat. 231, 232)
(emphasis added).
Arguably, the driver of an automobile in transit is just as mobile as his vehicle,
just as subject to pervasive licensure and regulation and, historically, was subject to
search without warrant under the same terms as a vehicle or vessel. Accordingly, the
Courts should recognize a driver exception to the warrant requirement coextensive with
the vehicle exception.
State’s Trial Brief – Missouri v. McNeely
Page 19
However, even short of a full-fledged and free-standing exception of this nature,
the Courts should allow the States to craft such an exception based both on these
considerations, on the substantial public interest in ridding the road of drunk drivers, and
on implied consent statutes like the Texas version, which condition the privilege of
driving on the acceptance of a warrantless search under very limited circumstances.
As in Carney, the driving public is on notice of the lessened degree of privacy
protection in matters that concern the safety of the roads on which they drive. They
know that their cars can be stopped and searched on probable cause alone; likewise,
under common mandatory blood draw statutes, they should know that their blood can
be drawn without a warrant, on probable cause of DWI alone, under specified
conditions. In both situations, the normal expectation of a warrant yields to common
concerns inherent in a highly-regulated activity in which the driver freely chooses to
engage. Therefore, any implied-consent analysis should include consideration of the
diminished expectation of privacy inherent in automobile-related search issue.
C.
Application of the “special needs” exception
Texas mandatory draw statutes should also be upheld pursuant to the special
needs exception to the warrant preference. In Skinner v. Railway Labor Executives’
Ass’n, 489 U.S. 602, 619 (1989), the Supreme Court articulated a “special needs”
exception to the warrant preference. In Skinner, the Court found certain “well-defined
circumstances” authorized warrantless, suspicionless blood draws; the protocol relied
State’s Trial Brief – Missouri v. McNeely
Page 20
upon in Skinner arose out of a concern about serious public-transportation-safety issues
involving railways.
When
contrasting
Skinner’s
non-penal
framework
that
allowed
broad
authorization for blood draws to test for intoxicants, the protections embodied in the
Texas implied-consent scheme are significant. First and foremost, the seizures require
an arrest based upon probable cause. In other words, contrary to Skinner’s suspicionfree scheme that casts a broad testing-related net, implied consent hones its focus on
one person for whom officers believe has committed an intoxication-related crime while
driving -- supported by probable cause. Implied-consent involves further guarantees
such as notice of certain rights when being tested, while also involving an undeniable
element of exigency.
The terms of the carefully crafted implied-consent provisions enacted across the
country provide a valid and objectively reasonable basis for nonconsensual blood
draws premised upon a finding of probable cause. In certain situations akin to that of
Skinner above, highly-regulated and tightly-controlled activities subject criminal
defendants to a higher degree of government scrutiny. See United States v. Miller, 646
F.3d 1128, 1130 (8th Cir. 2011) (highly-regulated activities put a defendant on notice
that the conduct in which he is engaging is subjected to a heightened level of
governmental scrutiny). Just as railroad transportation involves a public safety aspect
which requires regulation, driving on public roadways is likewise a highly-regulated and
tightly-controlled activity. Drivers must be licensed to travel public roadways and, for
State’s Trial Brief – Missouri v. McNeely
Page 21
the privilege of utilizing public thoroughfares, motor-vehicle operators fall under the
legislatively-devised implied-consent law discussed above.
Governmental and quasi-governmental bodies often condition the granting of a
privilege upon the waiver of certain constitutional rights. The decision to participate in
an activity is a prime example of this same give-and-take privilege.
See Board of
Education v. Earls, 536 U.S. at 828 (no Fourth Amendment violation where school
board policy conditioned participation in extracurricular activities on random drug
testing).
Even in the criminal context, suspicion searches promoting a legitimate
government interest pass Fourth Amendment muster based upon an offender’s parolee
status which invokes statutorily-required conditions agreeing to such searches.
Samson v. California, 547 U.S. 843 (2006); see also United States v. Knights, 534 U.S.
112 (2001) (upholding warrantless search of probationer’s apartment where authorized
by probation condition).
Driving conditioned upon implied consent under certain
specified conditions, including probable cause, arrest, and notice, should likewise be
upheld.
Furthermore, implied-consent statutes are objectively reasonable in light of the
“special needs” analytical construct. They arose from the highly deliberative legislative
process, while also bearing the stamp of approval from federal regulatory agencies as
well. While warrants are signed by neutral and detached magistrates, the statutory
framework of implied-consent laws has been devised in a process coordinating
legislators and administrative personnel, promulgating a neutral and detached
framework to apply after a suspect becomes the focus of a criminal investigation. They
State’s Trial Brief – Missouri v. McNeely
Page 22
are a keenly objective application of investigation procedures, analogous to police
agencies developing objective plans to conduct inventory searches in certain specified
instances.
An essential purpose of a warrant requirement is to protect privacy interests by
assuring citizens subject to a search or seizure that such intrusions are not the random
or arbitrary acts of government agents. In the same way that warrants assure that
intrusions are authorized by law and narrowly limited, so does the implied-consent
framework.
See, e.g., New York v. Burger, 482 U.S. at 703.
The circumstances
justifying toxicological testing and the permissible limits of such intrusions are defined
narrowly under Transportation Code Chapter 724.
Implied-consent guarantees that
compelled blood draws are not random, arbitrary acts by law enforcement officers.
Considering the “special needs” exception in light of implied-consent provisions
and the high number of fatalities Texas motorists experience due to drunk-drivers,
Texas has a greater need to ramp up its implied-consent provisions to the degree the
consent
is
deemed
irrevocable
in
certain,
enumerated
prerequisites such as probable cause and arrest exist.
instances,
assuming
The State’s interest of
preventing those who operate vehicles on its roads from putting themselves and others
at risk is great, and the enumerated instances allowing compelled blood draws focus on
injury, death, recidivism, and child endangerment. The sad status of Texas as the state
that leads the country in alcohol-related arrests and deaths compels the need for
State’s Trial Brief – Missouri v. McNeely
Page 23
stringent restrictions attached to the exercise of the privilege of driving a motor vehicle.
Implied-consent provides a neutral vehicle for protecting both citizens and defendants.11
D.
Consent conditioned by a
waiver to gain a benefit
The reasonableness of allowing limited mandatory blood draws pursuant to
implied-consent provisions also rests upon another recognized Fourth Amendment
doctrine. The Supreme Court has long recognized the validity of a prior waiver of the
Fourth Amendment rights to probable cause and a warrant as a condition for some
benefit extended by the State. Zap v. United States, 328 U.S. 624, 627-28 (1946),
vacated on other grounds, 330 U.S. 800 (1947) (the benefit of doing business as a Navy
contractor). The waiver applies, moreover, in spite of the suspect's protest at the time
of the search in question. See id.
In the context of parole and probation, the Supreme Court has likewise held that
"acceptance of a clear and unambiguous search condition 'significantly diminished [the
suspect's] reasonable expectation of privacy,' … [such] that petitioner did not have an
expectation of privacy that society would recognize as legitimate."
Samson v.
California, 547 U.S. 843, 852, 126 (2006) (quoting United States v. Knights, 534 U.S.
112, 120 (2001)). Like a parolee or probationer who accepts certain conditions and
waivers of rights, an impaired driver who is already legitimately under arrest on probable
cause of DWI, must accept the waiver of a warrant that he has impliedly given by driving
on the road in an impaired condition.
11
Recently, the Third Circuit Court of Appeals held that McNeely had no bearing on
application of the “special needs” doctrine. Gwynn v. City of Philadelphia, 719 F.3d 295, 302
n.2 (3d Cir. June 19, 2013).
State’s Trial Brief – Missouri v. McNeely
Page 24
Implied consent statutes do not apply to all motorists, but only to objectivelyimpaired drivers whose impairment causes death, certain injuries, child endangerment,
or involves repeated violation of DWI prohibitions.
Accordingly, there are two
components over which the driver has control: (1) the choice to drive a vehicle on Texas
roads; (2) the choice to drive in an objectively-impaired condition that creates the
statutorily-enumerated risks to other motorists. Driving is prime example of a privilege
conditioned on a waiver of certain rights. See Board of Education v. Earls, 536 U.S. at
828. Again, reasonableness is shown.
E.
Overall, implied-consent draws are reasonable
As Chief Justice Roberts recognized in his separate McNeely opinion, the
express wording of the Fourth Amendment conveys a warrant preference, not a warrant
requirement. Again, reasonableness has always been the linchpin for this constitutional
provision, as stated in its plain language. See Board of Education v. Earls, 536 U.S. at
828; Hulit v. State, 982 S.W.2d 431, 435-36, 438 (Tex. Crim. App. 1998). The State
contends that, when officers follow accepted medical practices in a sanitary setting, the
seizure is reasonable. By applying a statutory framework devised by a deliberative
body, the provision appears even more neutral and detached from the specific case
subsequently investigated.
Balancing the circumstances involving the State's great
need, undeniable safety concerns, and the conceded existence of an exigency involving
the ongoing destruction of blood-alcohol evidence, imposing a framework whereby
consent is implied based upon the privilege invoked by driving on the roadways is
objectively reasonable under the Fourth Amendment.
State’s Trial Brief – Missouri v. McNeely
Page 25
IV.
Warrantless seizure valid under
search-incident-to-arrest exception
Yet another reason exists to approve of the instant seizure. The blood draw was
also valid pursuant to the search-incident-to-arrest exception to the warrant preference,
especially in light of the recognized exigency regarding the dissipation of alcohol from
the blood. McNeely, 133 S.Ct. at 1568 (“in every case the law must be concerned that
evidence is being destroyed”).
In Cupp v. Murphy, the Supreme Court upheld the
warrantless search of the defendant's body – obtaining samples from underneath his
fingernails – as a search incident to arrest. The officers possessed probable cause to
believe the defendant had strangled the victim, and the circumstances also involved a
potential exigency. See Cupp v. Murphy, 412 U.S. 291, 294-95 (1973) (analogizing the
highly evanescent characteristic of the fingernail scrapings to the exigent nature of
blood alcohol described in Schmerber).12
In the search-incident-to-lawful-arrest scenario, a law enforcement officer may
conduct a full but reasonable search of a person, unlike the scenario often seen where
the search focuses on a vehicle. See, e.g., Arizona v. Gant, 556 U.S. 332, 338 (2009).
There is no limit on the scope of such a search, other than the Fourth Amendment’s
core reasonableness requirement.13 See United States v. Edwards, 415 U.S. 800, 803
n.9 (1973). Here, the nexus between the crime being investigated and the search being
12
See Schmerber, 384 U.S. 757.
The McNeely majority acknowledged that, unlike the exigent circumstances
exception, the traditional warrant exception known as search-incident-to-arrest applies
categorically, not requiring a case-by-case analysis. McNeely at 1558 n.3.
13
State’s Trial Brief – Missouri v. McNeely
Page 26
sought is beyond dispute.
Additionally, the instant search-incident-to-arrest responds
to the concern responds to the need to preserve evidence.
V.
The nature of the privacy interest in blood
Blood tests are a reasonable, highly effective means for determining the degree
to which a person is under the influence of alcohol.
Schmerber, 384 U.S. at 770.
Moreover, blood tests have been described as commonplace, routine, and safe by the
Supreme Court. See South Dakota v. Neville, 459 U.S. 553, 563 (1983); Breithaupt v.
Abram, 352 U.S. 432, 436 (1957).
As a practical matter, it may be helpful to step away from the legalese and
examine, in common-sense terms, the nature of the invasion about which the
Defendant, or any like-situated impaired driver, complains in these mandatory blood
draw cases. The suspect has already been arrested and cannot complain that the
blood draw is interfering with his freedom; he will sit waiting either at the hospital or at
the jail. He cannot complain of being subjected to forced surgery or medication, or
some risky or painful medical procedure. He will receive the same pin prick that all
patients come to expect as a routine matter of occasional testing. The analysis of the
drawn blood will not put his entire medical condition before the public eye, but will be
limited to testing for intoxicants to confirm or deny that he was driving while intoxicated.
In short, the privacy interest being invaded is slight.
Again,
based
upon
a
valid
exception to the Fourth Amendment’s warrant preference, another reason supports the
validity of the search in question under the Fourth Amendment.
VI.
Cumulative, non-dualistic approach to exceptions and reasonableness
State’s Trial Brief – Missouri v. McNeely
Page 27
In light of the various Fourth Amendment exceptions that provide support for the
continued viability of Texas’ implied-consent framework, the State reiterates that
reasonableness is the touchstone of the Fourth Amendment. The compelled blood
draw in this case was reasonable and constitutional. The myriad exigencies that arose
here -- including the Defendant’s dilatory evasive and belligerent conduct – warrant
rejecting the Defendant’s suppression claim; McNeely anticipated such exigencies
justifying compelled blood draws.
McNeely, 133 S.Ct. at 1568.
Furthermore, the
warrantless draw qualifies not only as a consent search premised upon the driving-is-aprivilege-based implied-consent doctrine, but also as conduct approved under the
search-incident-to-arrest exception, the automobile exception, and the “special needs”
exception.
Combining these search-warrant exceptions with the exigencies shown
further reveals the reasonableness of the instant mandatory blood draw.
Indeed,
Welsh’s gravity-of-the-crime exigency factor appears to be legislatively recognized by
virtue of the Transportation Code’s statutory limitation of compelled blood draws to only
the most severe offenses.
Overall, the inherent reasonableness arising from consideration of the applicable
warrantless-seizure-exception principles and the Welsh exigency factor is further
buoyed by the constant additional evidence-destruction exigency, acknowledged as
ever-present by the McNeely majority: “in every case the law must be concerned that
evidence is being destroyed.”
McNeely, 133 S.Ct. at 1568.
Not only does each
separate warrant exception discussed herein support the validity of the instant blood
State’s Trial Brief – Missouri v. McNeely
Page 28
draw, but denial of the Defendant’s motion to suppress is warranted due to the
confluence of these Fourth amendment principles which strongly support Fourth
Amendment reasonableness when considered in concert.
CONCLUSION AND PRAYER
The Defendant’s motion to suppress lacks merit and should be denied.
State’s Trial Brief – Missouri v. McNeely
Page 29
Respectfully submitted,
XXXXXXXXXXXX
Criminal District Attorney
Tarrant County, Texas
__________________________
XXXXXXXXXXXX, Assistant
[ ADDRESS, PH#, BAR#]
State’s Trial Brief – Missouri v. McNeely
Page 30
CERTIFICATE OF SERVICE
A true copy of the State's amended trial brief has been hand-delivered to
opposing counsel, Hon. XXXXXXXXXXXXXX, on this ____ day of ________, 2013.
__________________________________
XXXXXXXXXXXXXX
U:\BLOOD SEARCH WARRANTS\McNeely\081613 mcneely template brief.doc