Douds v. State

Full title: Kenneth Lee DOUDS, Appellant v. The STATE of Texas, Appellee.

Court: Court of Appeals of Texas, Houston (14th Dist.).

Date published: Jun 5, 2014

434 S.W.3d 842 (Tex. App. 2014)

Opinion

No. 14–12–00642–CR.

2014-06-5

Kenneth Lee DOUDS, Appellant v. The STATE of Texas, Appellee.

Charles Dewitt Adams, Pearland, for Appellant. Jeri Yenne, Angleton, for State.

Justices CHRISTOPHER

Charles Dewitt Adams, Pearland, for Appellant. Jeri Yenne, Angleton, for State.
Before the court en banc.

EN BANC OPINION

J. BRETT BUSBY, Justice.

Appellant Kenneth Lee Douds was charged with driving while intoxicated. After the trial court denied appellant's motion to suppress his blood specimen drawn without a warrant and the results of a blood alcohol test of the specimen, he pleaded guilty to a reduced charge as part of a plea agreement. In this appeal, he challenges the suppression ruling on both statutory and constitutional grounds. Having granted appellant's motion for reconsideration en banc, we hold that the taking of appellant's blood was an unreasonable warrantless seizure in violation of the Fourth Amendment. We therefore reverse the judgment and remand for further proceedings consistent with this opinion.

Background

On May 16, 2010, Officer Andre Tran of the Pearland Police Department responded to a call regarding a car accident that had been reported at 2:33 a.m. Two cars were involved in the accident, and the occupants of both cars were friends. The appellant and his wife were in one car, and appellant was driving when he failed to stop and struck the other car from behind. Officer Timothy Niemeyer and Pearland Emergency Medical Services (EMS) were already at the scene when Officer Tran arrived at 2:36 a.m. and began investigating the crash.

Officer Niemeyer had called Pearland EMS to address injuries at the scene. Appellant's wife complained of chest and rib pain and said she could not move her right arm, but she refused to be taken to the hospital by Pearland EMS. Video from the dashboard camera of Officer Tran's police car indicates that Pearland EMS left the scene at 2:54 a.m. Officer Tran suggested to the driver of the other car that appellant's wife needed to be checked out and possibly have some X-rays taken. The driver replied “we're taking her,” which Officer Tran testified he understood to mean she would be taking appellant's wife to a hospital or emergency center.

After conducting field sobriety tests, which reinforced his initial suspicion that appellant was intoxicated, Officer Tran placed appellant under arrest at 3:19 a.m.¹ The dashboard camera video indicates that Officer Tran and appellant left the scene at 3:29 and arrived at the Pearland Police Department at 3:33 a.m. One of the other officers stayed at the scene to inventory appellant's vehicle and handle towing.²

1 The DWI Case Report lists the time of arrest as 3:19 a.m., but the dashboard camera video indicates that the arrest occurred at 3:14 a.m.

2 During the suppression hearing, Officer Tran testified that he thought “two [other] officers showed up,” but Officer Niemeyer is the only officer listed in the “other officer information” section of the DWI Case Report. The report lists Officer Niemeyer as “assist[ing] with maintain [ing] scene control and vehicle inventory for towing.”

At the police department, Officer Tran read a statutory warning to appellant regarding his ability to refuse to supply a breath sample voluntarily. The DWI Specimen Report reflects that Officer Tran delivered the warning at 3:45 a.m. When Officer Tran requested a breath sample, the appellant refused to consent. At that point, “based on the total circumstances” and his belief that appellant's wife was hurt and needed medical attention, Officer Tran took the appellant to a local medical center, Texas Emergency Care, for a mandatory blood draw. Officer Tran testified his decision to obtain a blood draw was based on his reasonable belief that section 724.012 of the Texas Transportation Code had been satisfied and allowed him to do so.

The DWI Specimen Report lists the time of extraction as 4:45 a.m.—one hour after Officer Tran delivered the statutory warning, 76 minutes after the pair left the scene of the accident, at least 86 minutes after Officer Tran arrested appellant, and more than two hours after officers arrived at the scene. Nothing in the record suggests that any officer attempted to obtain a warrant authorizing the blood draw at any point. Indeed, the evidence does not mention a warrant at all.

Appellant was charged by information with Class A misdemeanor driving while intoxicated. SeeTex. Penal Code Ann. §§ 49.04(a), 49.09(a) (West Supp.2013). Appellant filed a motion to suppress the specimen taken during the mandatory blood draw and the results of a blood alcohol test of the specimen. After holding an evidentiary hearing and considering briefing by both parties, the trial court signed an order denying appellant's motion to suppress. Appellant then pleaded guilty to a Class B misdemeanor as part of a plea agreement, and the trial court certified his right to appeal. In this appeal, appellant challenges the trial court's denial of his motion to suppress, contending that the court's ruling was erroneous on both statutory and constitutional grounds.

Standard of Review

We review a trial court's ruling on a motion to suppress under a bifurcated standard. Vasquez v. State, 324 S.W.3d 912, 918 (Tex.App.-Houston [14th Dist.] 2010, pet. ref'd) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)). The trial court is the sole finder of fact and is free to believe or disbelieve any or all of the testimony presented at a suppression hearing. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.Crim.App.2007). When, as here, there are no explicit findings of historical fact, we review the evidence in the light most favorable to the trial court's ruling, assuming that the trial court made implicit findings of fact supported in the record that buttress its ruling. Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex.Crim.App.2000). We will uphold the court's ruling if it is correct under any theory of law applicable to the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005).

Although we “give almost total deference to [the] trial court's express or implied determination of historical facts,” we “review de novo the court's application of the law of search and seizure to those facts.” Shepherd v. State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008). To be sure, the reasonableness of a seizure is a fact-sensitive inquiry, but it is “ultimately a question of substantive Fourth Amendment law.” Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004). Therefore, we assume the trial court made findings of historical fact favorable to its ruling, but whether those facts amount to a reasonable seizure is a question of law that we review de novo. See id.

Analysis

I. The record supports the trial court's implied finding that the statutory requirements for a mandatory blood draw were met.

In his first issue, appellant contends the trial court should have granted his motion to suppress because Officer Tran did not have statutory authority to require the taking of a blood specimen. Officer Tran testified that he ordered the mandatory blood draw under the authority of section 724.012 of the Texas Transportation Code. In relevant part, that section provides:

(b) A peace officer shall require the taking of a specimen of the person's breath or blood under any of the following circumstances if the officer arrests the person for [driving while intoxicated] and the person refuses the officer's request to submit to the taking of a specimen voluntarily:

(1) the person was the operator of a motor vehicle or watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident:

* * *

(C) an individual other than the person has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment.
Tex. Transp. Code Ann. § 724.012(b) (West 2011).

Appellant argues that the evidence provides no “support for the possible assertion that anyone had ‘been transported to a hospital or [other] medical facility for medical treatment.’ ” This argument misstates the statutory requirement. The Transportation Code does not require that someone actually be transported to a medical facility for medical treatment; rather, it requires that the police officer ordering the mandatory blood draw reasonably believe that an injured individual has been transported to a medical facility for medical treatment. See id.; see also Mitchell v. State, 821 S.W.2d 420, 424–25 (Tex.App.-Austin 1991, pet. ref'd) (construing predecessor of section 724.012 to authorize involuntary blood sample, although accident victim survived, because officer could reasonably have believed victim “was likely to die”). Therefore, the key issue is whether Officer Tran reasonably believed that appellant's wife had been transported to a medical facility for treatment.

An officer's reasonable beliefs are issues of fact. See, e.g., Holmes v. State, 248 S.W.3d 194, 200 (Tex.Crim.App.2008) (identifying whether officer reasonably believed defendant was holding a garden hoe, was involved in a disturbance, and was running away as questions of fact); Hayes v. State, 728 S.W.2d 804, 808 (Tex.Crim.App.1987) (“Whether the appellant's beliefs were reasonable and justifiable ... were fact questions ....”). Because the trial court denied appellant's motion to suppress, we assume that the trial court implicitly determined that Officer Tran possessed the reasonable belief required to support a mandatory blood draw as long as that determination is supported by the record. See Ross, 32 S.W.3d at 855.

Although there was evidence that appellant's wife and her friends intended to go at least initially to Santa Fe, when Officer Tran stated that appellant's wife was “not OK” and should get checked out and possibly have X-rays taken, the driver of the other vehicle replied “we're taking her.” Officer Tran testified he understood this statement to mean the friends would be taking appellant's wife to a hospital or emergency center. This evidence supports a determination that Officer Tran reasonably believed appellant's wife had been transported to a medical facility to treat her injuries.³ See Wiede, 214 S.W.3d at 25; Ross, 32 S.W.3d at 855. Therefore, the trial court could conclude that section 724.012 required Officer Tran to obtain a breath or blood sample even though appellant refused to submit a sample voluntarily. We overrule appellant's first issue.

3 With respect to the timing of Officer Tran's belief, appellant argues only that there is no evidence he believed appellant's wife had been transported to a medical facility “at the time of his demand for warrantless seizure.” We limit our analysis accordingly.

II. The motion to suppress should have been granted because the State did not prove an exception to the Fourth Amendment rule that a warrantless search or seizure is per se unreasonable.

In his second issue, appellant argues that (1) section 724.012 is unconstitutional when employed to require a blood draw for a misdemeanor offense; and (2) the warrantless blood draw violated the Fourth Amendment because there were no exigent circumstances here. Because we conclude the record does not support implied findings of historical facts that meet the legal standard of exigent circumstances, we hold that this warrantless blood draw violated the Fourth Amendment. We therefore do not reach appellant's misdemeanor argument.

A. The Fourth Amendment requires prior judicial approval of a search or seizure unless the State proves a recognized exception.

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue” unless they meet certain requirements. U.S. Const. amend. IV; see alsoTex. Const. art. I, § 9. This right “proscribes all unreasonable searches and seizures,” Gonzales v. State, 369 S.W.3d 851, 854 (Tex.Crim.App.2012), and its “basic purpose ... is to safeguard the privacy and security of individuals against arbitrary invasion by government officials.” Haynes v. State, 475 S.W.2d 739, 741 (Tex.Crim.App.1971).

“Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, [the Supreme Court of the United States] has inferred that a warrant must generally be secured.” Kentucky v. King, –––U.S. ––––, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). Thus, “it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ ” Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); Gonzales, 369 S.W.3d at 854. “ ‘Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.’ ” Bray v. State, 597 S.W.2d 763, 765 n. 1 (Tex.Crim.App. [Panel Op.] 1980) (quoting McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 93 L.Ed. 153 (1948)). The warrant requirement has been described as one of “the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.” Johnson v. United States, 333 U.S. 10, 17, 68 S.Ct. 367, 92 L.Ed. 436 (1948).⁴

4 Judicial issuance of a warrant is important because it “provides ... a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime.” Hudson v. State, 588 S.W.2d 348, 351 (Tex.Crim.App.1979) (quoting United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (internal quotation marks omitted)). A neutral magistrate's prior review “prevent[s] hindsight from coloring the evaluation of the reasonableness of a search or seizure.” United States v. Martinez–Fuerte, 428 U.S. 543, 565, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); see also Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) (“An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure on an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.”); Clay v. State, 391 S.W.3d 94, 100 n. 21 (Tex.Crim.App.2013) (“ ‘[O]ne important function of the warrant requirement is to facilitate review of probable cause and avoid justification for a search ... by facts or evidence turned up in the course of [its] execution.’ ” (quoting Wayne R. LaFave, 2 Search and Seizure: A Treatise on the Fourth Amendment § 4.3(b), at 511 (4th ed. 2004))).

“The exceptions to the rule that a search must rest upon a search warrant have been jealously and carefully drawn ....” Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). Those exceptions include “voluntary consent to search, search under exigent circumstances, and search incident to arrest.” McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003). It is the State's burden to show that a warrantless search falls within one of these exceptions. Id. For example, a warrantless seizure of a blood sample can be constitutionally permissible if the State proves that “officers have probable cause to arrest a suspect, exigent circumstances exist, and a reasonable method of extraction is available.” State v. Mosely, 348 S.W.3d 435, 440 (Tex.App.-Austin 2011, pet. ref'd). On this record, the State has not carried its burden as we explain below.

B. Appellant preserved his Fourth Amendment challenge and shifted the burden to the State to prove an exception to the warrant requirement.

On rehearing, the State argues we should not reach appellant's Fourth Amendment challenge because it was not preserved. We disagree.

“A defendant who alleges a Fourth Amendment violation has the burden of producing evidence that rebuts the presumption of proper police conduct. He may carry this burden by establishing that the seizure occurred without a warrant.” State v. Robinson, 334 S.W.3d 776, 778–79 (Tex.Crim.App.2011) (footnotes omitted); see also id. at 780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005). The burden then shifts to the State to prove the seizure was nonetheless reasonable. Id.; Amador v. State, 221 S.W.3d 666, 672–73 (Tex.Crim.App.2007).⁵

5 See also State v. Betts, 397 S.W.3d 198, 207 (Tex.Crim.App.2013) (“Once [the defendant] established standing ... and that the search was conducted without a warrant, he satisfied his burden of establishing his Fourth Amendment claim, and the burden shifted to the State to establish an exception to the warrant requirement.”); Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App.2007) (“[T]he warrant requirement is not lightly set aside, and the State shoulders the burden to prove that an exception to the warrant requirement applies.”).

In this case, both in the trial court and on appeal, appellant alleged a Fourth Amendment violation and pointed out the undisputed lack of a warrant. It then became the State's burden to argue and prove an exception to the warrant requirement, not—as the State argues—appellant's burden to address and negate the exigent circumstances exception. In fact, the State understood appellant was making a Fourth Amendment challenge and it argued exigent circumstances in its brief of appellee, relying on Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). We therefore hold appellant adequately preserved his Fourth Amendment challenge, and we turn to the question whether the State carried its burden to prove that the exigent circumstances exception applies here.

C. The State has not demonstrated that exigent circumstances made obtaining a warrant impractical.

“ ‘We cannot ... excuse the absence of a search warrant without a showingby those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.’ ” Bray, 597 S.W.2d at 765 n. 1 (quoting McDonald, 335 U.S. at 456, 69 S.Ct. 191). Exigent circumstances typically fall within one or more of three categories: (1) “providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance;” (2) “protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous;” and (3) “preventing the destruction of evidence or contraband.” Gutierrez, 221 S.W.3d at 685. The State urges that this case falls within the third category.

The dissenting opinion—but not the State—argues that we should also consider the first category. While we agree with our dissenting colleagues that more than one category may be implicated in certain cases, we conclude that the first category is not implicated here. That category permits warrantless police action where “the officer has an immediate, reasonable belief that he or she must act ‘to protect or preserve life or avoid serious injury.’ ” Laney v. State, 117 S.W.3d 854, 861 (Tex.Crim.App.2003) (quoting Mincey, 437 U.S. at 392, 98 S.Ct. 2408); see also Stewart v. State, 681 S.W.2d 774, 777 (Tex.App.-Houston [14th Dist.] 1984, pet. ref'd) (en banc). Moreover, the search must be “strictly circumscribed by the exigencies which justified its initiation.” Laney, 117 S.W.3d at 863 (quoting Mincey, 437 U.S. at 393, 98 S.Ct. 2408).

These requirements were met in Laney because a deputy searched the appellant's home with the reasonable belief that he needed to act to protect a child inside, and he discovered illegal pornographic materials in plain view in the room where the child was located. Id.; cf. Bass v. State, 732 S.W.2d 632, 635 (Tex.Crim.App.1987) (holding detective's search of drawer in home of missing appellant was not strictly circumscribed by the exigency because it “exceed[ed] the permissible scope of a search for appellant's body or signs of foul play” and thereby “rendered an initially good search bad”). In this case, however, nothing in the record indicates that appellant's blood was seized in the course of protecting life or providing needed aid. Accordingly, we analyze this case under the third category: preventing destruction of evidence.

1. There is no per se rule that the dissipation of alcohol in the bloodstream is an exigent circumstance.

“[T]he need to prevent the imminent destruction of evidence has long been recognized as a sufficient justification for a warrantless search.” King, 131 S.Ct. at 1856 (internal quotation marks omitted). Courts have therefore held that permitting a search “without prior judicial evaluation” is reasonable “[w]here there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime.” Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973).

In its brief of appellee, the State argued that the exigent circumstances exception had been met here because “the need to quickly obtain a blood sample is great. The alcohol in a person's blood quickly dissipates and unless this evidence is obtained immediately, it is lost forever.” But in a decision handed down after the State filed its brief, the Supreme Court of the United States rejected this very argument that “the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk driving cases.” Missouri v. McNeely, –––U.S. ––––, 133 S.Ct. 1552, 1556, 185 L.Ed.2d 696 (2013).⁶ Instead, “exigency in this context must be determined case by case based on the totality of the circumstances.” Id. Thus, the court observed that “[i]n finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of that particular case and carefully based our holding on those specific facts.” Id. at 1560.

6 Prior to McNeely, some Texas courts appear to have agreed with the State's argument here and adopted the very per se rule that McNeely rejects. E.g. Blumenstetter v. State, 135 S.W.3d 234, 243 (Tex.App.-Texarkana 2004, no pet.) (“[E]xigent circumstances exist in cases such as these because alcohol in blood is quickly consumed and the evidence may be lost forever.”); State v. Laird, 38 S.W.3d 707, 713 (Tex.App.-Austin 2003, pet. ref'd) (“It is a well-settled fact that alcohol in the blood dissipates quickly constitut[ing] exigent circumstances.”); Hayes v. State, 634 S.W.2d 359, 363 (Tex.App.-Amarillo 1982, no pet.).

McNeely also sheds light on particular facts that may be pertinent to the case-by-case inquiry. The Supreme Court agreed that metabolization of alcohol is one factor to consider: “[B]ecause an individual's alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results.” Id. at 1561. But the Court also recognized that “because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant.” Id. If the “warrant process will not significantly increase [this] delay ... because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer,” the court reasoned, “there would be no plausible justification for an exception to the warrant requirement.” Id.

In addition, the Court noted “advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple.” McNeely, 133 S.Ct. at 1561–62. The Court explained that “technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge's essential role as a check on police discretion, are relevant to an assessment of exigency,” particularly given that blood alcohol evidence “is lost gradually and relatively predictably.” Id. at 1562–63.⁷

7 Cf. Clay, 391 S.W.3d at 103–04 (Tex.Crim.App.2013) (holding that affidavit faxed to magistrate and sworn to via telephone by affiant known to magistrate supported issuance of warrant).

Thus, in order to establish a plausible justification for an exigent circumstances exception to the warrant requirement, the State had the burden to show facts and circumstances beyond the passage of time and the resulting dissipation of alcohol in the bloodstream.

2. There is no per se rule that the time taken to investigate an accident is an exigent circumstance.

On rehearing, the State shifts to arguing that under Schmerber, the time an officer takes to conduct an accident investigation in a suspected DWI case will provide exigent circumstances authorizing a blood draw without a warrant. For example,in its response to appellant's motion for en banc reconsideration, the State asserted that “[t]he necessity to investigate the accident together with the dissipation of alcohol from the blood provided exigent circumstances sufficient to justify a warrant[less] seizure of the Appellant's blood.” Then, in oral argument, the State contended repeatedly that exigent circumstances existed because Officer Tran was “obviously investigating an accident,” without identifying any unique features that distinguished this particular accident investigation from others. In particular, when asked how this Court could hold that “any time you have an accident investigation ... that's an exigent circumstance,” the State answered “I think it is an exigent circumstance. I think that's what was recognized in [ Schmerber ] that if you have an accident investigation it's going to take more time....” ⁸ We conclude that neither McNeely nor Schmerber support such a per se rule.

8 In response to subsequent questions from one of our dissenting colleagues, the State agreed that the Court did not have to address every possible accident scene and urged us to look at the circumstances of this individual case. But the State did not disavow its previous arguments that an accident investigation is an exigent circumstance. We address those arguments here and the circumstances of this individual case in Part II.C.3. below.

The State and the dissenting opinion rely on certain non-dispositive similarities between the facts of this case and Schmerber, in which “time had to be taken to bring the accused to a hospital and to investigate the scene of the accident.” 384 U.S. at 770–71, 86 S.Ct. 1826. There are also key differences between the facts of this case and Schmerber, however, which we discuss below. The McNeely Court says Schmerber “fits comfortably within [its] case law,” but it does so in emphasizing the importance of basing the exigency analysis on the specific “facts and circumstances of the particular case.” McNeely, 133 S.Ct. at 1560.

What McNeely does not say is that if a case parallels Schmerber to the extent that it involves an accident investigation, a court may find exigent circumstances based on that fact alone. Yet under the State's proposed rule, it would carry its burden to show exigent circumstances justifying a warrantless blood draw any time it can claim some delay attendant to investigating an accident and dealing with any resulting injuries. The dissenting opinion proposes a variation of this rule that would have courts grade the severity of accidents, and our dissenting colleagues would find this accident exigent simply because it involved some investigatory and injury-related delay. Post, at 864, 869. These rules would apparently apply regardless of other facts and circumstances, such as how many officers and medical personnel are on the scene, what avenues might be available to the officers for processing warrant applications during the investigation, or how much delay occurred after the investigation was complete and before the blood was drawn.⁹

9 We do not hold that the State must invariably present evidence of each or any of these facts. We merely note their potential relevance to whether “exigent circumstances justifying a warrantless blood sample [have arisen] in the regular course of law enforcement due to delays from the warrant application process.” McNeely, 133 S.Ct. at 1563.

We reject the State's proposed per se rule for three reasons. First, it cannot be reconciled with the holdings of both McNeely and Schmerber that exigent circumstances must be determined using “careful case-by-case assessment.” McNeely, 133 S.Ct. at 1561; see also Schmerber, 384 U.S. at 771–72, 86 S.Ct. 1826 (focusing on “special facts” and limiting its holding to “the facts of the present record”).

Second, the focus of exigent circumstances analysis in this context is not on the delay attendant to an investigation, where the State and the dissenting opinion would place it, but on the delay necessary to obtain a warrant. As Schmerber makes clear, the State must prove that “the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” 384 U.S. at 770, 86 S.Ct. 1826 (internal quotation marks omitted, emphasis added). Accord Turrubiate v. State, 399 S.W.3d 147, 151 (Tex.Crim.App.2013) (holding State has the burden to show that “exigent circumstances ... made obtaining a warrant impracticable”); Crane v. State, 786 S.W.2d 338, 346 (Tex.Crim.App.1990) (“In order for a warrantless arrest or search to be justified, the State must show ... the existence of circumstances which made the procuring of a warrant impracticable.”).

Agreeing with Schmerber, McNeely confirms the State must show that the time necessary to obtain a warrant under the circumstances threatened the destruction of blood alcohol evidence:

In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.... We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the considerable overgeneralization that a per se rule would reflect.
133 S.Ct. at 1561 (internal quotation marks omitted, emphasis added); see also id. at 1563 (“[E]xigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.” (emphasis added)).

The dissenting opinion's proposal to have courts grade the severity of accidents likewise asks the wrong question. To ensure that the exigencies of the situation make dispensing with the constitutional requirement of a warrant “imperative,” ¹⁰ courts must focus on whether the State showed that police could not reasonably obtain a warrant,¹¹ not on whether it showed how severe the accident was. This distinction is not merely a semantic one: the difference between the delay attendant to investigating an accident and addressing injuries and the delay necessary to obtain a warrant can be substantial depending on the facts of a particular case. Even if an officer's investigation of a “serious” accident lasts for an hour, the availability of another officer 15 minutes into the investigation, or the presence of medical personnel to treat injuries, could significantly reduce the delay necessary to obtain a warrant. Alternatively, if a lone officer discovers an apparently intoxicated driver during a midnight traffic stop not involving any accident, the delay necessary to obtain a warrant could be substantial if there is no magistrate available.

10 Bray, 597 S.W.2d at 765 n. 1.

11 McNeely, 133 S.Ct. at 1561; Schmerber, 384 U.S. at 770, 86 S.Ct. 1826.

Moreover, making courts responsible for grading the severity of accidents would lead inevitably to inconsistent outcomes, as the dissenting opinion shows by lumping this accident “towards the middle” with Schmerber, in which a car struck a tree, breaking several of the driver's bones and forcing him on top of the passenger, who was knocked unconscious and pinned underneath the glove compartment.¹² Instead, the State should be responsible for asking officers who handle accidents to explain the demands of a particular investigation that made it impractical for police to obtain a warrant before any blood alcohol evidence dissipated.

12 Post, at 864; cf. Brief of Respondent, Schmerber, 384 U.S. 757, 86 S.Ct. 1826 (No. 658), 1966 WL 100528, at *3–5; Brief of Petitioner, Schmerber,1966 WL 100527, at *3. The dissenting opinion attempts to characterize this observation as a concession that the State is focusing on individual circumstances. But it is the dissenting opinion, not the State, that proposes to grade the severity of accidents. The dissent's inherently subjective accident-severity standard is wrong not because it fails to take account of any individual circumstances at all, but because it would produce inconsistent outcomes (in the sense that similar accidents may seem “exigent” to one court but not to another), it fails to focus on the delay necessary to obtain a warrant as required by Supreme Court precedent, and it ignores other facts and circumstances relevant to that delay (such as the number of medical personnel and officers on the scene and the options for obtaining a warrant).

Third, the State's and dissent's proposed focus on the delay attendant to an investigation runs afoul of courts' long-held aversion to tests that allow law enforcement officers to “create the exigency,” see King, 131 S.Ct. at 1858, as officers have complete control over whether and for how long to investigate an accident. The Supreme Court has held that an exigency analysis may not consider whether an investigation is “contrary to standard or good law enforcement practices (or to the policies or practices of their jurisdictions),” reasoning that “[t]his approach fails to provide clear guidance for law enforcement officers.” Id. at 1861. Given this precedent, the State's and dissent's proposed rules would prevent courts from reviewing allegations that an investigation was drawn out unnecessarily to avoid obtaining a warrant.

For these reasons, we decline to adopt a per se rule that evidence of an accident investigation demonstrates exigent circumstances. Instead, we follow McNeely and Schmerber in determining exigency based on whether the specific “facts and circumstances of the particular case” made “obtaining a warrant impractical.” McNeely, 133 S.Ct. at 1560–61; Schmerber, 384 U.S. at 770, 86 S.Ct. 1826. The relevant inquiry is whether, given the facts and circumstances known to police at the time, it would be objectively reasonable for an officer to conclude that taking the time necessary to obtain a warrant before drawing a blood sample would significantly undermine the efficacy of a blood alcohol test. McNeely, 133 S.Ct. at 1561; Schmerber, 384 U.S. at 770, 86 S.Ct. 1826; Parker v. State, 206 S.W.3d 593, 600 (Tex.Crim.App.2006) (“[T]he determination of whether an officer has probable cause and exigent circumstances to enter a person's home without a warrant is a factual one based on the sum of all the information known to the officer at the time of entry.”); Colburn v. State, 966 S.W.2d 511, 519 (Tex.Crim.App.1998) (“We apply an objective standard of reasonableness in determining whether a warrantless search is justified, taking into account the facts and circumstances known to the police at the time of the search.”); see also Brigham City, Utah v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (“An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer's state of mind ....”).

3. The State's evidence does not support an objectively reasonable conclusion that obtaining a warrant was impractical.

Applying this standard, we hold the State has not carried its burden to prove exigent circumstances here. As explained above, although all findings of historical fact supported by the record must be implied in favor of the trial court's ruling that the blood draw should not be suppressed, whether those facts meet the legal standard of exigent circumstances is a legal question that we review de novo. We conclude the findings that can be implied on this record do not support an objectively reasonable conclusion that taking the time to obtain a warrant before drawing appellant's blood would have significantly undermined the efficacy of a blood alcohol test.

Because the evidence in this case does not mention a warrant at all, there is nothing whatsoever in the record regarding what Officer Tran knew about the time needed to obtain a warrant. Thus, there are no facts to support a reasonable conclusion that it was impractical for the police to obtain a warrant between 2:36 a.m.—when at least two officers and EMS were on the scene of the accident—and 4:45 a.m. when appellant's blood was drawn. See Weems v. State, No. 04–13–00366–CR, 434 S.W.3d 655, 666, 2014 WL 2532299 (Tex.App.-San Antonio May 14, 2014, pet. filed) (concluding record did not reflect relevant factors such as procedures and timeframe for obtaining warrant, and holding warrantless blood draw not justified by exigent circumstances); Sutherland v. State, No. 07–12–00289–CR, 436 S.W.3d 28, 40–41, 2014 WL 1370118, at *10 (Tex.App.-Amarillo April 7, 2014, no pet. h.) (holding warrantless blood draw unreasonable where officer “did not describe any factors that would suggest he was confronted with an emergency or any unusual delay in securing a warrant”). Nor is there evidence that any “further delay in order to secure a warrant” beyond 4:45 a.m. “would have threatened the destruction of evidence” that “is lost gradually and relatively predictably.” McNeely, 133 S.Ct. at 1561, 1563.

At most, the record can support an implied finding that Officer Tran was occupied with investigating appellant's intoxication and collecting evidence at the accident scene that needed to be preserved—and thus was unable to assist with obtaining a warrant—during much of the time between arriving at the scene at 2:36 and leaving at 3:29 a.m. As the dissenting opinion notes, the dashboard camera video indicates that Officer Tran also spent a few minutes at various times during this period “determining the condition of appellant's wife” who was being treated by EMS personnel, and “determining whether she needed to be and would be taken to the hospital” even though she had refused EMS transportation. Post, at 869, 872–73.¹³ But this evidence does not address whether Officer Niemeyer at the scene, or other officers on duty that night, could have begun the process of obtaining a warrant as soon as Officer Tran's investigation revealed evidence that would support it. ¹⁴ See McNeely, 133 S.Ct. at 1561 (noting no warrant exception applies when, “between the time of the arrest or accident and the time of the test,” an officer other than the one handling the suspect “can take steps to secure a warrant”); cf. Wynn v. State, 996 S.W.2d 324, 326 (Tex.App.-Fort Worth 1999, no pet.) (“Observations reported to the affiant by other officers engaged in the investigation can constitute a reliable basis for issuing a warrant.”). The State, which bore the burden of proving exigency, elected not to introduce evidence on that issue.

13 It is not clear why the dissenting opinion places so much emphasis on these brief inquiries about the health of appellant's wife, especially in light of Officer Tran's explanation on the video that appellant's wife “not going to the hospital” presented a “problem” for his “mandatory blood draw from [appellant].” Because the inquiry before us is an objective one, we do not consider Officer Tran's subjective motivations for urging appellant's wife to seek emergency treatment. The dissenting opinion's reliance on these inquiries, however, does illustrate one of the problems with a rule that would allow police to create an exigency by prolonging an investigation unnecessarily.

14 Officer Tran testified that his initial observations indicated appellant was highly intoxicated, and the dashboard camera video shows that field sobriety tests were completed at 3:12 a.m.

Moreover, after the accident investigation was complete, the record reveals an unexplained delay that negates any possible inference that time was of the essence in obtaining a blood sample. The State relies on the 57 minutes that elapsed between Officer Tran's arrival at the accident scene and his arrival at the police station, arguing that the exigency of investigating the accident scene threatened the destruction of evidence. But 76 minutes—19 minutes longer than the delay the State contends was sufficient to threaten the destruction of evidence—elapsed between Officer Tran's departure from the accident scene and the blood draw. Although the record tells us Officer Tran read appellant the statutory warning at the police station at 3:45 a.m. and later took appellant to a local medical center for the blood draw, it does not explain why the stop at the police station was necessary, how the officer was occupied during the remainder of the time before appellant's blood was drawn, or why it was impractical to obtain a warrant during that time. Cf. Hogan v. State, 631 S.W.2d 159, 161 (Tex.Crim.App.1982) (holding lapse of time showed there were no exigent circumstances when officers made no attempt to find out if a justice of the peace was available or to secure an arrest warrant and instead drove downtown, booked the complaining witness, and then took a dinner break).

It is possible Officer Tran may have made a judgment that taking the time necessary “to secure a warrant after the time spent investigating the scene of the accident ... would have” delayed the blood draw past 4:45 a.m. and “threatened the destruction of” usable evidence of appellant's blood alcohol concentration. McNeely, 133 S.Ct. at 1561 (interpreting Schmerber ). But the officer did not testify to either that judgment or its factual basis. Thus, we have no facts from which to conclude that a reasonable officer would have made such a judgment.¹⁵ If we assumed on a silent record that such a judgment was reasonable, we would be adopting the natural metabolization rule that McNeely rejects and improperly placing the burden on the defendant to prove the practicality of obtaining a warrant. Not only is placing the burden on the defendant contrary to binding precedent from the Court of Criminal Appeals, Robinson, 334 S.W.3d at 778–79, placing the burden on the State to prove an exception to the warrant requirement makes sense because the facts regarding the practicality of obtaining a warrant are within its control. Indeed, the State has readily offered evidence regarding warrant availability in other cases. See, e.g., Sutherland, 436 S.W.3d at 31–33, 2014 WL 1370118, at *2–3 (discussing testimony from nighttime magistrate on duty, arresting officer, and sergeant with the Austin Police Department on the warrant process in Travis County).¹⁶

15 Cf. Joseph v. State, 3 S.W.3d 627, 635 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding that where officer testified it would have taken him a day to obtain a search warrant, there was sufficient evidence to conclude the officer “would not have been able to obtain a warrant in time to prevent the possible destruction of evidence”).

16 See also McNeely, 133 S.Ct. at 1562–63 (noting relevance to exigency analysis of “technological developments that enable police officers to secure warrants more quickly”); McDole v. State, 579 S.W.2d 7, 9 (Tex.Crim.App. [Panel Op.] 1979) (officer testimony that “[i]t would have taken between sixty and ninety minutes to obtain the warrant”); Jones v. State, 565 S.W.2d 934, 936 (Tex.Crim.App. [Panel Op.] 1978) (“The arresting officer had fifteen years of experience and testified that he knew it was unlikely that he could find a magistrate at that time of night to obtain a warrant, but he spent some fifteen minutes in an effort to do so. After he found no magistrates were readily available, he properly acted on the information provided him ....”); Quilice v. State, 624 S.W.2d 940, 943 (Tex.App.-San Antonio 1981, no writ) (“Gentle also testified that it was his experience that it takes him at least 45 minutes to type up a search warrant and affidavit and obtain a judge's signature on it. In light of that fact and the fact that the suspect would be leaving a known location at any time, Gentle had not sought to obtain a search warrant prior to the search of appellant.”).

Court decisions in this area provide examples of facts known to an officer that bear on whether it is objectively reasonable to conclude there is no time to attempt to obtain a warrant, but the record does not show any such facts here.¹⁷ For example, in a case where the accident occurred an indeterminate amount of time before an officer arrived to investigate, cf. Kuciemba v. State, 310 S.W.3d 460 (Tex.Crim.App.2010), an officer might be concerned based on evidence gathered during the investigation that the suspect had ceased drinking long enough ago that his blood alcohol concentration would diminish below the .08 threshold before a warrant could be obtained. It might also be the case that all officers on the scene are occupied with exigent tasks, or that any officers assigned to assist with obtaining warrants are unavailable, so that it is impractical to obtain a warrant before the evidence is lost. Cf. Bartlett v. State, 249 S.W.3d 658, 663 (Tex.App.-Austin 2008, pet. ref'd) (“Jones testified that these were the only two officers he had available at the time.”). Or an officer might know that no magistrate was available to issue a warrant, or that obtaining a warrant would take so long that the evidence would be lost. Compare Sutherland, 2014 WL 1370118, at *10 (noting that county had phlebotomist available in jail basement, down the hall from an on-duty magistrate), with Pine v. State, 889 S.W.2d 625, 632 (Tex.App.-Houston [14th Dist.] 1994, writ dism'd w.o.j.) (holding warrant to seize cruelly treated colt not required because “[a]lthough the justice of the peace's office was only ten to twenty minutes away, by the time Dr. Brady made the determination that the colt needed to be moved in order to save its life, it was after the time the office would normally be closed”). On this record, however, no such findings can be implied.

17 This is not an exhaustive list of examples, and we do not hold that any scenario mentioned above necessarily demonstrates exigent circumstances, but these may be relevant factors for a court to consider in particular cases. We also note that Texas does not require evidence of blood alcohol concentration to prove an offense of driving while intoxicated. SeeTex. Penal Code Ann. § 49.01(2) (West 2011).

The State and the dissenting opinion rely principally on Schmerber, with our dissenting colleagues going so far as to assert that “ ‘[a]ll of the facts and circumstances' here and in Schmerber are the same in all material respects.” Post, at 870. But that is not the standard that Schmerber adopted for determining exigent circumstances. Rather, as explained above, Schmerber asked whether “the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence,” and it took pains to limit its holding to “the facts of the present record.” 384 U.S. at 770, 772, 86 S.Ct. 1826 (internal quotation marks omitted).¹⁸ Thus, it is unsurprising that our dissenting colleagues do not cite any cases applying the exigent circumstances standard they advocate: whether the facts at hand are materially indistinguishable from those in Schmerber. Post, at 866.

18 The Court of Criminal Appeals has noted the narrowness of the Schmerber holding. E.g., Aliff v. State, 627 S.W.2d 166, 169 (Tex.Crim.App.1982); Dudley v. State, 548 S.W.2d 706, 707 (Tex.Crim.App.1977).

Yet even if that were the relevant standard, we conclude our facts differ from those in Schmerber in four material ways. First, the investigatory delay was much longer in Schmerber, in which Officer Edward Slattery continued to investigate the accident after the petitioner was transported to the hospital, leaving him with no time to secure a warrant. Although we do not have the record, the parties' briefs indicate that the injuries in Schmerber were much more severe than those here as previously explained. By the time Officer Slattery arrived at the scene of the crash, the unconscious passenger was already in one ambulance and the seriously injured petitioner was being loaded into another for transportation to the hospital.¹⁹ Officer Slattery did not indicate that he felt he had probable cause at this point to obtain a warrant authorizing a blood draw. Instead, he continued his investigation at the hospital by interviewing the passenger when he regained consciousness, and the passenger told the officer that the petitioner was driving the car. ²⁰ Officer Slattery then interviewed the petitioner at the hospital within two hours of the accident, determined that he was intoxicated, and arrested him and obtained a blood draw.²¹ In this case, by contrast, Officer Tran arrested appellant at the scene within 46 minutes of the accident, and only a few of these minutes were spent determining whether appellant's wife would accept transportation to the hospital as noted above.

19 Brief of Respondent, Schmerber, 1966 WL 100528, at *4.

20 Id. at *3, *5.

21 Id. at *5; Schmerber, 384 U.S. at 769, 86 S.Ct. 1826.

Second, there was an unexplained delay of 86 minutes after appellant's arrest—and 76 minutes after the officer left the accident scene—until appellant's blood was drawn. No such delay was present in Schmerber, and there is no evidence here that it was impractical to obtain a warrant during that time.

Third, throughout Officer Tran's investigation, there was a second officer at the accident scene who could assist with the investigation or with obtaining a warrant. While one of the Schmerber briefs mentions a second investigating officer (Thomas Buell), it merely states that this officer formed the opinion that the petitioner was under the influence of alcohol. The brief does not discuss whether the officer was at the accident scene or formed his opinion at the hospital; nor does it reveal whether the officer's involvement was at a time when he could have assisted in obtaining a warrant.²²

22 Brief of Respondent, Schmerber, 1966 WL 100528, at *6.

Fourth, as appellant succinctly put it in his brief, “it is not 1966.” It is simply no longer true given modern advances that taking time to investigate and deal with injuries invariably means that there is no time to secure a warrant. See McNeely, 133 S.Ct. at 1561–63; cf. Steagald v. United States, 451 U.S. 204, 222, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (“In routine search cases such as this, the short time required to obtain a search warrant from a magistrate will seldom hinder efforts to apprehend a felon. Finally, if a magistrate is not nearby, a telephonic search warrant can usually be obtained.”). For these reasons, we conclude Schmerber does not excuse the State's failure to obtain a warrant in this case.

The State also relies on Officer Tran's testimony that he read appellant the required statutory warning and requested a breath sample, which appellant refused to provide. Then, “based on the total circumstances and based on my belief that his wife was hurt and that need medical attention, I complete the mandatory blood draw.” This statement reveals no facts that could support an objectively reasonable conclusion that obtaining a warrant was impractical. Torres v. State, 182 S.W.3d 899, 903 (Tex.Crim.App.2005) (“[O]pinions, even those of police officers, cannot be transformed into facts without supporting evidence.”). As discussed above, neither the injury to appellant's wife nor other circumstances in the record support the conclusion that taking the time to obtain a warrant before drawing appellant's blood would have significantly undermined the efficacy of a blood alcohol test. Moreover, as the State acknowledges, the Transportation Code does not address whether a warrant is required before obtaining a mandatory blood draw, nor does it address exigent circumstances. Thus, Officer Tran's testimony that the statute required a blood draw under the total circumstances does not offer a reason why he failed to obtain a warrant. See Weems, No. 04–13–00366–CR, 434 S.W.3d at 665–66 (holding record did not support exigent circumstances where “officer rel[ied] on the mandatory blood draw and implied consent statutes to authorize the blood draw”).

The dissenting opinion nevertheless leans heavily on Officer Tran's testimony, suggesting that he really provided “two independent justifications for a warrantless blood draw”—“one based on the totality of the circumstances under Schmerber and another based on Chapter 724.” Post, at 865–66, 869. Not so. The officer never mentioned Schmerber, a warrant, or a warrantless blood draw. Instead, the officer referred to the statutory warning required by section 724.015 of the Transportation Code and to the blood draw mandated by section 724.012, which he viewed as triggered based on the total circumstances and the wife's need for medical attention. As just explained, the statute does not mandate a warrantless blood draw, so there is no basis for the dissenting opinion's speculation that the officer was providing a reason for not obtaining a warrant.²³ In any event, the officer's conclusory and unsupported reference to the “total circumstances” is not a talisman that makes the constitutional requirement of a warrant disappear. See Torres, 182 S.W.3d at 903; cf. Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

23 Officer Tran referenced the totality of the circumstances a second time during his testimony, telling appellant's counsel “[t]he report is written based on totality of circumstances, sir, and you're breaking things apart and it doesn't make sense to me.” The line of questions leading up to this response dealt solely with whether Officer Tran was mistaken in writing in his report that appellant's wife was going to the hospital. This context reinforces the correctness of our interpretation that Officer Tran was referring to whether the statute was satisfied under the totality of the circumstances, not whether the totality of the circumstances presented an exigency excusing a warrant.

The mandatory blood draw statute cannot—and does not purport to—alter the Fourth Amendment warrant requirement or its recognized exceptions. SeeU.S. Const. art. VI, cl. 2. The statute does address the consent exception, providing that a person is “deemed to have consented” to taking breath or blood specimens if arrested for acts allegedly committed while driving intoxicated. Tex. Transp.Code Ann. § 724.011(a) (West 2011). But appellant expressly refused to consent to the breath test designated by the officer, and the State has not argued that statutorily implied consent satisfies the Fourth Amendment in this case.²⁴ For these reasons, the statute does not play a role in our Fourth Amendment analysis. See Weems, No. 04–13–00366–CR, 434 S.W.3d at 665 (“[T]he implied consent and mandatory blood draw statutes are not exceptions to the Fourth Amendment's warrant requirement.”); Sutherland, 436 S.W.3d at 38–41, 2014 WL 1370118, at *9–10 (concluding statute does not modify Fourth Amendment and analyzing reasonableness of warrantless blood draw under traditional exigent circumstances test); State v. Villarreal, No. 13–13–00253–CR, –––S.W.3d ––––, ––––, 2014 WL 1257150, at *11 (Tex.App.-Corpus Christi Jan. 23, 2014, pet. granted) (observing that “the statute does not address or purport to dispense with the Fourth Amendment's warrant requirement for blood draws” and declining to treat the statute as “a new exception to the Fourth Amendment's warrant requirement separate and apart from the consent exception and the exception for exigent circumstances”); State v. Baker, No. 12–12–00092–CR, 2013 WL 5657649, at *4 (Tex.App.-Tyler 2013, pet. granted) (mem. op., not designated for publication) (citing Mosely, 348 S.W.3d at 442, for the proposition that “Chapter 724 does not authorize what the constitution forbids and cannot authorize an involuntary draw when the constitution forbids it”); see also Reeder, 428 S.W.3d 924, 929–30 & n. 11 (agreeing with Villarreal and Sutherland); cf. State v. Johnston, 336 S.W.3d 649, 661 (Tex.Crim.App.2011) (addressinganother aspect of the Schmerber analysis and holding that “Chapter 724 is not controlling authority when it comes to determining the reasonableness of how a blood draw was performed under the Fourth Amendment.... [T]he assessment of reasonableness is purely a matter of Fourth Amendment law.”).

24 In a submission of supplemental authority following appellant's motion for en banc reconsideration, the State cited Reeder v. State, No. 06–13–00126–CR, 2014 WL 60162 (Tex.App.-Texarkana Jan. 8, 2014), superseded on reh'g, 428 S.W.3d 924 (Tex.App.-Texarkana 2014, pet. filed), as “additional authority to show that § 724.012(b)(1)(C) is constitutional.” We have no reason to fault the constitutionality of the mandatory blood draw statute in this case because it did not require Officer Tran to obtain a blood draw without first securing a warrant. It is the officer's failure to obtain a warrant and the State's failure to prove an exception to the warrant requirement, not the mandatory nature of the blood draw statute, that violate the Fourth Amendment.


To the extent the State intended its cite to Reeder to raise a new argument that implied consent provides a valid exception to the warrant requirement in this case, we decline to consider it. Such an argument not only contradicts the State's prior position that the officer had to obtain a warrant if no exigent circumstances existed, it also comes too late for our consideration. See State v. Esparza, 413 S.W.3d 81, 90 (Tex.Crim.App.2013) (holding that although notions of procedural default usually are not present when appellate court affirms trial court's decision on legal theory not presented to trial court, where an appellant “was never confronted with the necessity of meeting [a] burden,” a purported alternative legal theory may not be a “ ‘theory of law applicable to the case’ that is available to justify the trial court's otherwise erroneous ruling on the appellee's motion to suppress”); Rochelle v. State, 791 S.W.2d 121, 124 (Tex.Crim.App.1990) (holding that when State prevailed in trial court and raised issue for the first time in motion for rehearing on appeal, court of appeals had discretion not to address issue). We also note that the Reeder court recently issued a new opinion concluding that when the appellant expressly refused to consent to a blood draw, statutorily implied consent did not establish an exception to the warrant requirement, and the mandatory blood draw violated the Fourth Amendment. 428 S.W.3d 924, 928–30.

In sum, applying the legal standard of exigent circumstances found in McNeely and Schmerber, and implying in favor of the trial court's ruling all findings of historical fact supported by the record, we hold these facts do not support an objectively reasonable conclusion that obtaining a warrant was impractical. Accordingly, the State has not carried its burden to prove exigent circumstances that justify an exception to the Fourth Amendment's warrant requirement.

D. The Texas exclusionary statute does not incorporate federal judge-made exceptions for officers' good-faith reliance on existing cases or statutes.

On rehearing, the State offers additional legal arguments it says it would have made had it known about McNeely. In particular, the State argues that appellant's motion to suppress was properly denied because Officer Tran acted in good-faith reliance on (1) existing Texas precedent interpreting Schmerber, as well as (2) the Texas statute requiring a blood draw. We disagree.

The good-faith reliance cases on which the State's argument rests are federal cases that do not apply in Texas. Federal courts have a judge-made rule that excludes evidence obtained in violation of the Fourth Amendment, and its purpose is to deter such violations. See Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). The federal courts have recognized exceptions to the exclusionary rule in situations where suppression would not yield appreciable deterrence, such as when the search was conducted in objectively reasonable reliance on: (1) binding appellate precedent later overturned, see Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 2428–29, 180 L.Ed.2d 285 (2011); (2) a state statute later held to be unconstitutional, see Krull, 480 U.S. at 350, 107 S.Ct. 1160; or (3) good-faith reliance on a warrant, see United States v. Leon, 468 U.S. 897, 923–24, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

In Texas, by contrast, the exclusionary rule is statutory. SeeTex.Code Crim. Proc. art. 38.23 (West 2005). The Court of Criminal Appeals has held that exceptions to the federal exclusionary rule only apply to the Texas statutory exclusionary rule if they are consistent with the plain language of the statute. Compare Wehrenberg v. State, 416 S.W.3d 458, 473 (Tex.Crim.App.2013) (adopting federal independent source exception), with State v. Daugherty, 931 S.W.2d 268, 270 (Tex.Crim.App.1996) (declining to adopt federal inevitable discovery exception).

Here, the statutory exclusionary rule already has an exception for “a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” Tex.Code Crim. Proc. art. 38.23(b). Because no warrant was issued in this case, this good-faith exception does not apply. See Weems, No. 04–13–00366–CR, 434 S.W.3d at 666–67. The Court of Criminal Appeals has previously rejected an effort to broaden the good-faith exception using federal precedent, and it has refused to adopt federal exceptions inconsistent with the text of our statutory exclusionary rule. Howard v. State, 617 S.W.2d 191, 193 (Tex.Crim.App.1979) (op. on reh'g) (declining to adopt federal good-faith doctrine of Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), a predecessor to Krull ); see also Daugherty, 931 S.W.2d at 270 (“But Article 38.23 already contains one express exception, see Subsection (b) thereof, and according to the rules of statutory construction, where a statute contains an express exception, its terms must apply in all cases not excepted.”); id. (“This construction is based on the express language of Article 38.23, not on blind obedience to United States Supreme Court decisions.”). Based on these precedents, we hold the good-faith exceptions of Davis and Krull do not apply to the Texas exclusionary rule.

Conclusion

Because the State did not carry its burden to prove an exception to the warrant requirement, we sustain appellant's second issue and hold that the warrantless seizure of his blood specimen for alcohol testing violated the Fourth Amendment. The trial court therefore erred in denying appellant's motion to suppress the specimen and the results of blood alcohol testing on it. Because this evidence inculpated appellant, we conclude it contributed to his guilty plea. Kraft v. State, 762 S.W.2d 612, 614–15 (Tex.Crim.App.1988).²⁵

25 See also Holmes v. State, 323 S.W.3d 163, 173–74 (Tex.Crim.App.2009) (op. on reh'g); Gonzales v. State, 966 S.W.2d 521, 523–24 (Tex.Crim.App.1998).

This Court's panel majority and dissenting opinions filed October 15, 2013, are withdrawn, and our judgment of that date is vacated. We reverse the trial court's judgment and sentence, which were based on appellant's guilty plea, and remand for further proceedings consistent with this opinion. En Banc Court consists of Chief Justice FROST and Justices BOYCE, CHRISTOPHER, JAMISON, McCALLY, BUSBY, DONOVAN, BROWN, and WISE.
Justices CHRISTOPHER, McCALLY, BROWN, and WISE join the En Banc Opinion authored by Justice BUSBY. Justice McCALLY issues an En Banc Concurring Opinion. Justice BOYCE issues an En Banc Dissenting Opinion in which Chief Justice FROST and Justices JAMISON and DONOVAN join.

SHARON McCALLY, Justice, concurring.

I join in all respects the majority's extensive analysis and conclusion that the State failed to establish exigent circumstances to support its warrantless blood draw under Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). I write separately to emphasize my view that the difference in opinion of my colleagues is not one of constitutional magnitude—it is one of permissible inferences.

On the law, we all agree that the natural dissipation of alcohol in the bloodstream is not, standing alone, an exigent circumstance and that there is a presumption that this warrantless blood draw is unconstitutional.

On the standard of review, we all agree that we use an objective, not a subjective, approach when evaluating whether “the circumstances” justify the warrantless search.

On the facts, we all agree that we must give deference to Officer Tran's statement that he completed a mandatory blood draw based on “the total circumstances” and on his belief that appellant's wife was hurt and needed medical attention. These proffered justifications must not only receive deference but must also be viewed in the light most favorable to the trial court's denial of the motion to suppress, indulging all permissible inferences.

The only regard in which our opinions diverge, from my perspective, is what we may infer from Officer Tran's statement that he relied upon the “totality of the circumstances.” I believe it serves as no evidence from which a permissible inference may be drawn to justify a warrantless blood draw at 4:45 a.m. The conclusory statement is no evidence of subjectively perceived exigent circumstances and it supplies no facts from which I am able to objectively glean exigent circumstances. Therefore, we are left with the other evidence.

Viewing that evidence as we must, we know that Officer Tran came to the scene of a collision around 2:30 a.m. and started investigating. Officer Tran was simultaneously trying to determine if appellant's wife was hurt; if appellant was hurt; and if appellant was intoxicated. EMS arrived and departed—without appellant's wife. Officer Tran arrested appellant by about 3:20 a.m., took him to the police department by about 3:35 a.m., gave him his warnings by about 3:45 a.m., transported him to a medical facility, and then his blood was drawn by about 4:45 a.m.

From about 2:30 a.m. until about 4:45 a.m., the alcohol in appellant's blood was dissipating. We all agree that such circumstance is not enough for a warrantless blood draw. If we infer—although the dissent does not suggest it and the evidence does not support it—that Officer Tran was alone at the scene and then we infer that because Officer Tran was alone, he was unable to obtain a warrant while he was tending to appellant's wife; tending to appellant; tending to EMS personnel; and investigating the accident, our “inferences” take us no further than about 3:30 a.m. when Officer Tran left the scene and took appellant to the police station. There is nothing argued or offered about the totality of the circumstances from about 3:30 a.m. to 4:45 a.m. that supports a finding of continued exigent circumstances. The totality of the circumstances that may support (a) a need to render medical assistance or determine whether medical assistance was needed, (b) a need to determine whether appellant was intoxicated, or (c) a need to investigate the collision no longer existed when EMS left and Officer Tran and appellant left the scene.

Our deference to the implied factual findings cannot substitute for evidence. The inferences we indulge must arise from evidence. An officer's bald reference to the “totality of the circumstances [known to him but not disclosed for purposes of objective analysis]” does not yield an appropriate inference that an emergency of unlimited duration existed. WILLIAM J. BOYCE, Justice, dissenting.

I respectfully dissent because this record establishes exigent circumstances permitting a warrantless blood draw under Missouri v. McNeely, –––U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

Introduction

As a threshold matter, it is necessary to identify and sweep aside two straw man arguments in the majority opinion. Accomplishing this task will allow the majority and dissent to join issue on the merits.

Straw Man No. 1. The first straw man is the majority's erroneous assertion that the State proposes “a per se rule that evidence of an accident investigation demonstrates exigent circumstances.” See ante, at 851–52, 854.

The supposed per se rule is a creation of the majority opinion; the majority's per se rule is not proposed by the State. The State's contention that exigent circumstances were present at this particular accident scene is not a contention that exigent circumstances automatically will be present at all accident scenes. It follows that the majority labors to reject a per se rule the State never has asked it to adopt. See ante, at 851–54.

The en banc oral argument record does not support a contention that the State proposed the per se rule posited by the majority. In response to questioning at the en banc oral argument, the State repeatedly asserted that the inquiry should focus on the individual circumstances of individual cases. When pressed to answer whether exigent circumstances would be present depending on the number of officers or Emergency Medical Services (EMS) personnel on the scene, the State responded as follows: “I guess if there were two—two hundred officers at the scene, no. But again, you've got to look at the circumstances of the individual case.” A follow up question asked: “In order to resolve this case, do we have to address every possible accident scene or do we just have to address this one?” The State responded: “Just this one here; it's the circumstances of this individual case.”

Pointing to a supposed per se accident investigation rule allows the majority to posit what looks like a simple argument at first glance: (1) The State advocates a per se rule; (2) McNeely rejected a per se rule; and (3) McNeely therefore compels rejection of the State's position. This simple argument falls apart because the majority's first assumption is wrong.

The State's focus on individual circumstances comports with McNeely and Schmerber. This focus appropriately allows courts to distinguish among different types of accidents and accompanying levels of law enforcement response. The spectrum of possible accidents ranges from injury-free fender benders to catastrophic crashes involving fatalities and life-threatening wounds. There may be one officer on the scene, or more than one officer. The accident circumstances here, like those in Schmerber, fall somewhere towards the middle of this spectrum.

Sensitivity to individual circumstances allows courts to distinguish minor accidents from serious accidents requiring a more involved investigation and response from officers on the scene. Certain circumstances involving certain accidents may make a warrantless blood draw permissible; other circumstances involving other accidents may not. This sensitivity defeats any parade-of-horribles suggestion that considering the demands placed upon law enforcement at the scene inevitably will lead to warrantless blood draws for all accidents regardless of severity or particular circumstances.

Eventually, the majority tacitly concedes that this case does not really involve a per se accident investigation rule after all. The majority does so when it argues that the State's focus on individual circumstances unwisely will require courts to “grade the severity of accidents” and thereby “lead inevitably to inconsistent outcomes.” See ante, at 852, 853. But this argument, too, is a caricature. No grading is required. All that is required is all that McNeely and Schmerber demand: a focus on individual facts and circumstances surrounding individual cases. A warrantless blood draw may be justified in one circumstance and not justified in another—just as one would expect from a facts-and-circumstances standard that eschews per se rules allowing warrantless blood draws in all cases.

If the majority's real objection to the State's position stems from a fear of “inconsistent outcomes,” then we have departed the realm of a per se rule entirely.

Straw Man No. 2. The second straw man rests on the majority's reference to “Officer Tran's testimony that the statute required a blood draw under the total circumstances ....” See ante, at 859; see alsoTex. Transp. Code Ann. § 724.012(b) (Vernon 2011).

The majority opinion's reference differs from Officer Tran's testimony in the transcript of the April 18, 2011 hearing on appellant's motion to suppress.

Q. Okay. And when you arrived at the Pearland Police Department, what did you do?

A. I read to him his DUI statutory warning and request a specimen of his breath.

Q. And did Mr. Douds volunteer a specimen?

A. He refused.

Q. Okay. What did you do at that point?

A. Well, based on the total circumstances and based on my belief that his wife was hurt and that need medical attention, I complete the mandatory blood draw and took him to a local medical center, Pearland Emergency Room, and had his blood drawn there.
The difference is material.

This difference matters because the transcript supports a conclusion that the trial court was presented with testimony from Officer Tran and argument from appellant's counsel addressing two independent justifications for a warrantless blood draw—one justification based on the totality of the circumstances, and another based on statutory grounds. The majority creates a straw man argument when it (1) collapses the two justifications into a single justification under Chapter 724; and then (2) contends that this single justification does not suffice because “the Transportation Code does not address whether a warrant is required before obtaining a mandatory blood draw, nor does it address exigent circumstances.” See ante, at 859. Even assuming for argument's sake that the proffered statutory justification alone would not suffice, the court still must consider an independent exigent circumstances justification based on Officer Tran's testimony about the totality of the circumstances and references during the suppression hearing to Schmerber.

Most of Officer Tran's testimony at the suppression hearing concerned the statutory factors under section 724.012. But section 724.012 was not the hearing's exclusive focus. Officer Tran referenced the “total circumstances” in the hearing transcript excerpt quoted above; during cross-examination, Officer Tran also stated: “The report is written based on totality of the circumstances, sir, and you're breaking things apart and it doesn't make sense to me.” At the hearing's close, appellant's counsel specifically identified Schmerber in response to the trial court's request for cases on point addressing warrantless blood draws. Appellant's counsel cited Schmerber again in his post-hearing Brief in Support of Defendant's Motion to Suppress, filed on May 4, 2011. The trial court signed its order denying the motion to suppress on May 4, 2011, after considering the evidence, the parties' arguments, and the parties' briefs; it made no findings of fact in so doing.

“[W]hen the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” State v. Ross, 32 S.W.3d 853, 855–56 (Tex.Crim.App.2000) (citing Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000)). The trial court's denial of appellant's motion to suppress blood test results must be sustained “[i]f the trial judge's decision is correct on any theory of law applicable to the case ....” Ross, 32 S.W.3d at 855–56.

The constitutional propriety of a warrantless blood draw based on McNeely, Schmerber, and the totality of these particular circumstances is discussed further below. As to the historic fact of identifying specific justifications proffered during the suppression hearing, viewing the evidence in the light most favorable to the trial court's ruling compels this conclusion: Two separate justifications were identified at the suppression hearing, one based on totality of the circumstances under Schmerber and another based on Chapter 724. This circumstance distinguishes this case from Weems v. State, No. 04–13–00366–CR, 434 S.W.3d 655, 665, 2014 WL 2532299 (Tex.App.-San Antonio May 14, 2014, pet. filed)available at http:// www. search. txcourts. gov/ Case. aspx? cn= 04– 13– 00366– CR, which involved a record predicated solely on “the mandatory blood draw and implied consent statutes to authorize the blood draw.” The majority errs by treating these separate justifications as a single statutory justification.

The Real Issue. The real issue here is whether the Fourth Amendment permits a warrantless blood draw under the particular facts and circumstances present in this case. The majority wants to know why the record does not contain more evidence. The correct approach is to ask instead whether the record contains enough evidence. This record does indeed contain enough evidence to establish circumstances allowing a warrantless blood draw because (1) the circumstances here are indistinguishable from Schmerber in all material respects; and (2) McNeely reaffirmed Schmerber. The majority errs when it attributes a broader holding to McNeely than the one the Supreme Court actually made.

Facts

The discussion of McNeely and Schmerber that follows must be considered against the backdrop of a chronology surrounding the investigation, arrest, and blood draw arising from a collision that occurred when a Hummer H2 driven by appellant rear-ended a Toyota Tundra near an intersection in Pearland.

• The accident was reported on the police radio at 2:34 a.m. According to the dashboard camera video, Officer Tran arrived at the accident scene about 2:36 a.m. He arrived to find that the two vehicles had been removed to a corner gas station parking lot “but the debris was all over the road.” He parked his car in the roadway “to keep traffic from driving through it.” Wreckers were called for both vehicles. Officer Niemeyer also was present at the scene.

• Officer Tran began investigating the accident when he arrived; Pearland EMS already had been summoned by that time and was on the scene. Officer Tran undertook an investigation at the scene “[t]o determine what's going on at all. The crash and then things related to it.”

• Officer Tran determined that appellant's wife, who was a passenger in appellant's Hummer, had been injured in the accident. She complained of chest pain and said she could not move her right arm.

• Officer Tran spoke with appellant while EMS personnel treated his wife.

• Officer Tran's initial observations of appellant's condition caused him to believe that appellant was intoxicated. Officer Tran asked appellant to perform three field sobriety tests, after which he concluded that appellant did not have the normal use of his mental or physical faculties that would allow him to operate a vehicle safely.

• Officer Tran arrested appellant at the accident scene at 3:19 a.m. based on his observations of appellant's condition and deficient performance on the field sobriety tests.

• After Officer Tran conducted the field sobriety tests, arrested appellant and put him in the patrol car, Officer Tran spoke with Officer Niemeyer and with appellant's wife to determine whether she wanted to have the EMS unit take her to the hospital. Appellant's wife refused transport by EMS to the hospital and signed a form so stating. Officer Tran continued talking to appellant and to his wife after the ambulance left the scene.

• Officer Tran then took appellant to the Pearland Police Department; they arrived at about 3:33 a.m. according to the dashboard camera video. After they arrived at the police station, Officer Tran gave appellant the statutory DWI warning as reflected in form DIC–24. The warning was given orally and in writing at 3:45 a.m.

• The form states that appellant will be asked to give a specimen of his breath and/or blood, and that his license will be suspended if he refuses.

• The form, which is signed by appellant, indicates that appellant was asked to give a breath sample and refused. The form does not indicate that appellant was asked to give a blood sample. The DWI Case Report states: “Since [appellant] caused the crash, wherein his wife, Christen, sustained bodily injuries, a mandatory blood draw form was completed.”

• Officer Tran drove appellant to Texas Emergency Care in Pearland, where his blood was drawn at 4:45 a.m.

• According to the Brazoria County Crime Laboratory, testing on the specimen determined that appellant's blood alcohol level was “0.209 grams per 100mL of Blood.”
Appellant filed a motion to suppress the results of the blood test conducted after the warrantless draw. The motion was discussed at length during a suppression hearing, and the trial court requested supplemental briefing on the issues raised during the hearing. The trial court signed an order denying the motion to suppress without specifying reasons for doing so. Neither party requested findings or conclusions in connection with this order.

Analysis

McNeely presented a narrowly drawn issue, and the Supreme Court answered it narrowly. The majority erroneously broadens the narrow scope of McNeely's holding.

A Missouri police officer stopped McNeely for speeding at 2:08 a.m. McNeely, 133 S.Ct. at 1556. The officer arrested McNeely at the scene of the traffic stop after he showed signs of intoxication, performed poorly on several field sobriety tests, and refused to give a breath sample. Id. at 1556–57. The officer drove McNeelyfrom the scene of the traffic stop to a hospital for a blood draw without stopping at the police station and without attempting to obtain a warrant. Id. at 1557. The officer asked McNeely at the hospital whether he would consent to a blood test, and McNeely refused. Id. The officer then directed a hospital lab technician to take a blood sample, which was accomplished at 2:35 a.m. Id. The elapsed time from traffic stop to blood draw was 27 minutes. Id.

“In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant.” Id. at 1567. “He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was ‘sure’ a prosecuting attorney was on call and even though he had no reason to believe that a magistrate judge would have been unavailable.” Id. “The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty.” Id. “He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant.” Id.; see also Sutherland v. State, No. 07–12–00289–CR, 436 S.W.3d 28, 36–37, 2014 WL 1370118, at *7 (Tex.App.-Amarillo April 7, 2014 no pet. h.) (“The factual background at issue in McNeely is not unlike the facts presented in the instant case.”).

Here is what McNeely decided. “The State argued before this Court that the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case.” Id. at 1567. “The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Id. at 1556. “We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.” Id. “We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Id. at 1568.

Here is what McNeely did not decide. “The State did not argue that there were exigent circumstances in this particular case because a warrant could not have been obtained within a reasonable amount of time.” Id. at 1567. “In petitioning for certiorari to this Court, the State ... did not separately contend that the warrantless blood test was reasonable regardless of whether the natural dissipation of alcohol in a suspect's blood categorically justifies dispensing with the warrant requirement.” Id. at 1568. “Here and in its own courts the State based its case on an insistence that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood test without any precondition for a warrant.” Id. “That is incorrect.” Id.

Emphasizing the bright-line nature of the position adopted by the State of Missouri in McNeely, the Supreme Court was careful to limit the scope of its holding in light of the overreaching interpretation of Schmerber that was presented to it. “Because this case was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant.” Id. “It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.” Id.

“No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed.” Id. “But that inquiry ought not to be pursued here where the question is not properly before this Court.” Id. “Having rejected the sole argument presented to us challenging the Missouri Supreme Court's decision, we affirm its judgment.” Id.

Justice Alito emphasized the narrow scope of McNeely's holding when he stated:

As the opinion of the Court is correct to note, the instant case, by reason of the way in which it was presented and decided in the state courts, does not provide a framework where it is prudent to hold any more than that always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment.
Id. at 1569 (Alito, J., concurring in part).

The majority focuses instead on the following statement, which the majority treats as McNeely's holding: “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” See ante, at 853 (quoting McNeely, 133 S.Ct. at 1561) (emphasis omitted). But the Supreme Court goes on to say this: “We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test.” McNeely, 133 S.Ct. at 1561. “That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the ‘considerable overgeneralization’ that a per se rule would reflect.” Id. (citation omitted).

Applying

McNeely

. Affirmance of the trial court's order and judgment does not require endorsement of the specific per se rule specifically advocated by the State of Missouri and specifically rejected in McNeely. Therefore, McNeely does not compel reversal here.

Officer Tran testified that his decision to obtain a warrantless blood draw was based at least in part on “the total circumstances.” The “total circumstances” established by the evidence in this case—set out above in the chronology—involved delay attendant to investigating the accident scene, determining appellant's condition, determining the condition of appellant's wife, and determining whether she needed to be and would be taken to the hospital.

This evidence supports the trial court's implied factual determination that Officer Tran did not obtain a warrant because the circumstances existing at the time made “obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream” supported “an exigency justifying a properly conducted warrantless blood test.” See id.

This evidence refutes the majority's assertion that there is no evidence tending to show exigent circumstances on these particular facts.

These conclusions are underscored by McNeely's treatment of Schmerber.

The petitioner in Schmerber was arrested at a hospital while receiving treatment for injuries suffered in an accident involving the car he had been driving. Schmerber, 384 U.S. at 758, 86 S.Ct. 1826. The arrest occurred within two hours of the accident. Id. at 769, 86 S.Ct. 1826. At the hospital, a police officer ordered a physician to take a blood sample from the driver over the driver's refusal and without obtaining a warrant. Id. at 758, 768, 86 S.Ct. 1826. After acknowledging that “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great,” the Supreme Court found the blood draw to be constitutionally valid:

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence.” Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.
Schmerber, 384 U.S. at 770–71, 86 S.Ct. 1826.

McNeely states that “our analysis in Schmerber fits comfortably within our case law applying the exigent circumstances exception.” McNeely, 133 S.Ct. at 1560. “In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.” Id. “[B]ecause an individual's alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results.” Id. at 1561. “This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence.” Id. (citing Schmerber, 384 U.S. at 770, 86 S.Ct. 1826).

“[A]ll of the facts and circumstances” here and in Schmerber are the same in all material respects.

The majority does not suggest that a different outcome is warranted because the delay in Schmerber stemmed in part from the need to transport Schmerber to the hospital, while the delay in today's case stemmed in part from the need to determine whether appellant's passenger needed and would accept transportation to the hospital. The majority does not suggest that a different outcome is warranted because the arresting officer conducted his investigation of Schmerber's accident at Schmerber's bedside, while Officer Tran conducted his investigation at the accident scene and the police station. The majority does not suggest that the timeframe here is comparable to McNeely's 27–minute, nonstop trip from driver's seat to needle stick.

The majority contends instead that reversal is warranted because there is no evidence expressly addressing whether (1) obtaining a warrant would have further delayed the blood draw; (2) technologies or procedures were available to expedite the warrant application process; (3) any delay would have lasted long enough to undermine the blood test results; or (4) another officer could have taken reasonable steps to secure a warrant. See ante, at 851, 854–55, 855–56.

No evidence addressing factors (1), (2), or (3) was adduced in Schmerber. The Schmerber opinion, the petitioner's brief (1966 WL 100527), and the respondent's brief (1966 WL 100528) contain no such references. The absence of such evidence here does not require reversal—just as it did not require reversal in Schmerber.

As for the fourth factor concerning the presence of other officers, Schmerber cuts against the majority's position. The majority focuses in particular on Officer Niemeyer's presence at the accident scene in Pearland and questions why there is no testimony addressing whether he could have “begun the process of obtaining a warrant as soon as Officer Tran's investigation revealed evidence that would support it.” Ante, at 855. Similar circumstances in Schmerber did not invalidate a warrantless blood draw.

Two officers were involved in the accident investigation in Schmerber. One was Officer Edward A. Slattery, who arrived at approximately midnight; as Schmerber was being loaded into the ambulance, Officer Slattery “observed petitioner's face at this time and noted that his eyes were bloodshot and watery and had a glassy appearance, and an odor of alcohol was on his breath.” 1966 WL 100528 at *4. The other was Officer Thomas E. Buell, who also investigated the accident; Buell “stated that from the way petitioner walked and acted, he was able to form the opinion that petitioner was well under the influence of an alcoholic beverage.” Id. at *6.

Officer Slattery “saw petitioner again at the hospital, within two hours of the accident” and arrested him there. Schmerber, 384 U.S. at 769, 86 S.Ct. 1826; 1966 WL 100528 at *5. Blood then was drawn over Schmerber's objection after his arrest at the hospital. Schmerber, 384 U.S. at 758, 769, 86 S.Ct. 1826; 1966 WL 100528 at *5–*6.

Nothing in Schmerber indicates that the Supreme Court viewed the participation of two officers in the investigation as a basis to invalidate the warrantless blood draw. See Schmerber, 384 U.S. at 770–71, 86 S.Ct. 1826. Schmerber does not suggest that the blood draw was impermissible because Officer Buell (having already concluded from his own observations that Schmerber “was well under the influence of an alcoholic beverage,” 1966 WL 100528 at *6) failed without explanation to obtain a warrant during the two hours or so that preceded Officer Slattery's arrest of Schmerber at the hospital. Id. Nor does Schmerber suggest that the passage of approximately two hours invalidated the draw. Id.

The majority states as follows in a footnote disclaimer: “We do not hold that the State must invariably present evidence of each or any of these facts.” Ante, at 852 n. 9. This disclaimer rings hollow because the majority reverses and remands after discussing at length the absence of evidence addressing these facts. The majority's analysis is faulty because it (1) seizes on a handful of potentially relevant factors identified in McNeely, and then (2) elevates those factors to the status of a rigid evidentiary checklist for a warrantless blood draw. The majority thereby disregards the Supreme Court's express limitations on the scope of McNeely's holding; it also disregards the Supreme Court's insistence on a flexible totality-of-the-circumstances standard. See McNeely, 133 S.Ct. at 1567–68.

The majority compounds these errors by making an additional unwarranted assumption. It does so by confining the State to reliance solely upon a category of exigent circumstances addressing efforts to prevent destruction of evidence or contraband. See ante, at 849–50. To be sure, destruction of evidence resulting from dissipation of alcohol in the bloodstream is a significant consideration. But it is not the only consideration.

According to the majority opinion, the State cannot invoke a separate exigent circumstances situation involving the provision of assistance “to persons whom law enforcement reasonably believes are in need of assistance ....” See ante, at 850; see also Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App.2007). The majority equates this separate circumstance with the “emergency doctrine” involving an officer's “immediate, reasonable belief that he or she must act to ‘protect or preserve life or avoid serious injury.’ ” See ante, at 850 (quoting Laney v. State, 117 S.W.3d 854, 861 (Tex.Crim.App.2003)) (internal citation omitted). The majority asserts that the emergency doctrine does not apply because “nothing in the record indicates that appellant's blood was seized in the course of protecting life or providing needed aid.” Ante, at 850.

The categories identified by the majority are not necessarily as rigid or as mutually exclusive as the majority opinion would suggest; subtle differences in circumstances, facts, and location can impact the nomenclature and result. See Laney, 117 S.W.3d at 858–62. It follows that the majority is too parsimonious when it concludes that exigent circumstances involving the provision of aid cannot be present unless the blood draw itself was law enforcement's specific means of “protecting life or providing needed aid.”

Looking at the particular context of this particular case, the majority's narrow view is at odds with Schmerber's recognition that law enforcement's responsibilities to address transportation of the injured and investigation of the accident scene also warrant consideration when delay attendant to those responsibilities could lead to evidence destruction via dissipation of alcohol in the blood stream. See Schmerber, 384 U.S. at 770–71, 86 S.Ct. 1826 (“Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.”); see also McNeely, 133 S.Ct. at 1560 (“[W]e concluded [in Schmerber ] that the warrantless blood test ‘in the present case’ was nonetheless permissible because the officer ‘might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.’ ”) (quoting Schmerber, 384 U.S. at 770, 86 S.Ct. 1826) (internal quotation marks omitted).

The majority grows stingy again when it attempts to limit Officer Tran's time for assessing injuries and this accident scene to a few minutes. The dashboard camera video shows that Officer Tran arrived at the scene at approximately 2:36 a.m.; questioned the Toyota's driver at 2:47 a.m. to see if she had been injured; questioned the Toyota's passenger at 2:49 a.m. to see if he had been injured; asked at 2:52 a.m. to find out if appellant's wife was going to the hospital; learned at 2:56 a.m. that appellant's wife was in significant pain because she had not been wearing a seatbelt; heard from appellant's wife at 3:04 a.m. that “I don't think I'm okay but I don't want to go the hospital;” was told by the Toyota's driver at 3:28 a.m. that “we're taking her,” which he understood to mean the driver would be taking appellant's wife to a hospital or emergency center; and told appellant's wife at 3:29 a.m. to “go get checked out please.” In between these instances Officer Tran (among other things) coordinated the wreckers; spoke with fire fighters on the scene; conducted the roadside sobriety test on appellant; arrested appellant; and checked the intersection where the collision occurred.

A complete description of Officer Tran's activities at the accident scene confirms that he was juggling various tasks at various times. Some of those tasks involved attending to the well-being of appellant's wife; other tasks involved attending to the well-being of others involved in the accident. Officer Tran's activities are fully consistent with, in the majority's words, “protecting life or providing needed aid.” See ante, at 850; see also Sutherland, 436 S.W.3d at 37–38, 2014 WL 1370118, at *8 (“[W]e should consider whether additional delay related to accident investigation and medical treatment made the time required to secure a warrant more burdensome and more likely to result in the destruction of evidence.”) (citing McNeely, 133 S.Ct. at 1560, and Schmerber, 384 U.S. at 770–71, 86 S.Ct. 1826).

Conclusion

The majority cannot explain how Schmerber continues to be good law under the majority's unduly expansive interpretation of McNeely. Because the circumstances of today's case are indistinguishable from those in Schmerber in all material respects, and because McNeely reaffirmed Schmerber, the trial court's order and judgment should be affirmed.