Majority and Dissenting Panel Opinions of October 15, 2013 Withdrawn,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 CONCURRING OPINION
      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, 133 S. Ct. 1552 (2013), and Schmerber v.
California, 384 U.S. 757 (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


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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




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of objective analysis]” does not yield an appropriate inference that an emergency
of unlimited duration existed.




                                     /s/       Sharon McCally
                                               Justice



En Banc Court consists of Chief Justice Frost and Justices Boyce, Christopher,
Jamison, McCally, Busby, Donovan, Brown, and Wise.
Justices Christopher, McCally, Wise, and Brown join the En Banc Majority
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).




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