              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. PD-1362-15

                                     THE STATE OF TEXAS

                                                  v.

                                       JOSE RUIZ, Appellee


                ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE THIRTEENTH COURT OF APPEALS
                              GONZALES COUNTY

       Per Curiam. YEARY , J., did not participate.

                                           OPINION

       Police arrested appellee for DWI and, while he was unconscious, performed a warrantless

blood draw on him. Appellee moved to suppress the blood-alcohol evidence. Finding that no

exigent circumstances existed to justify a warrantless search, the trial court granted the motion. The

State appealed the trial court’s ruling and argued that a warrant was unnecessary due to either exigent

circumstances or the implied-consent scheme under the Texas Transportation Code. See TEX .

TRANSP . CODE §§ 724.011– 0.14. The court of appeals affirmed the trial court’s ruling and rejected

both of the State’s arguments.       See State v. Ruiz, __S.W.3d__, 2015 WL 5626252 (Tex.

App.—Corpus Christi Aug. 27, 2015).
                                                                                             Ruiz - 2

       The State filed a petition for discretionary review. In its first ground, the State challenges

the court of appeals’ holding that police may not rely on the statutorily implied consent when a DWI

arrestee is unconscious to excuse seeking a warrant. In its second ground, the State challenges the

court of appeals’ determination that exigent circumstances were not present in this case.

       We remand to the court of appeals the State’s second ground presented in its petition for

discretionary review. Since the time of the court of appeals’ decision, we have decided two cases

analyzing the issue of exigent circumstances in this context. See Cole v. State, 490 S.W.3d 918

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

existence of intervening precedent from this Court that might affect the court of appeals’ analysis

of this case, we vacate the judgment of the court of appeals and remand this case to that court for it

to consider whether, under the totality of the circumstances known to the police officer at the time,

exigent circumstances existed in light of this Court’s intervening decisions in Cole and Weems. See

id.

       In light of our decision to remand this case to the court of appeals, we dismiss without

prejudice the State’s first ground in its petition as improvidently granted at this juncture. Because

a finding that a search was proper due to exigent circumstances would obviate the need to address

whether a search was proper under implied consent, any discussion of implied consent is premature

at this point. We, therefore, dismiss the State’s first ground.




Delivered: February 1, 2017

DO NOT PUBLISH
