AFFIRM; and Opinion Filed June 28, 2016.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00629-CR
VINCENT REED MCCAULEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 9
Dallas County, Texas
Trial Court Cause No. MB-1345533
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Brown
At issue in this appeal is whether admission of evidence that a defendant refused to
provide a breath specimen after his arrest for driving while intoxicated (DWI) violates the Fourth
Amendment to the United States Constitution. Based on the United States Supreme Court’s
recent opinion in Birchfield v. North Dakota, No. 14-1468, 2016 WL 3434398 (June 23, 2016),
we conclude it does not. We affirm the trial court’s judgment of conviction.
Appellant Vincent Reed McCauley was charged by information with his second DWI
offense. He filed a motion to suppress, arguing that his refusal to provide a breath specimen was
not admissible at trial because it would impermissibly punish him for exercising his Fourth
Amendment rights. At the hearing on the motion to suppress, the parties stipulated to the
following facts: Appellant was arrested for DWI and taken to jail; he was read the statutory
warnings (DIC-24); and he was asked to provide a sample of his breath and refused. After the
trial court denied the motion to suppress, appellant pleaded nolo contendere. The trial court
found appellant guilty and assessed punishment in accordance with a plea bargain agreement at
180 days in jail, probated for twenty months, and a $1,000 fine.
In a single issue on appeal, appellant contends the trial court erred in denying the motion
to suppress evidence of his refusal to provide a breath sample. He argues that the warrantless
seizure of his breath was unconstitutional under the Fourth Amendment, which protects
individuals from unreasonable searches. See U.S. CONST. amend. IV; State v. Betts, 397 S.W.3d
198, 203 (Tex. Crim. App. 2013). When, as in this case, the facts are undisputed and the trial
court’s ruling on a motion to suppress turns on a pure question of law, we review the trial court’s
ruling de novo. Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003).
The administration of a breath test is considered a search. Birchfield, 2016 WL 3434398,
at *12 (citing Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616–17 (1989)). The Texas
implied consent statute provides that a person arrested for DWI is deemed to have consented to
the taking of a breath specimen for analysis to determine blood alcohol concentration. TEX.
TRANSP. CODE ANN. § 724.011(a) (West 2011). Despite this, a person has an absolute right to
refuse to provide a specimen, subject to certain exceptions. Id. § 724.013 (West 2011); State v.
Villarreal, 475 S.W.3d 784, 794–95 (Tex. Crim. App. 2015); Fienen v. State, 390 S.W.3d 328,
333 (Tex. Crim. App. 2012). Before asking a person to submit to the taking of a specimen, the
officer must inform the person orally and in writing that, if the person refuses, that refusal may
be admissible in a subsequent prosecution. TEX. TRANSP. CODE ANN. § 724.015 (West Supp.
2015). A defendant’s refusal of an officer’s request to submit to the taking of a breath specimen
may be introduced into evidence at trial. Id. § 724.061 (West 2011). Such evidence is relevant
because it tends to show a consciousness of guilt. Bartlett v. State, 270 S.W.3d 147, 153 (Tex.
Crim. App. 2008).
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In Birchfield, the United States Supreme Court considered whether laws that make it a
crime for a motorist to refuse to be tested after being lawfully arrested for DWI violate the
Fourth Amendment. Birchfield, 2016 WL 3434398, at *5. Birchfield involved three
consolidated cases with somewhat different facts; one involved the refusal of a blood test, one
involved allegedly involuntary consent to a blood test, and one involved the refusal of a breath
test. In the case involving a breath test, the defendant was arrested in Minnesota for driving
while impaired. After he refused to take a breath test, he was charged under a state law that
made it a crime to refuse to submit to a legally required blood alcohol concentration test. Id. at
*10. The United States Supreme Court stated that success for all three petitioners depended on
the proposition that the criminal law may not ordinarily compel a motorist to submit to the taking
of a blood sample or a breath test unless a warrant authorizing the test is issued. If such
warrantless searches comport with the Fourth Amendment, it follows that a State may
criminalize the refusal to submit to the required testing. Id. at *12.
The Supreme Court considered whether the breath and blood tests were permissible under
the exception to the warrant requirement for searches conducted incident to a lawful arrest. Id. at
*14. In doing so, the Court examined the degree to which breath and blood tests intrude upon an
individual’s privacy and the degree to which the tests are needed for the promotion of legitimate
governmental interests. Id. at *16. The Court determined that a breath test does not implicate
significant privacy concerns for three reasons: 1) the physical intrusion is “almost negligible;”
2) a breath test results in a blood alcohol concentration reading on a machine and does not leave
any sample in the possession of the police; and 3) participation in a breath test is not likely to
cause any great enhancement in the embarrassment inherent in any arrest. Id. at *17–18. It
further noted that laws criminalizing refusal were designed to provide an incentive to cooperate
in DWI cases and therefore serve a very important function. Id. at *19. The Court concluded the
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impact of breath tests on privacy is slight, and the need for the testing is great. Id. at *25. It held
that the Fourth Amendment therefore permits warrantless breath tests incident to arrests for
drunk driving. Id. After reaching a different conclusion regarding blood tests, the Court still
noted its approval of the general concept of implied consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to comply. Id. at *26.
It follows from the Supreme Court’s holding in Birchfield that because the Fourth
Amendment did not require police to obtain a warrant to insist on a test of appellant’s breath,
admission of evidence of appellant’s refusal would not violate the Fourth Amendment. See id. at
*27; Rankin v. Tex. Dep’t of Public Safety, No. 13-15-00065-CV, 2016 WL 3136279, at *5–7
(Tex. App.—Corpus Christi June 2, 2016, no pet. h.) (rejecting motorist’s argument that he was
penalized for exercising his Fourth Amendment right to refuse to provide a breath sample when
his license was suspended); see also South Dakota v. Neville, 459 U.S. 553, 564 (1983)
(evidence a defendant refused to submit to blood-alcohol testing does not violate the Fifth
Amendment’s privilege against self-incrimination). We likewise reject appellant’s argument that
transportation code section 724.061, which permits refusal evidence to be used at trial, is
unconstitutional facially and as applied because it conflicts with the Fourth Amendment. See
Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015) (to successfully mount facial
challenge to statute, defendant must establish that no set of circumstances exists under which
statute would be valid). The trial court did not err in denying appellant’s motion to suppress.
We overrule appellant’s sole issue.
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We affirm the trial court’s judgment.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).
150629F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
VINCENT REED MCCAULEY, Appellant On Appeal from the County Criminal Court
No. 9, Dallas County, Texas
No. 05-15-00629-CR V. Trial Court Cause No. MB-1345533.
Opinion delivered by Justice Brown, Justices
THE STATE OF TEXAS, Appellee Lang and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 28th day of June, 2016.
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