I n its brief to this Court, the St ate r efe rs t o t h e h o s p ital rec ords filed with the c lerk seve ral 1 months before the hea

ring pursuant to rule 902(10). Tex. R. Evid. 902(10). These r ecor ds were not 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00803- CR

The St at e of Te xa s, App e lla nt

v. Rosanna Nichol son, App ellee

F ROM THE COUNTY COURT AT LAW NO. 1 OF HAY S COUNTY NO. 72797 , HO NORAB LE HO WARD S. WARNER, II, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N
Th e Sta te a pp e als an o rder

grant in g appel lee Ro san na N ich ol so n’s mo ti on to su pp re ss evidenc e. See Tex. Code Crim. Proc. Ann. art. 44.01( a)( 5) (West Supp. 2005). At issue is whether Ni c ho lso n’ s c on se nt t o th e takin g of a sampl e of

he r b loo d w a s sh ow n to be vo lun tary . We wi ll aff irm the suppression orde r.

San Marc os Poli ce O ffice r Dustin Slaughte r testified that he was c alled to the sce ne of a “ ma jo r v e h ic le a c c id e n t” o n th e n ig h t o f A p r il 2 6 , 2 0 0 3
. Wh e n h e ar r iv e d , N ic h o lson was
ou tsi de he r c ar a

nd be ing tr e a te d by pa

ra me dic s. B e fo re Ni c ho lso n wa s tra ns po rt e d to the ho sp ita l, the of fi c e r s po ke to h e r b ri e fl y

and no tic e d th e sme ll of a lc oh oli c be ve ra g e on he r b re a th. Th e re is no other e vidence reg ardingNicholson’s phy sical condition. 1int

ro du c e d in

e vid e nc e a t th e hear in g, and the re is n o in dic a tio n th a t th e c ourt c on sid e re d th e m in m ak i n g i t s ru l i n g. See M iranda v. Arizona , 384 U.S. 436 (1966). Offic er Slaughte r did not testify at the hea

ring 2 reg ardingthe odor on Nic holson’s breath or his advising he r of he r rig hts. This information is found in the office r’s aff

idavit in support of an arr est war rant issued in Ma

rch 2004, which was introduce d in evidence at the hea

ring by the def ense. 2 Slaughte r we nt to the hospital wher e Nicholson was being treated, advised her of her Miranda rig hts, and asked he r for a spec imen of her blood. Pursuant to this request, the off icer rea d 2 to N ic ho lso n th e st atu tor

y c on se nt f or m c omm on ly

re fe rr e d to a s th e DI C- 24 fo rm . B y thi s f or m, Nicholson was told that s he was “under arr est for an offe nse ar ising out of a cts alleg ed to have been committed while [she was] operating a motor vehicle . . . in a public place while intox icated,” and that if sh e re fu se d to gi ve the sp e c ime n, “ [he r] l ic e ns e , p e rm it o r p ri vil e g e to o pe rate a mot or ve hic le will be suspended or

denied f or not less t h an 1 8 0 d ay s.” See Tex. Transp. Code Ann. § 724.015 (West Supp. 2005). Sl aug hter testified that he made no other stateme nts to Nicholson with respect to the conseque nces of

ref using to g ive the specimen. After the DI C-24 form wa s rea d, Nicholson signe d a wr itten consent to the re quested blood spec imen.

Nicholson testified that she would not have signe d the conse n t fo rm if she ha d not been told that a r efusa l would result in the suspension of her driver’ s license. S h e adde d, “I had
ne ve r b e e n in tr ou

ble wi th t he po lic e be fo re and

Iawo ke to t

he of fi c e r i n my

ro om r e a din g me my rig hts. And the way

it seemed to me I

had no other

option.” The test of N icholson’s blood showed he r to have an alc ohol conce ntration of 0.22. Nicholson moved to suppress this test result on the g round that her consent to the blood dra

w was i n d u c e d b y t h e o f f i c e r ’ s m i s s t a t e m e n to f

t h e c o n s e qu e n c e s o f

a r e f u s a l an d h e n c e i n v o l u n t ar

y.3 Under the implied c onsent law, consent to the takingof a br eath or blood specimen must be voluntary
. Er

dm an v . S tate , 861 S.W .2d 890, 893 (Tex. Cri m . Ap p . 1 993). I f a dr iver’s consent is induced by

an off icer ’s misstatement of t he consequenc es flowing from a re fusal to g ive a spec imen, the conse nt is not vol untary
. Id
. at 894 (holding that office r’s err oneous statement that Erdman would immediately be jailed and char g ed with dr iving while intox icated if he re fused to g ive sp e c ime n r e nd e re d c onsent inv olu nta ry ); Sta te v . S

e lls , 7 98 S.W. 2d

86 5, 86 7 ( Te x. Ap p. —Aus tin 1990, no pet.) (holding that office r’s err oneous statement that Sells would a utomatically

be cha rg ed and inca rce rate d if he re fused to g ive spec imen rende red c onsent involuntary ). Th e imp lie d c on se nt l aw ap pli e s only to p e rs on s w ho are arr e ste d f or dr ivi ngwh ile intox icated or

related offe nses. Al iff

v . S tate , 62 7 S. W.2 d 1 66 , 1 68 (T e x. Cr im. Ap p. 19 82 ); Com be st
v . S tat e , 9 81 S.W. 2d

95 8, 96 0 ( Te x. Ap p. —Aus tin 19 98 , p e t. r e f’ d) ; see Tex. Transp. C o d e Ann. § 724.011(a) (West 1999 ) (“ I f a p er s o n is arre sted . . . the per son is deemed to have consente d”), § 724.012(a) (West Supp. 2005) (“spec imens . . . may be take n i f t h e per son is arre sted”). It was undisputed at the hear ing that Nicholson was not unde r arr est when the DI C-24 form wa s rea d and the b lo o d s p e c im e n w a s ta k e n . T h u s , th e p r o v is io n s o f th e la w s u s p e n d in g th e dr iv e r ’ s li c e n se of
a p erson who refuse s to submit to the taking of a spe cimen did not apply to Nicholson. See T e x. Transp. Code A nn. § 724.002 (West Supp. 2005).

The State re lies on this C ourt’s opinion in Com be st . The fa cts i n t h at case wer e
ro ug hly sim ila r t o tho se no w be fo re us : Com be st w a s ta

ke n to a ho sp ita l f

oll ow ingan a

uto mob ile
acc ident; he was suspe cted of driving while i ntox icated but was not under a rre st; he ag ree d to give a blood spec imen afte r an of fice r re ad the DI C-24 form. See 981 S.W .2d at 960. Combest argued4

on appea l that his consent to the blood draw w as involuntary due to the off

icer ’s er roneous state ment that a re fusal would re sult in t he suspension of his license
. Id . at 96 1. Af te r r e vie wi ngthe tot a lity of the circumstances, this Court concluded that Combest’s consent was shown to be voluntary despite the off

icer ’s misstatement. Id . at 962. There is a critica l disti nction betwee n Com be st and the c a se no w b e fo re us . Co mbe st did not testify

at the hea ring on his motion to suppress and there was no evidence that his ag ree ment to g ive the blood spe cimen was influence d in a ny way by

the er roneous infor

mation reg ardingthe conseque nces of

a re fusal. Id . I n fac t, Combest’s attorney told the trial court that the wor ding of the form war ning was not a

n issue: “[T] here ’s no Erdman question here .” Id . Nicholson, on the other ha nd , te sti fi e d b e low

that sh e wo uld

no t ha ve c on se nte d to the blo od sp e c ime n ha d she no t be e n to ld that her dr iver’s lice nse would be suspe nded if she r efuse d. Thus, this case is ana logous to Se lls , wher e the de fenda

nt testified that he would not have ag ree d to give a spec imen but for the of fice r’s
err oneous statement that he would immediately be jailed if he re fused. Se e Se lls , 798 S.W .2d at 866. This Court aff

irmed the order g ranting Sells’s moti on to suppress the test re sult on the gr ound that it had been induc ed by

the offic er’ s misst atement. Id . at 867. When review ing a

trial court’ s ruling on a

motion to s u p p re s s ev i dence obtained without a war

rant, we defe r to the cou rt’s fa ctual dete rminations but review de novo the cour t’s application of the law to the fa cts. Gu zm an v . S tate , 955 S.W .2d 85, 89 (Tex. Cr i m . App. 1997). We review t h e ev i d ence in the light most favor able to the c ourt’s ruling and, if the c ourt did not make e x plicit findings of f act, we assume that the c ourt made f indings tha t are supported by the
rec ord and buttress its conclusion. Car mo uc hev . S

tate , 10 S.W .3d 323, 327-28 (Tex. Crim. App.Both Erdman and Se lls wer e decided before the opinion in Guzman and employ ed a diffe rent 3 standard of

appellate revie w. Se e Er dm an v . S tate , 861 S.W
. 2 d 890, 893 (Tex. Crim. App. 1993) (a pp lyinga bu se of dis c re tio n r e vie w) ; Sta te v . S e lls , 798 S.W .2d 865, 867 (Tex. App.—Austin 1990, no pet.) (sa

me). Although we now e mploy the Guzman sta

nd ard , th e su

bs tanti ve ho ldi ngof

tho se op i n i o ns remains va lid: a consent induce d by a police of

fice r’s misstatement of the c onsequenc es o f a r e f u s a l m ay r e n d e r

i ti n v o l u n t ar

y. 5 2000). In this case, we assume that the tria l court believe d Nicholson’s testimony regard i n g the
coer cive eff

ect of the inapplicable DI C-24 form on her decision to g ive a blood spe cimen. Applying de novo the holding s in Erdman and Se lls , we c onclude that the State f ailed to prove that N i c h o l s o n ’ s c o n s e n tt o t h e b l o o d dr aw w a s v o l u n t ar

y. 3 The orde r g rantingNicholson’s motion to suppress evidenc e is aff irmed.

__________________________________________ Be a Ann Smith, J ustice Be fore Chief J ustice L aw, Justi ces B . A. Smith and Pemberton Affir med Filed: January

20, 2006 Do No t Pu

bli sh