          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                     NO. PD-0635-14



                         DANIEL JAMES WEEMS, Appellant

                                             v.

                                THE STATE OF TEXAS



            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTH COURT OF APPEALS
                            BEXAR COUNTY

        K EASLER, J., delivered the opinion of the Court, in which K ELLER, P.J, and
M EYERS, J OHNSON, H ERVEY, A LCALA, R ICHARDSON, and N EWELL, JJ., joined. Y EARY,
J., not participating.

                                       OPINION

       At his felony driving-while-intoxicated trial, Daniel Weems moved to suppress the

results of a warrantless blood draw. The trial judge denied his request. The court of appeals

reversed, holding, among other things, that the State failed to establish that Weems’s

warrantless blood draw was justified by exigent circumstances. We agree and affirm the

court of appeals’ judgment.
                                                                                      WEEMS—2

                                                I.

                                            A. Trial

       Around midnight in early June 2011, Weems drove himself and a friend back to his

house from a nearby bar where the two had been drinking. On the way, Weems’s car started

to slowly veer off the road, flipped over on to its roof, and struck a utility pole. Shortly after

the accident, a passing car stopped after seeing the car on its roof with its tires still spinning.

The driver was the first on the scene. She saw Weems get out of the vehicle through the

driver’s side window. Weems got out of the car and tried to stand, but was stumbling and

having difficulty maintaining his balance. When she asked if he was okay or if he was drunk,

Weems said he was drunk. He then ran from the scene. Weems’s passenger was leaning

against a post and was “beat up pretty bad from the accident.” The driver of the passing car

noticed a strong smell of alcohol coming from the inside of the car. She called 911.

       Bexar County Sheriff’s Deputy Munoz was dispatched to the scene, where, according

to the caller, the driver left the scene of the accident. As he approached the area, Munoz

stopped his car when a woman waved him down. She pointed to a parked car and told him

that someone was under her car and that he did not belong there. When Munoz approached

the parked car, he saw an injured man under the car matching the driver’s description.

Munoz detained Weems at 12:17 a.m. and noticed Weems’s bloodshot eyes, slurred speech,

bloodied face, and inability to stand on his own.

       Deputy Bustamante took Weems into his custody where Munoz detained him roughly
                                                                                 WEEMS—3

a quarter of a mile away from the accident scene. Bustamante immediately noticed the strong

odor of alcohol on Weems’s breath, his bloodshot eyes, his unsteadiness on his feet, and his

slurred speech. Because Bustamante believed that Weems suffered injuries as a result of the

accident, he did not conduct any field-sobriety tests. Based on his observations, Bustamante

concluded that Weems had lost the normal use of his mental and physical faculties due to

alcohol1 and arrested Weems on suspicion of driving while intoxicated.

       Weems refused to give a breath or blood sample after being read the statutory

warnings about the consequences of refusal. Weems was treated by EMS at the scene. But

because he complained about neck and back pain, EMS transported him to University

Hospital. Bustamante followed the ambulance to the hospital. It took only a “couple of

minutes” to get from the accident scene to the hospital.

       Based on his injuries, Weems was placed in the hospital’s trauma unit. Once

Bustamante arrived at the hospital he filled out a form requesting a blood draw and gave it

to the nurse in charge. Because the hospital was particularly busy that night, Weems’s blood

was taken at 2:30 a.m., over two hours after his arrest. Subsequent testing indicated a blood-

alcohol concentration of .18 grams per deciliter, well above the .08 gram per deciliter

definition of intoxication.2

       Weems sought to suppress the blood-test results at trial, relying on the United States


       1
        See T EX. P ENAL C ODE § 49.01(2)(A) (defining intoxication as “not having the
normal use of mental or physical faculties.”).
       2
           See id. § 49.01(1)–(2).
                                                                                 WEEMS—4

Supreme Court’s opinion in Missouri v. McNeely3 decided in the middle of his trial. Without

making any findings of fact or conclusions of law, the judge overruled Weems’s objection

and admitted the test results. The jury convicted Weems of felony DWI and, after finding

the enhancement allegation true, assessed a sentence of eight years’ confinement.

                                      B. Court of Appeals

       On appeal, Weems argued that the judge erred in failing to suppress the warrantless

blood-draw results. The Fourth Court of Appeals agreed and found its admission harmful.4

In reaching its conclusion, the court held that a warrantless search of a person is reasonable

only if it falls within a recognized exception to the Fourth Amendment’s warrant

requirement.5 In light of Missouri v. McNeely, the court held that Texas’s implied consent

and mandatory blood-draw schemes do not constitute warrant-requirement exceptions.6 The

court further held that the record developed at trial did not support admitting the evidence

under the exigency exception.7

       We granted the State’s petition for discretionary review that asserted four grounds:

       1.        Are the “established exceptions” to the “warrant requirement” the exclusive
                 way of determining whether a particular warrantless search or seizure is


       3
            133 S. Ct. 1552 (2013).
       4
            Weems v. State, 434 S.W.3d 655, 667 (Tex. App.—San Antonio 2014).
       5
            Id. at 659.
       6
            Id. at 664–65.
       7
            Id. at 665–67.
                                                                                    WEEMS—5

                  reasonable under the Fourth Amendment?

       2.         Is a warrantless, nonconsensual search administered in compliance with
                  Transportation Code section 724.012(b) reasonable under the Fourth
                  Amendment?

       3.         Did the court of appeals err in its interpretation of section 724.012(b) by
                  suggesting that the statute does not dispense with a search warrant?

       4.         Did the court of appeals err in its conclusion that there were no exigent
                  circumstances?
                                              II.

       We review a trial judge’s ruling on a motion to suppress under a bifurcated standard

of review.8       First, we afford almost total deference to a trial judge’s determination of

historical facts. The judge is the sole trier of fact and judge of witnesses’ credibility and the

weight to be given their testimony.9 When findings of fact are not entered, we view the

evidence in the light most favorable to the judge’s ruling and assume the judge made implicit

findings of fact that support the ruling as long as the record supports those findings.10

Second, we review a judge’s application of the law to the facts de novo.11 We will sustain

the judge’s ruling if the record reasonably supports that ruling and is correct on any theory

of law applicable to the case.12


       8
            Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
       9
            Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
       10
            Id.
       11
            Id.
       12
            Id. at 447–48.
                                                                                  WEEMS—6

                                A. The Fourth Amendment

       The Fourth Amendment provides in pertinent part 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.” 13 A

warrantless search of a person is reasonable only if it falls within a recognized exception.14

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

privacy,” and therefore are considered searches that fall under the Fourth Amendment’s

warrant requirement.15 There are several exceptions to the warrant requirement, but the

instant case involves only one: a warrantless search performed to prevent imminent evidence

destruction.16 The delineated warrant-requirement exceptions are permitted because each is

potentially reasonable and “there is a compelling need for official action and no time to

secure a warrant.” 17

              B. The Fourth Amendment and Texas’s Transportation Code




       13
            U.S. C ONST. amend. IV.
       14
        State v. Villarreal, 475 S.W.3d 784, 796 (Tex. Crim. App. 2015), reh’g denied,
475 S.W.3d 817 (Tex. Crim. App. 2015) (per curiam).
       15
            McNeely, 133 S. Ct. at 1558–59 (quoting Winston v. Lee, 470 U.S. 753, 760
(1985)).
       16
            See Cupp v. Murphy, 412 U.S. 291, 296 (1973).
       17
            McNeely, 133 S. Ct. at 1559 (quoting Michigan v. Tyler, 436 U.S. 499, 509
(1978)).
                                                                                   WEEMS—7

       In State v. Villarreal,18 this Court considered and resolved the State’s first three

grounds for review against it. This Court considered and rejected the circumstances and

interests that the State asserts in support for its argument that a search pursuant to §

724.012(b) is reasonable; namely, (1) § 724.012(b) is a reasonable statute under the “special

needs” exception; (2) the State has a compelling interest in securing the most probative

evidence; (3) § 724.012(b)’s command protects against arbitrary police conduct; and (4) and

Weems has a diminished privacy interest.19 We need not address these arguments.

       The State also maintains the court of appeals misconstrued § 724.012(b) by holding

that the statute does not eliminate the need for search warrants in certain limited situations,

when in fact it does. However, this Court necessarily found against this argument by

holding, that without an issued warrant, a search was unreasonable unless it fit an established

warrant-requirement exception.20      The Court also considered and necessarily rejected

essentially the same argument on rehearing.21 But Villarreal, like McNeeley itself, did not

present an opportunity to address whether circumstances surrounding a warrantless blood

draw satisfied the exigency exception and rendered the search constitutionally permissible.



       18
            475 S.W.3d at 784.
       19
          Id. at 808–09 (holding that a warrantless search is reasonable only if it falls
within a recognized exception to the warrant requirement and that a balancing test to
determine whether the search was reasonableness is not appropriate).
       20
            See id.
       21
            See id. at 817 (per curiam) (opinion on reh’g).
                                                                                 WEEMS—8

                           C. Exigency and Warrantless Blood Draws

       As Villarreal made plain, a warrantless search is per se unreasonable unless it falls

within a well-recognized exception to the warrant requirement.22 The exigency exception

operates “when the exigencies of the situation make the needs of law enforcement so

compelling that a warrantless search is objectively reasonable under the Fourth

Amendment.”23 Exigency potentially provides for a reasonable, yet warrantless search

“because ‘there is compelling need for official action and no time to secure a warrant.’” 24

Whether law enforcement faced an emergency that justifies acting without a warrant calls for

a case-by-case determination based on the totality of circumstances.25 “[A] warrantless

search must be strictly circumscribed by the exigencies which justify its initiation.” 26 An

exigency analysis requires an objective evaluation of the facts reasonably available to the

officer at the time of the search.27

       In Schmerber v. California, the United States Supreme Court held that, based on the



       22
         Villarreal, 475 S.W.3d at 808–09 (holding that the Texas Transportation Code
provisions requiring a blood draw under certain circumstances did not create a Fourth
Amendment exception).
       23
            McNeely, 133 S. Ct. at 1558 (quoting Kentucky v. King, 131 S. Ct. 1849, 1856
(2011)).
       24
            Id. at 1559 (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)).
       25
            Id. at 1559.
       26
            Mincey v. Arizona, 437 U.S. 385, 393 (1978).
       27
            Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006).
                                                                                 WEEMS—9

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

reasonable.28 Schmerber and his companion were injured and taken to a hospital after

Schmerber’s car skidded, crossed the road, and struck a tree.29 While Schmerber was at the

hospital, a police officer directed a physician to take a sample of Schmerber’s blood.

Subsequent testing indicated a sufficient amount of alcohol in his blood to suggest

intoxication. 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 papers, the

Schmerber Court held 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.” 30

       Adopting a totality-of-circumstances approach,31 the Court held that the circumstances

surrounding the blood draw rendered the warrantless search reasonable: (1) the officer had

probable cause that Schmerber operated a vehicle while intoxicated;32 (2) alcohol in the body

naturally dissipates after drinking stops;33 (3) the lack of time to procure a warrant because




       28
            Schmerber v. California, 384 U.S. 757, 770–72 (1966).
       29
            Id. at 785, n.2.
       30
            Id. at 770 (internal quotations omitted).
       31
            Id. at 768, 771–72.
       32
            Id. at 768–69.
       33
            Id. at 770.
                                                                                 WEEMS—10

of the time taken to transport Schmerber to a hospital and investigate the accident scene;34

(4) the highly effective means of determining whether an individual is intoxicated;35 (5)

venipuncture is a common procedure and usually “involves virtually no risk, trauma, or

pain”;36 and (6) the test was performed in a reasonable manner.37

       The Supreme Court granted certiorari in Missouri v. McNeely to resolve a split of

authority occurring in Schmerber’s wake as to whether the body’s natural metabolization of

alcohol in the bloodstream creates a “per se exigency that justifies an exception to the Fourth

Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving

cases.”38 The Court unequivocally answered the question in the negative.39

       When McNeely moved to suppress the blood test results under the Fourth

Amendment, the prosecution argued that alcohol’s natural dissipation in the bloodstream

alone created a per se exigency under the Fourth Amendment.40 In its petition for certiorari,

Missouri relied exclusively on its argument that the body’s natural dissipation of alcohol

alone created an exigent circumstance; it did not challenge the lower court’s holding by


       34
            Id. at 770–71.
       35
            Id. at 771.
       36
            Id.
       37
            Id. at 771–72.
       38
            McNeely, 133 S. Ct. at 1556.
       39
            Id. at 1563.
       40
            Id. at 1558.
                                                                               WEEMS—11

contending that the blood draw was reasonable under the exigency exception for other

reasons.41 Rejecting Missouri’s per se approach, the Court reaffirmed that a proper exigency

analysis considers the totality of the circumstances—the approach it adopted in Schmerber.42

       By the Court’s own admission, the McNeely opinion is decidedly narrow. The Court

repeatedly noted that the record and Missouri’s arguments “[did] not provide the Court with

an adequate analytic framework for a detailed discussion of all the relevant factors that can

be taken into account in determining the reasonableness of acting without a warrant.” 43 Yet

the McNeely majority opinion went on for some length about when exigency may be found

in the blood-draw context. The Court announced that “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.”44 But the Court

would still consider alcohol’s natural dissipation over time (and the attendant evidence

destruction) the antagonizing factor central to law enforcement’s decision whether to seek

a warrant or proceed with a warrantless seizure: “We do not doubt that some circumstances



       41
            Id. at 1568.
       42
         Id. at 1559–60 (“Our decision in Schmerber applied this totality of the
circumstances approach.”).
       43
          Id. at 1568. See also id. at 1567 (“The State did not argue that there were
exigent circumstances in this particular case . . . .”), id. at 1568 (stating that whether
delays in obtaining a warrant will justify a blood draw without a warrant is an “inquiry
[that] ought not to be pursued here where the question is not properly before this Court.”).
       44
            Id. at 1561.
                                                                                   WEEMS—12

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.” 45

            While dissipation alone does not permit a warrantless search of a suspect’s blood,

there may be circumstances surrounding law enforcement’s decision to forego obtaining a

warrant that withstand Fourth Amendment scrutiny. In addition to natural dissipation, the

Court noted circumstances relevant to an exigency analysis of a warrantless blood draw.

They include “the procedures in place for obtaining a warrant,”46 “the availability of a

magistrate judge,”47 and “the practical problems of obtaining a warrant within a timeframe

that still preserves the opportunity to obtain reliable evidence.”48 Although the Court’s

highlighted circumstances carry uncertain precedential value in light of the case’s posture,

we nonetheless consider them persuasive and applicable.

                                                III.

            On review of the totality of the circumstances found in the record, we conclude that

Weems’s warrantless blood draw was not justified by exigent circumstances. While there is



            45
         Id. See also id. at 1568 (“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.”).
            46
                 Id. at 1568.
            47
                 Id.
            48
                 Id.
                                                                               WEEMS—13

an aspect of the circumstances surrounding Weems’s blood draw weighing in favor of

finding an exigency, the totality of the circumstances found in the record do not warrant an

exigency finding.

       The record establishes that Weems crashed his car around 11:30 p.m. and ran from

the scene of the accident. It took law enforcement approximately forty minutes to locate

Weems who actively hid from law enforcement under a car approximately a half a mile from

the accident. Weems’s own actions certainly delayed law enforcement’s ability to take him

into custody and consequently placed law enforcement at a temporal disadvantage. While

evading law enforcement by fleeing the accident scene and hiding, Weems’s blood alcohol

concentration potentially continued to diminish, and with it, possible evidence to prove or

disprove his level of intoxication at the time of driving.49 Villarreal does not, nor does

McNeely itself, require us to turn a blind eye to alcohol’s evanscence and the body’s natural

dissipation of alcohol in our calculus of determining whether exigency existed. Aside from

Weems’s own self-imposed delay and the forty minutes worth of alcohol dissipation, little

else in the record lends support to finding exigency in this case.

       The record is silent on whether Deputy Bustamante knew that, upon arriving at the

hospital, it would take over two hours for hospital personnel to draw Weems’s blood. And

to charge the substantial actual delay in securing Weems’s blood sample against




       49
          See T EX. P ENAL C ODE § 49.04(a) (West 2012) (requiring intoxication “while
operating a motor vehicle”).
                                                                                WEEMS—14

Bustamante’s decision to forego a warrant would impermissibly measure Bustamante’s

action against hindsight’s omniscience.50 However, Deputy Bustamante did not express

surprise over the delay in securing Weems’s blood sample. He acknowledged that “since it

was a Sunday morning, hospitals tend to get kind of busy, kind of packed due to the fact that

there’s crashes, you know, people getting sick all the time,” and that “[w]e have no control

over—normally when we request a form, depending how busy they are, sometimes it takes

a long time just—just to draw someone’s blood.” The deputy’s testimony suggests that

substantial delay in obtaining Weems’s blood was at least forseeable.

       Bustamante described that the routine practice is to transport DWI arrestees to the San

Antonio Magistrate’s Office where they are asked to consent to a blood draw. If they do, the

draw is performed immediately at that location. If arrestees do not consent, the officers will

draft an affidavit and present it to a magistrate to obtain a warrant. The record does not

reflect how long this process normally takes. But in this instance, Bustamante testified that,

because Weems complained of neck and back pain, Weems was transported to the hospital

and the hospital decided it was best to keep him there for observation. The record does not

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




       50
          See Ryburn v. Huff, 132 S. Ct. 987, 992 (2012) (per curiam) (instructing that
“reasonableness must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight and that the calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving.”) (internal
quotations omitted).
                                                                                WEEMS—15

the hospital or whether Bustamante could have reasonably obtained a warrant, and if so, how

long that process would have taken. We are therefore left with the inability to weigh the time

and effort required to obtain a warrant against the circumstances that informed Bustamante’s

decision to order the warrantless blood draw. Although the record does not definitively

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

testimony suggests that a magistrate is normally available to review Bexar County Sheriff’s

deputies’ search-warrant requests.

       Although both this case’s record and that presented in Schmerber involved an alcohol-

involved accident, the similarity of the two records end there. In Schmerber, the Court noted

“where time had to be taken to bring the accused to the hospital and to investigate the scene

of the accident, there was no time to seek out a magistrate and secure a warrant.” 51 This

passage does not accurately describe the circumstances surrounding Weems’s blood draw.

First, Deputy Bustamante testified that the hospital was only a “couple of minutes” away.

So transporting Weems to the hospital did not necessarily make obtaining a warrant

impractical or unduly delay the taking of Weems’s blood to the extent that natural dissipation

would significantly undermine a blood test’s efficacy. Second, Bustamante was not alone

charged with both investigating the scene of the accident and escorting Weems to the hospital

for treatment. Deputy Shannon—Bustamante’s instructor—waited with Bustamante and

Weems at the hospital until Weems’s blood was taken. Once the blood was drawn, Shannon



       51
            Schmerber, 384 U.S. at 770–71.
                                                                                   WEEMS—16

left the hospital to place the blood sample in the evidence locker at the Magistrate’s Office

for subsequent testing. Another officers’ presence or the “hypothetically available officer”

that, in theory, could have secured a warrant in the arresting officer’s stead will certainly not

render all warrantless blood draws a Fourth Amendment violation, nor do we suggest it is a

circumstance that the State must disprove in every case to justify a warrantless search under

an exigency theory. But this record establishes that Shannon was with Bustamante and

Weems throughout the investigation and while they were at the hospital waiting for Weems’s

blood to be drawn. On this particular record, Shannon’s continued presence distinguishes

Schmerber from the present case and militates against a finding that practical problems

prevented the State from obtaining a warrant within a time frame that preserved the

opportunity to obtain reliable evidence.52

                                               IV.

       McNeely commands that “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.”53 On this record, the State is

unable to demonstrate that practical problems existed in obtaining a warrant “within a

timeframe that still preserved the opportunity to obtain reliable evidence.”54 The State failed



       52
            See McNeely, 133 S. Ct. at 1568.
       53
            Id. at 1561.
       54
            See id. at 1568.
                                                                              WEEMS—17

to meet its burden and establish that exigency circumstances existed to satisfy the Fourth

Amendment’s reasonableness standard.55

       The court of appeals’ judgment is affirmed.




DELIVERED: May 25, 2016

PUBLISH




      55
           See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005) (stating that it
is the State’s burden to establish that a warrantless search was reasonable).
