State v. Ayala

The State of Texas, Appellant v. Gerardo Jerry Ayala, Appellee

NO. 03-14-00651-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

March 2, 2016

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. D-1-DC-13-200850, HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING

MEMORANDUM OPINION

Following his arrest for the felony offense of driving while intoxicated,¹ appellee Gerardo Jerry Ayala's blood was drawn without a warrant pursuant to section 724.012(b) of the Texas Transportation Code, commonly known as the mandatory-blood-draw statute.² Prior to trial, Ayala filed a motion to suppress evidence relating to the results of the blood draw, which the district court granted following a hearing. In four points of error on appeal, the State asserts that the district court abused its discretion in granting the motion to suppress. Guided by recent precedents from the United States Supreme Court and the Texas Court of Criminal Appeals, as well as this Court's own precedents applying those binding authorities, we will affirm the district court's order.

BACKGROUND

At the hearing on the motion to suppress, the district court heard evidence that on February 9, 2013, at approximately 5:30 p.m., Sergeant Adam Masters of the Austin Police Department (APD) was dispatched to the scene of an automobile collision in South Austin. Masters testified that when he arrived, he was informed by the Austin Fire Department that there were no injuries to report and that no one required medical attention or transport to a hospital. Masters then made contact with Ayala, one of the drivers involved in the collision, concluded that Ayala was possibly intoxicated, and called for a DWI unit to assist with the investigation. APD Corporal Brandon Kunkel and Officer Brian Brejcha responded to the call. Officer Brejcha testified that he administered one of the standardized field sobriety tests to Ayala but that Ayala refused to perform the others. Subsequently, Brejcha recounted, he arrested Ayala for driving while intoxicated and asked for a specimen of Ayala's blood. According to Brejcha, Ayala refused. After learning that Ayala had two prior convictions for driving while intoxicated—which, pursuant to section 724.012(b) of the Texas Transportation Code, is a circumstance that required Brejcha to initiate procedures for obtaining a mandatory blood draw—Brejcha proceeded to transport Ayala to the Travis County Jail, where, Brejcha testified, a phlebotomist withdrew a sample of Ayala's blood. According to Corporal Kunkel, who had supervised the DWI investigation, the only reason the officers took Ayala's blood without obtaining a warrant was because the Transportation Code allowed them to do so. Kunkel testified that Ayala's blood was drawn approximately two hours after they had begun their investigation and that, if they had waited to obtain a warrant, approximately 30 minutes would have been added to that time.

At the conclusion of the hearing, the district court granted the motion to suppress and entered a written order to that effect. The court based its ruling on the following conclusions of law:

• Officer Brejcha had probable cause to arrest the defendant.

• Officer Brejcha acted in good faith when he relied on Tex. Transp. Code §§ 724.011 and 724.012(b) to draw blood.

• The officer did not obtain a search warrant.

• The Defendant did not consent to a taking of a specimen of his breath or blood.

• There were no exigent circumstances in this case.

• Because there was no warrant and no exigent circumstances, the blood draw in the defendant's case violated the Fourth Amendment to the U.S. Constitution. See Missouri v. McNeely, 133 S. Ct. 1552 (2013).³

This appeal by the State followed.

STANDARD OF REVIEW

In reviewing a trial court's ruling on a motion to suppress, "an appellate court must apply a standard of abuse of discretion and overturn the trial court's ruling only if it is outside the zone of reasonable disagreement."⁴ We will uphold the court's ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case.⁵ "The appellate court must apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, butapplying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations."⁶ In this case, we review de novo the trial court's application of the law of search and seizure to the facts.⁷

ANALYSIS

In its first and second points of error, the State asserts that the blood-draw evidence was admissible because either (1) the statute that authorized the warrantless blood draw, section 724.012(b) of the Transportation Code,⁸ was "constitutionally reasonable under the Fourth Amendment" or, alternatively, (2) Ayala was "deemed to have consented to the taking of a specimen" pursuant to section 724.011(a) of the Transportation Code.⁹ In its third and fourth points of error, the State asserts that, even if the blood-draw evidence was obtained in violation of the Fourth Amendment, the Texas and federal exclusionary rules do not require the evidence to be suppressed.Whether the evidence was obtained in violation of the Fourth Amendment

"In general, to comply with the Fourth Amendment, a search of a person pursuant to a criminal investigation (1) requires a search warrant or a recognized exception to the warrant requirement, and (2) must be reasonable under the totality of the circumstances."¹⁰ "A defendant who alleges a Fourth Amendment violation has the burden of producing evidence that rebuts the presumption of proper police conduct. He may carry this burden by establishing that the seizure occurred without a warrant."¹¹ "The burden then shifts to the State to prove the reasonableness of the seizure."¹² Here, it was undisputed at the suppression hearing that Ayala's blood was drawn without a warrant. Thus, the burden was on the State to prove that the warrantless seizure of Ayala's blood was reasonable under the circumstances or done with his consent.¹³ In its first point of error, the State urges that the warrantless blood draw in this case was reasonable by virtue of the fact that it was conducted in accordance with section 724.012(b) of the Transportation Code. In its second point of error, the State argues in the alternative that Ayala "impliedly consented" to the blood draw.

However, as the State concedes in its brief, the arguments raised in its first and second points of error are "directly contradicted" by State v. Villarreal, a recent decision by the Court of Criminal Appeals regarding the constitutionality of warrantless, mandatory blood draws.¹⁴In Villarreal, the Court of Criminal Appeals held that "a nonconsensual search of a DWI suspect's blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment."¹⁵ The court explained that the Transportation Code provisions on which the State relied to excuse compliance with the warrant requirement "do not, taken by themselves, form a constitutionally valid alternative to the Fourth Amendment warrant requirement," and the court "reject[ed] the State's assertion that a warrantless, nonconsensual blood draw conducted pursuant to those provisions can fall under one of the established exceptions to the warrant requirement."¹⁶

The Villarreal court "further reject[ed] the State's suggestion"—similar to the argument raised by the State in its first point of error here—"that such a search may be upheld under a general Fourth Amendment balancing test."¹⁷ Although the court "agree[d] with the State's contention that the government has a substantial interest in preventing drunk driving," it "disagree[d] that a balancing test is appropriate given the context" of "an active criminal investigation, [] when the primary goal of law-enforcement activity is the gathering of evidence."¹⁸ In that context, the court observed, the United States Supreme Court has repeatedly held that "a warrantless search ofa person is unreasonable unless it falls within an established exception to the warrant requirement."¹⁹ The court "decline[d] to disregard this well-established principle in favor of a more generalized balancing-of-interests test."²⁰

Regarding the State's alternative argument, raised in its second point of error, that a suspect's "implied consent" to a mandatory blood draw obviates the need to obtain a warrant, the Villarreal court also rejected this contention. The court explained that "to constitute a valid waiver of Fourth Amendment rights through consent, a suspect's consent to search must be freely and voluntarily given," and the suspect must possess "the ability to limit or revoke it."²¹ According to the court, "[i]t would be wholly inconsistent with these principles to uphold the warrantless search of a suspect's blood on the basis of consent when a suspect has, as in the present case, expressly and unequivocally refused to submit to the search."²² "That explicit refusal to submit to blood testing," the court concluded, "overrides the existence of any implied consent, and, unless some other justification for the search applies, there remains no valid basis for conducting a warrantless search under those circumstances."²³

Again, the State concedes on appeal that Villarreal applies here and that the high court's decision in that case "directly contradicts" the arguments raised in the State's first andsecond points of error. We agree that it does. Accordingly, we overrule the State's first and second points of error.

Applicability of exclusionary rules

We next address the State's third and fourth points of error, in which it asserts that the blood-draw evidence in this case, even if obtained in violation...