No. 03-14-00651-CR

In the

Court of Appeals

Third District

Austin, Texas

The State of Texas,

Appellant

v.

Gerardo Jerry Ayala,

Appellee

Appeal from the 167th Judicial District Court

Travis County, Texas

Cause Number D-1-DC-13-200850

STATE’S BRIEF

Rosemary Lehmberg

District Attorney

Travis County

Angie Creasy

Assistant District Attorney

State Bar No. 24043613

P.O. Box 1748

Austin, Texas 78767

(512) 854-9400

Fax (512) 854-4810

Angie.Creasy@traviscountytx.gov

AppellateTCDA@traviscountytx.gov

Oral argument is requested

ACCEPTED

03-14-00651-CR

3718009

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/9/2015 3:28:00 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/9/2015 3:28:00 PM JEFFREY D. KYLE Clerk
i

Identity of Parties and Counsel

Trial Judge: P. David Wahlberg

167th Judicial District Court

P.O. Box 1748

Austin, Texas 78767

Trial Counsel for State: Aurora Perez

Travis County District Attorney’s Office

P.O. Box 1748

Austin, Texas 78767

Appellate Counsel for State: Angie Creasy

Travis County District Attorney’s Office

P.O. Box 1748

Austin, Texas 78767

Defendant/Appellee: Gerardo Jerry Ayala

2531 Berkeley Avenue

Austin, Texas 78745

Counsel for Defendant: Christina Tagle1

812 San Antonio Street

Austin, Texas 78701

1 Ms. Tagle has filed a letter with the Third Court of Appeals stating that she is

not representing Mr. Ayala on appeal.
ii

Table of Contents

Identity of Parties and Counsel ............................................................ i

Index of Authorities............................................................................ iii

Statement of the Case ...........................................................................v

Statement of Facts ................................................................................1

Summary of the State’s Argument....................................................... 5

Standard of Review.............................................................................. 5

Argument............................................................................................. 6

Point One: The evidence is admissible because the blood draw was

mandated by statute, and the statute is constitutionally reasonable

under the Fourth Amendment.......................................................... 7

Point Two: Alternatively, the blood draw evidence is admissible

because the defendant is deemed to have consented to the taking of

a specimen, per Tex. Transp. Code § 724.011(a)..............................12

Point Three: Assuming, arguendo, that the blood draw is

unconstitutional, the Texas exclusionary rule still does not bar

admission of the evidence................................................................14

Point Four: The federal exclusionary rule does not bar admission of

the evidence either...........................................................................18

Prayer .................................................................................................21

Certificate of Compliance and Service............................................... 22
iii

Index of Authorities

Cases

Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) .................15, 20

Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448

(1957)...............................................................................................10

Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 180 L. Ed. 285

(2011)...............................................................................................19

Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)

.........................................................................................................18

Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002)..................... 11

Maryland v. King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013)

.......................................................................................................... 8

McCambridge v. State, 778 S.W.2d 70 (Tex. Crim. App. 1989).........13

Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993)..................... 7

Neesley v. State, 239 S.W.3d 780 (Tex. Crim. App. 2007)............ 8, 10

People v. Youn, 2014 Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15,

2014)............................................................................................... 20

Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d.

250 (2006)........................................................................................ 8

Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008) .................. 8

Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) ............... 6

South Dakota v. Neville, 459 U.S. 553, 103 s. Ct. 916, 74 L. Ed. 2d 748

(1983) ..............................................................................................10

State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680 (App. Div. Dec. 20,

2013)................................................................................................17

State v. Johnson, 871 S.W.2d. 744 (Tex. Crim. App. 1994)................16

State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ...............10

State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000, pet. ref’d). 20

State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet.

ref’d) ................................................................................................15

State v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d)

......................................................................................................... 11

State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS

1898 (Tex. Crim. App. Nov. 26, 2014)............................... 6, 8, 12, 14

te v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d) ....10

United States v. Brooks, No. PWG-14-0053, 2014 U.S. Dist. LEXIS

67417 (D. Md. May 16, 2014) (mem. op.) ....................................... 20
iv

United States v. De Angelo, 584 F.2d 46 (4th Cir. 1978) ...................13

United States v. Herzbrun, 723 F.2d 773 (11th Cir. 1984) .................13

United States v. Spriggs, 827 F. Supp. 372 (E.D. Va. 1993) ..............13

Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013)..........16

Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985)

.........................................................................................................10

Statutes

Tex. Code Crim. Proc. art. 38.23 ........................................................14

Tex. Penal Code § 49.04 .......................................................................v

Tex. Penal Code § 49.09 .......................................................................v

Tex. Transp. Code § 724.011 ...............................................................12

Tex. Transp. Code § 724.012...........................................................7, 18

Tex. Transp. Code § 724.017............................................................... 11
v

Statement of the Case

A grand jury indicted the defendant for driving while intoxicated

with two prior convictions. CR 12-13; Tex. Penal Code § 49.04,

49.09(b)(2). The trial court granted the defendant’s motion to

suppress the blood test results, and the State gave notice of appeal.

CR 79, 84-86, 89.
1

No. 03-14-00651-CR

In the

Court of Appeals

Third District

Austin, Texas

The State of Texas,

Appellant

v.

Gerardo Jerry Ayala,

Appellee

Appeal from the 167th Judicial District Court

Travis County, Texas

Cause Number D-1-DC-13-200850

STATE’S BRIEF

To the Honorable Third Court of Appeals:

Now comes the State of Texas and files this brief, and in support

thereof respectfully shows the following:

Statement of Facts

After a hearing, the trial court made the following findings of fact:

1. The court finds Brian Brejcha’s, Adam Master’s,

Brandon Kunkel’s and Judge Olivia Ruiz’s testimony

credible.
2

2. On February 9, 2013, the defendant was involved in a

collision involving two other cars. The scene of the

collision was approximately 5-7 miles away from the

Travis County Jail. No one in the accident was injured

and EMS was declined. No one was transported to the

hospital. Officer Masters made contact with the

defendant who seemed confused and had an odor of

alcohol on his breath. He called for another unit to

assist in the investigation. Other units were already on

scene working the collision. Officer Brejcha arrived on

scene with his field training officer Kunkel. They took

over the DWI investigation. After asking a series of

questions Brejcha requested that defendant perform a

series of standardized field sobriety tests. Brejcha

observed 6 out of 6 clues on the horizontal gaze

nystagmus test and the defendant declined to perform

the other tests.

3. Officer Brejcha arrested the defendant for driving while

intoxicated.

4. Officer Brejcha read the DIC 24 (statutory warnings) to

the defendant.

5. The defendant refused Officer Brejcha’s request to

voluntarily submit to the taking of a blood specimen.

6. Shortly after the arrest, Officer Brejcha received

reliable information from a credible source that the

defendant had been previously convicted, on two

occasions, of driving while intoxicated.

7. Relying on Tex. Transp. Code §§ 724.011 and

724.012(b), Officer Brejcha directed a phlebotomist at

the Travis County Jail to take a blood sample from the

defendant.
3

8. A magistrate is available 24 hours a day, every day at

the central booking facility for Travis County, which is

located in the basement of the Travis County Jail.

9. It would take an additional 30 minutes for the officers

to get a search warrant for blood.

10. Officer Brejcha was aware that a magistrate was on

duty and available but did not attempt to get a search

warrant to draw blood.

CR 88-89.

The defendant argued that the warrantless blood draw violated

the Fourth Amendment because there was neither consent nor

exigent circumstances. CR 34-36.

The State argued that the evidence is admissible because the blood

draw was mandated by Tex. Transp. Code § 724.011(b), and the

statute is constitutionally reasonable under the Fourth Amendment.

CR 43-47.

The State also argued that the blood draw evidence is admissible

because the defendant is deemed to have consented to the taking of a

specimen, per Tex. Transp. Code § 724.011(a). CR 40-42.

Finally, the State argued that, even if the blood draw was

unconstitutional, (1) The Texas exclusionary rule does not apply

because the police did not violate the law as it existed at the time of
4

the search, and (2) The federal exclusionary rule does not bar

admission of the evidence either because the police were acting in

good faith reliance on both statutes and appellate precedent. CR 48-

49.

The trial court made the following conclusions of law and granted

the motion to suppress:

11. Officer Brejcha had probable cause to arrest the

defendant.

12. Officer Brejcha acted in good faith when he relied on

Tex. Transp. Code §§ 724.011 and 724.012(b) to draw

blood.

13. The officer did not obtain a search warrant.

14. The Defendant did not consent to the taking of a

specimen of his breath or blood.

15. There were not exigent circumstances in this case.

16. 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).

On the basis of the above findings and conclusions, the

motion to suppress the blood draw evidence is GRANTED.

CR 79, 89. The State is appealing this order. CR 84-86.
5

Summary of the State’s Argument

Point One: The evidence is admissible because the blood draw

was mandated by Tex. Transp. Code § 724.011(b), and the statute is

constitutionally reasonable under the Fourth Amendment.

Point Two: Alternatively, the blood draw evidence is admissible

because the defendant is deemed to have consented to the taking of a

specimen, per Tex. Transp. Code § 724.011(a).

Point Three: Even if the blood draw was unconstitutional, the

Texas exclusionary rule does not apply because the police did not

violate the law as it existed at the time of the search.

Point Four: The federal exclusionary rule does not bar

admission of the evidence either because the police were acting in

good faith reliance on both statutes and appellate precedent.

Standard of Review

The appellate court reviews a ruling on a motion to suppress

evidence for an abuse of discretion. The appellate court views the

facts in the light most favorable to the trial court's decision. The

appellate court reviews de novo the trial court's application of the law
6

of search and seizure to those facts. Shepherd v. State, 273 S.W.3d

681, 684 (Tex. Crim. App. 2008).

Argument

As a starting point, the State acknowledges that the Texas Court of

Criminal Appeals recently held that a warrantless blood draw,

conducted pursuant to the mandatory blood draw statute, violated the

Fourth Amendment because it did not fall under any recognized

exception to the warrant requirement. The court held that implied

consent that has been withdrawn by a suspect cannot serve as a

substitute for the free and voluntary consent that the Fourth

Amendment requires. State v. Villarreal, No. PD-0306-14, 2014 Tex.

Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014).

The court’s decision in Villarreal directly contradicts the

arguments made by the State in Points One and Two. The State is

making these arguments to preserve error because Villarreal is not

yet final, but in light of Villarreal, the State asks this Court to focus

on Points Three and Four.
7

Point One: The evidence is admissible because the blood

draw was mandated by statute, and the statute is

constitutionally reasonable under the Fourth Amendment.

The warrantless blood draw was mandated by statute.

Tex. Transp. Code § 724.012(b)(3)(B) mandated the warrantless

blood draw in this case. The statute does not specifically state that the

blood draws should be undertaken without a warrant, but when a

statute mandates that the police do something, it is incompatible to

read in a requirement that they get approval from a magistrate as

well. What happens when the magistrate refuses to issue a warrant?

Should the police comply with the statute’s mandate to draw blood or

abide by the magistrate’s decision? Because it would lead to absurd

results, the mandatory blood draw statute cannot be interpreted to

require warrants. Muniz v. State, 851 S.W.2d 238, 244 (Tex. Crim.

App. 1993) (stating that courts should prefer an interpretation of a

statute that does not yield absurd results).

The court should conduct a traditional balancing test to

evaluate the constitutionality of the statute.

Because the search in this case was mandated by statute, the State

asks this Court to apply a traditional Fourth Amendment balancing
8

test, which weighs the statute’s promotion of legitimate government

interests against the intrusion on individual privacy. See Maryland v.

King, __ U.S. __, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013); Segundo v.

State, 270 S.W.3d 79, 96-99 (Tex. Crim. App. 2008); Samson v.

California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d. 250 (2006).

A balancing test is consistent with the plain language of the

Fourth Amendment, which does not actually require a warrant or

warrant exception, but rather, prohibits unreasonable searches.

The State acknowledges, however, that the Court of Criminal

Appeals declined to conduct a balancing test in Villarreal, holding

instead that the mandatory blood draw must fall under a recognized

warrant exception. Villarreal, 2014 Tex. App. LEXIS 1898, at *59-75.

A traditional balancing test weighs in favor of the

constitutionality of Section 724.012(b)(3)(B).

The primary purpose of Section 724.012(b) is to save lives and

decrease the number of casualties caused by drunken drivers. Neesley

v. State, 239 S.W.3d 780, 785 (Tex. Crim. App. 2007). Mandatory

draws identify intoxicated drivers, so that the State can remove them
9

from the roads through administrative license revocations.

Mandatory draws also promote safety through their deterrent effect.

The State also has a legitimate interest in preserving evidence,

both for administrative licensing hearings and criminal prosecutions.

Timely blood alcohol evidence is indisputably the most probative

evidence of intoxication, far more so than subjective observations or

field sobriety tests, or retrograde extrapolation. The Texas Legislature

acted reasonably in passing a law that requires police to secure this

evidence, in serious cases, before it dissipates.

Reasonableness is also shown in that the statute does not leave

blood draws to the discretion of the officer on the scene. Instead, the

circumstances requiring blood draws are clearly set out in the statute,

which was enacted by the Legislature, which is itself a neutral and

detached body. Clear guidelines also further the State’s legitimate

interest in readily applicable rules for officers in the field, which are

not subject to second-guessing months and years down the road.

The law is narrowly tailored in scope. The statute only allows one

useable blood draw, and it only applies to drivers, who are arrested,

based on probable cause, for driving, while intoxicated, on public
10

roads. Neesley, 239 S.W.3d at 786; State v. Mosely, 348 S.W.3d 435,

444 (Tex. App.—Austin 2011, pet. ref’d).

The law also takes the gravity of the crime into consideration by

mandating draws only in serious cases.

Additionally, the search specified by the statute (a blood draw) is

reasonable because blood testing is a highly effective means of

determining the degree to which a person is under the influence of

alcohol. State v. Johnston, 336 S.W.3d 649, 659-60 (Tex. Crim. App.

2011).

Also, blood tests are commonplace and involve virtually no risk,

trauma, or pain, and the Supreme Court has stated time and again

that a blood draw is a minimally intrusive search that does not

constitute an unduly extensive imposition on an individual's privacy

and bodily integrity. See Schmerber, 384 U.S. at 771; Skinner 489

U.S. at 625; Winston v. Lee, 470 U.S. 753, 761-62, 105 S. Ct. 1611, 84

L. Ed. 2d 662 (1985); South Dakota v. Neville, 459 U.S. 553, 563, 103

s. Ct. 916, 74 L. Ed. 2d 748 (1983); Breithaupt v. Abram, 352 U.S.

432, 436-37, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957); but see McNeely,

133 S. Ct. at 1558.
11

The Transportation Code also limits who can draw blood and

where it can be drawn. Tex. Transp. Code § 724.017; Johnston, at 661

(noting that Section 724.017 is reasonable under the Fourth

Amendment).

Additionally, the law mandates testing only on people who are

already under arrest. Arrestees have significantly diminished

expectations of privacy. And arrestees are not free to leave, so the

testing’s interference with their freedom to move does not infringe on

significant privacy interests. Drivers are likewise subject to extensive

regulations and have a reduced expectation of privacy.

Finally, the defendant bears the burden of establishing that

statutes are unconstitutional, courts presume that statutes are

constitutional and resolve all reasonable doubts in favor of their

constitutionality, and the mere fact that opinions regarding

constitutionality may differ is not a sufficient basis to strike down a

statute. Luquis v. State, 72 S.W.3d 355, 363, 365-66 (Tex. Crim. App.

2002). The presumption of constitutionality afforded legislation

should not to be disposed of lightly. Laws passed by elected

representatives represent the will of the people. Of course, courts
12

must safeguard against violations of the Constitution, but in

determining what is “reasonable” under the Fourth Amendment, the

fact that the Legislature has passed laws mandating these searches

speaks volumes as to what the people of Texas believe is reasonable.

In sum, the search mandated by Section 724.012(b)(3)(B) is

constitutionally reasonable, and the trial court erred in suppressing

the blood evidence obtained pursuant to the statute.

The Court of Criminal Appeals stated in Villarreal, however, that

a DWI suspect's privacy interest outweighs the State's interest in

preventing drunk driving through warrantless searches. Villarreal,

2014 Tex. App. LEXIS 1898, at *67-69.

Point Two: Alternatively, the blood draw evidence is

admissible because the defendant is deemed to have

consented to the taking of a specimen, per Tex. Transp.

Code § 724.011(a).

Under Tex. Transp. Code § 724.011(a), the defendant is deemed to

have consented to the blood draw.

As a matter of statutory construction, the consent implied by

Section 724.011(a) cannot be revoked. Forte v. State, 759 S.W.2d 128,
13

138-139 (Tex. Crim. App. 1988), overruled on other grounds in

McCambridge v. State, 778 S.W.2d 70, 76 (Tex. Crim. App. 1989).

Additionally, implied consent is irrevocable because it is given in

exchange for the privilege to drive on public roads. The defendant was

driving pursuant to this bargain, but he wants to withdraw consent

when convenient for him. Allowing him to withdraw his consent when

the red and blue lights come on would render this exchange a oneway street for the benefit of the defendant.

Finally, irrevocable implied consent can satisfy the consent

exception to the warrant requirement. See, e.g., United States v.

Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984) (regarding airport

screening searches); United States v. De Angelo, 584 F.2d 46, 48 (4th

Cir. 1978) (same); United States v. Spriggs, 827 F. Supp. 372, 375

(E.D. Va. 1993) (regarding prison visitor searches).

In sum, the defendant is deemed to have consented to the blood

draw, and he cannot withdraw that consent. Since consent is a wellestablished exception to the warrant requirement, the trial court

erred in suppressing the blood draw evidence.
14

The Court of Criminal Appeals held in Villarreal, however, that

implied consent that has been withdrawn by a suspect cannot serve as

a substitute for the free and voluntary consent that the Fourth

Amendment requires. Villarreal, 2014 Tex. App. LEXIS 1898, at *34-

37.

Point Three: Assuming, arguendo, that the blood draw is

unconstitutional, the Texas exclusionary rule still does not

bar admission of the evidence.

The Texas exclusionary rule is codified in Tex. Code Crim. Proc.

art. 38.23, which states:

(a) No evidence obtained by an officer or other person

in violation of any provisions of the Constitution or

laws of the State of Texas, or of the Constitution or

laws of the United States of America, shall be admitted

in evidence against the accused on the trial of any

criminal case.

In any case where the legal evidence raises an issue

hereunder, the jury shall be instructed that if it

believes, or has a reasonable doubt, that the evidence

was obtained in violation of the provisions of this

Article, then and in such event, the jury shall disregard

any such evidence so obtained.

(b) It is an exception to the provisions of Subsection (a)

of this Article that the evidence was obtained by a law

enforcement officer acting in objective good faith

reliance upon a warrant issued by a neutral magistrate

based on probable cause.
15

The evidence is not barred by article 38.23 because the police

officer did not obtain the evidence in violation of the Constitution

because, at the time the evidence was obtained, Texas case law clearly

held that alcohol dissipation alone constituted exigent circumstances

in DWI cases. See Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App.

1982); and State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin

2000, pet. ref’d) (stating, “It is a well-settled fact that alcohol in the

blood dissipates quickly constitutes exigent circumstances”). Thus, at

the time of the blood draw in this case, the search clearly fell under

the exigent circumstances exception, which means the police did not

obtain the evidence in violation of the Fourth Amendment, which

means the Texas exclusionary rule does not apply.

To be clear, the State is not arguing for a good faith exception to

article 38.23. Rather, the State is arguing that article 38.23 does not

apply because the officer did not obtain the evidence in violation of

the law.2

2 The State will argue that there are applicable good faith exceptions to the

federal exclusionary rule, below, but this is distinct from its arguments

regarding the Texas exclusionary rule.
16

The State’s argument may appear to be a backdoor good faith

argument, but the argument is in line with other statutory

construction cases that have held that Article 38.23 does not apply

when the evidence was not actually obtained in violation of the law.

See State v. Johnson, 871 S.W.2d. 744, 750-51 (Tex. Crim. App. 1994)

(no exclusion when there is attenuation of taint); Wehrenberg v.

State, 416 S.W.3d 458, 467-70 (Tex. Crim. App. 2013) (no exclusion

when there is an independent source).

In other words, the defendant cannot backdate a change in law to

exclude evidence. To do so would twist the plain language of the

statute because the evidence was not actually “obtained” in violation

of the law. Rather, it was obtained in compliance with the law, which

later changed.

Some courts have held that there was no change in the law and

that McNeely merely clarified existing constitutional law. That may

be true in other jurisdictions, but it is not true in Texas. In Texas, case

law had clearly established a per se exigency in DWI cases. See Aliff,

627 S.W.2d at 170; Laird, 38 S.W.3d at 713. McNeely specifically

granted certiorari to resolve the split of authority among states on the
17

question of whether the natural dissipation it the bloodstream

establishes a per se exigency. See McNeely, 133 S. Ct. at 1558.

McNeely decided that there is no per se exigency. Thus, McNeely

clearly overturned (i.e., changed) the law in several jurisdictions,

including Texas. Cf. State v. Adkins, 433 N.J. Super. 479, 484-93, 81

A.3d 680 (App. Div. Dec. 20, 2013) (stating that McNeely

dramatically changed the legal landscape when the Supreme Court

issued a new search and seizure rule that was more restrictive than

state court precedent, and holding that the State was not seeking to

admit the fruits of unlawful police conduct because the police fully

complied with the law in effect at the time they acted).

In conclusion, the State asks this Court to hold that Article 38.23

does not bar admission of evidence when the police scrupulously

adhered to the statutes and Constitutional case law that were in effect

at the time of the search because, in such a case, the evidence was not

actually obtained in violation of the law.
18

Point Four: The federal exclusionary rule does not bar

admission of the evidence either.

The purpose of the judicially-created federal exclusionary rule is

to safeguard Fourth Amendment rights by deterring police

misconduct. Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L.

Ed. 2d 364 (1987). With this purpose in mind, the Supreme Court has

created good faith exceptions.

The police relied in good faith on a statute.

One exception is when an officer acts in good faith reliance on a

statute that is later held to be unconstitutional, because “Unless a

statute is clearly unconstitutional, an officer cannot be expected to

question the judgment of the legislature that passed the law. If the

statute is subsequently declared unconstitutional, excluding evidence

obtained pursuant to it prior to such a judicial declaration will not

deter future Fourth Amendment by an officer who has simply fulfilled

his responsibility to enforce the statute as written.” Krull, 480 U.S. at

349-50.

In this case, the officer relied on the mandatory blood draw

statute in Section 724.012(b)(3)(B). Moreover, the law was not
19

“clearly unconstitutional.” Indeed, Texas’s police officers,

prosecutors, defense attorneys, and judges have had mandatory blood

draw cases for years without questioning their constitutionality.

Therefore, under Krull, the federal exclusionary rule does not bar

admission of the evidence, and the trial court erred in granting the

motion to suppress.

The police acted in good faith reliance on binding appellate

precedent.

Another exception applies when the police act in good faith

reliance on binding precedent, because “It is one thing for the

criminal to go free because the constable has blundered. It is quite

another to set the criminal free because the constable has

scrupulously adhered to governing law. Excluding evidence in such

cases deters no police misconduct and imposes substantial social

costs.” Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 2423-24,

2434, 180 L. Ed. 285 (2011).

The blood draw in this case was done prior to the Supreme Court’s

decision in McNeely. At that time, Texas case law held that

dissipation alone constituted exigent circumstances in DWI cases.
20

Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App. 1982); State v.

Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref’d).

Exigency is an established exception to the warrant requirement, so

the search in this case was constitutional under binding Texas

precedent at the time it was done. Therefore, under Davis, the good

faith exception for reliance on precedent applies, and the trial court

erred in granting the motion to suppress. See People v. Youn, 2014

Cal. App. LEXIS 799 (Cal. App. 2d Dist. Aug. 15, 2014) (applying the

good faith exception for reliance on state court precedent to preMcNeely blood draws); United States v. Brooks, No. PWG-14-0053,

2014 U.S. Dist. LEXIS 67417, at *5-15 (D. Md. May 16, 2014) (mem.

op.) (same).
21

Prayer

The State asks this Court to sustain its points of error, reverse the

trial court’s order suppressing the results of the blood analysis, and

remand this case to the trial court for further proceedings.

Respectfully submitted,

Rosemary Lehmberg

District Attorney

Travis County

Angie Creasy

Assistant District Attorney

State Bar No. 24043613

P.O. Box 1748

Austin, Texas 78767

(512) 854-9400

Fax (512) 854-4810

Angie.Creasy@traviscountytx.gov

AppellateTCDA@traviscountytx.gov
22

Certificate of Compliance and Service

I hereby certify that this brief contains 3,598 words, based upon

the computer program used to generate this brief and excluding

words contained in those parts of the brief that Texas Rule of

Appellate Procedure 9.4(i) exempts from inclusion in the word count,

and that this brief is printed in a conventional, 14-point typeface.

I further certify that, on the 9th day of January, 2015, a true and

correct copy of this brief was served, by U.S. mail, electronic mail,

facsimile, or electronically through the electronic filing manager, to:

Gerardo Jerry Ayala, 2531 Berkeley Avenue, Austin, Texas 78745.

Christina Tagle, 812 San Antonio Street, Austin, Texas 78701.3

Angie Creasy

3 Ms. Tagle has filed a letter with the Third Court of Appeals stating that she

is not representing Mr. Ayala on appeal.