Affirmed and Majority and Dissenting Opinions filed October 15, 2013.




                                     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

                    DISSENTING OPINION
      I agree with the majority‘s holdings that (1) the trial court did not err in
concluding the statutory prerequisite to a mandatory blood draw was met under
section 724.012(b)(1)(C) of the Texas Transportation Code; and (2) this statute is
not unconstitutional simply because it mandates the taking of blood specimens in
certain non-felony cases. But appellant also argues that ―[n]o emergency‖ justified
the warrantless seizure of his blood specimen, which violated the Fourth
Amendment to the United States Constitution.        In light of the United States
Supreme Court‘s recent opinion in Missouri v. McNeely, 133 S. Ct. 1552 (2013), I
agree with appellant that the State has not carried its burden to prove exigent
circumstances that justify an exception to the warrant requirement. Accordingly,
on this record, I would hold that the taking of appellant‘s blood sample was an
unreasonable warrantless seizure, and the trial court should have granted
appellant‘s motion to suppress the blood test results. Because the majority opinion
does not hold the State to its burden, I respectfully dissent.

                                           ANALYSIS

       ―A defendant who alleges a violation of the Fourth Amendment 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. The burden then shifts to the State to prove the reasonableness
of the seizure.‖ 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). Here, it is undisputed that
police drew appellant‘s blood without a warrant. Accordingly, the State bears the
burden to prove the reasonableness of the seizure. On this record, it has not carried
that burden.

       As the majority recognizes, the United States and Texas Constitutions
protect the people against unreasonable seizures by the government, and courts
have held that a warrantless seizure is reasonable only if it falls within a
recognized exception. Ante, at 6.1 A warrantless seizure of a blood sample can be

       1
         ―The Fourth Amendment proscribes all unreasonable searches and seizures, and 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)); see also Jones v. United
States, 357 U.S. 493, 499 (1958) (―[t]he exceptions to the rule that a search must rest upon a
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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) (citing Schmerber v. California, 384 U.S. 757, 767–68 (1966);
Aliff v. State, 627 S.W.2d 166, 169–170 (Tex. Crim. App. 1982)).

       In its brief, the State argues that the exigent circumstances requirement has
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 the United States Supreme Court recently
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.‖ McNeely, 133 S. Ct. at 1556.2 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 the particular case
and carefully based our holding on those specific facts.‖ Id. at 1560.

       McNeely holds that courts should apply the following rule in analyzing the
particular facts presented: ―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

search warrant have been jealously and carefully drawn‖).
       2
          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 2000, 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, 362 (Tex. App.—Amarillo 1982, no pet.).

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Amendment mandates that they do so.‖ Id. at 1561 (emphasis added).

      McNeely also sheds light on particular facts that are 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. But the court also recognized that ―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. The court also noted,
however, that ―exigent circumstances justifying a warrantless blood sample may
arise in the regular course of law enforcement due to delays from the warrant

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application process.‖ Id. at 1563.

       Considering the facts of this case in light of McNeely‘s guidance, the State
has not carried its burden to show exigent circumstances. The majority observes
that the police needed time to investigate the accident scene and determine the
need for medical treatment, that Officer Tran and appellant arrived at the police
department at least 57 minutes after the accident, and that Officer Tran later took
appellant to a local medical center, where a sample of his blood was drawn. Ante,
at 2, 10. But there is no evidence that obtaining a warrant would have further
delayed the blood draw. For example, there is no evidence of what technologies or
procedures were available to the police to expedite the warrant application process.
Cf. McNeely, 133 S. Ct. at 1561–63. Moreover, the record shows there were three
officers as well as EMS personnel at the accident scene, and there is no evidence
that another officer could not have taken reasonable steps to secure a warrant while
Officer Tran was transporting appellant to the police station and later to the
medical center. Cf. id. at 1561. Finally, even if there were evidence that it would
have taken police additional time to obtain a warrant, there is no evidence that the
delay would have been long enough to undermine the probative value of the blood
test results significantly given the predictable rate at which blood alcohol evidence
is lost.3

       Because the State failed to prove that officers could not reasonably obtain a
warrant before drawing appellant‘s                 blood sample without significantly
undermining the efficacy of the blood alcohol test, the sample was taken in
violation of the Fourth Amendment. See id. Accordingly, on this record, the trial
       3
         McNeely does not hold that the State must provide evidence on all of these matters in
every case, nor does it provide an exclusive list of matters that could be relevant in an exigent
circumstances analysis. In this case, however, the State failed to provide evidence on any of
these matters, and it directs us to no other evidence tending to show exigent circumstances on
these particular facts. Thus, the State has not carried its burden.

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court erred in denying appellant‘s motion to suppress the test results.

      It is perhaps unsurprising that the record in this case does not anticipate the
considerations that the supreme court found significant in McNeely, which was
decided after the parties filed their appellate briefs. In a recent habeas corpus case,
our court remanded in the interest of justice to permit further development of the
record in light of significant legal developments. See Aguilar v. State, 375 S.W.3d
518, 526 (Tex. App.—Houston [14th Dist.] 2012), rev’d on other grounds, 393
S.W.3d 787 (Tex. Crim. App. 2013). In this case, however, no party has requested
that relief or addressed whether it would be appropriate to reverse the judgment
and remand, allowing the parties to offer additional evidence and the trial court to
reconsider its ruling on the motion to suppress in light of McNeely. Nor does the
majority opinion address the possibility of such a remand. Accordingly, I do not
reach that issue.

                                         CONCLUSION

      For these reasons, I would hold that the trial court erred in denying
appellant‘s motion to suppress the blood test results, reverse the judgment, and
remand the case for further proceedings. I respectfully dissent from the majority‘s
decision to affirm the judgment.


                                   /s/           J. Brett Busby
                                                 Justice


Panel consists of Justices Boyce, Jamison, and Busby (Boyce, J., majority).

Publish —Tex. R. App. P. 47.2(b).




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