TX14: No per se rule on exigency for DUI blood draw; state carries burden

Defendant’s blood draw in this DUI case violated the Fourth Amendment for lack of any exigent circumstances. Under McNeely, mere passage of time is no longer enough. There is no per se rule that the time to investigate an accident is an exigency. Douds v. State, 2014 Tex. App. LEXIS 6152 (Tex. App.-Houston (14th Dist.) June 5, 2014) (en banc) (concurring; dissenting):

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, 2014 Tex. App. LEXIS 5109, *25 (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, 2014 Tex. App. LEXIS 3694, 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 12, 16-18.13 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. 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.