NO.
 
THE STATE OF TEXAS			§         IN THE ___________ COURT
§
V.				 		§          OF
§
JOHN DOE					§         ___________ COUNTY, TEXAS

DEFENDANT’S BRIEF IN SUPPORT OF DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE 

TO THE HONORABLE JUDGE OF SAID COURT:  
Defendant, JOHN DOE, submits the following in support of the Defendant’s Motion to Suppress Evidence, which was respectfully submitted to this Court on October 8, 2003.  An evidentiary hearing was held on January 20, 2004 regarding said suppression motion.
Procedural History
 The Defendant allegedly committed the offense which is subject of Cause No. ___________ on October 26, 2001.  The Defendant was indicted in cause number ___________ for the offense of Intoxication Manslaughter on February 27, 2002.  Defendant was re-indicted in cause number ____________ on March 11, 2003 for the offenses of Manslaughter, Intoxication Manslaughter and Aggravated Assault.  
Statement of Facts
 On October 26, 2001, officers with the Lubbock Police Department responded to a traffic accident at 38th Street and University. (R.R., 27).   Upon arrival, Officer Scott observed a Ford Mustang lying inverted in the front yard of 2501 38th Street.  Id.  The Mustang was alleged to have been  driven by the Defendant.  (R.R., 31). There were several people at the scene of the accident already, and three of the people that were in the Mustang, including the Defendant, were sitting on the ground  with injuries.  (R.R., 30). The fourth passenger of the Mustang was trapped face down under the overturned vehicle.  (R.R., 29).  EMS arrived shortly after Officer Scott, and transported the Defendant to UMC. (R.R., 31).   Officer Scott assisted in the preliminary investigation at the scene, and determined the nature of the accident. (R.R.,  28-29).  He then went to the hospital in order to make contact with the Defendant. (R.R., 31) 
Prior to Officer Scott’ s arrival at the hospital, he had not had any interaction with the Defendant.  (R.R., 44) When initial contact was made with Defendant, Officer Scott  smelled a moderate odor of alcohol. (R.R., 45).  Officer Scott also testified that he did not notice anything peculiar about his speech, and Defendant was able to answer his questions coherently and intelligently. (R.R., 47). 
Officer Scott gave the Defendant the option to give a blood specimen, by reading to him the DIC-24 form. (R.R., 36).  Defendant initially refused. (R.R., 38). Officer Scott then told Defendant that, under the circumstances, taking a blood specimen was mandatory. (R.R.39).  After being told this by Officer Scott,  Defendant submitted and agreed to provide a blood specimen. (R.R., 39) . Prior to this conversation, Officer Scott did not perform any field sobriety tests on Defendant. (R.R, p. 48). Officer Scott then instructed hospital employee Elizabeth A. Sheppard, a R.N., to draw a mandatory blood sample from the Defendant. (R.R., 41). The specimen was taken and the Defendant was admitted into the hospital.  According to Officer Scott’ s report, the Defendant was also released pending the filing of charges having never left the hospital.

Argument

	It is unclear whether Officer Scott’s intent was to procure Defendant’s blood sample under §724.012(b) of the Texas Transportation Code or under §§724.011, 724.012(a) and 724.015 of the Transportation Code.  However, under either proposition, said sample was obtained illegally.
First, § 724.012(b), Texas Transportation Code (Taking of Specimen), provides:
A peace officer shall require the taking of a specimen of the person’s breath or blood if:
(1)	the officer arrests the person for an offense under Chapter 49, Penal Code, 
involving the operation of a motor vehicle or a watercraft; (emphasis added)
(2)	the person was the operator of a motor vehicle or a watercraft involved in an
accident that the officer reasonably believes occurred as a result of the
offense; (emphasis added)
(3)	at the time of the arrest the officer reasonably believes that a person has
died or will die as a direct result of the accident; and
(4)	the person refuses the officer’s request to submit to the taking of a  
specimen voluntarily (emphasis added)  
 
	Moreover, § 724.012(a), Texas Transportation Code,  provides:

One or more specimens of a person's breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:

(1) while intoxicated was operating a motor vehicle in a public place, or a 
                 watercraft; or
	(2) was in violation of § 106.041, Alcoholic Beverage Code.

	Additionally, regarding implied consent, § 724.011(a), Texas Transportation Code, provides:

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 watercraft, while intoxicated, . . . 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.

          Finally, an officer must read the warnings described in § 724.015 of the Texas Transportation Code when  attempting to obtain a blood or breath sample from a DWI arrestee.  This statutory provision allows a blood or breath specimen by consent only, and the Defendant has the option to refuse to submit the sample.   
	          Regardless of which statutory provision Officer Scott proceeded under, the Defendant must be first placed under arrest in order for blood sample to be legally taken, either with or without consent.  Torres v. State held that  “an investigative detention. . . may be founded upon a reasonable, articulable suspicion while an arrest . . . must be supported by probable cause.” 50 S.W.3d 89, 94 (Tex. App.-Fort Worth, 2001, no pet.).  Indeed, it is well settled that a warrantless arrest must be based on probable cause, and that a “totality of the circumstances” test is undertaken to determine whether probable cause exists.  Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991).  “Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular person has committed or is committing an offense.”  Id.
	         In the case at bar, Officer Scott arrested the Defendant for an offense under Chapter 49 of the Penal Code prior to establishing probable cause.  Although reasonable suspicion to detain the Defendant may have existed, no further investigative action was taken to establish probable cause for a Chapter 49 offense.  
	          In Domingo v. State, an officer had a  consensual conversation with the Appellant in a public area.  The officer noticed a strong odor of alcohol, but no abnormalities in a suspect's speech or eyes before detention, as well as no sight of suspect drinking an alcoholic beverage. 82 S.W.3d 617, 621-622 (Tex. App.--Amarillo 2002, no pet). Upon the argument that no reasonable suspicion existed, the court did not find articulable facts  "which could have led a reasonable officer to suspect appellant of public intoxication other than the strong odor of alcohol, about which the [officer] testified on which he based his suspicion." Id.  In essence, the odor of alcohol alone is not even enough to arrest a person for the Class C misdemeanor offense of Public Intoxication.
Furthermore, in Booty v. State, the court held that a “strong odor of alcohol” coupled with involvement in a auto accident gave rise to reasonable suspicion to detain a suspect and investigate further.   No. 01-00-01088-CR (Tex. App.-Houston [1st Dist.] May 16, 2002, no pet.) (Not designated for publication), 2002 Tex. App. WL 992394 (emphasis added).
The facts in Booty  involve a car accident between the Appellant and an informant.  The Appellant fled the scene and informant called a dispatcher. Id at 1.  An officer was dispatched to the location of the suspect. Id.   After smelling a strong odor of alcohol on the Appellant, the officer administered field sobriety tests, which the Appellant failed.  Id.  
The court held that information that the Appellant left the scene of an accident, in addition to “strong odor of alcohol” gave rise to reasonable suspicion to detain the Appellant. Id at 4.  However, only after additional information became known to the officer, including failed field sobriety tests and an admission from the Appellant that he had consumed six to eight beers that evening, was probable cause established. Id.
The court in State v. Brabson expands on this issue by stating that the test for a warrantless arrest is based on “surrounding facts and circumstances that must provide probable cause to conclude that the person arrested has committed or is committing an offense.” 899 S.W.2d 741, 747 (Tex. App.-Dallas 1995), aff'd by State v. Brabson, 976 S.W.2d 182 (Tex. Crim. App. 1998).  Additionally,  “an investigating officer’s hunch, suspicion, or good-faith perception are not sufficient enough, standing alone, to constitute probable cause for an arrest.” Id.
In the case at bar, the only information known to Officer Scott prior to the arrest was that someone had died in an auto accident, Defendant was allegedly driving the vehicle in question, and he smelled a “moderate odor of alcohol” on Defendant’s breath. (R.R., p. 35).  Based solely on these facts, only reasonable suspicion existed, no probable cause.   Officer Scott failed to offer or administer any field sobriety tests whatsoever, although he had the opportunity to do so.  If he felt Defendant were unable to physically perform some of the tasks, other tasks, such as the HGN or recitation of the alphabet could have been easily and quickly performed.  However, because Officer Scott did not attempt to investigate further, probable cause was not established.
As probable cause was never established by Officer Scott prior to the arrest, the blood sample was taken illegally, and it inadmissible under Article 38.23, Texas Code of Criminal Procedure.  
In pertinent part, Article 38.23(a) provides:
No evidence obtained by an officer or other person in violation of
any provisions of the Constitution of  law 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 conclusion, because Officer Scott illegally arrested the Defendant, and subsequently illegally seized the Defendant’s blood sampple, the test results of said blood sample should be suppressed as it was a product of an illegal seizure in violation of the state and federal constitutions, and,  in violation Article 38.23, Texas Code of Criminal Procedure. 

 Respectfully submitted,

 

CERTIFICATE OF SERVICE 
 
 This is to certify that on February 6, 2004, a copy of Defendant’s Motion and Brief in Support of Defendant’s Motion to Suppress Evidence was delivered to the Criminal District Attorney of Lubbock County, Texas.
 
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