Majority and Dissenting Panel Opinions of October 15, 2013 Withdrawn;
Reversed and Remanded and En Banc Majority, Concurring, and Dissenting
Opinions filed June 5, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00642-CR

                     KENNETH LEE DOUDS, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

      On Appeal from the County Court at Law No. 1 & Probate Court
                         Brazoria County, Texas
                      Trial Court Cause No. 180270

                       EN BANC OPINION

      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

       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
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

       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. See Tex. 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.

       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.”

                                              3
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

                                          4
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

                                         5
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

                                          6
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.

   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 also Tex. 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

         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.

                                                7
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, 131 S. Ct. 1849,
1856 (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 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (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 (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 (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 (1976)
(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 (1976); see also Beck v. Ohio, 379 U.S. 89, 96 (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)).

                                                  8
       “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 (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
                                              9
       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 (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 showing
by 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). 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

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.”).

                                               10
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); 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).

      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


                                        11
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
(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, 133 S. Ct. 1552, 1556 (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.

       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


       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.).

                                               12
“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

       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.




       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).

                                              13
              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.

        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. There are also key differences between the facts of
this case and Schmerber, however, which we discuss below. The McNeely Court

        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.

                                              14
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 3, 12. 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

       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 (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

       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.

                                              15
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
(internal quotation marks omitted, emphasis added). Accord Turrubiate v. State,
399 S.W.3d 147, 151 (Tex. Crim. App. 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

                                          16
“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.

       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

       10
            Bray, 597 S.W.2d at 765 n.1.
       11
            McNeely, 133 S. Ct. at 1561; Schmerber, 384 U.S. at 770.
       12
           Post, at 3; cf. Brief of Respondent, Schmerber, 384 U.S. 757 (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).

                                                17
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.

      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. 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; 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

                                        18
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 (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, slip op. at 15 (Tex. App.—San Antonio May 14, 2014, pet. filed)
(concluding record did not reflect relevant factors such as procedures and
                                            19
timeframe for obtaining warrant, and holding warrantless blood draw not justified
by exigent circumstances); Sutherland v. State, No. 07-12-00289-CR, 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

       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.

                                                20
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.

       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

       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.

                                             21
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, 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
                                              22
       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

“[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.”).
       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. See
Tex. Penal Code Ann. § 49.01(2) (West 2011).

                                                 23
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.

       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 14. 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 (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 6.

       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
       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).

                                             24
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.

      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

      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.

                                                25
it reveal whether the officer’s involvement was at a time when he could have
assisted in obtaining a warrant.22

      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
(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

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

                                              26
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, slip
op. at 14 (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 4–5, 12. 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 (1971).

       The mandatory blood draw statute cannot—and does not purport to—alter

       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.

                                                27
the Fourth Amendment warrant requirement or its recognized exceptions. See U.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, slip op. at 14 (“[T]he implied consent and mandatory blood
draw statutes are not exceptions to the Fourth Amendment’s warrant
requirement.”); Sutherland, 2014 WL 1370118, at *9–10 (concluding statute does
not modify Fourth Amendment and analyzing reasonableness of warrantless blood
       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, 2014 WL 1862669 (Tex. App.—
Texarkana April 29, 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. Esparaza, 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. 2014 WL 1862669, at *3–4.

                                                 28
draw under traditional exigent circumstances test); State v. Villarreal, No. 13-13-
00253-CR, 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, 2014 WL
1862669, at *4–5 & n.11 (agreeing with Villarreal and Sutherland); cf. State v.
Johnston, 336 S.W.3d 649, 661 (Tex. Crim. App. 2011) (addressing another 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.”).

      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.




                                        29
      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 (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, 131 S. Ct. 2419, 2428–29
(2011); (2) a state statute later held to be unconstitutional, see Krull, 480 U.S. at
350; or (3) good-faith reliance on a warrant, see United States v. Leon, 468 U.S.
897, 923–24 (1984).

      In Texas, by contrast, the exclusionary rule is statutory. See Tex. 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).
                                         30
      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, slip op. at 16. 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 (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




                                        31
v. State, 762 S.W.2d 612, 614–15 (Tex. Crim. App. 1988).25

      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.




                                         /s/    J. Brett Busby
                                                Justice


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.

Publish — Tex. R. App. P. 47.2(b).




      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).

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