Michael Joe Lyssy v. State

Opinion issued February 6, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00898-CR
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MICHAEL JOE LYSSY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Galveston County, Texas
Trial Court Case No. 314207
DISSENTING OPINION
I respectfully dissent. Appellant Michael Joe Lyssy pleaded nolo contendere
to the misdemeanor offense of driving while intoxicated (“DWI”) pursuant to a
plea bargain and the trial court sentenced him to 365 days in jail and imposed a
$300 fine. 1 The court suspended this sentence and imposed a twenty-four month
term of community supervision. Lyssy appeals the trial court’s denial of his
motion to suppress evidence of a blood draw taken the night of his arrest on the
ground that he did not consent to the warrantless blood draw upon which he was
convicted and that his constitutional rights were thereby violated. I agree. I would
reverse and remand for a new trial.
Background
Officer G. Rivas of the League City Police Department stopped Lyssy for
failing to maintain a single lane of traffic. Officer Rivas performed a field sobriety
test. He also asked Lyssy to blow into a breathalyzer, but Lyssy refused. Officer
Rivas then arrested Lyssy. Officer Rivas called League City dispatch and
requested a report on Lyssy from two databases, the Texas Crime Information
Center and the National Crime Information Center (“TCIC/NCIC”). The resulting
report showed that Lyssy had been convicted in 2004 for the offense of “driving
while intoxicated 2nd.” No other DWI conviction was included in the report.
Officer Rivas testified that he understood from dispatch’s oral report that
Lyssy “had . . . a conviction for DWI second conviction.” However, he also
testified that he did not remember hearing anything about a driving while
intoxicated, first offense. Based on his understanding of the TCIC/NCIC report, he
1
See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2011).
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requested a sample of Lyssy’s blood without obtaining a warrant. Lyssy refused.
Rivas transported him to a hospital, and one of its employees extracted a blood
specimen.
At the subsequent hearing on Lyssy’s motion to suppress the evidence
resulting from the blood draw, it became clear that Lyssy had only one previous
DWI conviction and that the TCIC/NCIC report had labeled his 2004 DWI
conviction as “driving while intoxicated 2nd.” Officer Rivas testified that,
although he relied on the TCIC/NCIC report to conclude that Lyssy had two prior
DWI convictions at the time of his arrest for the current offense, he understood
“[f]rom the information [he has] now” that Lyssy did not have two convictions.
Analysis
Lyssy argues that the blood evidence should have been suppressed because
(1) the statute relied upon by the State to justify the blood draw, Texas
Transportation Code section 724.012(b), is no longer a legitimate basis for search
in light of Missouri v. McNeely, 133 S. Ct. 1552 (2013) and (2) the conditions for
implying consent to draw blood without a warrant under section 724.012(b) itself
were not satisfied and, therefore, the blood draw violated his constitutional rights.
See TEX. TRANSP. CODE ANN. § 724.012(b)(3) (West 2011).
The taking of a blood specimen is a search and seizure under the Fourth
Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834
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(1966). A warrantless search or seizure is per se unreasonable unless it falls under
a recognized exception to a warrant. Katz v. United States, 389 U.S. 347, 357, 88
S. Ct. 507, 514 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App.
2000). One such exception is a search conducted pursuant to consent. See
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973).
The Court of Criminal Appeals has stated that “[t]he implied consent law does just
that—it implies a suspect’s consent to a search in certain instances. This is
important when there is no search warrant, since it is another method of conducting
a constitutionally valid search.” Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim.
App. 2002). The court held,
The implied consent law expands on the State’s search capabilities by
providing a framework for drawing DWI suspects’ blood in the
absence of a search warrant. It gives officers an additional weapon in
their investigative arsenal, enabling them to draw blood in certain
limited circumstances even without a search warrant.
Id. at 616.
Both the United States Supreme Court and the Court of Criminal Appeals
have recognized a two-part analysis for determining the legality of a blood draw:
reviewing courts must determine (1) whether the police were justified in requiring
the defendant to submit to a blood test and (2) whether the means and procedures
employed in taking the blood respected the relevant Fourth Amendment standards
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of reasonableness. See State v. Johnston, 336 S.W.3d 649, 658 (Tex. Crim. App.
2011) (citing Schmerber, 384 U.S. at 768, 86 S. Ct. at 1834).
Appellant argues that the United States Supreme Court’s recent holding in
Missouri v. McNeely invalidates his blood draw. I disagree. In McNeely, the
Supreme Court clarified the meaning of “exigency” in the context of a warrantless
blood draw, holding that the natural metabolization of alcohol in the bloodstream,
without more, does not constitute exigent circumstances; rather, “exigency” must
be determined case-by-case based on the totality of the circumstances. 133 S. Ct.
at 1560, 1568. Nothing in that opinion invalidated Texas’s implied consent statute.
In fact, in Section III of McNeely, Justice Sotomayor, writing for a four-justice
plurality, implicitly characterized implied consent statutes, including a specific
reference to section 724.012(b), as collateral to the exigency concerns underlying
the issue before the Supreme Court. Id. at 1566–67 & n.9. Thus, I conclude that
McNeely is inapplicable to the current case, which involved the application of
Texas’s implied consent statute, and it does not render that statute unconstitutional.
Texas’s implied consent statute, Transportation Code section
724.012(b)(3)(B), provides that “[a] peace officer shall require the taking of a
specimen of the person’s breath or blood . . . if the officer arrests the person for an
offense under Chapter 49, Penal Code, involving the operation of a motor
vehicle . . . and the person refuses the officer’s request to submit to the taking of a
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specimen voluntarily” if, “at the time of the arrest, the officer possesses or receives
reliable information from a credible source that the person . . . on two or more
occasions, has been previously convicted of . . . an offense under Section 49.04 [the
DWI statute], 49.05, 49.06, or 49.065, Penal Code. . . .” TEX. TRANSP. CODE ANN.
§ 724.012(b)(3)(B) (emphasis added). Section 724.013 provides, “Except as
provided by Section 724.012(b), a specimen may not be taken if a person refuses to
submit to the taking of a specimen designated by a peace officer.” Id. § 724.013
(West 2011).
Here, Officer Rivas received information from a reliable source relating
Lyssy’s prior DWI history, as required by section 724.012(b)(3)(B)—but that
dispatch report listed only one prior DWI conviction. The officer’s explanation for
his ordering the blood drawn—that he believed from the report that Lyssy actually
had two previous DWI convictions—does not alter the fact that the statutory
conditions for implying Lyssy’s consent to the blood draw were not met. Indeed,
the majority’s holding—that an officer’s subjective belief that an implied consent
statute has been satisfied is sufficient to imply consent—vitiates both the implied
consent statute and the underlying constitutional concept of implied consent to a
warrantless search. Under the majority’s reading of the statute, consent to a
warrantless search is implied whenever an officer believes in good faith that he has
complied with the law in ordering a search. Neither the implied consent statute nor
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the constitutional Fourth Amendment restrictions on searches and seizures would
have any meaning if the beliefs of police officers were their own warrant for the
validity of a search of a person or place or the seizure of a blood specimen
regardless of the facts.
I would hold that the subjective beliefs of an officer do not satisfy the
objective requirements of the implied consent statute. The implied consent statute
required that Officer Rivas have reliable information from a credible source that
Lyssy had at least two prior DWI convictions, but Lyssy had only one previous
conviction—Officer Rivas’s misunderstanding of the report notwithstanding. The
fact that the report labeled Lyssy’s single previous conviction as “driving while
intoxicated 2nd” might make Officer Rivas’s belief at the time he subjected Lyssy
to the blood draw reasonable, but it does not alter the material facts—the report
listed only one previous DWI conviction, and Lyssy, in fact, had only one prior
DWI conviction. Section 724.012(b)(3)(B), by its plain language, does not imply
consent when a suspect has only one previous DWI conviction. Therefore, in the
absence of a search warrant or actual consent, the blood evidence here is not
admissible.
I would hold that because the statutory conditions for implying Lyssy’s
consent to the search were not satisfied, the evidence of the warrantless blood draw
should have been suppressed.
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“If the appellate record in a criminal case reveals constitutional error that is
subject to harmless error review, the court of appeals must reverse a judgment of
conviction or punishment unless the court determines beyond a reasonable doubt
that the error did not contribute to the conviction or punishment.” TEX. R. APP. P.
44.2. I cannot conclude beyond a reasonable doubt that the results of a warrantless
blood test taken without consent—actual or implied—and showing a blood alcohol
level that supported a conviction for DWI did not contribute to Lyssy’s conviction.
I would therefore sustain Lyssy’s point of error.
Conclusion
For the foregoing reasons, I would reverse the judgment of the trial court
and remand for a new trial.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Keyes, J., dissenting
Publish. TEX. R. APP. P. 47.2(b).
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