Mersiovsky v. State

¶1ON MOTION FOR REHEARING

¶2In Mersiovsky’s motion for rehearing he argues that we erred in concluding he was not under arrest. It is his position that he was under arrest when his blood sample was taken, that his blood sample was taken without his consent, and that the sample, therefore, was inadmissible.

¶3Factors to consider in determining whether a suspect is under arrest are: (1) the subjective intent of the law enforcement officials; (2) the subjective belief of the suspect; (3) whether probable cause existed to arrest the suspect; and (4) whether the focus of the investigation had centered upon the suspect. Gonzales v. State, 581 S.W.2d 690, 691 (Tex.Cr.App.1979). Moreover, whether the suspect was in fact restrained in any way or whether anyone would have attempted to restrain *531him had he attempted to leave is a consideration. Darland v. State, 582 S.W.2d 452, 454 (Tex.Cr.App.1979).

¶4Roy Patterson, an Anderson County deputy sheriff, testified that when he reached the scene of the accident, Mersiovsky smelled of alcohol and was semiconscious. Patterson opined that the alcohol, not the wreck, caused Mersiovsky’s semiconsciousness.

¶5Kenneth Mclntire, a truck driver who pulled Mersiovsky from the wrecked car, testified that defendant smelled of alcohol and that there were two six packs of beer in the back seat.

¶6Paul Wilford, a highway patrolman with the Department of Public Safety who investigated the accident, testified that the smell of alcohol permeated the vehicle even after Mersiovsky had been taken to the hospital. He stated that he and his partner went to the hospital after Mersiovsky had left in the ambulance and a wrecker had come to tow the car. He further stated that at the hospital Mersiovsky smelled of alcohol. He said his partner woke up Mersiovsky and that Mersiovsky’s speech was loud and slurred. He testified that he and his partner suspected alcohol as the cause of the wreck.

¶7David Raymer, Wilford’s partner and the man in charge of the investigation, repeated the substance of Wilford’s testimony. He added:

I asked Bryan if he would submit to a blood test. The purpose of the blood test is to obtain the alcoholic content. We usually would give a breathalyzer test but due to the fact that he was going to stay there in the hospital, I can’t take the instrument to him and he couldn’t leave the hospital. So the next test that we have is a blood test. It’s a test that we used prior — the Highway Patrol used pri- or to the invention of the breathalyzer. When I talked to Bryan about that, he became very upset with me. He started talking about a previous DWI that had been filed against him and he didn’t want another one. I had told him that a DWI would be filed against him one way or the other with the blood test or without the blood test. He was upset and started cussing. Loud talking. But did agree to take a blood test. I had the oral consent from him to take the blood test. The hospital asked for a written consent through the hospital. It’s not required by law. He did sign that and the blood test was taken.1

¶8The above testimony is all that could possibly bear on the question of whether Mersiovsky was under arrest. Appellant’s position is that Officer Rayner’s statement to him that criminal charges for driving while intoxicated would be filed against him encompassed the subjective intent of the law enforcement officials, the subjective belief of the suspect, and whether the focus of the investigation had centered on the suspect. Appellant further urges that since Officer Rayner stated that Mersiovsky was intoxicated and that intoxication caused the accident, the factor of probable cause to arrest appellant was supplied. Thus, appellant argues it is clear he was under arrest. We do not agree that Officer Rayner’s statements encompassed all of these factors.

¶9Moreover, there is no testimony on whether any officer tried to restrain Mer-siovsky, or would have attempted to restrain him had he tried to leave. Likewise, no evidence shows that any officer asked to be called before Mersiovsky was released from the hospital, or that Mersiovsky was in their custody.

¶10We conclude that appellant was not under arrest.

¶11Motion for rehearing overruled.