In Ohio, involuntary intoxication is not a defense to DUI (because there is no mental state involved), although it is a defense to the charge of recklessly causing serious injury to another. The court made a mistake because it disallowed a continuance so that the DUI defense attorney could review the victim's medical records.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

STATE of Ohio, Plaintiff-Appellee
v.
David JONES, Defendant-Appellant .

No. 93114.

Decided June 17, 2010.

Criminal Appeal from the Cuyahoga County, Court of Common Pleas Case No. CR-518196.
Myron P. Watson, Cleveland, OH, for Appellant.

William D. Mason, Cuyahoga County Prosecutor, Joseph C. Patituce, Assistant Prosecuting Attorney, Cleveland, OH, for Appellee.

Before McMONAGLE, P.J., CELEBREZZE, J., and JONES, J.

CHRISTINE T. McMONAGLE, P.J.

*1 {¶ 1} Defendant-appellant , David Jones, appeals his conviction, rendered after a jury trial, on two counts of aggravated vehicular assault and two counts of driving under the influence. We reverse and remand.

{¶ 2} On November 25, 2008, a five-count indictment was returned against Jones charging two counts of aggravated vehicular assault, one count of failure to stop after a traffic accident, and two counts of driving under the influence.

{¶ 3} Jones was arraigned on December 11, 2008, and trial was scheduled for January 12, 2009. On December 31, 2008, Jones requested discovery from the state. On January 12, the original trial date, Jones requested a continuance because the state had not yet responded to his discovery request; the trial court granted the request and trial was reset for January 26.

{¶ 4} The state provided Jones with some discovery on January 13, 2009. On January 20, Jones filed a motion to suppress with a request for an oral hearing. On January 26, the rescheduled trial date, the court ruled that Jones's suppression motion was untimely filed. On that same date, the state provided Jones with voluminous documentation consisting of the victim's medical and hospital records.FN1 Defense counsel requested a continuance to review the documentation; the court denied the request, stating “[d]o with them what you will * * * [y]ou could have subpoenaed them and got them yourself any time.” The court reasoned that the defense's desire to explore the possibility that the victim's leg amputation was the result of something other than the accident was “frankly ridiculous [and] not a reason to postpone a trial. Period.” The case then proceeded to a jury trial.



FN1. At a pretrial two weeks prior to that date, the court ordered the prosecution to provide them to the defense.



{¶ 5} Pursuant to the defense's Crim.R. 29 motion for acquittal, the failure to stop after a traffic accident charge was dismissed. The jury found Jones guilty of the remaining counts. He was sentenced to an aggregate one-year prison sentence. Jones raises 12 assignments of error for our review.

Suppression Motion

{¶ 6} In his first assignment of error, Jones contends that the trial court erred by ruling that his motion to suppress was untimely filed and denying it without the presentation of evidence. We agree.



{¶ 7} Crim.R. 12(D) provides that “[a]ll pretrial motions * * * shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier. The court in the interest of justice may extend the time for making pretrial motions.”
{¶ 8} Jones was arraigned on December 11, 2008. Four days later, a pretrial was held at which a trial date of January 12, 2009 was set. Obviously, the trial date was less than 35 days from arraignment.

{¶ 9} Jones requested discovery from the state on December 31, 2008. As of the original January 12 trial date, the state had not provided the requested discovery. Thus, on the original trial date (January 12) Jones requested, and was granted, a continuance, to January 26, 2009. The very next day (January 13), the state provided partial discovery. On January 20, 2009, within one week of receipt of that discovery, Jones filed a motion to suppress, alleging violations of R.C. 4511.191 and Ohio Adm.Code 3701-53-01 in regard to the collection and analysis of his blood, which formed the essential proof of the allegations contained in the indictment.



*2 {¶ 10} In his motion, Jones cited State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, and State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71. Both Mayl and Burnside hold that the burden is on the state to prove that a defendant's blood sample was collected and tested in substantial compliance with Ohio Department of Health Regulations, and if the state fails to prove substantial compliance, evidence of the testing must be suppressed.



{¶ 11} Jones filed his suppression motion on January 20, 2009, six days before the rescheduled trial date. Monday, January 19, 2009 (seven days before the trial date) was Martin Luther King Day, and the courts were closed.



{¶ 12} Jones could not have filed the suppression motion in this case within 35 days of arraignment because: (1) the trial was set less than 35 days from arraignment and (2) discovery had not even been provided by the state by the time of the original trial date. Additionally, Jones could not have filed the motion to suppress seven days before trial because the seventh day was a Monday holiday. Accordingly, under R.C. 1.14,FN2 the motion to suppress was, indeed, timely filed.



FN2. R.C. 1.14 governs the computation of time and provides that Martin Luther King Day, among others, is a legal holiday and that an act to be performed on that day “may be performed on the next succeeding day.”



{¶ 13} On “all-fours” with this case is State v. Sargent (Aug. 17, 1994), Clark App. No. 3042. In Sargent, the Second Appellate District unanimously found that a trial court abused its discretion by denying a pretrial motion to suppress evidence in a DUI prosecution as “untimely filed” under Crim.R. 12(B) and (C) where the motion to suppress was filed less than seven days before the trial date, but nonetheless “promptly” after the state finally provided discovery.



{¶ 14} Here, the record reflects that the state's discovery was “mailed by U.S. Mail” January 13, 2009 (a Tuesday). The courts were closed January 17 (Saturday), 18 (Sunday) and 19 (Martin Luther King Day). It is abundantly clear that the motion to suppress (filed January 20) was accordingly “promptly filed” after receipt of the state's discovery.



{¶ 15} Furthermore, Crim.R. 12(C) states that “the court in the interests of justice, may extend this rule.” (Emphasis added.) Jones was on bond and hence the court had, pursuant to the speedy trial statute, 270 days in which to try him; this case was tried 53 days from arraignment and 60 days from indictment. The defendant received some (but not all) of his requested discovery only 13 days before trial. Other discovery, comprised of voluminous medical records of the victim, was received by Jones only on the day of trial. When he complained that he did not have sufficient time to review the medical records, the court refused to permit a continuance and made him proceed.



{¶ 16} Although we find that the suppression motion at issue here was filed according to the statutory constraints of Crim.R. 12, even if it were not, the interests of justice required a hearing and resolution of this motion because: (1) there was no pressing statutory reason to proceed with such haste, (2) the issue involved the admissibility of a crucial-one might even say dispositive- piece of evidence, and (3) the state provided the last of its voluminous discovery on the day of trial.



*3 {¶ 17} In light of the above, the first assignment of error is sustained.



Jones's Defense

{¶ 18} Jones's second, third, and eighth assignments of error all relate to his claim that someone “slipped something” into a drink he believed to be non-alcoholic and the trial court's refusal to allow him to pursue this defense. The trial court treated Jones's claim in terms of “unpled insanity” and the law surrounding “ voluntary ” intoxication. (Emphasis added.) Although Jones's claim that he was “slipped a mickey” may not have been believed by a jury, he had every right to introduce his version of events in opening statement, to testify as to his version of the events of June 2008, to present witnesses in support of his version of events, and to receive a jury instruction apropos to this claim.



{¶ 19} Although involuntary intoxication is not a defense to driving under the influence of drugs or alcohol FN3 or aggravated vehicular assault under R.C. 2903.08(A)(1)(a),FN4 Jones was also indicted for a violation of R.C. 2903.08(A)(2)(b), which provides in pertinent part that “no person shall recklessly cause serious physical injury to another by use of a motor vehicle.” (Emphasis added.) “A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature.” R.C. 2901.22(C). Jones's allegation of involuntary intoxication could certainly have a bearing upon whether he acted recklessly.FN5



FN3. See State v. Meyers (Oct. 18, 1999), Stark App. No.1999CA00024; State v. Grimsley (1982), 3 Ohio App.3d 265, 267, 444 N.E.2d 1071, citing Mentor v. Giordano (1967), 9 Ohio St.2d 140, 224 N.E.2d 343.



FN4. R.C. 2903.08(A)(1)(a) provides that no person shall cause serious physical harm to another by operating a motor vehicle when such operation is a violation of R.C. 4511.19. R.C. 4511.19 is a strict liability statute, and therefore an involuntary intoxication defense would be inapplicable.



FN5. See State v. Curry (1989), 45 Ohio St.3d 109, 112, 543 N.E.2d 1228, citing Minneapolis v. Altimus (1976), 306 Minn. 462, 23 N.W.2d 851, paragraph two of the syllabus (temporary insanity due to involuntary intoxication is a defense to traffic offenses requiring proof of a general intent or negligence).



{¶ 20} In light of the above, the trial court erred in its resolution of this issue, and the second, third, and eighth assignments of error are sustained.



Request for a Continuance

{¶ 21} For his fourth assigned error, Jones contends that the trial court abused its discretion by not allowing him a continuance to review the victim's medical records that were presented to the defense only on the day of trial. We agree.



{¶ 22} The trial court found that the defense could have subpoenaed the records itself and had them earlier. That is not true-HIPAA FN6 would have prohibited the defense from getting those records on its own. The only means by which the defense could see those records was pursuant to production by the prosecution.



FN6. Health Insurance Portability and Accountability Act, 45 C.F.R. Section 164.



{¶ 23} Further, the medical records provided by the state in this matter were provided on the day of trial; despite the lateness of the production, and despite the defense's request for a short continuance to study them, or to obtain expert assistance in reviewing them, the trial court denied the request. The disparity with which the trial court dealt with its perception that the defense filed a suppression motion six instead of seven days before trial, compared with its treatment of the state, which did not complete discovery until the day of trial, further compels our conclusion that the trial court treated the opposing sides differently: strict hyper-technical construction of rules as applied against the defense and a flexibility in application of those same rules to the state.



*4 {¶ 24} In light of the above, the fourth assignment of error is sustained.



Conclusion

{¶ 25} Given our disposition of the case as set forth above, the fifth, sixth, seventh, ninth, tenth, eleventh, and twelfth assignments of error are moot and we therefore do not address them. See App.R. 12(A)(1)(c).



{¶ 26} Judgment reversed; case remanded to the trial court for further proceedings consistent with this opinion.



It is ordered that appellant recover from appellee costs herein taxed.



The court finds there were reasonable grounds for this appeal.



It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.



A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.



LARRY A. JONES, J., Concurs; FRANK D. CELEBREZZE, JR., J., Concurs In Judgment Only.





N.B. This entry is an announcement of the court's decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief, per App.R. 26(A), or a motion for consideration en banc with supporting brief per Loc.App.R. 25.1(B)(2), is filed within ten days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. 2.2(A)(1).


Ohio App. 8 Dist.,2010.
State v. Jones
Slip Copy, 2010 WL 2471214 (Ohio App. 8 Dist.), 2010 -Ohio- 2777

San Diego DMV / DUI lawyers look often to

San Diego DUI

The San Diego DUI / DMV hearing for a possible license suspension is like a mini-DUI trial without a jury, but with much different San Diego DMV rules, San Diego DMV laws and San Diego DMV procedures. The San Diego DUI / DMV hearing is presided over by a Driver Safety Officer (DMV hearing officer) rather than a real judge, an employee of the DMV not trained in law who acts as both prosecutor and judge. As unfair as it is, she or he can legally object to your evidence, rule on her or his own objection, dually engage your San Diego DUI / DMV lawyer, and admit or not admit either party's evidence.



The San Diego Driver Safety Officer offers evidence in the form of documents and/or witnesses. The Driver Safety Officer offers the San Diego drunk driving / DUI police report, DMV records, San Diego DUI alcohol reports and the important San Diego DUI officer's sworn statement entitled a "DS 367." With no Fifth Amendment right at the hearing, your San Diego DUI / DMV attorney usually will not want you to be present at the hearing since the Driver Safety Officer can call you as a witness and force you to testify against yourself if you ill-advisedly appear.



The San Diego DMV Driver Safety Officer's decision will usually be mailed a few days or even weeks after the hearing. A San Diego DMV / DMV suspension can be set aside or sustained. If the San Diego DMV suspension is sustained, the decision can be appealed to the DMV in Sacramento and/or to the San Diego Superior court by filing a San Diego DMV petition for writ of mandamus.




A San Diego DUI lawyer's defenses at an APS hearing are specialized and technical, more so than in criminal court. Frequent San Diego DUI / DMV proof problems - as well as legal, procedural and bureaucratic obstacles - are possible grounds for setting aside the suspension.

California DUI Attorney

Because of the peculiar nature of San Diego DUI / DMV hearings and the absence of an independent San Diego DUI judge to offer some protection, you are strongly advised not to try to represent yourself. Because these are not San Diego DUI criminal proceedings, San Diego County public defenders are unavailable.




Your San Diego DUI / DMV attorney has just 10 CALENDAR DAYS after the DUI arrest to call the San Diego DMV Driver Safety Office to timely demand a hearing. You waive your right to a hearing after the 10 day deadline is up.


The San Diego DMV may not be able to schedule a hearing before your 30-day temporary license expires. Your San Diego DUI / DMV lawyer will request a Notice of Stay of the 30-day temporary license until a San Diego DMV hearing is provided and a San Diego DMV decision is actually rendered.







Click on below sites for more information or to contact a San Diego DUI Lawyer who can help:

San Diego DUI Lawyer

Video of San Diego DUI / DMV Attorney

This DUI court held that the validity of a stop implicitly can be raised as an issue in an implied consent issue case. Did these drunk driving police improperly interfed with his right to an independent blood test when the officer allegedly gave incomplete and inaccurate information regarding the cost of the test to the motorist? This court there held that the information was not inaccurate or incomplete.

Supreme Court of Vermont.

STATE of Vermont
v.
Jonathan WEBB.

Nos. 2009-280, 2009-281.

June 18, 2010.

On Appeal from District Court of Vermont, Unit No. 3, Franklin Circuit, Michael S. Kupersmith, J.
Heather J. Brochu, Franklin County Deputy State's Attorney, St. Albans, for Plaintiff-Appellee.

William V. Cristman, Jr. of Law Offices of Nicholas L. Hadden, St. Albans, for Defendant-Appellant .

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.



¶ 1. REIBER, C.J.



In these parallel criminal and civil suspension proceedings, defendant is charged with driving under the influence (DUI) and driving with a suspended license. He appeals from a district court order denying his motion to suppress an evidentiary breath test. He contends that the court erred in: (1) holding that the police did not improperly interfere with his right to an independent blood test; and (2) denying him the opportunity to challenge the validity of the traffic stop. We affirm the trial court's ruling that the police did not improperly interfere with defendant's right to an independent blood test, but we reverse and remand to provide defendant an opportunity to challenge the validity of the traffic stop.



¶ 2. On March 15, 2009, a traffic stop led to defendant's arrest for DUI. Defendant was then transported to a police station in St. Albans for processing. The processing officer testified that defendant was read his implied-consent rights, including the right to consult with an attorney and to have additional independent tests performed at his expense. See 23 V.S.A. § 1202(d) (setting forth information that must be conveyed to DUI suspect). Defendant spoke with an attorney and provided a breath sample for testing. The test result showed a blood alcohol content of 0.158. The officer then informed defendant that he had discovered an outstanding arrest warrant for defendant's failure to pay a fine and that, as a result, defendant would be lodged rather than released. The officer informed defendant that, since he was going to be detained, the officer could arrange for him to be transported to the hospital for independent testing. Defendant asked the officer several questions about the independent test and finally said “let's do it.” The officer then explained that the test was “at your own expense, just so you know,” and defendant asked whether it might cost a thousand dollars. The officer responded that he did not know the cost. Defendant then asked whether it might be “a few hundred dollars,” and the officer acknowledged that it might be “around two hundred.” Defendant asked several more questions about the test and what purpose it served, and the officer then read defendant his statutory right to have arrangements made for the administration of an independent blood test at his own expense, under 23 V.S.A. § 1203a(b), which defendant expressly declined.



¶ 3. A merits hearing was scheduled, and defendant filed a list of the issues to be raised, reciting verbatim most of the issues under 23 V.S.A. § 1205(h)(1) that may be raised at a DUI hearing. Defendant subsequently filed a motion to suppress, asserting that the officer's “incomplete and inaccurate information” concerning the cost of the independent blood test had improperly interfered with his right to independent testing. At the June 2009 hearing, defendant attempted to cross-examine the investigating officer about the reason for the stop. The State objected, observing that defendant had not previously raised the validity of the stop as an issue. See id. § 1205(h)(2) (“Only evidence that is relevant to an issue listed by the defendant may be raised by the defendant at the final hearing.”). The court agreed and sustained the objection. Following the hearing, the court issued a written decision, finding that the officer “did everything he was required to do under the law with respect to Defendant's right to an additional evidentiary test.” The court concluded that there was “no evidence that [the officer] prevented or dissuaded Defendant from obtaining an additional independent test.” Accordingly, the court denied the motion to suppress as well as a subsequent motion to reconsider. Defendant entered a conditional plea of guilty to DUI, second offense, and driving with a suspended license. This appeal followed.



I.

¶ 4. Defendant contends that the processing officer provided him with “incomplete and inaccurate” information concerning the cost of an independent blood test which improperly discouraged him from exercising his rights. We disagree. The record supports the trial court's conclusion that defendant was neither misled nor improperly deterred. Although defendant initially appeared to request independent testing, stating “let's do it,” the officer correctly informed defendant that it would be at his own expense, and defendant then initiated a series of questions about its cost and utility. The officer first indicated that he did not know the cost. Defendant asked whether it might cost a thousand dollars and subsequently guessed that it might be “a few hundred,” and the officer agreed that it might be “around two hundred.” Defendant then asked several additional questions about the use of the independent test, said something to the effect of “prolong[ing] ... the inevitable,” was read his right to have the police arrange for an independent test at his own expense, and finally declined the opportunity to be tested.



¶ 5. Defendant cites no authority for the proposition that the officer was barred from accurately reminding defendant that the test was at his own expense or from attempting to respond to defendant's questions. Nor has defendant demonstrated that the officer's responses were, in fact, inaccurate; defendant adduced no evidence showing the actual cost of an independent blood test or proving that the $200 figure was inaccurate or misleading. Nor has defendant established that he was improperly deterred from exercising his rights. The officer did not, for example, suggest that defendant would be compelled to pay for the test at the time of its administration, and defendant acknowledged at the hearing that he was never told that he would be required to pay for the test that night. We thus find no basis to infer that defendant was prevented or improperly discouraged from exercising his rights. The cases cited by defendant, in contrast, involve either clear violations of the statutory obligation to inform detained defendants of their right to have arrangements made for independent testing, State v. Karmen, 150 Vt. 547, 549, 554 A.2d 670, 671 (1988); State v. Normandy, 143 Vt. 383, 387, 465 A.2d 1358, 1360 (1983), efforts to discourage independent testing by suggesting that an independent blood test would yield a higher blood alcohol content than that achieved with a breath test, MacLeod v. State, 28 P.3d 943, 944-45 (Alaska Ct.App.2001); State v. Minkoff, 2002 MT 29, ¶ 16, 42 P.3d 223, or outright refusals to provide independent testing, Snyder v. State, 930 P.2d 1274, 1277-78 (Alaska 1996); In re Martin, 374 P.2d 801, 803 (Cal.1962). None of these circumstances were present here. Accordingly, we find no merit to defendant's claim and no basis to disturb the judgment.



II.

¶ 6. Defendant next contends that he gave adequate notice of contesting the validity of the underlying stop and that the trial court therefore should have allowed him to address this issue at the hearing. We agree. The test of adequate notice generally turns on whether the other parties were afforded “an adequate opportunity to prepare and respond to the issues [to be] raised in the proceeding.” In re Twenty-Four Vt. Utils., 159 Vt. 363, 369, 618 A.2d 1309, 1312-13 (1992) (quotation omitted). Here, defendant's notice was adequate.



¶ 7. Defendant's “list” of issues to be raised included nearly all of the issues enumerated under 23 V.S.A. § 1205(h)(1), including “whether the law enforcement officer had reasonable grounds to believe the person was operating, attempting to operate or in actual physical control of a vehicle in violation of section 1201.” Id. § 1205(h)(1)(A). We have interpreted this provision as allowing defendants to raise the question of whether there was a reasonable basis for the stop in a DUI hearing. State v. Lussier, 171 Vt. 19, 23, 757 A.2d 1017, 1020 (2000) (“[W]e conclude that, in permitting defendants in a civil suspension proceeding to dispute whether the processing officer had reasonable grounds to believe that the motorist was driving while intoxicated, the Legislature assumed that a constitutional stop would be a necessary predicate to finding ‘reasonable grounds' for suspicion of DUI.”). In Lussier, we interpreted § 1205(h)(1)(A) as incorporating the question of whether the initial stop was valid because such an interpretation was necessary to avoid “stripping defendants in [civil suspension] proceedings of their constitutionally protected right to be free from unreasonable stops.” Id.



¶ 8. In light of Lussier, defendant's citing of § 1205(h)(1)(A) in his list of issues to be raised at the hearing necessarily gave notice to the prosecutor that defendant was preserving his right to question the validity of the underlying stop. In short, after Lussier, § 1205(h)(1)(A) included as a matter of law the issue of the validity of the underlying stop, and the prosecutor was legally on notice that this was the case. For these reasons, we hold that the trial court erred in preventing defendant from raising the validity of the underlying stop at the hearing.FN*



FN* We note also that to hold otherwise could deprive defendant of important constitutional rights without a knowing, intelligent waiver of those rights. Cf., e.g., State v. Cleary, 2003 VT 9, ¶ 15, 175 Vt. 142, 824 A.2d 509 (requiring that waivers of important constitutional rights be knowing and intelligent to ensure that such waivers are made voluntarily) .

Reversed and remanded for a hearing on the validity of the underlying stop.

Miranda vs. a DUI arrest, that is a common San Diego DUI lawyer questions.

This southern court says Miranda is not applicable to HGN or field sobriety tests, or to moderate on-the-scene questioning.

There's a legal analysis applicable to the entire issue, including a) what is testimonial, B) when is a person in custody, and c) when would questioning become more than what is allowed for during on-the--scene questioning.


Court of Appeals of Texas,

Fort Worth.
Trent Michael CAMPBELL, Appellant
v.
The STATE of Texas, State.

No. 2-08-262-CR.

June 17, 2010.

From County Criminal Court No. 10 of Tarrant County.
Trent Michael Campbell, for Leslie S. Barrows.

Charles M. Mallin, for The State of Texas.
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.


OPINION
BOB MCCOY, Justice.


I. Introduction

*1 In a single point, Appellant Trent Michael Campbell appeals his conviction for driving while intoxicated (“DWI”). We affirm.


II. Background

Southlake Police Sergeant James Polley and Officer David Aldridge were the only witnesses to testify at Campbell's DWI trial. The DVD from Officer Aldridge's vehicle's dashboard camera (“DVD”) and the jail videotape of Campbell receiving his statutory warning regarding giving a breath specimen were also admitted in evidence and published to the jury, along with a copy of the statutory warning signed by Campbell.


A. Sergeant Polley's Testimony

Sergeant Polley testified that on March 29, 2008, around 1:15 a.m ., he received information about a possible drunk driver. He proceeded to a nearby intersection to wait for the vehicle, a silver Mitsubishi, to drive by, and then he followed it, describing its manner of driving as follows:



The Mitsubishi was traveling with both left side tires over the center-the center stripes, and then would drift back across and the right side tires would go. And on that street it's an old county road and it has bar ditches on either side and the shoulders are very narrow and dirt, so it pretty much goes road surface to dirt to bar ditch. And he put both right side tires into the-just about into the bar ditch and then would come back in, and he did that numerous times.



Sergeant Polley described the Mitsubishi's line-crossing as “all the way over to about where the hood ornament would be on a normal car. It would be two to three feet over onto the right-hand side or to the left of the center turn stripe.” He followed the Mitsubishi for around a minute and a half-not more than a mile-during which time the Mitsubishi almost hit a culvert,FN1 causing him to fear for the driver's safety “and for anybody else[ ] he happened to cross.” He followed the Mitsubishi into a residential neighborhood, parked behind it, and waited several minutes for Officer Aldridge to arrive. FN2 He testified that no one entered or exited the vehicle while he waited.



FN1. Sergeant Polley testified,

One of the times that [Campbell] had driven off onto the right-hand side, they have an old culvert or bridge for when it rains and it's from the 30s, when the public works commission was going on and it's a solid concrete wall that comes up out of the ground about four feet. And I was absolutely scared that he was going to hit that, and I was hoping that he didn't, but at the last second he jerked it back to the left.



FN2. Sergeant Polley testified that he did not approach the Mitsubishi because he was dressed in plain clothes, he did not have proper equipment to conduct an investigation, and he knew that Officer Aldridge was on his way.

B. Officer Aldridge's Testimony

Officer Aldridge testified that on March 29, 2008, during his 6 p .m. to 6 a.m. shift, there was a general broadcast about a possible drunk driver in a silver Mitsubishi, who was being followed first by a civilian on a cell phone and then by Sergeant Polley. Officer Aldridge did not see Campbell driving. He testified that he found the silver Mitsubishi parked on the residential street with its engine turned off; Sergeant Polley's vehicle was parked behind it.



Officer Aldridge found Campbell, either sleeping or passed out, in the silver Mitsubishi when he approached it. He testified that he noticed that Campbell smelled of alcohol; when Campbell woke up, he automatically reached for the ignition. Officer Aldridge told him to give him the keys and to step out of the car. He observed that Campbell slurred his words, and he testified that he felt that Campbell was a danger to himself or others. He put handcuffs on Campbell and placed him in the back seat of his patrol car, testifying that he detained Campbell “because [he] knew it was going to be at least a public intoxication or minor in consumption.” He also testified that he asked Campbell if he had had anything to drink that night and that Campbell replied that he had been drinking with some friends. Officer Aldridge admitted that he continued asking Campbell questions even though he was arresting Campbell, or at least detaining him, based on a public intoxication charge. Officer Aldridge then placed Campbell in his patrol car so he could speak with Sergeant Polley about what Sergeant Polley had seen.



*2 Officer Aldridge subsequently administered the horizontal gaze nystagmus (“HGN”) field sobriety test to Campbell at Sergeant Polley's prompting. He testified that the test resulted in six clues-the maximum-and then he placed Campbell under arrest for suspicion of DWI after Campbell refused to perform additional field sobriety tests. And he testified that based on his experience and observations that night, he came to the conclusion that Campbell had lost the normal use of his mental and physical faculties due to alcohol use, based on his demeanor, “the stumbling around, staggering, and his speech.” Campbell refused to give a breath sample after he was transported to jail, and he received his Miranda warnings FN3 after he received the statutory warning about the consequences of refusing a breath sample.



FN3. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

C. Dashboard Camera DVD

The dashboard camera DVD corroborates Officer Aldridge's testimony. Specifically, it shows Officer Aldridge approaching the Mitsubishi with a flashlight, shining the flashlight through the driver's side window, and opening the driver's side door. Some movement occurs inside the Mitsubishi, and Officer Aldridge tells Campbell to leave his car turned off, to give him the keys, and to step out of the vehicle. Campbell steps out of the vehicle on his own.



Officer Aldridge then asks Campbell how old he is. Campbell responds that he is nineteen. He asks Campbell if he has any identification on him, and Campbell responds that he does not. He asks Campbell how much he has had to drink tonight and whether it was a couple of beers. Campbell responds, “yes, sir.” Officer Aldridge handcuffs Campbell and then asks him whether he knows that he is not old enough to be drinking. Campbell replies, “yes.” Officer Aldridge then states, “But you did it anyway. Right?” Campbell says, “Right.” He asks Campbell where he has been tonight; Campbell's response is unintelligible except for the word “house.” Campbell then insists that he had not been driving. Officer Aldridge responds, “You just got through driving and parked right here,” and then asks him off-camera, after informing him that he has been followed by police officers, “If you wasn't [sic] driving, who was?” Campbell's response is unintelligible. Off-camera, Officer Aldridge tells him to wait “right here” and the sound of the patrol car's door closing can be heard on the DVD.



When Officer Aldridge administers the HGN test to Campbell, Campbell demonstrates trouble following the instructions. Officer Aldridge asks him if he has been doing anything besides drinking, and Campbell says no. When asked if he has been doing any drugs, Campbell states, “No drugs at all.” As Officer Aldridge puts Campbell in the patrol car (off-screen) , Campbell asks what the charge is. Officer Aldridge replies, “Driving while intoxicated,” to which Campbell again argues that he had not been driving.



Campbell can clearly be heard to slur his words throughout, and he visibly sways during the administration of the HGN test. The DVD also shows that Officer Aldridge was not by himself-after he opens Campbell's car door, another uniformed officer approaches the vehicle and an officer in plain clothes walks to the passenger side of the vehicle. They both stand there while Officer Aldridge handcuffs Campbell.


D. Jail Videotape

*3 The videotape of Campbell receiving his warnings at the jail and refusing to give a breath sample also shows that Campbell has trouble stating his birth date and that he refuses the offer of more sobriety tests. He clearly slurs his words and has trouble understanding what is going on, asking Officer Aldridge what he is signing [the statutory warning] after it has been read to him and a copy given to him to read along, and trying to bargain, “I will sign it if my mom can come pick me up.” Officer Aldridge tells him more than once that he has to see a judge and set a bond before anyone can come pick him up. After he receives his Miranda warnings, he asks Officer Aldridge, “When can my lawyer come get me?”


E. Procedural Posture, Findings, and Conclusions

Campbell was charged with DWI, and he filed a motion to suppress, which the trial court denied after carrying the motion along during trial. A jury found Campbell guilty of DWI, and the trial court assessed a $500 fine, ninety days' confinement (suspended), and twenty-four months of community supervision.



After this appeal was filed, this court abated the case and remanded it to the trial court for findings of fact and conclusions of law regarding the voluntariness of Campbell's statements at issue. See Tex.Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005); Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App. 2004). The trial court's findings of fact parallel the information set forth above in our review of Sergeant Polley's and Officer Aldridge's testimonies.FN4



FN4. Finding # 6 states,

After smelling alcohol on the defendant's person, and after the defendant admitted that he had been drinking, Officer Aldridge handcuffed the defendant and placed him in his patrol unit. Officer Aldridge conferred briefly with Sgt. Polley, then removed the defendant from the backseat of his patrol unit, and administered the horizontal gaze nystagmus test. The defendant exhibited all six clues of intoxication. Aldridge asked the defendant if he would submit to additional field sobriety tests, but he refused. [Record citations omitted.]



The trial court made the following conclusions of law: (1) Officer Aldridge had reasonable suspicion, based on specific articulable facts, to detain the defendant for investigation of whether he had been driving on a public roadway while intoxicated; (2) Having detained the defendant for further investigation, Officer Aldridge was entitled to ask a moderate number of questions to gather information to confirm or dispel his suspicions; (3) The defendant was not in custody for purposes of Miranda and Article 38.22 at the time he admitted he had been drinking, and his statement was not, therefore, the result of custodial interrogation; and (4) Further, the defendant's statement that he had been drinking was freely and voluntarily made, and was not the result of duress, threat, physical force or any other unlawful persuasion. This appeal was automatically reinstated upon submission of the trial court's findings of fact and conclusions of law.


III. Motion to Suppress

In his sole point, Campbell argues that the trial court erred by denying his motion to suppress because he was arrested without a warrant and was not properly notified of his rights in violation of his constitutional and statutory rights, with specific reference to Miranda as codified by article 38.22 of the code of criminal procedure.


A. Standard of Review

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W .3d 666, 673 (Tex.Crim.App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S .W.2d 539, 543 (Tex.Crim.App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App. 2006). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application- of-law-to- fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.Crim.App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002). But when application- of-law-to- fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005); Johnson, 68 S.W.3d at 652-53.



*4 Stated another way, when reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. Kelly, 204 S.W.3d at 818-19. We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 818. We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 974 (2004).


B. Warrantless Arrest
1. Applicable Law

Under the Fourth Amendment, a warrantless arrest is unreasonable per se unless it fits into one of a “few specifically established and well delineated exceptions.” Minnesota v. Dickerson, 508 U .S. 366, 372, 113 S.Ct. 2130, 2135 (1993); Torres v. State, 182 S.W.3d 899, 901 (Tex.Crim.App. 2005). A police officer may arrest an individual without a warrant only if probable cause exists with respect to the individual in question and the arrest falls within one of the exceptions set out in the code of criminal procedure. Torres, 182 S.W.3d at 901; see Tex.Code Crim. Proc. Ann. arts. 14.01-.04 (Vernon 2005 & Supp.2009).



Probable cause for a warrantless arrest requires that the officer have a reasonable belief that, based on facts and circumstances within the officer's personal knowledge, or of which the officer has reasonably trustworthy information, an offense has been committed. Torres, 182 S.W.3d at 902. Probable cause must be based on specific, articulable facts rather than the officer's mere opinion. Id.; Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005). We use the “totality of the circumstances” test to determine whether probable cause existed for a warrantless arrest. Torres, 182 S.W.3d at 902. Additionally, probable cause is evaluated based on the collective information known to the police, not just the stopping or arresting officer. United States v. Hensley, 469 U.S. 221, 229-33, 105 S.Ct. 675, 681-82 (1985); Woodward v. State, 668 S.W.2d 337, 344-46 (Tex.Crim.App. 1982) (op. on reh'g), cert. denied, 469 U.S. 1181 (1985); see Armendariz, 123 S.W.3d at 404-05; Jackson v. State, 745 S.W.2d 4, 8-9 (Tex.Crim.App. ), cert. denied, 487 U.S. 1241 (1988); see also Trimble v. State, No. 02-08-00325- CR, 2009 WL 2138830, at *3 n. 4 (Tex.App.-Fort Worth July 16, 2009, no pet.) (mem. op., not designated for publication) (distinguishing collective information exception from cases in which the information relied upon is from a citizen informant).



*5 A detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). An officer conducts a lawful temporary detention when he or she has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S .W.3d at 492. Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Id. at 492. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id.


2. Analysis

The record before us supports the trial court's conclusion that Officer Aldridge had reasonable suspicion to approach Campbell's vehicle and investigate, based on the dispatch about a possible drunk driver in a silver Mitsubishi that was followed by Sergeant Polley. See Ford, 158 S.W.3d at 492. And we conclude that, on this record, Officer Aldridge had probable cause after his initial investigation to make a warrantless arrest of Campbell for public intoxication- that is, the facts here show that Campbell was in a public place while intoxicated to the degree that he might endanger himself or another. See Tex. Penal Code Ann. § 49.02 (Vernon 2003); Torres, 182 S.W.3d at 902. Specifically, Officer Aldridge testified that with regard to his initial arrest or detention of Campbell for “at least a public intoxication,” he had discovered Campbell sleeping or passed out in his vehicle that was parked on a residential neighborhood street and that Campbell smelled of alcohol, slurred his words, and immediately reached for his keys that were still in the ignition upon awakening. See, e.g ., Dickey v. State, 552 S.W.2d 467, 468 (Tex.Crim.App. 1977) (concluding that appellant violated his probation by committing the offense of public intoxication when he became so intoxicated that he fell asleep in a car in front of a lounge in the middle of the night and noting, “[i]t is also possible that appellant could have awakened and taken it upon himself to drive himself and his companion home, which would have constituted an even clearer danger”). Additionally, Officer Aldridge had probable cause, after conferring with Sergeant Polley and performing the HGN field sobriety test on Campbell, to arrest Campbell for DWI. See Tex. Penal Code Ann. §§ 49.01, 49.04 (Vernon 2003) (stating that a person commits an offense if he is intoxicated- that is, does not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into the body-while operating a motor vehicle in a public place); see also Armendariz, 123 S.W.3d at 404-05; Trimble, 2009 WL 2138830, at *3 & n. 4.



*6 The trial court specifically concluded that Campbell was not in custody for purposes of Miranda and article 38.22 when he admitted that he had been drinking. However, we review the trial court's legal ruling de novo, and Campbell admitted that he had been drinking more than once during his interaction with Officer Aldridge. What we must determine here, based on the totality of the circumstances, is at what point Officer Aldridge took Campbell into custody for Miranda purposes: When he took Campbell's keys, when he handcuffed Campbell and placed him in the patrol car prior to administering the HGN test, or when he replaced Campbell back in the patrol car after the HGN test to take him to jail?


C. Miranda Warnings

Campbell contends that all evidence acquired after he was arrested without being given his Miranda warnings was “fruit of the poisonous tree” that should have been excluded under article 38 .23(a) of the code of criminal procedure, and he specifically complains that the following should have been suppressed:



(1) “... Officer Aldridge asked Mr. Campbell if he had been drinking and Mr. Campbell answered he had at a friend[']s house.”



(2) “Officer Aldridge then conducted the horizontal gaze nystagmus test which was another part of the investigation.”



(3) “[At the jail] ... Officer [Aldridge] started asking if he wanted to take other tests and stating this is not like the arrests you had before.”


1. Initial Matters

We first note that the HGN test and Officer Aldridge's statement at the jail did not require suppression. This is because the Fifth Amendment applies only to incriminating evidence that is testimonial in nature. Williams v. State, 116 S.W.3d 788, 791 (Tex.Crim.App. 2003). To be testimonial, the communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Id. The court of criminal appeals has held that sobriety tests yield physical evidence of a suspect's mental and physical faculties, and thus, the results are not testimonial evidence that implicates Miranda. Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App. 1997) (holding that field sobriety tests do not violate the privilege against self-incrimination) . Specifically, the court of criminal appeals has reasoned that field sobriety tests are not testimonial because their results do not create “an express or implied assertion of fact or belief.” Id.; see also Arthur v. State, 216 S.W.3d 50, 54-55 (Tex.App.-Fort Worth 2007, no pet.) (“[N]o Texas law requires that a suspect be warned ... before the administration of a field sobriety test.”). Therefore, the results of Campbell's HGN test were not subject to suppression.



Furthermore, the Fifth Amendment privilege against self-incrimination protected by the Miranda warnings and the statutory protections set out in article 38.22 specifically pertain to “statement[s] of an accused made as a result of custodial interrogation.” Tex.Code Crim. Proc. Ann. art. 38.22, § 3 (emphasis added); see U.S. Const. amend. V; see also Miranda, 384 U.S. at 476-77, 86 S.Ct. at 1629 (stating that the Miranda warnings are “prerequisites to the admissibility of any statement made by a defendant,” (emphasis added)). Therefore, Officer Aldridge's statement to Campbell regarding Campbell's other arrests was not subject to suppression under Miranda.


2. Applicable Law

*7 The need for Miranda warnings arises when a person has been subjected to a custodial interrogation. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Article 38.22 of the code of criminal procedure generally precludes the use of statements that result from custodial interrogation absent compliance with its procedural safeguards. Tex.Code Crim. Proc. Ann. art. 38.22 (Vernon 2005); Arthur, 216 S.W.3d at 56.



Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. A person held for an investigative detention is not in custody. See Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.Crim.App. 1996). A person is in custody only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. Id. Persons temporarily detained pursuant to traffic stops are not in custody for the purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 440, 442, 104 S.Ct. 3138, 3150-51 (1984) (determining that a motorist who was stopped for weaving on the road, subjected to a modest number of questions by a patrolman, and who performed a balancing test at a location visible to passing motorists, was not taken into custody for purposes of Miranda ).



The court of criminal appeals has outlined some general situations that may constitute custody, including the following: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave. Dowthitt, 931 S.W.2d at 252-55. In the first, second, and third situations, the restrictions upon freedom of movement must rise to the degree associated with an arrest as opposed to an investigative detention. Id. With regard to the fourth scenario, the officers' knowledge of probable cause must be manifested to the subject. Id.; see also State v. Stevenson, 958 S.W.2d 824, 828-29 (Tex.Crim.App. 1997) (holding appellant's statements admissible when the investigation was no more intrusive than in Berkemer and holding that even if appellant had become the focus of a DWI investigation, this fact alone would not give rise to custody). The standard for distinguishing between an investigative detention and an arrest is not always clear-both constitute seizures. Morris v. State, 50 S.W.3d 89, 94 (Tex.App.-Fort Worth 2001, no pet.).



Furthermore, there is no bright-line rule that handcuffing a suspect always constitutes an arrest. See Rhodes v. State, 945 S.W.2d 115, 118 (Tex.Crim.App. ), cert. denied, 522 U.S. 894 (1997); see also State v. Sheppard, 271 S.W.3d 281, 283 (Tex.Crim.App. 2008) (“[A] person who has been handcuffed has been ‘seized’ and detained under the Fourth Amendment, but he has not necessarily been ‘arrested.’ ”). Although handcuffing the suspect is not ordinarily proper during an investigative detention, it may be resorted to when reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety. See Rhodes, 945 S.W.2d at 117. The degree of force employed by a police officer is just one of several factors that must be considered to determine whether a particular seizure of a person is an arrest or merely an investigative detention. State v.. Moore, 25 S.W.3d 383, 386 (Tex.App.-Austin 2000, no pet.). The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, and the reaction of the suspect are all facts which bear on the issue. See id. (citing 4 Wayne R. LaFave, Search and Seizure § 9.2(d) (3d ed.1996)). The officer's opinion, while not determinative, is another factor to be considered. See id. (citing Amores v. State, 816 S.W.2d 407, 412 (Tex.Crim.App. 1991)); see also Rhodes v. State, 913 S.W.2d 242, 247 (Tex.App.-Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex.Crim.App. 1997). It is also important to consider whether the officer actually conducts an investigation after seizing the suspect-that is, whether the officer briefly questions the suspect about his identity, his reason for being in the area, or similar reasonable inquiries of a truly investigatory nature as contemplated by Terry v. Ohio. See Amores, 816 S.W.2d at 412; see also Rhodes, 945 S.W.2d at 119-20 (Meyers, J., concurring and dissenting) (discussing the differences between an arrest and an investigatory stop). Whether a seizure is an actual arrest or an investigative detention depends on the reasonableness of the intrusion under all of the facts. Morris, 50 S.W.3d at 95.


3. Analysis

*8 The only evidence potentially subject to suppression based on the testimony at trial was Campbell's statement to Officer Aldridge that he had been drinking with some friends, in response to Officer Aldridge's question as to whether Campbell had had anything to drink that night, and Campbell's statement that he had not been driving, in response to Officer Aldridge's question as to whether he had been driving. The only evidence potentially subject to suppression from the DVD, although not specifically complained of by Campbell,FN5 would have been Officer Aldridge's questions about how much Campbell had had to drink and whether it was a couple of beers, to which Campbell replied, “yes”; Officer Aldridge's question about whether Campbell knew he was not old enough to be drinking, to which Campbell responded, “yes”; Officer Aldridge's follow-up question, “But you did it anyway. Right?” to which Campbell responded, “Right”; Officer Aldridge's question about where he had been that night-Campbell' s response is mostly unintelligible; and Officer Aldridge's question that if Campbell was not the driver, who was, in response to Campbell's insistence that he had not been driving.



FN5. Campbell broadly complains that all statements made after his arrest should have been suppressed, but he only specifically complains about the three items listed above.

We have found one opinion, unpublished, that addresses whether an appellant is under arrest when an officer takes his car keys. White v. State, No. 08-06-00050- CR, 2007 WL 853134, at *1, 4 (Tex.App.-El Paso Mar. 22, 2007, no pet.) (not designated for publication) . In White, the officer testified that he pulled the appellant over after he saw him speeding on the interstate around 11 p.m. Id. at *1. As he approached the pulled-over vehicle, the appellant rolled down his car window, and he saw the appellant's glazed eyes and smelled alcohol coming from the vehicle and on the appellant's breath. Id. In response to his questions, the appellant said that he had just left a nightclub where he had had three drinks; the officer noted that appellant had difficulty understanding questions and slurred his speech. Id. The officer asked the appellant to remove the keys from the ignition, explained to the appellant “that this was to prevent him from driving off and as a safety measure for his own safety,” and placed the keys on top of the car. Id. The officer testified that the appellant was not under arrest at the time, but he was not free to leave as he was suspected of DWI and he needed the appellant to wait there because he was not certified to conduct field sobriety tests and had to request that a DWI unit be sent to the scene. Id . The El Paso court concluded that the appellant was not in custody when the officer took his keys; rather, he was still being detained because the officer's suspicion that the appellant was intoxicated had not been dispelled or confirmed. Id. at *4. The court also noted that allowing the appellant to leave or retain his keys could have posed a danger to himself and others. Id.



The facts here are not those of a traditional traffic stop-Campbell' s vehicle was parked when Officer Aldridge arrived on the scene, and Campbell was either passed out or asleep when Officer Aldridge opened the car door. Officer Aldridge gave Campbell no explanation for taking his car keys, and he retained the keys during their interaction. Nonetheless, Officer Aldridge's actions immediately after taking the keys and before placing Campbell in handcuffs appear to be part of a continuing investigation- he asked Campbell how old he was, whether he had any identification, and how much he had had to drink that night and whether it was a couple of beers. See id. at *1, 4. We conclude that Campbell was not in custody when Officer Aldridge took his keys or asked him questions prior to placing him in handcuffs. Therefore, Campbell's responses or affirmations- that he was nineteen, that he did not have identification on him, and that he had had a couple of beers-were not subject to suppression under article 38.22 or Miranda. See Tex.Code Crim. Proc. Ann. art. 38.22, § 3 (requiring custodial interrogation) ; see also Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. This is congruous with the trial court's conclusion that Officer Aldridge had reasonable suspicion to detain Campbell for further investigation and to ask a moderate number of questions to confirm or dispel his suspicions and that Campbell was not in custody when he admitted that he had been drinking.



*9 However, some statements potentially subject to suppression remain because they occurred in response to Officer Aldridge's questions both after he took Campbell's keys and immediately after he placed Campbell in handcuffs: that he knew he was not old enough to be drinking, that he had been drinking with some friends or at a friend's house,FN6 and that he had not been driving. The trial court does not appear to have considered these additional statements in its findings of fact or conclusions of law.



FN6. On the DVD, after handcuffing Campbell, Officer Aldridge asks him where he had been that night. Campbell's response on the DVD is mostly unintelligible except for the word “house.” However, this question appears to match up with Officer Aldridge's testimony that Campbell said that he had been drinking with some friends.

Officer Aldridge did not testify that he handcuffed Campbell for officer safety purposes, to continue his investigation, or to maintain the status quo. See Rhodes, 945 S.W.2d at 117. The handcuffing occurred after midnight on a residential street, and the DVD reveals that two other officers were on the scene with Officer Aldridge. See Moore, 25 S.W.3d at 386. Further, Officer Aldridge gave contradictory testimony, admitting on cross-examination that he continued to ask Campbell questions even though he was arresting him based on public intoxication but also stating that Campbell was detained to investigate. See id. After handcuffing Campbell, he asked him additional questions beyond those that would normally be part of a Terry stop (i.e., identification questions) and then placed Campbell in his patrol unit. See Amores, 816 S.W.2d at 412. And he did not conduct any additional investigation directly involving Campbell's activities or identity until after speaking with Sergeant Polley, who prompted him to administer sobriety tests to Campbell.FN7



FN7. Defense counsel asked Sergeant Polley, “And did you do any additional investigation after [Campbell] was detained and handcuffed?” He responded, “Actually, now that you bring that up, I believe it was that I did instruct Officer Aldridge he probably needed to do SFSTs [standard field sobriety tests] for DWI at which point in time that's when he got started.”

While handcuffing does not always constitute an arrest, we hold that it did here, in light of the circumstances under which Campbell was physically deprived of his freedom of action and under which a reasonable person would believe his freedom of movement had been significantly restricted. See Dowthitt, 931 S.W.2d at 254-55; see also Alford v. State, 22 S.W.3d 669, 671-72 (Tex.App.-Fort Worth 2000, pet. ref'd) (holding that appellant was in custody when he was stopped, placed on the ground, and handcuffed, and his response, that he had had six beers, when asked if he had been drinking by an officer who arrived on the scene seven minutes later, should have been suppressed since he was not given his Miranda warnings); Jordy v. State, 969 S.W.2d 528, 531-32 (Tex.App.-Fort Worth 1998, no pet.) (holding that appellant was subjected to a custodial interrogation following a traffic accident when he laid down on the ground and the officer called an ambulance before asking appellant how much he had had to drink, to which appellant replied, “A lot.”). But see Rhodes, 945 S.W.2d at 117-18 (holding that incident was temporary investigative detention when officer testified at suppression hearing that he was not arresting Rhodes when he handcuffed him and that he handcuffed him primarily out of concern for officer safety-it was dark, the area was high-crime, and officer was alone with suspect); Arthur, 216 S.W .3d at 53, 57-58 (holding that appellant's statements were not a product of custodial interrogation when officer saw appellant's vehicle drifting and speeding, initiated a traffic stop and asked some questions about whether she had had anything to drink-which she answered inconsistently and in a loud, moderately slurred voice-and administered three sobriety tests and a portable breath test before arresting her); Hernandez v. State, 107 S.W.3d 41, 47-48 (Tex.App.-San Antonio 2003, pet. ref'd) (concluding that appellant's statement that he had consumed nine beers was made during investigatory detention after officer saw appellant speeding and weaving between lanes without signaling, pulled him over, noticed the smell of alcohol and appellant's bloodshot eyes, and administered three field sobriety tests, all prior to full custodial arrest); Wappler v. State, 104 S.W.3d 661, 668 (Tex.App.-Houston [1st Dist.] 2003) (concluding that it was reasonable for the officer to secure appellant in handcuffs when appellant was uncooperative and belligerent, so that officer could complete his DWI investigation) , rev'd on other grounds, 138 S.W.3d 331 (Tex.Crim.App. 2004); Lewis v. State, 72 S.W.3d 704, 708-13 (Tex.App.-Fort Worth 2002, pet. ref'd) (distinguishing Jordy and Alford as presenting “other circumstances” requiring Miranda when their facts went beyond the roadside questioning and sobriety tests found in DWI temporary investigation cases).



*10 The failure to suppress Campbell's statements made after he was arrested for public intoxication without his Miranda warnings constituted error. Additionally, we are concerned about the testimony that Officer Aldridge gave after he testified that he arrested Campbell based on public intoxication and that Campbell was not free to leave:



Q. Okay. And all the time while you are at least arresting him based upon a public intoxication, correct?



A. Uh-huh.



Q. Okay. Now, typically if you do-if you arrest somebody, aren't you supposed to immediately give them their Miranda rights?



A. No.



Q. Okay. So you are free, under your training, to continue to interrogate an individual without giving Miranda warnings?



A. We can ask questions.



Q. You can ask questions without advising them of the right to remain silent?



A. Correct.



Q. Okay. And this is from your training?



A. Yes.



Q. So you could arrest anyone that you think has committed a crime and continue to ask them questions without giving the Miranda warnings?



A. No. It's going to depend on the offense, you know. A public intoxication or minor in consumption [sic], I don't have to read them Miranda.



Q. So you don't always have to read Miranda rights when you put somebody under arrest?



A. Right.



Wrong. See Wicker v. State, 740 S.W.2d 779, 786 (Tex.Crim.App .1987) (“ Miranda has since been extended to cover custodial interrogation of one suspected of even a misdemeanor traffic offense .”), cert. denied, 485 U.S. 938 (1988); Alford, 22 S.W.3d at 671-73 (stating same).



Because we have found error, we must perform a harm analysis, and because we determine that the error is constitutional, we apply rule 44.2(a). See Tex.R.App. P. 44.2(a); Jones v. State, 119 S .W.3d 766, 776-77 (Tex.Crim.App. 2003) (applying rule 44.2(a) analysis to Miranda violation), cert. denied, 542 U.S. 905 (2004). We must reverse unless we determine beyond a reasonable doubt that the trial court's failure to suppress these statements did not contribute to Campbell's conviction or punishment. See Tex.R.App. P. 44.2(a); Hernandez v. State, 60 S.W.3d 106, 108 (Tex.Crim.App. 2001). In applying the “harmless error” test, our primary question is whether there is a “reasonable possibility” that the error might have contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999). Our harmless error analysis should not focus on the propriety of the outcome of the trial; instead, we should calculate as much as possible the probable impact on the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). We consider the source and nature of the error, the extent that it was emphasized by the State, its probable collateral implications, the weight a juror would probably place on the error, and whether declaring it harmless would be likely to encourage the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App. 1989). This requires us to evaluate the entire record in a neutral, impartial, and even-handed manner, not “in the light most favorable to the prosecution.” Id. at 586.



*11 The source of the error was Officer Aldridge's misunderstanding of when to give Miranda warnings. He asked three questions after arresting Campbell and prior to giving him the Miranda warnings that are relevant to the DWI charge,FN8 which elicited the following incriminating information from Campbell that was presented before the jury: Campbell had been drinking that night with some friends, and he denied that he had been driving, contrary to what the DVD showed and to Sergeant Polley's testimony.



FN8. That is, whether he had been drinking, where he had been that night, and who was driving if Campbell was not the driver.

During closing arguments, the State waived its opening. During its rebuttal, the prosecutor first referenced Campbell's slurred speech that the jury saw in the published exhibits and then briefly referenced Campbell's statements, stating, “He told-Trent Campbell said he was drinking that night. He told Officer Aldridge[,'] I've been drinking at a friend's house.[']” However, the State placed the most emphasis during its rebuttal on Campbell's driving, described by Sergeant Polley, and on Campbell's overall intoxicated demeanor, described by Officer Aldridge.



As recounted above, besides Campbell's statement through Officer Aldridge's testimony that he had been drinking with his friends, the jury heard testimony from Sergeant Polley about Campbell's hazardous driving, including that Campbell's vehicle almost ended up in a bar ditch numerous times, that Campbell's vehicle almost hit a culvert and crossed the center line several times, and that he feared for the driver's safety and the safety of others because of this. The jury also heard his testimony that no one entered or exited the vehicle after it came to a stop. And the jury heard Officer Aldridge's testimony about finding Campbell either asleep or passed out in the same vehicle, Campbell's smell of alcohol and word-slurring, and Campbell's performance on the HGN test. The jury heard Campbell's slurred speech when the exhibits were played at trial and saw Campbell pause before reciting his birth date on the jail videotape. And because Campbell's response to Officer Aldridge's question regarding whether he had had a couple of beers that night occurred before he was taken into custody, the jury was free to consider this statement in conjunction with all of the other evidence.



In light of all of this other evidence, the probable impact on the jury of Campbell's statement that he had been drinking at a friend's house was minimal. That is, the jury could have concluded beyond a reasonable doubt that Campbell had operated the silver Mitsubishi while not having the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body from the officers' testimony, from Campbell's demeanor on the DVD and videotape, and from Campbell's own statement prior to being taken into custody that he had been drinking alcohol that night, even if Campbell had never made the statement that he had been drinking with friends. Furthermore, declaring the error harmless here is unlikely to encourage the State to repeat it with impunity in light of the specific facts here and with regard to the fine line between investigative detentions, which do not require Miranda warnings, and custodial interrogations, which do.



*12 Therefore, after carefully reviewing the record and performing the required harm analysis under rule 44.2(a), we hold beyond a reasonable doubt that the trial court's error did not contribute to Campbell's conviction or punishment. Tex.R.App. P. 44.2(a). And because we hold that the error in failing to administer his Miranda warnings did not contribute to Campbell's conviction or punishment beyond a reasonable doubt under rule 44.2(a), we need not also analyze whether admission of the same statement in violation of section 38.22 violated Campbell's substantial rights under rule 44.2(b). See Tex.R.App. P. 47.1; see also Woods v. State, 152 S.W.3d 105, 118 (Tex.Crim.App. 2004) (stating that the erroneous admission of an appellant's statement in violation of article 38.22 amounts to nonconstitutional error), cert. denied, 544 U.S. 1050 (2005). We overrule Campbell's sole point.

IV. Conclusion

Having overruled Campbell's sole point, we affirm the trial court's judgment.

CONCURRING OPINION
LEE ANN DAUPHINOT, Justice.



I concur in the majority's thoughtful and well reasoned opinion. A new folk myth appears to have developed among law enforcement officers, judges, and lawyers that driving while intoxicated (DWI) is an exception to the protections of the Fourth and Fifth Amendments to the Constitution of the United States and to the protections of the comparable portions of our state constitution and code of criminal procedure. I write separately to point out the confusion that has arisen in our law regarding what the holding in Miranda v. Arizona FN1 means.



FN1. 384 U.S. 436, 86 S.Ct. 1602 (1966).

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.FN2

FN2. Id. at 444, 86 S.Ct. at 1612 (emphasis added).

In Hiibel v. Sixth Judicial Dist. Court,FN3 the United States Supreme Court clarified the parameters of the investigative detention and interrogation. In an analysis similar to that employed in Crawford v. Washington,FN4 the Court concentrated on whether the questioning during an investigative detention was testimonial:



FN3. 542 U.S. 177, 124 S.Ct. 2451 (2004).

FN4. 541 U.S. 36, 38, 124 S.Ct. 1354, 1357 (2004).

To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled.

.... “[T]o be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Stating one's name may qualify as an assertion of fact relating to identity. Production of identity documents might meet the definition as well. As we noted in Hubbell, acts of production may yield testimony establishing “the existence, authenticity, and custody of items [the police seek].”



*13 ....



As we stated in Kastigar v. United States, the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” FN5



FN5. Hiibel, 542 U.S. at 189-90, 124 S.Ct. at 2460 (citations omitted).

The three prongs of the test to trigger the Fifth Amendment, then, are that the statement is testimonial, incriminating, and compelled. The Miranda court held that a statement is compelled when it is in response to “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” FN6 Based on Sergeant Polley's testimony, he had probable cause to arrest Appellant Trent Michael Campbell for reckless driving or a traffic violation. As the majority so cogently points out, when Officer Aldridge walked up to Appellant who was sleeping, Aldridge had probable cause to arrest Appellant for public intoxication. Any claim that further investigation was necessary regarding the reckless driving is specious. Appellant was finished driving for the night. When Appellant attempted to reach for the keys in the ignition, the officer took the keys away and told him to get out of the car. Not only should it have been clear to Appellant that his movements were restricted to those permitted by the police officers, had he tried to leave, he would have been guilty of a criminal offense.



FN6. 384 U.S. at 444, 86 S.Ct. at 1612.

Section 38.04 of the penal code provides that a person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or even merely to detain him.FN7 In Texas and under the mandate of section 38.04, a person whom a police officer decides to detain is never free to leave. No matter how temporary the detention, that person is not free to leave until the officer decides to allow him to leave. Clearly, when a peace officer in Texas decides to detain a person, that person has been “ deprived of his freedom of action in [a] significant way,” FN8 and to attempt to do anything other than submit to the officer's show of authority constitutes a crime punishable by incarceration. As I have stated elsewhere,



FN7. Tex. Penal Code Ann. § 38.04 (Vernon Supp.2009).

FN8. 384 U.S. at 444, 86 S.Ct. at 1612 (emphasis added).

Although courts speak of a person's being free to leave when a police officer approaches him, courts also hold fairly regularly that walking or running away when an officer approaches provides reasonable suspicion for the officer to detain the person. It is, indeed, a lose, lose situation for any person a police officer wants to speak to. He is free to leave, unless he leaves. FN9

FN9. State v. Woodard, No. 02-09-052-CR, 2010 WL 1268035, at *14 (Tex.App.-Fort Worth April 1, 2010, pet. filed) (Dauphinot, J., dissenting).

To claim that Appellant was free to leave after the police cars converged on the scene would be a fiction totally unsupported by the record. And as the majority so astutely notes, Appellant was going to jail for something. The only question was what.



Courts and lawyers and commentators have spent years trying to construe exactly what the Miranda court meant by



*14 [T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. FN10



FN10. 384 U.S. at 444, 86 S.Ct. at 1612 (emphasis added).

Perhaps it is time to conclude that sometimes courts mean exactly what they say: the prosecution may not use any statement stemming from questioning initiated by law enforcement officers when a person is not free to walk, or to run, or to drive away, unless the person has been warned on the spot that he does not have to answer the questions, can have a lawyer present to give him advice, even if he is so poor that the government has to pay for the lawyer, and that he can stop answering questions anytime he decides to stop.

Maybe the Miranda court meant just exactly what they said. And under Texas law, a person must be warned anytime the police detain him and start asking questions because that person is never free to leave. And if he had been free to leave, deciding to walk away would have put an end to that freedom.


Because in the case before us the officer candidly admitted that he believed DWI, public intoxication, and minor in possession offenses to be exceptions to the mandates of the prohibitions against self-incrimination, and because he acted accordingly, the trial court should have suppressed the statements that were testimonial and incriminating (although the Miranda court specifically referred to both inculpatory and exculpatory statements).FN11 But because the remaining evidence of guilt is both overwhelming and untainted by the improperly admitted statements, I join the majority's conscientiously accurate and legally sound opinion.

Here's a useful quote by the concurring justice:

"A new folk myth appears to have developed among law enforcement officers, judges, and lawyers that driving while intoxicated (DWI) is an exception to the protections of the Fourth and Fifth Amendments to the Constitution of the United States and to the protections of the comparable portions of our state constitution and code of criminal procedure."

--- S.W.3d ----, 2010 WL 2432065 (Tex.App.-Fort Worth)

San Diego DUI criminal defense lawyers will never forget Coronado Police Department Officer A. Mansaker's pursuit of our Charger linebacker into his cul de sac before gun shots made a mess of the situation.

Can an off-duty cop, on his way home from work and outside of his jurisdiction, effectuate a stop and an arrest of a drunk driver? This appeals court held that a cop outside of his jurisdiction can only use the powers that are granted to all citizens. Since Massachusetts only gives citizens the power to arrest for felonies, and since an OUI is generally only a misdemeanor, the arrest was unlawful. An odd fact is that this was actually the driver's 7th OUI, but the fact that it was his 7th was not known prior to stop or arrest, so the appellate court continued to consider the event to be a 'misdemeanor' arrest.

COMMONWEALTH vs. Joseph LIMONE.

No. 09-P-252.

June 22, 2010.

Search and Seizure, Arrest, Pursuit. Arrest. Constitutional Law, Search and seizure. Police, Unlawful arrest. Motor Vehicle, Operating under the influence.

Robert H. D'Auria for the defendant.

Patricia Gould, Assistant District Attorney, for the Commonwealth.

RESCRIPT.

After trial in the Superior Court, a jury found the defendant guilty of operating a motor vehicle while under the influence of alcohol and operating a motor vehicle after revocation of his license. The same jury found the defendant guilty of operating a motor vehicle while under the influence of alcohol, fourth or subsequent offense. The defendant was sentenced to State prison. On appeal, he argues that the motion judge erred in denying his motion to suppress evidence. He claims that the evidence used by the police to prove his guilt was obtained by police officers as a result of an unlawful extraterritorial seizure. [FN1]

The facts of the case are essentially not in dispute. The judge's findings, substantiated in the record, are summarized as follows. On August 4, 2006, Robert Kelleher, a Somerville police officer, was returning to his home in Woburn after performing a paid detail. He was in full uniform, but was driving his personal vehicle. After taking the Montvale Avenue exit from Route 93 north, the defendant's vehicle (Oldsmobile) struck Kelleher's vehicle in the rear. Kelleher got out of his vehicle, approached the driver's side of the Oldsmobile, identified himself as a police officer, and told the defendant that the defendant had struck his (Kelleher's) vehicle. The defendant stated several times that he was sorry.

Kelleher formed the opinion that the defendant was under the influence of alcohol and told him to step out of the car. When the defendant got out of the car, Kelleher, concerned that the defendant would leave the scene and cause injury to someone, reached in and took the keys from the ignition. He told the defendant to wait in his car until the police arrived, and he used his cellular telephone to call the Woburn police. Kelleher and the defendant waited, each in his own vehicle, for the Woburn police to respond.

Woburn police officer David Simonds responded to a dispatch concerning an accident involving a driver who was possibly under the influence of alcohol. Simonds approached the Oldsmobile, smelled alcohol, observed that the defendant appeared to be under the influence, and asked him for his license and registration. Instead, the defendant gave Simonds a pack of cigarettes. Simonds asked the defendant to step out of the vehicle, and as he did, Simonds observed a nip of whiskey in the defendant's lap. At Simonds's request, the defendant attempted to perform field sobriety tests, but failed them. He was arrested and transported to the police station, where he agreed to take a breathalyzer test and recorded a .12 reading. A subsequent check of the defendant's probation record revealed six previous convictions of operating under the influence.

Discussion. The defendant moved to suppress evidence, including the results of the field sobriety and the breathalyzer tests, on the grounds that Kelleher effectuated an unlawful extraterritorial stop and arrest. See Commonwealth v. Grise, 398 Mass. 247, 249-251 (1986); Commonwealth v. Savage, 430 Mass. 341, 343 (1999). The determination whether an arrest has occurred depends on the particular facts of the case. Commonwealth v. Williams, 422 Mass. 111, 118 (1996).

We conclude that the actions of Officer Kelleher, in (1) directing the defendant to step out of the vehicle; (2) directing the defendant to get back in his vehicle and to wait for the police; and (3) removing the keys from the ignition of the defendant's vehicle, constituted a seizure implicating the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. Therefore, we must consider whether Kelleher's actions were proper.

A police officer's power to make a warrantless arrest is generally limited to the boundaries of the jurisdiction in which the officer is employed, Commonwealth v. LeBlanc, 407 Mass. 70, 72 (1990), and, absent fresh pursuit for an arrestable offense, a police officer is generally without authority to make an arrest outside his jurisdiction. Commonwealth v. Savage, 430 Mass. at 343.

Outside his jurisdictional boundaries, a police officer stands as a private citizen, and, if not in fresh and continued pursuit of a suspect, an arrest by him is valid only if a private citizen would be justified in making the arrest under the same circumstances. Commonwealth v. Grise, 398 Mass. at 250. In this case the defendant was suspected only of a misdemeanor motor vehicle offense. [FN2] It was subsequent investigation that disclosed the defendant had been convicted on at least six prior occasions of operating while under the influence of liquor. Thus, the seizure of the defendant was unlawful. Commonwealth v. Savage, supra at 346. The remedy for such an unlawful stop and arrest is exclusion of the evidence under the "fruit of the poisonous tree" doctrine. Wong Sun v. United States, 371 U.S. 471, 488 (1963).

In this case, since the only evidence would not have been obtained but for the unlawful stop and subsequent arrest, the judgments are reversed, the verdicts are set aside, and judgments are to enter for the defendant. [FN3]

So ordered.

FN1. The defendant also claims that the judge erred in allowing the Commonwealth' s expert to testify regarding retrograde extrapolation, where her opinion of the defendant's blood alcohol concentration at the time he was driving was based on an assumption that his blood alcohol concentration had peaked or was in the elimination phase at the time he stopped driving.

FN2. A first offense of operating a motor vehicle while under the influence of intoxicating liquor is only a misdemeanor. See Commonwealth v. Grise, 398 Mass. at 250.

FN3. Deciding the case as we do, we need not reach the second claim of error raised by the defendant. See note 1, supra. Were we to reach the issue we would conclude that the argument has no merit. See Commonwealth v. Colturi, 448 Mass. 809, 816 (2007) (time delay between the operation of a motor vehicle and the administration of a breathalyzer test goes to the weight the jury might afford the test results).

San Diego DUI / DMV defense lawyers tell DMV they have to have the date and time in their DS 367 sworn statement before a California license can be taken, relying on McDonald v. Guiterrez.

A drunk driving arrest in Texas, when the accused refuses to submit to blood or breath tests, a DWI search warrant is obtained. This sworn statement describes sufficient evidence that at the time of arrest the defendant was intoxicated.

But suppressed the .23% Blood alcohol test based upon a defective application.

Court of Appeals of Texas,
Austin.
The STATE of Texas, Appellant
v.
Jed JORDAN, Appellee.


No. 03-09-00530- CR.

June 17, 2010.


From the County Court at Law No. 6 of Travis County, No. C-1-CR-08-210341, Jan Breland, Judge Presiding.
Giselle Horton, Assistant County Attorney, Austin, TX, for Appellant.

Wade H. Russell, Austin, TX, for Appelleee.


Before Chief Justice JONES, Justices PEMBERTON and WALDROP.



OPINION
J. WOODFIN JONES, Chief Justice.


*1 The State appeals an order suppressing evidence in a prosecution for driving while intoxicated. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp.2009). On June 6, 2008, a search warrant was issued authorizing the taking of a sample of appellee Jed Jordan's blood to test for alcohol concentration. See id. art. 18.02(10) (West 2005); see also Gentry v. State, 640 S.W.2d 899, 902 (Tex.Crim.App. 1982) (holding that blood is item of evidence for which search warrant may issue); Beeman v. State, 86 S.W.3d 613, 616 (Tex.Crim.App. 2002) (holding that implied consent law does not prohibit drawing blood pursuant to search warrant). Jordan moved to suppress the test result on the ground that the search warrant affidavit failed to state probable cause. After a hearing consisting of arguments by counsel, the motion was granted. We affirm the order.


A warrant to search for and seize items constituting evidence of an offense or tending to show that a particular person committed an offense must be supported by an affidavit containing facts sufficient to give the issuing magistrate probable cause to believe that: (1) a specific offense has been committed, (2) the items to be searched for and seized constitute evidence of that offense or that a particular person committed that offense, and (3) the items are located at or on the particular person, place, or thing to be searched. Tex.Code Crim. Proc. Ann. art. 18.01(c) (West Supp.2009). A search warrant affidavit must be interpreted in a common sense and realistic manner, recognizing that reasonable inferences may be drawn from the affidavit. Hespeth v. State, 249 S.W.3d 732, 737 (Tex.App.-Austin 2008, pet. ref'd). A reviewing court-which means in this case both the county court at law and this Court-must give the issuing magistrate's determination of probable cause great deference, and the decision to issue the warrant will be sustained if the magistrate had a substantial basis for concluding that probable cause was shown. Illinois v. Gates, 462 U.S. 213, 236-37 (1983); Swearingen v. State, 143 S .W.3d 808, 811 (Tex.Crim.App. 2004); State v. Davila, 169 S.W.3d 735, 738 (Tex.App.-Austin 2005, no pet.).


The search warrant affidavit in this case was prepared by Sergeant K. Suitt of the Austin Police Department. The affidavit states, in pertinent part:


I am a peace officer of the State of Texas, to wit: a Police Officer for the City of Austin in Travis County, Texas, and I have good reason to believe that heretofore, on or about the 6th day of June, 2008 in the County of Travis and State of Texas, Jed Jordan White/Male born 06-14-1984, did then and there commit an offense relating to the operation of a motor vehicle while intoxicated namely:



DRIVING WHILE INTOXICATED- (OFFENSE LEVEL A)
Affiant has probable cause for said belief by reason of the following facts:


My belief of the forgoing statement is based upon information provided to me by Officer R. Gilbert an officer working for Austin PD who personally observed such offense.



*2 Officer M. Forshee observed the aforesaid accused driving 2006 SCHW motorcycle upon 500 blk East 7th Street, a public place in Austin, Travis County, TX



Officer M. Forshee stopped the said accused for the following reasons; drove wrong way on a one way (westbound on E 7th which is eastbound only).



...



Officer R. Gilbert observed the said accused at the scene of said offense and formed the opinion the said accused was intoxicated based upon the following conditions exhibited by the said accused[:]



[The affidavit describes Jordan's general appearance and behavior and the results of the standard field sobriety tests, all of which were indicative of intoxication. It states that Jordan was not in possession of alcohol, but that he admitted drinking two bottles of beer. It also states that Jordan has a previous conviction in Harris County for driving while intoxicated. ]



Officer R. Gilbert has seen intoxicated persons on many occasion in the past. Based on all of the above and his experience and training, Officer R. Gilbert determined that the suspect did not have 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 substances, or any other substance into the body, and placed the suspect under arrest for Driving While Intoxicated. Officer R. Gilbert requested a sample of the suspect's breath and/or blood, which the suspect refused to provide.


The affidavit goes on to state that Jordan was being held at central booking and that his blood would constitute evidence of the driving while intoxicated offense. The affidavit was signed on June 6, 2008, at an unspecified time. The search warrant was signed and issued by the magistrate at 3:54 a.m. on June 6, 2008. The blood sample was drawn at 4:20 a.m. that morning.FN1


FN1. The State's brief states that the blood test showed a .23 alcohol concentration, but this fact does not appear in the record. The information alleges intoxication in terms of impairment; it does not allege intoxication per se. See Tex. Penal Code Ann. § 49.01(2) (West 2003).



Jordan has never contended that the facts stated in the affidavit were insufficient to give the magistrate probable cause to believe that he had been driving while intoxicated. Jordan argued below and continues to argue, however, that because the affidavit did not state the date and time when those facts arose, the affidavit was not sufficient to give the magistrate probable cause to believe that Jordan's blood would constitute evidence of his guilt at the time the warrant issued. See Mata v. State, 46 S.W.3d 902, 909 (Tex.Crim.App. 2001) (describing how body absorbs and eliminates alcohol). The trial court concluded that it was reasonable to infer that the facts arose on June 6, 2008, but agreed with Jordan that the affidavit was inadequate because it did not state the time when the critical observations were made. The State argues that because the warrant issued at 3:54 a.m. on June 6, the maximum amount of time that could have elapsed between the stop and the issuance of the warrant was three hours and fifty-four minutes. The State urges that it was therefore reasonable for the issuing magistrate to infer that appellant's blood would still contain some evidence of intoxication when the warrant issued.


*3 The State relies on the opinion in State v. Dugas, 296 S.W.3d 112 (Tex.App.-Houston [14th Dist.] 2009, pet. ref'd). In that case, also a prosecution for driving while intoxicated, the search warrant affidavit stated as a fact that the traffic offense giving rise to the defendant's arrest took place on March 15, 2008. Id. at 114. The search warrant was issued at 6:03 a.m. that day. Id. at 115. The court of appeals concluded that because no more than six hours elapsed between the offense and the issuance of the warrant, “it was [not] unreasonable for the magistrate to presume that there still would be some evidence of intoxication found in [the defendant's] blood when the warrant was signed.” Id. at 118.


The State's argument is premised on the assertion in its brief that “it is undisputed that both the offense and the issuance of the warrant occurred on the same day, June 6.” But this fact is disputed. Jordan has consistently argued that the affidavit did not give the magistrate a substantial basis for concluding that he was stopped and arrested on June 6. We are compelled to agree with Jordan.


Suitt's statement in his affidavit that “I have good reason to believe that heretofore, on or about the 6th day of June, 2008 in the County of Travis and State of Texas, Jed Jordan ... did then and there commit” the offense of driving while intoxicated was not a statement of fact; it was merely a statement of the officer's belief. A police officer's conclusion that a crime has been committed does not give a magistrate a substantial basis for determining that probable cause exists. See Gates, 462 U.S. at 239; Davila, 169 S.W.3d at 739-40. It is the facts giving rise to the officer's suspicion that are determinative, and the affidavit in this case was completely silent as to the date and time when Jordan was stopped by Forshee and observed by Gilbert, and when Gilbert passed on his information to Suitt. Therefore, although the facts contained in the affidavit were sufficient to warrant the conclusion that Jordan had been driving while intoxicated on some date, the affidavit contained no facts from which a reasonable inference could be drawn as to what that date was. In what is a critical distinction from Dugas, the affidavit in this case did not state that the offense took place on June 6. Nor can it be reasonably inferred that the offense occurred on June 6 from the mere fact that the warrant was requested that date. Thus, there is no basis for the State's argument that the warrant was sought less than four hours after the offense was committed.FN2


FN2. We express no opinion as to whether the warrant would have been timely under those circumstances. We also express no opinion as to whether a statement that the pertinent events took place “on or about” a certain date is sufficient to warrant an inference that the events actually took place on that date. We agree with the trial court that when an affiant is seeking a warrant to take blood for the purpose of testing for alcohol concentration, a precise statement of the relevant times is advisable.



The affidavit in this case is analogous to the search warrant affidavit held insufficient in Schmidt v. State, 659 S.W.2d 420 (Tex.Crim.App. 1983). The affiant in that case, a police officer, stated that he believed, based on information received from an informer, that the suspect possessed cocaine on or about a certain date. Id. at 421. The affidavit failed to state, however, when the incident described by the informer took place. Id. The court of criminal appeals held that the facts stated in the affidavit did not give the magistrate a basis for concluding that the information was still fresh, and thus the affidavit did not support the magistrate's conclusion that probable cause existed at the time the warrant was sought. Id. The opinion in Schmidt contradicts any argument that a police officer's statement that he believes that events occurred on or about a certain date, without any facts to support that belief, is sufficient to support an inference that the events did occur on that date.


*4 Although the officers involved in this case may well have acted promptly to obtain the search warrant, we cannot ignore the affidavit's silence regarding the crucial matter of date and time. “It is one thing to draw reasonable inferences from information clearly set forth within the four corners of an affidavit... . It is quite another matter to read material information into an affidavit that does not otherwise appear on its face.” Cassias v.. State, 719 S.W.2d 585, 590 (Tex.Crim.App. 1986). The magistrate could not infer that Jordan had been stopped and arrested on June 6 merely because the warrant was being sought on June 6.


Even under the deferential standard applied when reviewing a magistrate's probable cause finding, the affidavit in this case did not warrant the conclusion that Jordan's blood would constitute evidence of the driving while intoxicated offense because there were no facts from which the magistrate could reasonably infer that the time that had elapsed was sufficiently short to justify the belief that alcohol would still be in Jordan's blood. The trial court's order suppressing the result of the blood test is affirmed.

Tex.App.-Austin, 2010.
State v. Jordan
--- S.W.3d ----, 2010 WL 2428122 (Tex.App.-Austin)