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holding the trial court did not err in denying defendant's motion to "exclude evidence of her refusal to provide a breath sample" because there was no violation of the Fourth Amendment
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No. 05-15-01204-CR
01-11-2017
AMANDA MARIE DILL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 6 Dallas County, Texas
Trial Court Cause No. MB12-62864-G
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Evans
Amanda Dill appeals her conviction for driving while intoxicated. She asserts two issues on appeal: (1) the trial court erred in refusing to exclude her post-arrest refusal to provide a warrantless breath specimen, and (2) the trial court erred in refusing to suppress the results of a blood-draw because of defects in the affidavit supporting the warrant. We affirm.
I. Factual Background
Dallas Police Senior Corporal Joshua Boykin stopped appellant for making a prohibited left turn at 2:00 a.m. on September 20, 2012. After determining her vehicle's registration had expired, he initiated contact with appellant and observed she had bloodshot eyes and slurred speech. Boykin smelled an odor of alcohol coming from inside appellant's vehicle. Boykin administered field sobriety tests which appellant failed, then arrested appellant for driving while intoxicated. After a female officer arrived and transported appellant to the county jail facility, Boykin read the statutory warning and requested appellant to provide breath and blood samples which she refused. Boykin completed an affidavit for a search warrant and obtained a search warrant at 3:33 a.m. Appellant's blood was drawn at 4:13 a.m. by a Parkland Hospital technician.
Appellant was charged by information with operating a motor vehicle in a public place while intoxicated. The trial court denied appellant's motion to exclude appellant's refusal to provide post-arrest, warrantless breath and blood samples and to suppress the results of the blood-draw. Afterwards appellant pleaded guilty, was sentenced to 120 days in jail suspended for one year of community supervision and a $500 fine. She timely perfected this appeal.
II. Admissibility of Refusal to Provide Breath and Blood Specimens
In her first issue, appellant challenges the trial court's denial of her motion to exclude evidence of her refusal to provide a breath sample on the basis that Texas's statute authorizing the admission into evidence of her refusal violates the Constitution. She conceded at oral argument that in South Dakota v. Neville, 459 U.S. 553 (1983), the Supreme Court of the United States decided the same issue: South Dakota's statute permitting the admission into evidence of the refusal to provide breath and blood samples did not violate the Constitution. Appellant argues Neville does not control because in two subsequent opinions decided under the Fourth Amendment the Supreme Court of the United States has impliedly overruled Neville which was decided under the Fifth Amendment. For two reasons, we reject appellant's argument.
In her brief, appellant twice formally stated her first issue was limited to her refusal to provide a breath specimen. However, she recites her challenge in the trial court to the admissibility of both her breath and blood specimens and argues based on the Fourth Amendment that the trial court erred by overruling her motion as to both. We need not decide whether through her briefing ambiguity appellant has adequately raised both breath and blood specimens, because our ruling would not change on the basis on which we decide this issue.
First, we are bound by Neville. Neville is legally and factually indistinguishable from appellant's case. In Neville, the defendant was stopped for a traffic violation and was given two field sobriety tests. 459 U.S. at 554-55. When the defendant failed the field sobriety tests, he was arrested for driving while intoxicated and read his Miranda rights. Id. The arresting officer then asked the defendant to submit to a blood-alcohol test which he refused. Id. at 555-56. The South Dakota statute, similar to section 724.061 of Texas's transportation code, permits a suspect to refuse the test but allows the refusal to be used against the defendant at trial. The Supreme Court decided the evidentiary consequences of admitting the refusal to submit to blood-alcohol testing does not violate the United States Constitution. Id. at 564. This is exactly appellant's first issue.
Miranda v. Arizona, 384 U.S. 436 (1966).
South Dakota's statute provides:
If a person refuses to submit to chemical analysis of the person's blood, urine, breath, or other bodily substance, or allow the withdrawal of blood or other bodily substance for chemical analysis as provided in § 32-23-10, and that person subsequently stands trial for violation of § 32-23-1 or § 32-23-21, such refusal may be admissible into evidence at the trial.S.D. Codified Laws § 32-23-10.1. Texas's statute provides:
A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial.TEX. TRANSP. CODE ANN. § 724.061 (West 2011).
Second, Appellant argues that Neville was decided under the Fifth Amendment but was impliedly overruled by two Fourth Amendment opinions: Missouri v. McNeely, 133 S. Ct. 1552 (2013) and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). However, in Birchfield, the Supreme Court acknowledged the continued validity of Neville, stating:
Birchfield was decided after submission of the briefs here, but appellant and the State discussed Birchfield in oral argument.
Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., McNeely, supra, at —, 133 S. Ct., at 1565-1566 (plurality
opinion); Neville, supra, at 560, 103 S. Ct. 916. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.Birchfield, 136 S. Ct. at 2185 (emphasis added). For these reasons, we decide appellant's first issue against her.
Even if appellant were correct that the Supreme Court impliedly overruled Neville in subsequent opinions, we remain bound by the straightforward application of Neville. See Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) ("Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.") (quoting Hohn v. United States, 524 U.S. 236, 252-253 (1998)); see also United States v. Hatter, 532 U.S. 557, 567 (2001); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).
See also McCauley v. State, No. 05-15-00629-CR, 2016 WL 3595478 (Tex. App.—Dallas June 28, 2016, no pet.) (memo op.) (concluding Birchfield approves the admission into evidence of a motorist's refusal to submit to a breath test, citing Neville).
III. Sufficiency of Search Warrant Affidavit
In her second issue, appellant challenges the trial court's denial of her motion to suppress the blood evidence because the affidavit to support the warrant (1) relied upon appellant's refusal to provide a specimen of breath or blood to the affiant, and (2) failed to recite sufficient facts supporting the conclusion that appellant had committed the offense of driving while intoxicated. We conclude that the magistrate did have a substantial basis for concluding that probable cause existed to support the issuance of the warrant.
A search warrant may not issue unless it is based upon probable cause, established by a sworn affidavit. U.S. CONST. amend. IV; TEX. CODE CRIM. PROC. ANN. art. 18.01(b) (West Supp. 2015); State v. Jordan, 342 S.W.3d 565, 568 (Tex. Crim. App. 2011). The test is whether a reasonable reading by the magistrate would lead to the conclusion that the four corners of the affidavit provide a "substantial basis" for issuing the warrant. State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012). Probable cause exists if, under the totality of the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place at the time the warrant is issued. Jordan, 342 S.W.3d at 568-69.
We typically apply a bifurcated standard of review to a trial court's ruling on a motion to suppress by giving almost total deference to the trial court's determinations of fact and reviewing de novo the trial court's application of law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). However, where, as here, a motion to suppress is based solely on a magistrate's decision to issue a warrant, there are no credibility determinations to which we must defer because the trial court is constrained to the four corners of the affidavit. See State v. Webre, 347 S.W.3d 381, 384 (Tex. App.—Austin 2011, no pet.). Accordingly, in reviewing the magistrate's decision to issue a warrant, we apply a highly deferential standard because of the constitutional preference for searches to be conducted pursuant to a warrant as opposed to a warrantless search. McLain, 337 S.W.3d at 271; see Illinois v. Gates, 462 U.S. 213, 236 (1983). As long as the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate's probable cause determination. Id. In doubtful or marginal cases, the magistrate's determination should prevail. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). The magistrate may interpret the affidavit in a non-technical, common-sense manner and may draw reasonable inferences from the facts and circumstances contained within its four corners. Jordan, 342 S.W.3d at 569. The focus is not on what other facts could or should have been included in the affidavit; rather, the focus is on the combined logical force of facts that are actually in the affidavit. Duarte, 389 S.W.3d at 354-55.
Appellant argues that the affidavit included the fact that appellant refused the affiant's request to provide breath and blood specimens and that this may not be considered as part of the totality of the circumstances contributing to probable cause because it "was merely an assertion of her Fourth Amendment right." As we have already determined, under Neville, appellant's refusal to provide breath and blood samples is admissible as evidence of guilt at appellant's trial for the offense of driving while intoxicated. Therefore, we discern no reason why such evidence cannot be included in an affidavit for a search warrant and considered by the magistrate as part of the totality of the circumstances contributing to probable cause. We have been cited no cases, and we are aware of none, which prohibit the inclusion in a search warrant affidavit of a defendant's refusal to provide breath and blood samples in determining probable cause when there is a statute specifically allowing the use of such evidence in determining the guilt of the accused. Nevertheless, we conclude that the magistrate had a substantial basis for concluding that probable cause existed independent of the information pertaining to appellant's refusal to provide breath and blood samples. See State v. Cuong Phu Le, 463 S.W.3d 872, 877 (Tex. Crim. App. 2015) ("When part of a warrant affidavit must be excluded from the calculus, ...then it is up to the reviewing courts to determine whether 'the independently acquired and lawful information stated in the affidavit nevertheless clearly established probable cause.'" quoting McClintock v. State, 444 S.W.3d 15, 19 (Tex. Crim. App. 2014)).
In this case, the alleged offense of driving while intoxicated entails operating a motor vehicle in a public place while intoxicated. Intoxicated is defined as:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substance, or any other substance into the body; orTEX. PENAL CODE § 49.01(2) (West 2011). "Alcohol concentration" means the number of grams of alcohol per: (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine. TEX. PENAL CODE ANN. § 49.01(1) (West 2011). The magistrate's role was to determine whether there was a substantial basis to believe that evidence of driving while intoxicated, i.e., whether an illegal concentration of alcohol would be found in appellant's blood. The affidavit states that Boykin observed appellant operating a motor vehicle and disregard a no-left-turn sign. The affidavit includes appellant's admission that she drank two glasses of wine, as well as the officer's observations that appellant had bloodshot eyes, slurred speech, a swaying balance, and swayed while walking and turning. In addition, the affidavit states that Boykin is experienced in detecting intoxicated persons and is trained in the detection of impaired or intoxicated drivers through the use of three standardized field sobriety tests. The affidavit also included the results of the HGN tests conducted by Boykin indicating the presence of alcohol, that appellant failed in her performances during the walk-and-turn and one-leg stand tests, and that appellant had difficulty with the alphabet test. The affidavit also recited the date and time of the stop and the officer's knowledge that alcohol is absorbed into the bloodstream and that blood can be analyzed for its presence. Finally, Boykin stated in his affidavit that based upon his experiences, training in intoxication-related offenses, observations of the appellant, and the results of the tests performed by appellant, he believed appellant was intoxicated.
(B) having an alcohol concentration of 0.08 or more.
The observations that appellant swayed while walking and turning do not appear to be duplicative of the results from the walk and turn field sobriety test as these observations are contained in a different section of the affidavit.
Appellant argues that the recitations of training and experience on the part of the affiant in detecting intoxication are not valid because they do not include the "type or identity of any course or training program attended by the affiant from which he acquired his experience and training." We note that the affidavit does specify the three field sobriety tests in which Boykin had training. The fact that the affidavit does not detail the officer's additional training or experience in DWI cases does not render the affidavit inadequate. See Gravitt v. State, No. 05-10-01195-CR, 2011 WL 5178337, at *3 (Tex. App.—Dallas November 2, 2011, pet. ref'd) (not designated for publication).
Based on the facts and the reasonable inferences derived from those facts, we conclude that the magistrate had a substantial basis for concluding that probable cause existed, i.e., that appellant's blood sample would uncover evidence of her crime. See, e.g. Kelly v. State, 413 S.W.3d 164, (Tex. App.—Beaumont 2012, no pet.) (affidavit sufficient to establish probable cause where driver failed to signal, had strong odor of alcohol, slurred speech, unsure in balance, refused some field sobriety tests, and failed the test that was performed); Foley v. State, 327 S.W.3d 907, 912 (Tex. App.—Corpus Christi 2010, pet. ref'd) (affidavit was sufficient to establish probable cause where it reported the suspect smelled strongly of alcohol, had red and glassy eyes, slurred speech, poor balance, and refused to provide a breath or blood sample); Hogan v. State, 329 S.W.3d 90, 94-96 (Tex. App.—Ft. Worth 2010, no pet.) (affidavit was sufficient to establish probable cause where it described defendant as smelling strongly of alcohol, having bloodshot, watery, and heavy eyes, unsteady balance, and staggered walk). Accordingly, the trial court did not err by denying appellant's motion to suppress.
Conclusion
For these reasons, we decide appellant's issues against her and affirm the judgment of the trial court.
/David W. Evans/
DAVID EVANS
JUSTICE Do Not Publish
Tex. R. App. P. 47
151204F.U05
JUDGMENT
On Appeal from the County Criminal Court No. 6, Dallas County, Texas
Trial Court Cause No. MB12-62864-G.
Opinion delivered by Justice Evans. Justices Francis and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 11th day of January, 2017.