                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-16-00226-CR
                             NO. 02-16-00227-CR
                             NO. 02-16-00228-CR


THE STATE OF TEXAS                                                       STATE

                                       V.

TERRI SANDERS                                                        APPELLEE


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       FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
   TRIAL COURT NOS. 2015-0255M-CR, 2015-0256M-CR, 2015-0257M-CR

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                                   OPINION

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                                I. INTRODUCTION

      The State appeals from the trial court’s order granting appellee Terri

Sanders’s motion to suppress. The State contends that the trial court erred by

concluding that exigent circumstances did not exist at the time the arresting

officer in this case ordered a warrantless blood draw of Sanders’s blood and that

thus the trial court erred by granting the suppression motion.      Because we
conclude that under the totality of the circumstances the State failed to carry its

burden that exigent circumstances existed at the time the arresting officer

ordered Sanders’s blood be drawn, we will affirm.

                                 II. BACKGROUND

      Sanders was travelling on the wrong side of the road on the night of

October 23, 2015, when she struck another vehicle head-on.           The collision

resulted in the deaths of two individuals and serious injury to another. The State

charged Sanders with two counts of intoxication manslaughter and one count of

intoxication assault. Later, Sanders filed a motion to suppress the results of a

warrantless and involuntary blood draw that occurred after she was transported

to the hospital from the accident scene.

      State Trooper Rachel Russell testified at the suppression hearing.

According to Russell, around 11:45 p.m. on October 23, 2015, she received a

dispatch regarding a two-vehicle, head-on collision. Russell said that as she was

en route, she learned that the accident involved fatalities. By Russell’s account,

it took her approximately twenty minutes to arrive at the scene of the accident—

specifically, she averred that she arrived at 12:07 a.m. on October 24, 2015.

      Russell recalled that when she arrived, a great number of emergency

responders were already at the scene of the accident. She said that she thought

“everybody else in the county was there before [she] was.” Russell detailed that

“[t]he fire departments, the first responders, two deputies, the game warden,

[and] multiple emergency vehicles [were] parked everywhere” when she arrived.


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In the video from her dashcam, which was admitted at the suppression hearing,

Russell can be heard stating, “Of course, every Tom, Dick, and Harry [inaudible]

got to be here” as her patrol vehicle approached the accident scene.            By

Russell’s recollection, the accident scene was under control when she arrived

and some of the officers and emergency personnel on scene were not doing “a

whole lot at that time.”

      Russell said that her responsibility was to investigate the accident. Russell

averred that shortly after her arrival, she made contact with Sanders. Russell

said that Sanders had “a little bit of blood on her face” but that Sanders reported

that “she felt okay.” Russell averred that she later learned that Sanders had

suffered broken bones in the accident.        Russell said that upon contacting

Sanders, she detected an odor of an alcoholic beverage coming from Sanders

and that she had slurred speech and red, bloodshot eyes.

      According to Russell, State Trooper Brandon Neff also arrived on scene

shortly after she did.     Russell said that she instructed Neff to perform field

sobriety tests on Sanders and “if need be, to get a specimen from her.” Russell

said that after assigning Neff to determine Sanders’s level of intoxication, she

turned her focus to gathering more information about the accident and the

fatalities involved.   By Russell’s account, Sanders was transported from the

scene in an ambulance around 12:30 a.m., and Russell said Neff followed the

ambulance to the hospital.       Russell averred that it would have taken the




                                         3
ambulance “[f]ive minutes” to reach the hospital from the accident scene, but she

also said that her notes showed that Sanders arrived at the hospital at 1:00 a.m.

      Russell averred that while she was investigating, a justice of the peace

arrived on the scene. By Russell’s account, this happened after Sanders had

been taken away. Russell said that she did not discuss drawing Sanders’s blood

with the judge and that the judge was there to pronounce the death of the two

decedents. She said that the judge pronounced the two deceased at 12:40 a.m.

Regarding why she did not seek a warrant for Sanders’s blood, Russell averred

that she did not have the time nor the opportunity to seek obtaining a search

warrant because she was investigating the scene. Furthermore, Russell averred

that the decision to seek a warrant would have been “Trooper Neff’s decision.”

      Russell said that Deputy Lee Phariss and the game warden, who were on

the scene, were assisting her in “painting the scene” and filling out “a major crash

packet.” But in all, Russell averred that seven peace officers, including herself,

were at the scene of the accident—one of them was Phariss. And even though

Russell averred that no one accompanied Neff to the hospital, Russell can be

heard on the video from Neff’s dashcam stating that she was “sending Lee up

there” to the hospital with Neff in case Sanders’s boyfriend “g[a]ve [Neff] any

problems.” Russell also said that there were fourteen firefighters at the accident

scene. Video from Russell’s dashcam shows that the entire scene had been

cleared and that most of the emergency personnel who had responded, as well




                                         4
as their emergency vehicles, had left the scene within two hours of Russell’s

arrival.

       Trooper Neff testified at the hearing as well. Neff averred that because

Russell was the lead investigating officer at the time he arrived on the scene, he

was there to assist Russell.     Neff said that his assistance revolved around

speaking with Sanders and that he did not have any accident scene duties. By

Neff’s account, Sanders appeared confused and did not “have much recollection

of the crash.”   Neff said that even though he had already been advised by

Russell to perform field sobriety tests on Sanders, he too suspected she was

intoxicated through his own observations because he could smell an odor of an

alcoholic beverage emitting from Sanders. He also averred that Sanders had

“glassy, blood-shot eyes” and slurred speech. Sanders also told Neff that she

had consumed alcoholic beverages earlier in the day.

       Neff said that he asked Sanders whether she was injured, that Sanders

replied she was not, and that Sanders had refused medical attention. Neff also

said that he did not detect any injuries to Sanders and that he did not know until

later that she had suffered a broken ankle.

       According to Neff, Sanders was not steady on her feet and leaned on

multiple vehicles as he asked her to walk over to a patrol vehicle, where he

intended to initiate field sobriety tests.    Neff said that Sanders was “very

compliant” and that after he explained to her the tests and then began to conduct

the horizontal gaze nystagmus test, Sanders’s boyfriend “stopped [Neff] and told


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[him] that he wanted her to be reevaluated again by the medics.” Neff said that

he believed that Sanders’s boyfriend stopped the tests to prevent them from

being conducted and not out of a concern for Sanders’s well-being.

      Video submitted from Neff’s dashcam shows that medical personnel took

several minutes from that time to strap Sanders to a stretcher and then lift her

onto a gurney and into an ambulance.          Also from the video, while medical

personnel attended to Sanders, a conversation can be seen and heard between

Neff and Russell. In that conversation, Russell can be heard telling Neff that she

would be sending “Lee” with him to the hospital in case Sanders’s boyfriend gave

Neff any “problems.” And Neff can be heard stating, “But we’re going to take her

blood anyway, so it doesn’t matter.”

      Neff said that it only took five minutes for the ambulance to transport

Sanders to the nearby hospital and that he followed the ambulance in his patrol

vehicle. Neff said that upon arriving, because he believed that the boyfriend was

attempting to interfere with his investigation, he spoke with Sanders’s boyfriend

outside the hospital. Neff said that the boyfriend became “very compliant at that

time and said that he would let [Neff] do [his] job.” Neff initially testified that he

believed he arrived at the hospital around 12:30 a.m.

      Neff said that he escorted Sanders to the examination room, read Sanders

the standard blood draw warnings, and asked her for a consensual blood sample

but that Sanders refused.      Neff averred that at this time, medical personnel

began to “put up the pole and [bring in] fluid bags” and that he became


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concerned about obtaining a blood sample because Sanders had begun to

complain about pain. Neff said that he did not know the nature of what medical

personnel were about to perform but said that he felt like he needed to obtain a

blood sample prior to what they were doing because he felt that whatever they

were about to do would result in a “lower or less accurate” blood sample and so

he ordered that one be drawn. Neff’s authorization ordering hospital personnel to

draw Sanders’s blood, which was admitted before the trial court, indicates that

the blood draw was ordered at 1:24 a.m. on October 24, 2015.

      Neff said that it was his understanding that the justice of the peace who

was at the accident scene arrived on the scene after he had left. He also said

that he had search warrant forms on his person in the examination room. But

Neff said that he did not have time to fill out the forms prior to medical personnel

pushing him “out of the way.” Neff averred that there was no one else available

to assist him with Sanders and that he felt that he was acting under exigent

circumstances. Neff further averred that because there had been a fatality in the

accident, he believed that he did not need a warrant to draw Sanders’s blood.

Neff’s authorization ordering the blood draw indicates that the order to draw

blood was predicated on an “[a]ccident with death, serious bodily injury, or

hospital treatment for bodily injury.”

      On cross-examination, Neff agreed that according to a nurse’s notes, he

arrived at the hospital at 1:05 a.m. and that he had time to conduct the horizontal

gaze nystagmus test prior to reading Sanders the warnings and ordering the


                                         7
blood draw. Neff also acknowledged that he had stated at the scene of the

accident, prior to leaving for the hospital, that he intended to draw Sanders’s

blood, and he also agreed that he had taken no steps toward securing a warrant

at any time.

      The trial court granted Sanders’s suppression motion and later entered

findings of fact and conclusions of law. In its findings, the trial court found that

Neff had arrived at the accident scene shortly after 12:07 a.m. and that Sanders

was transported to the hospital, arriving “at about 1:00 a.m.” The trial court also

found that, even though Neff had testified that his training had made him

concerned that the injection of saline and the use of alcohol wipes in drawing

blood would interfere with an accurate analysis of blood alcohol content, no

testimony was offered about the nature of the fluids that Neff believed were about

to be injected prior to him ordering the blood draw. The trial court further found

that despite Neff having warrant forms in his possession, he did not attempt to

begin to obtain a warrant, locate a magistrate, nor contact another officer to

assist him in obtaining a warrant.

      In its conclusions of law, the trial court concluded that Neff had probable

cause to obtain Sanders’s blood because of her apparent cause of a fatal vehicle

collision and because she exhibited signs that she had consumed alcohol prior to

the accident. The trial court also concluded that a magistrate was “approximately

five minutes away from the hospital to which [Sanders] was taken for

approximately 45 minutes before [her] blood was drawn.” The trial court further


                                         8
concluded that the State had produced no evidence as to the nature of the

medical treatment Sanders was about to receive prior to the blood draw and how

it would result in destruction of evidence. And the trial court ultimately concluded

that the State had failed to carry its burden that Neff’s warrantless order to draw

Sanders’s blood was done under exigent circumstances.             This interlocutory

appeal followed.

                                  III. DISCUSSION

      In its sole point—including a series of points and subpoints—the State

makes one overall argument on appeal:               That given the totality of the

circumstances, including “the degradation of alcohol evidence[,] . . . the severity

of the accident, the lack of additional officer availability, the unknown location of

the magistrate, and the imminent unknown medical intervention by hospital staff,

[Neff] believed the blood test’s efficacy would be significantly undermined” by

medical intervention and thus constituted exigent circumstances supporting

Neff’s decision to order a warrantless blood draw.

      Sanders counters with the argument that the record establishes that Neff

did not attempt to obtain a warrant, based on his mistaken belief that a

warrantless blood draw was authorized by statute, and that the record

establishes that additional officers were available to obtain a warrant that was

readily available. Thus, the trial court did not err by concluding that no exigent

circumstances existed and granting her suppression motion.




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      A.     Standard of Review

      In reviewing the trial court’s ruling on a motion to suppress evidence, we

apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000).      We give almost total deference to the trial court’s

determination of historical facts that depend on credibility, while we conduct a

de novo review of the trial court’s application of the law to those facts. Id. In a

hearing on a motion to suppress, the trial court is the sole trier of fact and judge

of the credibility of the witnesses and the weight to be given their testimony.

State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). This is so because it

is the trial court that observes firsthand the demeanor and appearance of a

witness, as opposed to an appellate court, which can only read an impersonal

record. Id. Thus, with regard to those facts that the trial court explicitly found, we

defer to those explicit findings so long as they are supported by the record. State

v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005). With regard to remaining

facts not explicitly found by the trial court, 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 supporting its ruling so long as those findings are supported by

the record. Ross, 32 S.W.3d at 855; see also Tran v. State, No. 01-11-00141-

CR, 2012 WL 3133925, at *3 (Tex. App.—Houston [1st Dist.] Aug. 2, 2012, pet.

ref’d) (applying light-most-favorable standard to record and assuming implicit

findings to support suppression ruling even though trial court entered explicit

findings of facts) (mem. op., not designated for publication). We must sustain the


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trial court’s ruling if it is correct under any theory of law applicable to the case.

Ross, 32 S.W.3d at 855–56.

      B.     The Fourth Amendment and Bodily Intrusions

      The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause.” U.S. Const. amend. IV. A warrantless search of a person is

reasonable only if it falls within a recognized exception. State v. Villarreal, 475

S.W.3d 784, 796 (Tex. Crim. App. 2014), cert. denied, 136 S. Ct. 2544 (2016).

Bodily intrusions implicate an individual’s “most personal and deep-rooted

expectations of privacy,” and therefore they are considered searches that fall

under the Fourth Amendment’s warrant requirement. Missouri v. McNeely, 569

U.S. 141, 148, 133 S. Ct. 1552, 1558 (2013) (quoting Winston v. Lee, 470 U.S.

753, 760, 105 S. Ct. 1611, 1616 (1985)). There are several exceptions to the

warrant requirement, but the instant case involves only one—a warrantless

search performed to prevent imminent evidence destruction, or the so-called

“exigency exception.” See Cupp v. Murphy, 412 U.S. 291, 296, 93 S. Ct. 2000,

2004 (1973); see also Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct. 1849,

1856–57 (2011).

      C.     Exigency and Warrantless Blood Draws

      The exigency exception operates “when the exigencies of the situation

make the needs of law enforcement so compelling that a warrantless search is


                                         11
objectively reasonable under the Fourth Amendment.” McNeely, 569 U.S. at

148–49, 133 S. Ct. at 1558 (quoting King, 563 U.S. at 460, 131 S. Ct. at 1856).

Exigency potentially provides for a reasonable, yet warrantless search “because

‘there is compelling need for official action and no time to secure a warrant.’”

McNeely, 569 U.S. at 149, 133 S. Ct. at 1559 (quoting Michigan v. Tyler, 436

U.S. 499, 509, 98 S. Ct. 1942, 1949 (1978)). Whether law enforcement faced an

emergency that justified acting without a warrant calls for a case-by-case

determination based on the totality of the circumstances. McNeely 569 U.S. at

149, 133 S. Ct. at 1559. “[A] warrantless search must be ‘strictly circumscribed

by the exigencies which justify its initiation.’” Mincey v. Arizona, 437 U.S. 385,

393, 98 S. Ct. 2408, 2413 (1978) (quoting Terry v. Ohio, 392 U.S. 1, 25–26, 88

S. Ct 1868, 1882 (1968)). An exigency analysis requires an objective evaluation

of the facts reasonably available to the officer at the time of the search. Brigham

City v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 1948 (2006).

      “The context of blood testing is different in critical respects from other

destruction-of-evidence cases in which the police are truly confronted with a ‘now

or never’ situation.” McNeely, 569 U.S. at 153, 133 S. Ct. at 1561. The body’s

natural metabolism of intoxicating substances is distinguishable from the

potential destruction of easily disposable evidence when the police knock on the

door. Cf. King, 563 U.S. at 459–60, 131 S. Ct. at 1856 (recognizing the warrant

requirement exception to prevent the imminent destruction of evidence when law




                                        12
enforcement, after knocking on a suspect’s door, believed drugs were being

destroyed).

      D.      Schmerber, McNeely, Cole, and Weems

      In Texas, exigent-circumstances cases involving a warrantless blood draw

are controlled by both the United States Supreme Court’s precedent from

Schmerber v. California and Missouri v. McNeely as well as the Texas Court of

Criminal Appeals’s decisions in Cole v. State and Weems v. State. Schmerber v.

California, 384 U.S. 757, 770–72, 86 S. Ct. 1826, 1835–36 (1966); McNeely, 569

U.S. at 149–50, 133 S. Ct. at 1559; Cole v. State, 490 S.W.3d 918, 923 & n.24

(Tex. Crim. App. 2016); Weems v. State, 493 S.W.3d 574, 578 (Tex. Crim. App.

2016). In a case like this, a discussion of these cases is warranted.

              1.   Schmerber v. California

      In Schmerber, the Supreme Court held that based on the circumstances

surrounding the search, a warrantless seizure of a driver’s blood was reasonable.

384 U.S. at 770–72, 86 S. Ct. at 1835–36. Schmerber and his companion were

injured and taken to a hospital after Schmerber’s car skidded, crossed the road,

and struck a tree. Id. at 758 n.2, 86 S. Ct. at 1829 n.2. While Schmerber was at

the hospital, a police officer directed a physician to take a sample of his blood.

Id. at 758, 86 S. Ct. at 1829.      Later testing indicated that Schmerber was

intoxicated at the time he lost control of his car. Id. at 759, 86 S. Ct. at 1829.

Although a bodily intrusion calls for the same individual protections that the

warrant requirement provides for the search of a home and the seizure of one’s


                                        13
papers, the Schmerber Court reasoned that the seizing 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.” Id. at 770, 86 S. Ct. at 1835–36 (internal quotations

omitted).

      Adopting a totality-of-circumstances approach, the Schmerber Court held

that the circumstances surrounding the blood draw rendered the warrantless

search reasonable because (1) the officer had probable cause that Schmerber

operated a vehicle while intoxicated; (2) alcohol in the body naturally dissipates

after drinking stops; (3) there was a lack of time to procure a warrant because of

the time it took to transport Schmerber to a hospital and investigate the accident

scene; (4) there are highly effective means of determining whether an individual

is intoxicated; (5) venipuncture is a common procedure and usually “involves

virtually no risk, trauma, or pain”; and (6) the venipuncture was performed in a

reasonable manner. Id. at 768–72, 86 S. Ct. at 1834–36.

            2.    Missouri v. McNeely

      Nearly fifty years after its 1966 Schmerber decision, in 2013, the Supreme

Court held in McNeely that the natural dissipation of alcohol in the bloodstream

does not create a per se exigency justifying an exception to the Fourth

Amendment’s warrant requirement for nonconsensual blood testing. 569 U.S. at

165, 133 S. Ct. at 1568. The McNeely Court held firm to the warrant requirement

by stating that “where police officers can reasonably obtain a warrant before a


                                       14
blood sample can be drawn without significantly undermining the efficacy of the

search, the Fourth Amendment mandates that they do so.” Id. at 152, 133 S. Ct.

at 1561. Yet the Court still recognized the gravity of the body’s natural metabolic

process and the attendant evidence destruction over time. As the McNeely Court

stated, “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. at 165, 133 S. Ct. at 1568. With

this balance in mind, the McNeely Court, adhering to a totality-of-the-

circumstances analysis, rejected a per se rule while also acknowledging that

certain circumstances may permit a warrantless search of a suspect’s blood. Id.

Admittedly, the narrow issue before the McNeely Court prohibited it from

providing an exhaustive analysis of when exigency in intoxication-related

offenses may be found. Id. But the McNeely Court did provide insight on the

issue by identifying a few relevant circumstances that may establish exigency in

this context. In addition to the body’s metabolization, relevant circumstances

include “the procedures in place for obtaining a warrant,” “the availability of a

magistrate judge,” and “the practical problems of obtaining a warrant within a

timeframe that still preserves the opportunity to obtain reliable evidence.” Id. at

164, 133 S. Ct. at 1568.

      3.    Cole v. State and Weems v. State

      Following McNeely, in 2016 the court of criminal appeals handed down two

decisions on the same day that bookend the question of when exigent


                                        15
circumstances allow for a warrantless blood draw and when they do not. Cole,

490 S.W.3d at 921; Weems, 493 S.W.3d at 578.

      Practical constraints posed by a severe accident and the attendant duties

that demand that officers are not free to investigate probable cause and pursue a

warrant can justify a warrantless blood draw. Cole, 490 S.W.3d at 927. In Cole,

Cole’s large pickup truck, which was traveling at 110 miles per hour through a

busy downtown intersection, struck another pickup, causing an explosion. Id. at

919–20. This collision engulfed the other pickup in flames and killed the other

driver. Id. Police arrived to a calamitous scene with multiple fires and continued

explosions, requiring numerous officers to keep people away from the scene for

their safety. The danger required extensive manpower to block off several major

intersections around the area.     Id.   Complicating things further, the collision

occurred at the same time as a shift change, when some officers were leaving

their evening shifts and others arriving for their late-night shifts—cleanup of the

accident took nearly eight hours. Cole was transported to the hospital, where the

transporting officer ordered hospital staff to draw Cole’s blood. Id. at 921.

      Prior to trial, Cole moved to suppress the results of the blood draw. Id. At

the suppression hearing, the investigating officer testified that he could not afford

to assign an officer away from the scene to obtain a warrant without neglecting

an essential duty to secure the scene safely, that the process of obtaining a

warrant would have taken an hour to an hour-and-a-half, and that it was not




                                         16
feasible to wait until the accident investigation was entirely completed before

securing a warrant. Id.

      The Cole court reasoned that the most significant obstacle to officers

obtaining a warrant was the amount of time it took for the investigating officer to

investigate the scene. Id. at 925. The Cole court further reasoned that the time

required to complete the accident investigation, the inability of investigators to

focus on and form probable cause, and the lack of available law enforcement

personnel further hindered pursuing a warrant. Id. Notably, and although the

Cole court rejected a blanket rule requiring the State to demonstrate that no other

officer was available to obtain a warrant in every case, it noted that “the

availability of other officers is a relevant consideration in an exigency analysis.”

Id. at 926. The Cole court held that under the totality of the circumstances, “law

enforcement reasonably believed that obtaining a warrant . . . would have

significantly undermined the efficacy of searching Cole’s blood.”       Id. at 927.

Thus, the Cole court held “that exigent circumstances justified Cole’s warrantless

blood draw.” Id. at 927.

      In contrast to a case like Cole, the State fails to meet its burden to

establish that exigent circumstances existed at the time of a warrantless blood

draw whenever the record indicates that probable cause was present at the time

of the draw, that an officer who was not preoccupied in investigating an accident

was available to pursue a warrant, and when the record is devoid of what

procedures and how much time procuring a warrant would have required.


                                        17
Weems, 493 S.W.3d at 580–82. In Weems, Weems was involved in a one-car

accident wherein his car had veered off the road, flipped over, and hit a utility

pole. Id. at 575. A nearby witness saw Weems crawl out of the vehicle, heard

him admit he was drunk, and then saw him flee the scene. Id. The responding

officer found Weems hiding under a nearby parked car nearly forty minutes after

the accident. Id. at 575–76, 581.

      At the suppression hearing, the arresting officer testified that when he took

custody of Weems, Weems had bloodshot eyes, slurred speech, a bloodied face,

an inability to stand, and a strong smell of alcohol on his breath. Id. at 576.

Believing Weems had sustained injuries in the accident, the officer did not

conduct field sobriety tests. Id. Nonetheless, based upon his observations, the

officer arrested Weems on suspicion of driving while intoxicated. Id. Weems

refused to give a breath or blood sample, and emergency personnel treated

Weems at the arrest location and then transported him to the hospital for further

treatment.   Id.   The arresting officer followed the ambulance to the hospital,

which took only a couple of minutes. Id. While there, the officer filled out a form

for the hospital to draw Weems’s blood. Id. Because the hospital was busy that

evening, Weems’s blood was not drawn until about two hours after he was

arrested. Id.

      In arriving at its holding that exigent circumstances did not exist, the

Weems court noted that the record was devoid of any evidence reflecting “what

procedures, if any, existed for obtaining a warrant when an arrestee is taken to


                                        18
the hospital or whether [the arresting officer] could have reasonably obtained a

warrant, and if so, how long that process would have taken.” Id. at 581. The

Weems court further noted that even though the record did not definitively

establish that a magistrate was available at the time Weems's blood was drawn,

the arresting officer’s testimony suggested that a magistrate was normally

available. Id. at 581–82.

      The Weems court reasoned that because transporting Weems to a nearby

hospital did not “necessarily make obtaining a warrant impractical [n]or unduly

delay the taking of Weems’s blood to the extent that natural dissipation would

significantly undermine a blood test’s efficacy,” and because other officers were

available to investigate the scene of the accident and escort Weems to the

hospital, the record “militate[d] 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.” Id. at 582. Despite Weems having

contributed to the delay in obtaining evidence of his blood alcohol content by

secreting himself away for forty minutes, the Weems court held that the State

had failed to meet its burden to establish that exigent circumstances existed. Id.

      4.     Neff Should Have Procured a Warrant

      The State argues that this case is similar to Cole and that this court should

overrule the trial court. See Cole, 490 S.W.3d at 921. But unlike in Cole, where

the investigating officer testified that he could not afford to assign an officer away

from the scene, here not only did Russell—the investigating officer—declare that


                                         19
there were numerous officers and emergency personnel available, she

specifically testified that some of the officers were not doing “a whole lot” when

she arrived. This position is buttressed by her testimony that nearly everyone in

the county was there when she arrived and by her declaration heard on the video

from her dashcam as she arrived on the scene that “[o]f course, every Tom, Dick,

and Harry [inaudible] got to be here.” Furthermore, Russell can be heard stating

to Neff that she would send “Lee” with him to the hospital to assist him with

Sanders and her boyfriend, and Russell testified that Deputy Lee Phariss was at

the accident scene. Neff’s response to this was that it didn’t matter that Lee was

available because he would be obtaining a blood sample anyway.                  The

reasonable inference from this evidence is that an officer was available to assist

Neff in procuring a warrant but that Neff declined the officer’s assistance because

he believed, as he testified, that he could obtain a blood sample without a

warrant because the collision had involved fatalities. The availability of an officer

to assist Neff is significant. As the Cole court made clear, “the availability of

other officers is a relevant consideration in an exigency analysis.” Id. at 926.

Here Russell was the lead investigator, Neff was assigned in her stead to

investigate Sanders’s intoxication, and he was offered the assistance of another

officer. It is relevant that other officers were available to assist Neff, and this

record—and the reasonable inferences from the record—show that Neff had

more than enough assistance to seek a warrant but that he simply chose not to

do so. See id.


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      Also unlike in Cole, where the Cole court reasoned that the investigators

were unable to focus on forming probable cause given their involvement in

securing the accident scene, here Russell informed Neff upon his arrival that she

believed Sanders was intoxicated, and Neff testified that Sanders, who had been

involved in a collision that she had caused resulting in fatalities, exhibited slurred

speech, red and bloodshot eyes, imbalance in her walking, and a smell of an

alcoholic beverage.     And Sanders had admitted to having imbibed alcoholic

drinks earlier in the day.

      Furthermore, unlike in Cole, where there was testimony that the process of

obtaining a warrant would have taken up to an hour-and-a-half after the

completion of the investigation, here there is no evidence of what time

constraints or what procedures would have been involved had Neff sought to

obtain a warrant. But the evidence fully supports that a magistrate was at the

scene of the accident, five minutes away, at the time when Neff was at the

hospital with Sanders more than an hour after Neff had first encountered her.

      Far from there being evidence in this record that would have led Neff to

believe that seeking a warrant would have “significantly undermined the efficacy

of searching” Sanders’s blood, the evidence—and the reasonable inferences

from that evidence—show that Neff simply did not seek a warrant because he

believed he did not need to. See id. at 927. Therefore, the State’s reliance on

Cole is misplaced.




                                         21
      We agree with Sanders that this case is more akin to Weems. 493 S.W.3d

at 576. Like in Weems, where the arresting officer immediately observed that

Weems had bloodshot eyes, slurred speech, an inability to stand, and a strong

smell of alcohol on his breath, here both Russell and Neff observed collectively

and immediately that Sanders possessed slurred speech, red and bloodshot

eyes, imbalance in her walking, and an odor of alcohol, and she had admitted to

having imbibed alcoholic drinks earlier in the day. Both officers also knew that

Sanders had been involved in an accident that resulted in multiple fatalities. Also

like in Weems, where the transport of Weems to the hospital did not involve a

significant amount of time, here transporting Sanders to the hospital took only

five minutes.

      And most significantly, like in Weems where the record was devoid of any

evidence reflecting “what procedures, if any, existed for obtaining a warrant when

an arrestee is taken to the hospital or whether [the arresting officer] could have

reasonably obtained a warrant, and if so, how long that process would have

taken,” here the record is devoid of any evidence of what procedures were in

place and how long it would have taken Neff, “Lee”, or another officer to procure

a warrant. Id. at 581. What is evidently clear from this record is that Neff had

warrant affidavits on his person and that there was a magistrate five minutes

from Neff at the time he arrived at the hospital. A reasonable inference from the

evidence is that during the more than one hour fifteen minutes between the time

Neff arrived on the scene and observed Sanders exhibiting signs of intoxication


                                        22
and the time Neff signed the order to draw Sanders’s blood, Neff never even

attempted to undertake one step toward procuring a warrant.

      The State argues that Sanders’s boyfriend contributed to Neff’s inability to

obtain a warrant by stopping Neff from completing field sobriety tests and asking

that Sanders, who it was later determined had a broken ankle, be examined by

medical personnel.      Even assuming that this was a slight interference

complicating Neff’s investigation, it is again like Weems, wherein Weems’s forty

minutes of secreting himself away was a factor counting in favor of the officer’s

decision not to seek a warrant, but it was a factor that the Weems court

nonetheless calculated as insufficient to militate against a finding that practical

problems prevented the State from obtaining a warrant. See id. at 582.

      We conclude, as the Weems court did, that the totality of the

circumstances found on this record militates against a finding that practical

problems prevented Neff from obtaining a warrant within a timeframe that

preserved the opportunity to obtain reliable evidence of Sanders’s blood alcohol

content. We overrule the State’s sole point.

                                 IV. CONCLUSION

      Having overruled the State’s sole point, we affirm the trial court’s order

granting Sanders’s motion to suppress.




                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

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PANEL: WALKER and MEIER, JJ., and KERRY FITZGERALD (Senior Justice,
Retired, Sitting by Assignment).

KERRY FITZGERALD filed a dissenting opinion.

PUBLISH

DELIVERED: December 14, 2017




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