News and Insights

In a Warrantless DWI Blood Draw Case, State Offers "Understaffing of Police" as an Exigent Circumstance.

Bonsignore v State (2nd Court of Appeals - Fort Worth, 2016)

After traveling eighty miles an hour in a forty miles per hour zone, Jeremy Bonsignore pulled into a Waffle House and started walking toward the restaurant. Unknown to Bonsignore, law enforcement had been following him for several minutes. Once the officer pulled into the parking lot, he activated his lights and began yelling at Bonsignore to stop walking. Bonsignore turned around, stumbled, and lost his balance. The officer noted the presence of a strong odor of alcohol and that Bonsignore’s eyes appeared glassy.

Bonsignore admitted to having a few drinks earlier in the day, which prompted the officer to conduct several field sobriety tests. Bonsignore failed them and then abruptly refused to do anymore tests or provide a breath or blood sample. Bonsignore was placed under arrest at 1:49 am. Dispatch informed the officer that Bonsignore had two prior DWI convictions, which could amount to Bonsignore being a repeat DWI offender, a felony offense. With this information in mind, the officer instructed a second officer to take Bonsignore to the hospital for a mandatory blood draw. The blood draw was conducted at 2:55 am. Bonsignore did not consent to the taking of his blood and the officer did not obtain a warrant.

Warrantless Blood Draw Issue at Trial

Before trial began, Bonsignore filed a motion to suppress the results of the blood draw, arguing that the blood draw was warrantless, and therefore, unconstitutional. The motion was never officially ruled upon, although the court did take the motion under advisement. During trial, when asked why he ordered the blood draw, the officer said that Bonsignore’s “two prior convictions were his only authority for obtaining the blood draw.” The officer did not attempt to obtain a search warrant, and he acknowledged that Bonsignore did not give his consent to a blood draw.

The officer testified that he relied solely on the statute, Texas Transportation Code 724.012, for authority to order the draw against Bonsignore’s will. Pleading guilty to the charges, the trial court issued Bonsignore a two-year sentence. Bonsignore appealed, arguing that his motion to suppress the evidence should have been ruled upon because the blood draw was taken without his consent and without a search warrant, violating the ruling in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The State argues that (1) Bonsignore’s blood-alcohol level would dissipate over time, (2) he was a repeat felony offender, and (3) the police department was small and understaffed, and that obtaining a warrant in this case would have been overly-burdensome for the officers that night.

Is "Dissipation" an Exigent Circumstance to Justify a Warrantless Search?

In the wake of the McNeely case, the Second Court of Appeals must determine whether Bonsignore’s blood draw was constitutional, and, whether the State may rely on an exigency “emergency circumstances” argument as an exception to the Fourth Amendment.

Texas Transportation Code

Section 724.012(b)(3)(B) states that blood or breath samples may be required to be taken when the suspect is arrested for DWI and he refuses to give the specimen voluntarily, so long as the suspect has two prior DWI convictions, “although [the code] does not expressly authorize taking the specimen without a warrant.” State v. Swan, 483, S.W.3d 760, 764 (Tex. App.—Fort Worth 2016, no pet.).

However, “the explicit refusal to submit to blood testing overrides the existence of any implied consent and 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, 475 S.W.3d 784, 800.

Precedent Case Law: Missouri v. McNeely

“The natural metabolism of alcohol in the bloodstream [does not] present a per se exigent circumstance justifying an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133 S. Ct. at 1556, 1558.

The Second Court of Appeals Weighs In

The Second Court of Appeals agreed with Bonsignore. “The police may not create their own exigency to make a warrantless arrest or search.” Parker v. State, 206 S.W.3d 593, 598 (Tex. Crim. App. 2006). “Exigent circumstances do not meet Fourth Amendment standards if [law enforcement] deliberately creates the [circumstances].” Id.

Here, the Court held, law enforcement knew that it was not a “No Refusal Weekend” in Texas. Further, the police department knew that it only had three officers on duty the entire night Bonsignore was arrested. In fact, understaffing the department was a typical occurrence. There was nothing out of the norm about the number of officers on duty that night. “Deliberately scheduling an insufficient number of patrol officers on an evening shift does not constitute an exigent circumstance.” State v. McClendon, NO. 02-15-00019-CR, 2016 WL 742018 (Tex. App.—Forth Worth, Feb. 25, 2016, no pet.).

Additionally, the department had a protocol for obtaining warrants, even in the absence of magistrates “on call.” Also, there was no earth-shattering emergency or problem that prevented the officers from making attempts to secure a warrant for Bonsignore’s search. The Court makes a point to highlight the efficiency of fax machines for the purposes of securing warrants, “thanks to the fax machine, [law enforcement] could …request a search warrant” and “thanks again to a fax machine…once [law enforcement] had the search warrant, [they] could fax it directly to a hospital instead of driving [the warrant] there.” The argument that the police department is small was unpersuasive for the Second Court of Appeals. For these reasons, the Second Court of Appeals reversed the trial court’s ruling, and remanded the case to the trial court for a new trial.

“Firearms and Domestic Strife are a Potentially Deadly Combination,” says the Supreme Court

Voisine v. United States (US Supreme Court, 2016)

Voisine v. United States consolidates two domestic violence-related cases from Maine. In both cases, the petitioner-defendants were previously charged with “reckless” misdemeanor assaults, and both were found later to own guns in violation of a federal statute prohibiting gun ownership by those convicted of domestic violence. The Supreme Court weighed the differences between intentional and knowing domestic assaults versus a reckless “heat of passion” type assault to reach it’s conclusion.

Voisine’s Domestic Violence Case

In 2004, Stephen Voisine was charged with and convicted of a domestic violence assault of his girlfriend, in violation of §207 of the Maine Criminal Code, which penalizes “intentionally, knowingly, or recklessly causing bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann. Tit. 17-A, §207(1)(A). A few years later, Voisine killed a bald eagle—a federal offense. During the investigation of the bald eagle crime, investigators discovered Voisine owned a rifle. Background checks reflected his prior domestic violence conviction, so prosecutors charged him with violating 18 U.S.C. §922(g)(9).

Armstrong’s Domestic Violence Case

In 2008, William Armstrong pleaded guilty to a domestic violence assault of his wife, in violation of the Maine Criminal Code. A few years later, law enforcement was investigating a narcotics ring, and discovered six guns and ammunition on Armstrong’s property. Like Voisine, Armstrong was charged with violating 18 U.S.C. §922(g)(9), unlawfully possessing firearms.

The Big Issue before the Supreme Court - Is there a difference between "Reckless" domestic violence and "Intentional" domestic violence for 922(g)(9)?

Both Voisine and Armstrong appealed their respective cases to the First Circuit, arguing that they were “not subject to the federal firearm prohibition described in §922(g)(9) because their prior convictions could have been based on reckless, rather than knowing and intentional, conduct.” United States v. Armstrong, 706 F.3d 1, 4 (2013); United States v. Voisine, 495 Fed. Appx. 101, 102 (2013) (per curiam).

After several appeals in Maine, both Voisine and Armstrong filed a petition to the Supreme Court. The Supreme Court granted the petition for review, specifically to resolve a circuit split over the issue at hand.

The Supreme Court must determine whether misdemeanor assault convictions for reckless domestic assaults invoke the federal firearms ban. What difference, if any, is there between intentional and knowing assaults versus a reckless assault? Does the type of assault even matter?

What is the current law regarding Federal firearm restrictions after a conviction for a domestic violence incident?

Under Federal law, any person convicted of a "misdemeanor crime of domestic violence" is prohibited from possessing a firearm. 18 U.S.C. §922(g)(9). This includes any misdemeanor that involves the “use of physical force.” §921(a)(33)(A).

The Supreme Court Weighs In

In the opinion released Tuesday, the Supreme Court discusses the mens rea (state of mind) for a reckless domestic violence assault, which a is “conscious disregard of a substantial risk that the conduct will cause harm to another.” ALI, Model Penal Code §2.02(2)(c) (1962). Reckless conduct, the Court says, is not an accident. Reckless conduct involves a deliberate decision to endanger others. Reckless conduct involves making a decision—it is a purposeful act.

Here, the Supreme Court holds that yes, misdemeanor assault convictions for reckless domestic assaults do trigger the federal firearms ban, for two main reasons.

I. It’s Common Sense--Plain Language Read of the Statute Renders this Result

Both Voisine and Armstrong took issue with the phrase “use of force”—namely the word “use.” However, “nothing in the word “use” indicated that the federal firearm ban applies exclusively to misdemeanor assaults that are knowingly or intentionally committed,” says the Supreme Court. Further, “dictionaries consistently define the noun “use” to mean the act of employing something.” Webster’s New Int’l. Dictionary 2806 (2d ed. 1954); Random House Dictionary of the English Lang. 2097 (2d ed. 1987); Black’s Law Dictionary 1541 (6th ed. 1990). “On that common understanding, the force used [in an assault] must be volitional.” In sum, a person who “assaults another recklessly uses force, no less than one who carries out that same action knowingly or intentionally.”

II. Congress Intended to Include All Types of Misdemeanor Domestic Assaults in §922(g)(1).

The federal firearm ban for those convicted of misdemeanor domestic assaults was enacted by Congress in the late 90s to “close a dangerous loophole in gun control laws.” United States v. Castleman, 572 U.S. __, __ (2014)(slip op., at 2)(quoting United States v. Hayes, 555 U.S. 415, 426 (2009)). At the time, a law prohibiting those with felony domestic violence convictions was already on the books. §922(g)(1)(1994 ed.).

Unfortunately, says the Court, many domestic violence assaults are prosecuted as misdemeanor crimes or have a statutory penalty that results in misdemeanor convictions, “notwithstanding the harmfulness of their conduct.” Castleman, 572 U.S. at __(slip op. at 2). Using the Commerce Clause of the US Constitution as a hook for the law, Congress added the federal firearm ban for any person “convicted of a misdemeanor crime of domestic violence…from possessing any gun or ammunition with a connection to interstate commerce.”

Further, Congress defined “misdemeanor crime” as any misdemeanor under federal, state, or tribal law, committed by a person with a…domestic relationship with the victim that has…physical force.” In sum, the “statutory text and background alike lead us to conclude that a reckless domestic assault qualifies as a misdemeanor crime of domestic violence” under federal statutes.

Dissenters in the Crowd

Supreme Court Justices Thomas and Sotomayor disagreed with the majority. Both Justices aver that mere recklessness should not invoke a firearm ban because “recklessness does not necessarily involve the use of physical force.” [The Supreme Court] has routinely defined “use” in a way that makes clear the conduct must be intentional. Bailey v. United States, 516 U.S. 137 (1995). “The use of physical force against a family member refers to intentional acts of violence against a family member.”

This week, the Texas Court of Criminal Appeals released Henley v. State. In a 4-3 decision the divided court held that the defendant was not allowed to offer “defense of a third party” as a legal argument in his assault case, because it “was not material to, nor probative of, any fact that was of consequence to the determination of this action.”

Henley v. State (Tex. Crim. App. 2016)

Henley was Charged with Domestic Violence in Tarrant County and Offered a “Defense of Others” Argument at Trial

Mr. Henley was charged with misdemeanor assault causing bodily injury to a family member (domestic violence). Henley was alleged to have pulled his ex-wife out of her car by her hair, punched her in the face several times, and hit her head against the concrete driveway.

At trial, Henley asserted a “defense of others” defense, which is an extension of the traditional self-defense argument. The rationale he provided for this defense was that he did not think his ex-wife was a fit parent because her new husband had sexually and possibly physically assaulted the children. The mother’s new husband was not present during the altercation and did not pose any immediate threat, but Henley tried to argue nonetheless that he was defending his children from being exposed to a physically and sexually abusive environment.

The trial judge did not allow Henley to present the defense of others claim and he was convicted. The 2nd District Court of Appeal (Fort Worth) reversed the trial court, holding that Henley should have been allowed to present his defense. The State appealed to the Court of Criminal Appeals.

What is the Standard to Assert Defense of a Third Party?

To claim defense of a third person, a defendant must reasonably believe his intervention was immediately necessary to protect the third person from the threat of force.

The question in this case was not, “is defense of a third person an effective defense when considered by the jury?” Rather the question was “should the defendant be allowed to bring that defense at all under these facts?”

A Divided CCA Holds that the Trial Judge Did Not Err in Denying Henley the Ability to Raise Defense of a Third Person

The slim majority said no,. Henley should not be able to bring this defense because his aim was not to offer material or probative evidence, but rather to introduce evidence of how bad of a mother. Henley’s ex-wife is, and perhaps try to finagle a jury nullification. The majority saw Henley’s attempted defense as nothing more than an attempt to circumvent the judicial and evidentiary process and try to make an emotional appeal to the jury rather than a factual one.

The dissenting judges (Keller, Hervey, and Newell) argued that the defense should have been allowed because anything thing that is of consequence to the determination of the action more probable or less probable than it would be without the evidence should be deemed relevant and therefore admissible. Further, the question of whether Henley’s defense claims were reasonable belonged to the jury not the judge. It was the jury who should decide if Henley, in fact, acted reasonably on that day in question.

What are the Implications of this Holding for the Defense of Third Person Claim in Texas?

This case demonstrates that Defense of a Third Person is not as easy as simply claiming it. There must be evidence to show that the defense is reasonable. The evidence must show that the “intervention was immediately necessary to protect the third person from the threat of force” or it could be disallowed by the trial judge. The valid defense of others is still viable; as viable as it ever was. It simply must fit the facts.

The Fugitive, The Doctrine of Chances, and The Texas Rules of Evidence Collide: CCA Reviews a “Movie Plot” Defense Strategy

Dabney v. State (Tex. Crim. App. 2016)

Have you ever seen a movie like The Fugitive or Double Jeopardy where the main character finds himself in suspicious circumstances, only to be arrested and convicted, with the rest of the movie focused on proving the main character’s innocence? The defense counsel in Dabney v. State used this sort of analogy as the theme of his case to the jury—that the defendant was trapped in a bad movie plot and wasn’t actually guilty of any crime.

A Mystery Meth Lab Was Constructed at the Defendant's Home

Defense counsel made a memorable opening statement at Ronnie Dabney’s trial. Dabney had been arrested and charged with manufacturing meth. Defense counsel told the jury that the evidence would show that the meth lab found on Dabney’s property was set up by others, without his knowledge, and that Dabney arrived home mere moments before law enforcement arrived to discover the lab. Defense counsel offered a movie-plot defense theory, “Have you ever seen a movie like The Fugitive or Double Jeopardy where a person is found in suspicious circumstances and [they] arrest and convict them?” The defense added, “Ronnie Dabney has been living this movie where he’s innocent, found in suspicious circumstances, and he’s trying to prove himself not guilty.”

In response to the movie-plot defense theory, the State filed a brief arguing that it should be permitted to present evidence of a previous incident years ago, in which Dabney was present when a search warrant was executed on his property and an active meth lab was found. The State argued that the opening statements about the movie-plot amounted to a defensive theory, where evidence or mistake is at issue, worthy of a rebuttal argument supported by rebuttal evidence allowed under Rule 404(b) of the Texas Rules of Evidence.

Before trial, Dabney submitted a request for “notice” of the State’s intent to use evidence of past “extraneous” offenses under the Texas Rules of Evidence 404(b). The state failed to give proper notice of any 404(b) allegations. However, after hearing the defense opening statement, the State argued that the similarities between the case at bar and a previous case “rebutted [Dabney’s] defensive theory of accident or mistake” and requested permission to use the previous incident as 404(b) evidence to show the absence of mistake. The judge concluded the evidence of the previous crime was admissible. During closing remarks, the State averred, “[Dabney is] the unluckiest man in the world…[he] wants you to think [he] is Harrison Ford from the Fugitive…[with] a confluence of unfortunate events that frame him…but…common sense says it’s not an accident if it has happened twice…it’s the Doctrine of Chances.” Ronnie Dabney was found guilty of manufacturing meth and the jury sentenced him to 30 years imprisonment.

Dabney appealed to the Second Court of Appeals arguing the State failed to give proper notice of intent to use evidence of Dabney’s past crimes in its rebuttal argument under Texas evidentiary rules. The Fort Worth Court of Appeals reversed the trial court’s judgment, holding that the evidence of Dabney’s past crimes was inadmissible without proper notice from the State. Dabney v. State, No. 02-12-00530-CR, 2014 Tex. App. LEXIS 11496 (Tex. App.—Fort Worth, Oct. 16, 2014) (mem.op., not designated for publication). The State petitioned the Court of Criminal Appeals for review, arguing that notice is not required for rebuttal evidence because defensive theories cannot be predicted ahead of time. Dabney asserts that the State has a duty to anticipate all defensive issues that may come up in rebuttal.

The Court of Criminal Appeals considered the following issues (among others not discussed in this article):

(1) Did the court of appeals incorrectly add a “notice requirement” for rebuttal evidence?
(2) Did the court of appeals improperly ignore the overwhelming evidence of Dabney’s guilt?

Texas Evidentiary Rules Regarding Other Crimes, Wrongs, or Acts

Rule 404(b) of the Texas Rules of Evidence states

evidence of crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity [of the crime being prosecuted].” “However, [such evidence] may be admissible for other purposes, such as…intent, preparation…knowledge…absence of mistake or accident, provided that upon timely request by the [defendant], reasonable notice is given in advance of trial of intent to introduce in the State’s case.

A defense opening statement can open the door for the admission of extraneous-offense evidence to rebut the defensive theory presented in opening statements. Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008).

The Doctrine of Chances tells [the court] that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.” LaPaz v. State, 279 S.W. 3d 336, 347 (Tex. Crim. App. 2009).

Rule 404(b) is a rule of inclusion, rather than of exclusions—it excludes only evidence that is offered solely for the purpose of proving bad character and conduct in conformity with that bad character. Id. at 343.

The CCA Holds that the Court of Appeals Improperly Added a Notice Requirement for Rebuttal Evidence

Here, the CCA reversed the decision of the court of appeals, holding that the court of appeals improperly added a notice requirement for rebuttal evidence and ignored the overwhelming evidence pointing to Dabney’s guilt. Because of the exception to the notice requirement when the defense opens the door to rebuttal evidence by presenting a defensive theory that the State may rebut using extraneous-offense evidence, the evidence of the prior crime was proper at trial, even without notice to defense beforehand. “To hold otherwise would impose upon the State the impossible task of anticipating, prior to the beginning of any trial, any and all potential defenses that a defendant may raise.” Also, there was no evidence that the prosecution acted in bad faith, or attempted to willfully avoid a discovery order. “Under the Doctrine of Chances, [Dabney’s] defense that he found himself in an unfortunate, highly unlikely situation becomes less credible when presented with evidence that he has been found in the exact same situation before.”

In sum, [Dabney] presented his defensive theory in opening statements and the State could use extraneous-offense evidence to rebut this theory in its case-in-chief, instead of waiting until the defense rested. Bass at 563. Defendants who are planning to use the “movie plot” defensive theory in the future, must be prepared to have the theory tested in front of a jury with 404(b) rebuttal evidence of other crimes, wrongs, or acts.

Court of Criminal Appeals Considers Whether Defense Failed to Preserve Appeal

Smith v. State (Tex Crim. App. 2016)

Warrantless Blood Draw Provides Evidence of DWI

William Smith was stopped by police for driving without a seatbelt. Immediately, law enforcement suspected Smith of driving under the influence because of the “extremely strong smell of alcohol” coming from Smith. Accordingly, law enforcement administered several field sobriety tests and determined that Smith “exhibited clues of intoxication.” Smith became belligerent after being arrested, and refused a breathalyzer. Law enforcement searched Smith’s car incident to his arrest, finding three open containers that were “cold to the touch.” Dashboard camera footage captured the entire stop.

Law enforcement decided to transport Smith to a local hospital for a blood draw because a quick check of Smith’s ID showed that he had two prior DWI convictions. The blood sample taken at the hospital reflected a blood-alcohol concentration of .21 grams of alcohol per 100 milliliters of blood—well above the legal limit of .08. Smith elected a bench trial.

Defense Counsel Argues that Blood Draw was Unconstitutional, Trial Judge Seems to Agree

At trial, the State called a forensic scientist to testify about Smith’s blood sample. The forensic scientist testified that Smith’s blood alcohol level exceeded the statutory minimum of .08. Shortly thereafter, there was discussion between the judge and counsel about Texas case law in regards to whether the court must have an “order” signed by a judge or magistrate in order for a blood alcohol test to be admitted into evidence. The defense counsel stated, “I would…object…on constitutional grounds [because] there should be a written order [in evidence].” The State replied that law enforcement was “operating under the laws of the State.” The judge seemed to agree with defense counsel, “No…the legislature allows for this…but that doesn’t mean the law is constitutional.” The judge decided to “carry” the constitutional issue so that each side could research and make a formal brief before the court. However, at the end of the trial, Smith was convicted of DWI. The judge stated the “video of [Smith] showed signs of intoxication, but the judge was surprised…that [Smith]…did as well as he did on the [field sobriety tests]” given the .21 blood alcohol concentration. The judge sentenced Smith to twenty-five years imprisonment. There were no further objections on the record made by defense counsel post-judgment.

Appeal Turns on Lawfulness of the Blood Draw

On appeal, the court of appeals reversed Smith’s conviction because the blood sample was obtained without a warrant, violating the Fourth Amendment. State appeals to the Court of Criminal Appeals, arguing that Smith did not preserve error at trial with regard to his Fourth Amendment issue, and as a result of the failure, Smith was precluded from raising a constitutional argument on appeal.

The Issue Before the CCA - Did the Defense Preserve Appeal of the Blood Draw Issue?

The CCA must determine whether defense preserved error so that the fourth amendment search and seizure issue could be raised on appeal. To preserve error, defense counsel must obtain a ruling on the complaint, or object to the trial judge’s refusal to rule.” Tex. R. App. P. 33.1(a)(2) However, “even evidence that is improperly admitted is considered in determining whether the evidence is sufficient to support a conviction.” Soliz v. State, 432 S.W.3d 895, 900 (Tex. Crim. App. 2014).

The CCA Holds that Appellate Issue was NOT Preserved

Here, the CCA determined that the trial judge declined to rule on the Fourth Amendment constitutional issue at the time, but decided to “carry” the issue. Garza v. State, 126 S.W.3d 79, 83 (Tex. Crim. App. 2004). The CCA says that although the trial judge admitted the blood-alcohol test results, he did not rule on Smith’s initial objection, and thus, error was not preserved in this case. “In any event,” says the CCA, “there was…evidence to support [Smith’s] conviction aside from the blood-test results.” “Smith never asked for a ruling on the [constitutional issue], nor did defense counsel object to the trial judge’s failure to rule. In sum, failure to preserve error on a fourth amendment search and seizure argument for warrantless blood draws in DWI cases precludes a defendant from raising the constitutional argument on appeal.