Roop v. State

484 S.W.3d 594

Gina Roop, Appellant

v.The State of Texas, Appellee

NO. 03–13–00141–CR

Court of Appeals of Texas, Austin.

Filed: February 17, 2016

Ray Bass, Georgetown, TX, for appellant.

Elizabeth S. Phillips, Assistant District Attorney Angie Creasy, Assistant District Attorney, Austin, TX, for appellee.

Before Justices Puryear, Goodwin, and Field

OPINION

Scott K. Field, Justice

Following the denial of her motion to suppress evidence, appellant Gina Roop pleaded guilty to a charge of third-degree felony driving while intoxicated (DWI). See Tex. Penal Code § 49.04 (listing elements of DWI); id. § 49.09(b)(2) (providing that DWI is third-degree felony if defendant had two prior convictions for enumerated offenses). The trial court sentenced Roop to seven years' imprisonment probated for four years and imposed restitution and other requirements. In a single point of error, Roop contends that the trial court erred in denying her motion to suppress the results of analysis of Roop's blood specimen obtained without a warrant. We will reverse the trial court's judgment and remand the case for a new trial.

BACKGROUND

The trial court referred this case to a magistrate, who held a hearing on Roop's motion to suppress. At the hearing, Roop called Officer Taber White of the Austin Police Department. Officer White testified to the following facts. Around 4:00 a.m. on the morning of August 7, 2011, he received a report that cars were piling up near an intersection and blocking traffic. When Officer White arrived at the intersection, he saw an ambulance and a couple of cars that appeared to have been in a collision. Officer White determined that Roop had been driving the car that had rear-ended another vehicle. Roop told Officer White that "she was following a little bit too closely and whenever the car hit its brakes she ran into the back of the vehicle." Roop also said "that whenever she had hit the other car she looked up and the light was red." Officer White noticed that Roop "had red, glassy, watery eyes and that she exhibited an odor of alcohol coming from her person." He characterized the odor of alcohol as "[s]trong." Roop told Officer White "that she had a couple of drinks." In addition, Roop "had a little bit of a sway whenever she walked." When Officer White advised Roop that he was going to perform the horizontal gaze nystagmus test, Roop initially refused to participate. However, when Officer White began to administer the test, Roop "followed the pen with her eyes." Officer White observed all six "clues" indicating that Roop was intoxicated. Roop refused to participate in two additional field sobriety tests. In addition, Officer White was informed that someone was transported from the scene of the accident to a hospital for treatment. Officer White then placed Roop under arrest at around 4:25.

After Roop had been placed under arrest, she said that she needed to use the restroom. Officer White stopped to allow Roop to use the restroom, and this took "just a few minutes." Officer White then drove Roop to the Travis County jail, which was "possibly a seven- to eight-minute drive." Once at the jail, Officer White ordered a phlebotomist to draw Roop's blood without her consent. This order was given at 5:09. After Roop's blood was drawn, Officer White learned that Roop had two prior DWI convictions. An analysis of Roop's blood revealed an alcohol concentration of .276.

Officer White testified that he did not attempt to get a warrant to collect Roop's blood. According to Officer White, "The procedure that we've been told is, in the event that someone is injured and transported from a—from the scene of a collision, and there's a DWI arrest, the person that was arrested is eligible for a mandatory blood draw." Officer White agreed that he was relying on "the mandatory blood draw statute" when he ordered Roop's blood to be drawn without a warrant. See Tex. Transp. Code § 724.012(b)(1) ("A peace officer shall require the taking of a specimen of the person's breath or blood" if person is arrested for DWI and refuses to submit voluntarily to taking of specimen if "an individual other than the person has suffered serious bodily injury" or "an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment."). Officer White acknowledged that there is a magistrate "on duty 24 hours a day" at the municipal court building, which was about two-and-a-half miles from the scene of the accident and was a "fairly quick drive" away. However, Officer White also testified that he did not know whether a magistrate was present and available that morning. Officer White further agreed that he could have found out "[f]airly quickly" whether there was a detective on duty who could have assisted him in preparing a warrant application.

Following the hearing, the magistrate issued findings and recommendations. The magistrate discussed case law and noted "the presence of 24 hour magistration, the advances in blood testing science, and, the speed with which search warrant applications can be processed in the present day." The magistrate also stated that "there was a magistrate available" in this case and that "the officer made no effort at all to try to obtain a search warrant, relying instead, pursuant to APD policy, upon the provisions of the Transportation Code." The magistrate concluded the following:

I find that no effort was made to obtain or even consider the possibility of obtaining a search warrant, and so, absent implied consent, the State has failed to show by clear and convincing evidence an exception to the warrant requirement. In regard to the implied consent issue, I recommend the Court find that the State does not have an interest in prosecuting DWIs which would override the constitutional requirement for a search warrant. I recommend the Motion to Suppress be granted.

The district court adopted the magistrate's findings of fact but did not adopt "the conclusion of law that the Texas implied consent law does not provide a basis for dispensing with the requirement for a search warrant under the facts of this case." The court denied Roop's motion to suppress. Roop later pleaded guilty to the offense, and this appeal follows.¹

STANDARD OF REVIEW

We review a trial court's ruling on a motion to suppress for abuse of discretion, using a bifurcated standard. Goodwin v. State, 376 S.W.3d 259, 266 (Tex.App.–Austin 2012, pet. ref'd). In doing so, we view the evidence in the light most favorable to the trial court's ruling. Johnson v. State, 414 S.W.3d 184, 192 (Tex.Crim.App.2013). When the trial court makes express findings of historical fact, as it did here, we afford almost total deference to those findings as long as they are supported by the record, and we also view the findings in the light most favorable to the trial court's ruling. State v. Granville, 423 S.W.3d 399, 404 (Tex.Crim.App.2014). In addition, we give almost total deference to rulings on application of the law to questions of fact and to mixed questions of law and fact, if resolution of those questions depends on an assessment of credibility and demeanor of witnesses. Arguellez v. State, 409 S.W.3d 657, 662 (Tex.Crim.App.2013). We review de novo pure questions of law and mixed questions of law and fact that do not depend on evaluating credibility and demeanor. Martinez v. State, 348 S.W.3d 919, 923 (Tex.Crim.App.2011). We review de novo the legal question of whether exigent circumstances existed that justified a warrantless arrest. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010) ( "[W]e review a trial court's application of the law of search and seizure to the facts de novo. "); Evans v. State, No. 14–13–00642–CR, 2015 WL 545702, at *6 (Tex.App.–Houston [14th Dist.] Feb. 10, 2015, pet. filed) (mem. op., not designated for publication) ("Although all findings of historical fact supported by the record must be implied in favor of the trial court's ruling that the blood draw should not be suppressed, whether those facts meet the legal standard of exigent circumstances is a legal question that we review de novo.").

DISCUSSION

Applicable Law

In her sole point of error, Roop contends that the involuntary extraction of her blood violated the Fourth Amendment.²

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." U.S. Const. amend. IV. "The touchstone of the Fourth Amendment is reasonableness." State v. Villarreal, 475 S.W.3d 784, 795 (Tex.Crim.App.2014) (citing Riley v. California, –––U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) ). The Supreme Court has held that a search is reasonable only if it is conducted pursuant to a warrant or if it falls within a recognized exception to the warrant requirement. See Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 1558, 185 L.Ed.2d 696 (2013) ("Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception."). The drawing of a person's blood is a search under the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 769, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (describing blood draws as "searches involving intrusions beyond the body's surface"); State v. Webre, 347 S.W.3d 381, 385 (Tex.App.–Austin 2011, no pet.). Indeed, as the Supreme Court has recognized, "[s]uch an invasion of bodily integrity implicates an individual's ‘most personal and deep-rooted expectations of privacy.’ " McNeely, 133 S.Ct. at 1558 (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) ).

If a defendant seeks to suppress evidence on the ground that it was collected in violation of the Fourth Amendment, the defendant bears an initial burden to overcome the presumption of proper police conduct. See Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007)...