State v. O'Brien

The State of Texas, Appellant v. Elle Obering O'Brien, Appellee

NO. 03-13-00503-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

April 7, 2016

FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY

NO. C-1-CR-11-217744

HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING

MEMORANDUM OPINION

Following her arrest for the misdemeanor offense of driving while intoxicated,¹ appellee Elle Obering O'Brien'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, O'Brien filed a motion to suppress evidence relating to the results of the blood draw, which the trial court granted following a hearing. In three points of error on appeal, the State asserts that the trial court abused its discretion in granting the motion to suppress. We will affirm the trial court's order.

BACKGROUND

At the hearing on the motion to suppress, the trial court heard evidence that on October 23, 2011, at approximately 1:48 a.m., Austin Police Department (APD) Officer Matthew Paredes and his partner Gabriel Vasquez had responded to a call of a disturbance at a fast-food restaurant in South Austin. Officer Paredes testified that when he and Vasquez arrived at the restaurant, they encountered three women, later identified as O'Brien; O'Brien's friend, Wynonah Bearden; and Lidia Aviles-Martinez, a restaurant employee. According to Paredes, Aviles-Martinez was attempting to assist Bearden, who was crying hysterically and claiming that her face had been sprayed with mace or pepper spray. After calling EMS and attempting to calm Bearden, Paredes spoke with O'Brien in order to ascertain what had happened. Paredes testified that O'Brien told him that she and Bearden had been at a club downtown when "some group sprayed them with pepper spray," prompting them to leave the club. According to Paredes, during his conversation with O'Brien, she provided conflicting accounts of how she and Bearden had arrived at the restaurant, including that they had driven there themselves, that O'Brien's boyfriend had driven them to the restaurant and dropped them off there, and that they had walked to the restaurant from a parking lot down the street. Paredes added that O'Brien kept attempting to "walk away" from him as he spoke with her.

Meanwhile, Paredes recounted, he and Vasquez had received a call from dispatch that there had been a hit-and-run accident downtown involving a pedicab and a black BMW. Paredes testified that Aviles-Martinez, the restaurant employee, had told Vasquez that O'Brien and Bearden had arrived at the restaurant in a black BMW and that O'Brien had been driving the vehicle. Aviles-Martinez then directed the officers to the vehicle, which was located in a parking spaceat the restaurant. Paredes testified that when he and Vasquez examined the BMW, it matched the description of the vehicle that had been identified in the accident, including the license-plate number. Paredes then called the pedicab driver and received more information concerning the collision, including that it had involved an injury to the pedicab passenger, who had been transported to a hospital for treatment. From that point forward, Paredes recounted, he treated O'Brien as a DWI suspect.

Paredes testified that during his interview with O'Brien, she admitted to having "a few shots of whiskey" that night. Paredes also testified that he noticed an odor of alcohol on O'Brien's breath. Paredes then proceeded to administer to O'Brien the standardized field sobriety tests and, based on her performance on those tests, came to the conclusion that O'Brien was intoxicated. At approximately 2:34 a.m.,³ Paredes arrested O'Brien for driving while intoxicated and subsequently requested a sample of her breath or blood. According to Paredes, O'Brien refused.

Following the arrest, Paredes did not immediately transport O'Brien to the Travis County Jail. Instead, Paredes testified, he and Vasquez waited for Bearden's boyfriend to arrive at the restaurant to drive her home. As they waited, Paredes called the pedicab passenger at the hospital and asked her to provide details concerning the collision and the extent of her injuries. Also as they waited, the officers proceeded to inventory the BMW, which, Paredes explained, "took longer than usual because there was pepper spray all along the passenger side of the vehicle." After the inventory of the vehicle was complete, Paredes recounted, Bearden's boyfriend stillhad not arrived at the restaurant. Beginning to suspect that the boyfriend would not arrive, but not wanting to leave Bearden alone at the restaurant because she too appeared to be intoxicated, Paredes proceeded to arrest Bearden for public intoxication and placed her in the back of his patrol car along with O'Brien. The officers then left the restaurant at approximately 3:08 a.m.

Paredes also testified that, in addition to him and Vasquez, a third officer, Brandon Bullock, was present at the restaurant during most of the investigation. According to Paredes, Officer Bullock, who had arrived at the restaurant in his own patrol car, was capable of making arrests, inventorying a vehicle, and calling EMS to investigate the collision. Paredes could not remember whether Bullock was still at the restaurant when he and Vasquez departed for the jail, but he believed that Bullock might have "left either while I was still there or we left at the same time."

Paredes and Vasquez arrived at the Travis County Jail at approximately 3:15 a.m.⁴ According to Paredes, once they arrived, the jail "was busy because it was a Saturday night," and they had to "wait outside for a little bit" before Paredes could get inside the jail and complete the paperwork for obtaining a mandatory blood draw. When O'Brien's blood was finally drawn, Paredes recounted, it was approximately 4:44 a.m. Paredes testified that he did not seek a warrant in this case because the Transportation Code allowed him to proceed without one. However, Paredes also testified that he had on other occasions obtained search warrants for a person's blood. When asked how long it takes him to obtain a blood-draw warrant in a "typical DWI" case, Paredes testified that it usually takes him between 60 and 90 minutes. Paredes agreed with the prosecutor that it takes him"quite a bit longer" than that when there is a collision to investigate, although he did not elaborate on how much longer. According to Paredes, the process for obtaining a warrant involved contacting a detective or supervisor to "write up the warrant" and then waiting at the jail while the detective or supervisor "goes to the judge and gets it signed." On cross-examination, Paredes acknowledged that whether he seeks a blood draw with or without a search warrant, he is required to complete a similar amount of paperwork.

Judge Ronald Meyerson, a magistrate and associate judge with the City of Austin, testified that there is a magistrate available at the jail 24 hours per day and that one of the magistrate's duties is to sign search warrants. According to Judge Meyerson, it usually takes him three to five minutes to review the warrant prior to signing it.

After taking the matter under advisement, the trial court granted the motion to suppress and made findings of fact and conclusions of law, including the following:

Officer Paredes had probable cause to arrest Elle O'Brien for the offense of Driving While Intoxicated.

There were no exigent circumstances that prevented Officer Paredes from obtaining a search warrant prior to the blood draw.

The blood draw from Elle O'Brien pursuant to Section 724.012 of the Texas Transportation Code does not comply with the 4th Amendment of the U.S. Constitution and is thereby inadmissible. Missouri v. McNeely, 133 S. Ct. 1552 (2013).

This appeal by the State followed.

STANDARD OF REVIEW

We review a trial court's ruling on a motion to suppress for abuse of discretion.⁵ We are to view the record "in the light most favorable to the trial court's determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or 'outside the zone of reasonable disagreement.'"⁶ "We will sustain the lower court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case."⁷ "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, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations."⁸ In this case, we review de novo the trial court's application of the law of search and seizure to the facts.⁹

ANALYSIS

Exigent circumstances

We first address the State's third point of error, in which it asserts that the trial court erred in concluding that "[t]here were no exigent circumstances that prevented Officer Paredes from obtaining a search warrant prior to the blood draw." The State contends that, contrary to the trial court's finding, there were exigent circumstances in this case, including what the State characterizes as "unusual" circumstances surrounding the DWI investigation at the restaurant, the related investigation of the collision downtown, and the delay once the officers arrived at the jail.

The drawing of a person's blood is considered a search under the Fourth Amendment.¹⁰ Accordingly, a blood draw generally requires a search warrant, unless a "recognized exception" to the warrant requirement applies.¹¹ "'One well-recognized exception,' and the one at issue in this case, 'applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.'"¹² One such exigent circumstance is preventing the destruction of evidence or contraband.¹³ In DWI cases, the evidence...