Date: 01-14-2017

Case Style:

Case Number: 05-15-01204-CR

Judge: David Evans

Court: In The Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney:

Faith Johnson  
Douglas Gladden  

Defendant's Attorney:

Melvyn Carson Bruder

Description: Dallas Police Senior Corporal Joshua Boykin stopped appellant for making a prohibited
left turn at 2:00 a.m. on September 20, 2012. After determining her vehicle’s registration had
expired, he initiated contact with appellant and observed she had bloodshot eyes and slurred
speech. Boykin smelled an odor of alcohol coming from inside appellant’s vehicle. Boykin
administered field sobriety tests which appellant failed, then arrested appellant for driving while
intoxicated. After a female officer arrived and transported appellant to the county jail facility,
Boykin read the statutory warning and requested appellant to provide breath and blood samples
which she refused. Boykin completed an affidavit for a search warrant and obtained a search
warrant at 3:33 a.m. Appellant’s blood was drawn at 4:13 a.m. by a Parkland Hospital
technician.
Appellant was charged by information with operating a motor vehicle in a public place
while intoxicated. The trial court denied appellant’s motion to exclude appellant’s refusal to
provide post-arrest, warrantless breath and blood samples and to suppress the results of the
blood-draw. Afterwards appellant pleaded guilty, was sentenced to 120 days in jail suspended
for one year of community supervision and a $500 fine. She timely perfected this appeal.
II. Admissibility of Refusal to Provide Breath and Blood Specimens
In her first issue, appellant challenges the trial court’s denial of her motion to exclude
evidence of her refusal to provide a breath sample1 on the basis that Texas’s statute authorizing
the admission into evidence of her refusal violates the Constitution. She conceded at oral
argument that in South Dakota v. Neville, 459 U.S. 553 (1983), the Supreme Court of the United
States decided the same issue: South Dakota’s statute permitting the admission into evidence of
the refusal to provide breath and blood samples did not violate the Constitution. Appellant
argues Neville does not control because in two subsequent opinions decided under the Fourth
Amendment the Supreme Court of the United States has impliedly overruled Neville which was
decided under the Fifth Amendment. For two reasons, we reject appellant’s argument.

First, we are bound by Neville. Neville is legally and factually indistinguishable from
appellant’s case. In Neville, the defendant was stopped for a traffic violation and was given two
field sobriety tests. 459 U.S. at 554-55. When the defendant failed the field sobriety tests, he
was arrested for driving while intoxicated and read his Miranda2 rights. Id. The arresting officer
then asked the defendant to submit to a blood-alcohol test which he refused. Id. at 555-56. The
South Dakota statute, similar to section 724.061 of Texas’s transportation code, permits a suspect
to refuse the test but allows the refusal to be used against the defendant at trial.3 The Supreme
Court decided the evidentiary consequences of admitting the refusal to submit to blood-alcohol
testing does not violate the United States Constitution. Id. at 564. This is exactly appellant’s
first issue.
Second, Appellant argues that Neville was decided under the Fifth Amendment but was
impliedly overruled by two Fourth Amendment opinions: Missouri v. McNeely, 133 S. Ct. 1552
(2013) and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).4 However, in Birchfield, the
Supreme Court acknowledged the continued validity of Neville, stating:
Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., McNeely, supra, at ––––, 133 S. Ct., at 1565–1566 (plurality opinion); Neville, supra, at 560, 103 S. Ct. 916. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.
Birchfield, 136 S. Ct. at 2185 (emphasis added).5 For these reasons, we decide appellant’s first
issue against her.6
III. Sufficiency of Search Warrant Affidavit
In her second issue, appellant challenges the trial court’s denial of her motion to suppress
the blood evidence because the affidavit to support the warrant (1) relied upon appellant’s refusal
to provide a specimen of breath or blood to the affiant, and (2) failed to recite sufficient facts
supporting the conclusion that appellant had committed the offense of driving while intoxicated.
We conclude that the magistrate did have a substantial basis for concluding that probable cause
existed to support the issuance of the warrant.
A search warrant may not issue unless it is based upon probable cause, established by a
sworn affidavit. U.S. CONST. amend. IV; TEX. CODE CRIM. PROC. ANN. art. 18.01(b) (West
Supp. 2015); State v. Jordan, 342 S.W.3d 565, 568 (Tex. Crim. App. 2011). The test is whether
a reasonable reading by the magistrate would lead to the conclusion that the four corners of the
affidavit provide a “substantial basis” for issuing the warrant. State v. Duarte, 389 S.W.3d 349,
354 (Tex. Crim. App. 2012). Probable cause exists if, under the totality of the circumstances set
forth in the affidavit, there is a fair probability that evidence of a crime will be found in a
particular place at the time the warrant is issued. Jordan, 342 S.W.3d at 568–69.
5 Even if appellant were correct that the Supreme Court impliedly overruled Neville in subsequent opinions, we remain bound by the straightforward application of Neville. See Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”) (quoting Hohn v. United States, 524 U.S. 236, 252–253 (1998)); see also United States v. Hatter, 532 U.S. 557, 567 (2001); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). 6 See also McCauley v. State, No. 05-15-00629-CR, 2016 WL 3595478 (Tex. App.—Dallas June 28, 2016, no pet.) (memo op.) (concluding Birchfield approves the admission into evidence of a motorist’s refusal to submit to a breath test, citing Neville).


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We typically apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress by giving almost total deference to the trial court’s determinations of fact and reviewing
de novo the trial court’s application of law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim.
App. 2011). However, where, as here, a motion to suppress is based solely on a magistrate's
decision to issue a warrant, there are no credibility determinations to which we must defer
because the trial court is constrained to the four corners of the affidavit. See State v. Webre, 347
S.W.3d 381, 384 (Tex. App.—Austin 2011, no pet.). Accordingly, in reviewing the magistrate’s
decision to issue a warrant, we apply a highly deferential standard because of the constitutional
preference for searches to be conducted pursuant to a warrant as opposed to a warrantless search.
McLain, 337 S.W.3d at 271; see Illinois v. Gates, 462 U.S. 213, 236 (1983). As long as the
magistrate had a substantial basis for concluding that probable cause existed, we will uphold the
magistrate’s probable cause determination. Id. In doubtful or marginal cases, the magistrate’s
determination should prevail. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).
The magistrate may interpret the affidavit in a non-technical, common-sense manner and may
draw reasonable inferences from the facts and circumstances contained within its four corners.
Jordan, 342 S.W.3d at 569. The focus is not on what other facts could or should have been
included in the affidavit; rather, the focus is on the combined logical force of facts that are
actually in the affidavit. Duarte, 389 S.W.3d at 354–55.
Appellant argues that the affidavit included the fact that appellant refused the affiant’s
request to provide breath and blood specimens and that this may not be considered as part of the
totality of the circumstances contributing to probable cause because it “was merely an assertion
of her Fourth Amendment right.” As we have already determined, under Neville, appellant’s
refusal to provide breath and blood samples is admissible as evidence of guilt at appellant’s trial
for the offense of driving while intoxicated. Therefore, we discern no reason why such evidence


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cannot be included in an affidavit for a search warrant and considered by the magistrate as part
of the totality of the circumstances contributing to probable cause. We have been cited no cases,
and we are aware of none, which prohibit the inclusion in a search warrant affidavit of a
defendant’s refusal to provide breath and blood samples in determining probable cause when
there is a statute specifically allowing the use of such evidence in determining the guilt of the
accused. Nevertheless, we conclude that the magistrate had a substantial basis for concluding
that probable cause existed independent of the information pertaining to appellant’s refusal to
provide breath and blood samples. See State v. Cuong Phu Le, 463 S.W.3d 872, 877 (Tex. Crim.
App. 2015) (“When part of a warrant affidavit must be excluded from the calculus, ...then it is up
to the reviewing courts to determine whether ‘the independently acquired and lawful information
stated in the affidavit nevertheless clearly established probable cause.’” quoting McClintock v.
State, 444 S.W.3d 15, 19 (Tex. Crim. App. 2014)).
In this case, the alleged offense of driving while intoxicated entails operating a motor
vehicle in a public place while intoxicated. Intoxicated is defined as:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substance, or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.
TEX. PENAL CODE § 49.01(2) (West 2011). “Alcohol concentration” means the number of grams
of alcohol per: (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine.
TEX. PENAL CODE ANN. § 49.01(1) (West 2011). The magistrate’s role was to determine
whether there was a substantial basis to believe that evidence of driving while intoxicated, i.e.,
whether an illegal concentration of alcohol would be found in appellant’s blood. The affidavit
states that Boykin observed appellant operating a motor vehicle and disregard a no-left-turn sign.
The affidavit includes appellant’s admission that she drank two glasses of wine, as well as the


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officer’s observations that appellant had bloodshot eyes, slurred speech, a swaying balance, and
swayed while walking and turning.7 In addition, the affidavit states that Boykin is experienced in
detecting intoxicated persons and is trained in the detection of impaired or intoxicated drivers
through the use of three standardized field sobriety tests. The affidavit also included the results
of the HGN tests conducted by Boykin indicating the presence of alcohol, that appellant failed in
her performances during the walk-and-turn and one-leg stand tests, and that appellant had
difficulty with the alphabet test. The affidavit also recited the date and time of the stop and the
officer’s knowledge that alcohol is absorbed into the bloodstream and that blood can be analyzed
for its presence. Finally, Boykin stated in his affidavit that based upon his experiences, training
in intoxication-related offenses, observations of the appellant, and the results of the tests
performed by appellant, he believed appellant was intoxicated.
Appellant argues that the recitations of training and experience on the part of the affiant
in detecting intoxication are not valid because they do not include the “type or identity of any
course or training program attended by the affiant from which he acquired his experience and
training.” We note that the affidavit does specify the three field sobriety tests in which Boykin
had training. The fact that the affidavit does not detail the officer’s additional training or
experience in DWI cases does not render the affidavit inadequate. See Gravitt v. State, No. 05
10-01195-CR, 2011 WL 5178337, at *3 (Tex. App.—Dallas November 2, 2011, pet. ref’d) (not
designated for publication).
Based on the facts and the reasonable inferences derived from those facts, we conclude
that the magistrate had a substantial basis for concluding that probable cause existed, i.e., that
appellant’s blood sample would uncover evidence of her crime. See, e.g. Kelly v. State, 413 7 The observations that appellant swayed while walking and turning do not appear to be duplicative of the results from the walk and turn field sobriety test as these observations are contained in a different section of the affidavit.


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S.W.3d 164, (Tex. App.—Beaumont 2012, no pet.) (affidavit sufficient to establish probable
cause where driver failed to signal, had strong odor of alcohol, slurred speech, unsure in balance,
refused some field sobriety tests, and failed the test that was performed); Foley v. State, 327
S.W.3d 907, 912 (Tex. App.—Corpus Christi 2010, pet. ref’d) (affidavit was sufficient to
establish probable cause where it reported the suspect smelled strongly of alcohol, had red and
glassy eyes, slurred speech, poor balance, and refused to provide a breath or blood sample);
Hogan v. State, 329 S.W.3d 90, 94–96 (Tex. App.—Ft. Worth 2010, no pet.) (affidavit was
sufficient to establish probable cause where it described defendant as smelling strongly of
alcohol, having bloodshot, watery, and heavy eyes, unsteady balance, and staggered walk).
Accordingly, the trial court did not err by denying appellant’s motion to suppress.

Outcome: