Summary
holding unconstitutional the unconscious or incapacitated driver provision of the state's implied consent statute
Summary of this case from State v. PradoOpinion
NO. PD-0176-18
09-11-2019
The STATE of Texas, v. Jose RUIZ, Appellee
OPINION
Appellee was charged with felony driving while intoxicated after the State took a blood sample from him without a warrant and while he was unconscious. The trial court granted his motion to suppress his blood test results, and the court of appeals affirmed. The State sought discretionary review to determine whether (1) implied consent to a blood draw from an unconscious driver is reasonable under the Fourth Amendment, and (2) exigent circumstances justified the warrantless blood draw. We granted review of the first ground, and we hold that implied consent is not a valid basis for a blood draw in the circumstances presented here. We now grant review of the second ground concerning exigent circumstances, vacate the lower court's holding on that issue, and remand the case to the court of appeals for reconsideration of it in light of Mitchell v. Wisconsin , ––– U.S. ––––, 139 S.Ct. 2525, 204 L.Ed.2d 1040 (2019).
I. Background
A. Relevant Facts
Appellee fled the scene of a car wreck under circumstances demonstrating that he had been driving while intoxicated. Officers found him unresponsive in a nearby field and carried him to a patrol car. Emergency medical responders tried to revive him, but he remained unresponsive, and they took him to the hospital. Sergeant Bethany McBride arrested Appellee at the hospital and, although Appellee was unconscious, she read the DWI statutory warnings to him and then ordered a warrantless blood draw pursuant to Texas Transportation Code Sections 724.011 and 724.014.
Throughout the remainder of this opinion "Section" refers to the Texas Transportation Code,
B. Issue Granted
We granted review to decide whether implied consent under Section 724.014 is equivalent to voluntary consent as a recognized exception to the warrant requirement. Is it unreasonable under the Fourth Amendment for an officer to rely on an unconscious driver's implied consent for a blood draw when the unconsciousness prevents the officer from seeking actual consent? We hold that irrevocable implied consent is not free and voluntary and does not satisfy the consent exception to the warrant requirement of the Fourth Amendment. Consequently, we affirm the judgment of the court of appeals on this point.
C. Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review; fact findings are reviewed for an abuse of discretion, and applications of law are reviewed de novo . Turrubiate v. State , 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We will sustain the trial court's application of the law if it is correct on any applicable theory of law, and the record reasonably supports the ruling. Valtierra v. State , 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010). The trial court's findings in this case are undisputed, and we are presented only with a legal issue.
II. Discussion
A. Transportation Code
The State argues that the warrantless blood draw was reasonable in this case because it was authorized by the Transportation Code. Section 724.011 states that a drunk-driving suspect who uses the public roadways has consented to having his blood drawn:
(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.
TEX. TRANSP. CODE § 724.011. Section 724.014 provides that an unconscious DWI suspect is considered not to have withdrawn his implied consent:
(a) A person who is dead, unconscious, or otherwise incapable of refusal is considered not to have withdrawn the consent provided by Section 724.011.
(b) If the person is dead, a specimen may be taken by:
(1) the county medical examiner or the examiner's designated agent; or
(2) a licensed mortician or a person authorized under Section 724.016 or 724.017 if there is not a county medical examiner for the county.
(c) If the person is alive but is incapable of refusal, a specimen may be taken by a person authorized under Section 724.016 or 724.017.
The State argues that Appellee gave his implied consent to alcohol testing when he drove on Texas roadways, and because that consent was never limited, withdrawn, or revoked, his consent remained in full effect at the time of the blood draw. We disagree for the reasons given below.
B. Fourth Amendment and Consent
Under the Fourth Amendment a search of a person pursuant to a criminal investigation "requires a search warrant or a recognized exception to the warrant requirement." State v. Villarreal , 475 S.W.3d 784, 795 (Tex. Crim. App. 2014). The totality of the circumstances dictates whether a warrantless search is reasonable. Missouri v. McNeely , 569 U.S. 141, 149, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). A warrantless search may be reasonable "if the police obtain consent." Beeman v. State , 86 S.W.3d 613, 615 (Tex. Crim. App. 2002). When the State relies on consent to justify a search, it must prove that the consent was freely and voluntarily given. Bumper v. North Carolina , 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Voluntariness depends on the totality of the circumstances. Schneckloth v. Bustamonte , 412 U.S. 218, 233, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). It means more than a knowing choice. Id. at 224, 93 S.Ct. 2041. "The ultimate question is whether the person's will has been overborne and his capacity for self-determination critically impaired, such that his consent to search must have been involuntary." Meekins v. State , 340 S.W.3d 454, 459 (Tex. Crim. App. 2011) (internal quotation marks omitted) (quoting United States v. Watson , 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (quoting Schneckloth , 412 U.S. at 225, 93 S.Ct. 2041 )).
Relevant considerations include the subject's sophistication in the law, mental acuity, and ability to exercise a free choice when facing arrest, and whether he was advised of his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or advised that the results of the search could be used against him. Watson , 423 U.S. at 424-25, 96 S.Ct. 820 (footnote omitted). A defendant may limit the scope of his consent, Florida v. Jimeno , 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), or revoke it altogether. Miller v. State , 393 S.W.3d 255, 266 (Tex. Crim. App. 2012) ; Valtierra , 310 S.W.3d at 450. The ability to limit or revoke is a "necessary element of valid consent[.]" Villarreal , 475 S.W.3d at 799.
The State argues that Appellee consented to blood-alcohol testing by driving on public roadways, and his consent lasted forever because he never revoked or limited it. State's brief, pg. 7. In support of this argument the State cites Valtierra for the proposition that consent to search for a particular item implies consent to search anywhere that the item may be found unless the consent is expressly limited. 310 S.W.3d at 449-52. Valtierra , however, limited the scope of consent by the reasonable person standard in light of the totality of the circumstances. Id. at 451. It did not hold that consent is of boundless scope unless expressly limited.
The State suggests that since it did not cause Appellee's condition, his unconsciousness should not be held against the prosecution in assessing the voluntariness of his consent. It quotes Fienen v. State , 390 S.W.3d 328, 333 (Tex. Crim. App. 2012), for the proposition that consent "must not be the result of physical or psychological pressures brought to bear by law enforcement" and emphasizes the last phrase, i.e., "brought to bear by law enforcement." Fienen , however, relied on Schneckloth which turned to cases assessing the voluntariness of confessions and described the totality of the circumstances as including "both the characteristics of the accused and the details of the interrogation." Schneckloth , 412 U.S. at 226, 93 S.Ct. 2041. See also Meekins , 340 S.W.3d at 460 (quoting United States v. Pena , 143 F.3d 1363, 1367 (10th Cir. 1998) (specifying that "the physical and mental condition and capacity of the defendant" are within the totality of the circumstances when determining voluntariness of consent)). Physical or psychological pressures brought to bear by law enforcement fall into the category of details of the interrogation; the characteristics of the accused still must be taken into consideration as part of the totality of circumstances.
In this case Appellee was unconscious throughout his encounter with law enforcement and had no capacity for self-determination; he could not make a choice; he could not hear Sgt. McBride read warnings to him; and he could not limit or revoke his consent. Under these circumstances drawing his blood was an unreasonable application of the consent exception to the Fourth Amendment warrant requirement.
III. Conclusion
We affirm the judgment of the court of appeals on the consent issue. We also grant the State's second ground for review asking whether exigent circumstances justified the blood draw in this case. We vacate the lower court's opinion on that issue and remand the case to the court of appeals for reconsideration in light of Mitchell , 139 S.Ct. 2525.
Keller, P.J., filed a concurring and dissenting opinion in which Slaughter, J., joined.
Yeary, J., did not participate.
KELLER, P.J., filed a concurring and dissenting opinion in which SLAUGHTER., J., joined.
The Court addresses whether statutorily-imposed implied consent to a blood draw is a valid waiver of a suspect's Fourth Amendment rights when the suspect is unconscious and unable to refuse consent. The Court answers that question "no." The Court then remands this case to the court of appeals for consideration of whether exigent circumstances existed in light of the Supreme Court's recent opinion in Mitchell v. Wisconsin.
Mitchell v. Wisconsin , ––– U.S. ––––, 139 S.Ct. 2525, 204 L.Ed.2d 1040 (2019).
I.
In Mitchell , a plurality of the Supreme Court concluded that, when a driver is unconscious and unable to take a breath test, the exigent circumstances rule "almost always permits a blood test without a warrant." Providing the fifth vote, Justice Thomas concurred because he would apply a per se rule that exigent circumstances exist in a police encounter with a person suspected of drunk driving, regardless of whether the driver is conscious.
Id. at 2531 (plurality op.).
Id. at 2539 (Thomas, J., concurring).
Because the court of appeals has not had the benefit of Mitchell , and resolution of the case in light of Mitchell might make consideration of the implied-consent issue unnecessary, I would not address implied consent at this time. I would instead remand to the court of appeals for reconsideration in light of Mitchell .
II.
There is another reason to eschew an analysis of implied consent. The Court acknowledges that Appellee gave his implied consent to a blood draw when he drove on the Texas roadways. By statute, "A person who is dead, unconscious, or otherwise incapable of refusal is considered not to have withdrawn [implied consent]." Appellee was unconscious at the time his blood was drawn. By the terms of § 724.014, therefore, he is not considered to have withdrawn his consent. The Court's holding that the Fourth Amendment was violated by the blood draw in this case seems to necessarily mean that § 724.014 is itself unconstitutional. I would avoid getting into the constitutionality of the statute by refraining from addressing implied consent. The Court says that the ability to limit or revoke consent is a necessary element of a valid consent. But I think that that may be true only when the type of consent at issue is unilateral and non-contractual, where the defendant has no obligation to consent and where no consequences attach to the withdrawal of consent, for example, when a person consents to police searching his car. The Supreme Court cases that the Court cites regarding a defendant's capacity for self-determination involve that sort of consent.
Tex. Transp. Code § 724.014.
See Pena v. State , 191 S.W.3d 133, 136 (Tex. Crim. App. 2006) (explaining that the Supreme Court and state courts have recognized "the desirability of avoiding the adjudication of constitutional issues when at all possible").
The implied consent at issue in this case is different: it is contractual. In exchange for the privilege of driving on Texas roads, a driver impliedly consents to a blood draw under certain circumstances. That consent can be withdrawn, but there are consequences to a withdrawal: the suspension of the person's driver's license for 180 days. This type of consent is not subject to an unqualified right to revoke; the right to revoke is qualified by this consequence. A person agrees to certain limits on his self-determination when he contractually consents by driving on Texas roads. By statute, one of those limits is that withdrawing consent results in a driver's license suspension. Another limit, by statute, is that consent is not withdrawn when the person is unconscious and incapable of volitionally withdrawing consent. If we say that implied consent is not valid for an unconscious person, that person would avoid carrying out his end of his bargain with the State, i.e., having his driver's license suspended. That is one reason I would say that the unconscious person does not withdraw consent. Arguably, that gives effect to the last volitional choice the person did make—impliedly consenting by choosing to drive on Texas roads. The Court's opinion, however, would give the unconscious person an arguably unwarranted advantage that the conscious person does not have—the withdrawal of consent without consequences.
Tex. Transp. Code § 724.035(a)(1). Other consequences attach if the person did not have a driver's license or has had two or more alcohol-related or drug-related enforcement contacts within the past ten years. See id. § 724.035(a)(2), (b).
I concur in the Court's decision to remand for further proceedings in light of Mitchell but dissent to the Court's resolution of the implied-consent issue.