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Click here for the full text of this decision FACTS:While driving in the city of Arlington on the afternoon of Aug. 8, 2002, Vickie Evans called 911 to report that Mary Elizabeth Harrison was driving while intoxicated or was having a seizure. As she continued to follow Harrison, Evans remained on the phone, advising police of Harrison’s location. Following Evans’ 911 call, a police officer directed Harrison to pull over and stop in a parking lot while another officer questioned Evans. Evans said that while she had been following Harrison, she observed Harrison going from lane to lane, fidgeting and “flopping around like a fish” inside her car. Approaching Harrison, one of the officers noticed that Harrison was “continuously fidgeting, moving around, bending around at the waist, [and] lifting up her legs.” the officer then administered a number of field sobriety tests. Based on Harrison’s overall performance on the tests, the officer concluded that Harrison was under the influence of an intoxicant other than alcohol. Harrison was placed under arrest and transported to the county jail, where Lodatto asked her to provide breath and blood specimens. After Lodatto warned Harrison of the consequences of refusing to submit the specimens as required by the Texas Transportation Code, Harrison consented. When Harrison’s breath tested negative for alcohol, Lodatto and another officer, Officer Donna DeMott, took Harrison to Arlington Memorial Hospital to obtain a blood sample. Although a nurse tried to draw blood from Harrison’s hands and arms five or six times, a testable amount could not be obtained because her veins repeatedly collapsed. The unsuccessful attempts to draw blood caused Harrison pain and resulted in bruising. Harrison agreed to provide a urine sample to avoid being stuck with the needle again and to avoid having her driver’s license suspended. Neither officer informed Harrison that she did not have to give a urine sample. They also failed to inform her that her license would not be suspended in the event that she refused to provide a urine sample. Harrison’s urine did test positive for controlled substances, and she was later charged with misdemeanor driving while intoxicated. Harrison filed a motion to suppress alleging that her rights under the U.S. and Texas Constitutions were violated. She argued that the stop was not supported by reasonable suspicion and that her consent to provide a urine sample was involuntary. The trial court denied the motion. On April 21, 2003, pursuant to a plea agreement, Harrison pled guilty. Her sentence was assessed at 180 days in jail probated for two years and a fine of $500. Harrison appealed the trial court’s denial of her motion to suppress. She argued that the trial court erred in finding that the stop was supported by reasonable suspicion. She further claimed that the court erred in finding that she voluntarily consented to submitting a urine sample, maintaining that the State failed to prove voluntariness by clear and convincing evidence. The 2nd Court of Appeals found that police had reasonable suspicion to initiate an investigative stop of Harrison. The court went on to find that the State failed to prove by clear and convincing evidence that Harrison’s consent to the urine sample was voluntary, noting that Harrison was in pain and agreed to provide the urine specimen to avoid further needle sticks. As a result, the 2nd Court reversed the trial court’s judgment and remanded the case for a new trial. The state petitioned the Court of Criminal Appeals (CCA) for review. HOLDING:The CCA reversed the 2nd Court’s decision and affirmed the judgment of the trial court. The CCA concluded that the police were not required to give statutory warnings before requesting a urine specimen (unlike blood and breath tests). It may be argued, the court stated, that Harrison was misled by the officers because had Harrison been allowed to contact her attorney as she had requested, her attorney could have informed her that she could refuse the request for a urine sample without losing her license. But Harrison did not have the right to have an attorney present at the hospital, the court stated. Thus, the court reasoned, the officers did nothing to mislead Harrison. Considering all of the facts, and giving proper deference to the trial judge’s credibility determinations, the court stated it could not say that the trial judge erred in deciding that the state proved by clear and convincing evidence that Harrison’s consent was voluntary. OPINION:Keasler, J., delivered the opinion of the court in which Keller, P.J., Womack, Hervey and Cochran, J.J., joined. CONCURRENCE:Price and Johnson, J.J., concurred in the result without an opinion. DISSENT:Meyers, J., filed a dissenting opinion in which Holcomb, J., joined. “Since there was not a single witness who claimed that Appellant’s consent was informed, it is difficult to see how the consent could be considered voluntary. . . . I disagree with the majority’s contention that the court of appeals failed to give proper deference to the trial court’s findings. The court of appeals properly reviewed the evidence and held that there was not clear and convincing evidence to prove that Appellant voluntarily consented to the urine sample.”

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