TX: Two cases on exigency for warrantless blood draw for DUI

Cole v. State, 2016 Tex. Crim. App. LEXIS 84 (May 25, 2016) (dissent), found exigency, reversing the court of appeals. Defendant here drove 110 mph down a city street, ran a red light, and the ensuing accident resulted in a block-long debris field, two vehicles on fire, and killed the other driver. The sheer magnitude of the accident and the strain on law enforcement officers working it justified exigency. The court refers to Weems, decided at the same time:

Weems v. State, 2016 Tex. Crim. App. LEXIS 85 (May 25, 2016), found no exigency for this defendant’s warrantless blood draw where he ran from the crash of his car but was found 40 minutes later hiding under another car when that driver called the police. Defendant complained of back and neck pain and he went to the hospital first instead of to a magistrate’s office for advice on consent to a blood draw or the obtaining of a warrant.

Although both this case’s record and that presented in Schmerber involved an alcohol-involved accident, the similarity of the two records end there. In Schmerber, the Court noted “where time had to be taken to bring the accused to the hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.” This passage does not accurately describe the circumstances surrounding Weems’s blood draw. First, Deputy Bustamante testified that the hospital was only a “couple of minutes” away. So transporting Weems to the hospital did not necessarily make obtaining a warrant impractical or unduly delay the taking of Weems’s blood to the extent that natural dissipation would significantly undermine a blood test’s efficacy. Second, Bustamante was not alone charged with both investigating the scene of the accident and escorting Weems to the hospital for treatment. Deputy Shannon—Bustamante’s instructor—waited with Bustamante and Weems at the hospital until Weems’s blood was taken. Once the blood was drawn, Shannon left the hospital to place the blood sample in the evidence locker at the Magistrate’s Office for subsequent testing. Another officers’ presence or the “hypothetically available officer” that, in theory, could have secured a warrant in the arresting officer’s stead will certainly not render all warrantless blood draws a Fourth Amendment violation, nor do we suggest it is a circumstance that the State must disprove in every case to justify a warrantless search under an exigency theory. But this record establishes that Shannon was with Bustamante and Weems throughout the investigation and while they were at the hospital waiting for Weems’s blood to be drawn. On this particular record, Shannon’s continued presence distinguishes Schmerber from the present case and militates against a finding that practical problems prevented the State from obtaining a warrant within a time frame that preserved the opportunity to obtain reliable evidence.