Date Submitted: December 23, 2013
On Appeal from the 4th District Court Rusk County, Texas Trial Court No. CR 13-062
Before Morriss, C.J., Carter and Moseley, JJ.
OPINION
Josh R. Morriss, III Chief Justice.
When, in early September 2012, Clayton Dean Reeder swerved his vehicle to miss a deer and skidded sideways off a rural Rusk County highway and into a tree, Reeder had already been, twice before, convicted of driving while intoxicated (DWI), a third degree felony.[1] After Reeder refused to give his consent to have his blood drawn and tested for alcohol, law enforcement officials took a blood specimen anyway and tested it under the authority of Section 724.012(b)(3)(B) of the Texas Transportation Code. See Tex. Transp. Code Ann. § 724.012(b)(3)(B) (West 2011). After Reeder’s resulting enhanced DWI conviction, he urges, in a single appellate issue, that the warrantless blood seizure was constitutionally improper. Because (1) there was no error in denying Reeder’s suppression motion and (2) the judgment must be modified to reflect the proper statutory references, we affirm the trial court’s judgment, after a technical modification of that judgment.
While investigating this accident, Texas Department of Public Safety Officer Zach Mills spoke with Reeder and noticed signs of intoxication. Mills followed the ambulance transporting Reeder to a local hospital where he continued to speak with Reeder concerning the accident. During the interview, Mills noticed that Reeder’s speech was slurred, the odor of alcohol was on his breath, and his eyes were glassy and bloodshot. Reeder indicated that he had consumed only “two beers, ” but then stated that he could not recall exactly how much he drank and that he consumed a mixed alcoholic beverage before driving.[2]
Based on this interview, Mills determined that Reeder did not have the normal use of his mental or physical faculties due to the introduction of alcohol into his system.[3] Reeder was informed of the DWI statutory warning contained in the DIC-24 form, [4] but refused to provide a blood specimen. Because Reeder had two previous DWI convictions, a mandatory blood specimen was obtained in accordance with Section 724.012(b)(3)(B) of the Texas Transportation Code. See Tex. Transp. Code Ann. § 724.012(b)(3)(B). On his release from the hospital, Reeder was taken to the Rusk County Jail and charged with the third degree felony offense of DWI.
Reeder filed a motion to suppress any evidence pertaining to the blood specimen, claiming, among other things, that the specimen was unconstitutionally seized without a warrant. The trial court denied Reeder’s motion to suppress evidence. Reeder was thereafter found guilty by the court after entering his plea of guilt and was sentenced to six years’ confinement.
We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). A trial court’s determination of historical facts is given almost total deference, while the trial court’s application of the law to those facts is reviewed de novo. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). When the trial court does not issue findings of fact and none are requested, as in this case, we imply findings that support the trial court’s ruling if the evidence, viewed in the light most favorable to the ruling, supports those findings. Turrubiate, 399 S.W.3d at 150. We view the evidence in the light most favorable to the trial court’s ruling and afford the prevailing party “the ‘strongest legitimate view of the evidence’” and all reasonable inferences that may be drawn from the evidence. State v. Duron, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013) (quoting State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011)). We will uphold the trial court’s ruling if it is reasonably “supported by the record and is correct on any theory of law applicable to the case.” Turrubiate, 399 S.W.3d at 150.
(1) There Was No Error in Denying Reeder’s Suppression Motion
Reeder relies on Missouri v. McNeely, 133 S.Ct. 1552 (2013), for the proposition that a warrant for the extraction of his blood was required in this case. In McNeely, the United States Supreme Court addressed the issue of whether the Fourth Amendment requires police to get a warrant before taking a blood sample from a nonconsenting driver suspected of being under the influence of alcohol. Id. at 1556. The Court concluded that the natural dissipation of alcohol in the bloodstream does not always present a per se exigency that justifies an exception to the warrant requirement for nonconsensual blood testing in DWI cases. Id. Instead, the Court recognized that, sometimes, exigent circumstances, based in part on the rapid dissipation of alcohol in the body, may allow law enforcement to obtain a blood sample without a warrant. Courts must determine on a case-by-case basis whether exigent circumstances exist, considering the totality of the circumstances. Id.
Reeder contends that, effectively, the statute unconstitutionally requires blood testing “in all felony cases.”[5] He claims that, in this case, the State failed to demonstrate the existence of exigent circumstances which would forgive the lack of a warrant. He therefore claims the blood specimen was taken in violation of his Fourth amendment rights and should be suppressed.
The withdrawal of a blood specimen is a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767 (1966). The Fourth Amendment to the United States Constitution protects the right to be free from unreasonable searches. U.S. Const. amend. IV. A warrantless search or seizure is per se unreasonable, unless it falls under a recognized exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).
Here, the State does not claim an exigency exception to the warrant requirement. Instead, the State relies on Section 724.012(b)(3)(B) of the Texas Transportation Code as its authority for obtaining the blood specimen. As applicable to this case, that section requires a peace officer to take a specimen of blood or breath of a driver arrested for DWI who refuses to consent to the specimen if, “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person” at least twice before has been convicted or put on community supervision for DWI. Tex. Transp. Code Ann. § 724.012(b)(3)(B).
The existence of exigent circumstances is one exception to the requirement of a search warrant. It is, however, “equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Section 724.012 of the Texas Transportation Code is one section under which Texas implies the consent of the person being tested. See Tex. Transp. Code Ann. §§ 724.011, [6] 724.012, 724.013 (West 2011).[7]
Pursuant to Section 724.011 of the Texas Transportation Code, a person who has been arrested for DWI in a public place is considered to have consented to submit to the taking of a breath or blood specimen for analysis to determine the alcohol concentration in the person’s body. See Tex. Transp. Code Ann. § 724.011. Such a person retains the right, subject to automatic suspension of his or her license, to refuse to provide a specimen. Tex. Transp. Code Ann. § 724.035 (West 2011). If, however, the person refuses to voluntarily provide a specimen and the arresting officer, at the time of the arrest, possesses or receives reliable information from a credible source that the person on two or more occasions has previously been convicted of DWI, the officer “shall require the taking of a specimen of the person’s breath or blood.” Tex. Transp. Code Ann. § 724.012(b)(3)(B). Here, there is no dispute that Reeder had two prior DWI convictions. The statute mandates a blood draw for this particular offense and deems that Reeder impliedly consented to the blood draw.
“The implied consent law does just that—it implies a suspect’s consent to a search in certain instances. This is important when there is no search warrant, since it is another method of conducting a constitutionally valid search.” Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002) (emphasis added). Further,
The implied consent law expands on the State’s search capabilities by providing a framework for drawing DWI suspects’ blood in the absence of a search warrant. It gives officers an additional weapon in their investigative arsenal, enabling them to draw blood in certain limited circumstances even without a search warrant.
Id. at 616.
Our sister court recently addressed a similar issue in Smith v. State, No. 13-11-00694-CR, 2013 WL 5970400, at *1 (Tex. App.—Corpus Christi Oct. 31, 2013, no pet. h.).[8] In that case, Smith appealed his conviction for DWI—third offense, contending that the Texas implied consent statute, pursuant to which his blood specimen was obtained, is unconstitutional in light of McNeeley. Id. at 3. The Smith court recognized that McNeely did not invalidate Texas’ implied consent statute. Instead, it clarified exigency. Id. at *4. Moreover, as noted in Smith,
Justice Sotomayor, although writing for a four-person minority in that section of the opinion, implicitly characterized implied consent statutes, including a specific reference to section 724.012(b) of the Texas Transportation Code, see 133 S.Ct. at 1566 n.9, as collateral to the exigency concerns underlying the issue before the Supreme Court.
Id. Finally, Smith recognized that implied consent to a search is, as stated in Beeman, another method of conducting a constitutionally valid search. Id. at *3. We agree with the Smith analysis and conclude that McNeeley did not render Section 724.012(b) of the Texas Transportation Code unconstitutional.
Because Reeder’s blood specimen was obtained in compliance with Section 724.012(b)(3)(B) of the Texas Transportation Code, a warrant was not required. The trial court’s refusal to suppress the blood-draw evidence was proper.
(2) The Judgment Must Be Modified to Reflect the Proper Statutory References
The judgment lists the statute for the convicted offense as Section 49.045 of the Texas Penal Code, the section that applies to having a child passenger in the vehicle while driving while intoxicated. See Tex. Penal Code Ann. § 49.045 (West 2011). The correct statutes for the offense for which Reeder has been convicted—DWI, second or more—are Sections 49.04 (driving while intoxicated) and 49.09(b)(2) (enhanced offenses and penalties). See Tex. Penal Code Ann. §§ 49.04, 49.09(b)(2). The Texas Rules of Appellate Procedure give this Court authority to modify judgments to correct errors and make the record speak the truth. Tex.R.App.P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). Accordingly, we modify the judgment to indicate that the correct statutes for the offense of which Reeder was convicted are Sections 49.04 and 49.09(b)(2) of the Texas Penal Code. We affirm the modified judgment of the trial court.
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Notes:
[1]See Tex. Penal Code Ann. §§ 49.04 (driving while intoxicated), 49.09(b)(2) (West Supp. 2013) (enhanced offenses and penalties).
[2]While speaking with Mills, Reeder vomited a liquid substance that reeked of the odor of an alcoholic beverage.
[3]Because Reeder was strapped to a medical back board, Mills was unable to administer standardized field sobriety tests.
[4]Before an officer may request a blood sample, the person from whom the sample is requested must be informed that: (1) evidence of the refusal will be admissible against the person in court, and (2) the person’s driver’s license will be suspended for not less than 180 days. Tex. Transp. Code Ann. § 724.015(1), (2) (West Supp. 2013).
[5]As recognized by our sister court, “The statute does not purport to authorize a warrantless blood draw based solely on the natural metabolization of alcohol in the bloodstream; instead, it sets forth multiple, specific circumstances in which a blood draw is required.” Douds v. State, No. 14-12-00642-CR, 2013 WL 5629818, at *5 (Tex. App.— Houston [14th Dist.] Oct. 15, 2013, no pet. h.). This opinion has not been released for publication in the permanent law reports. It is therefore subject to revision or withdrawal until released.
[6]This section of the statute provides that,
(a) 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.
(b) A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person’s alcohol concentration. Tex. Transp. Code Ann. § 724.011.
[7]This section prohibits the taking of a specimen “[e]xcept as provided by Section 724.012(b)” in the circumstance a “person refuses to submit to the taking of a specimen designated by a peace officer.” Tex. Transp. Code Ann. § 724.013.
[8]This opinion has not been released for publication in the permanent law reports. It is therefore subject to revision or withdrawal until released.
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