Kenneth Lee Douds v. State

Majority and Dissenting Panel Opinions of October 15, 2013 Withdrawn,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 DISSENTING OPINION

I respectfully dissent because this record establishes exigent circumstances

permitting a warrantless blood draw under Missouri v. McNeely, 133 S. Ct. 1552

(2013), and Schmerber v. California, 384 U.S. 757 (1966).

INTRODUCTION

As a threshold matter, it is necessary to identify and sweep aside two straw

man arguments in the majority opinion. Accomplishing this task will allow the

majority and dissent to join issue on the merits.

Straw Man No. 1. The first straw man is the majority’s erroneous assertion

that the State proposes “a per se rule that evidence of an accident investigation

demonstrates exigent circumstances.” See ante, at 14, 18.

The supposed per se rule is a creation of the majority opinion; the majority’s

per se rule is not proposed by the State. The State’s contention that exigent

circumstances were present at this particular accident scene is not a contention that

exigent circumstances automatically will be present at all accident scenes. It

follows that the majority labors to reject a per se rule the State never has asked it to

adopt. See ante, at 14-18.

The en banc oral argument record does not support a contention that the

State proposed the per se rule posited by the majority. In response to questioning

at the en banc oral argument, the State repeatedly asserted that the inquiry should

focus on the individual circumstances of individual cases. When pressed to answer

whether exigent circumstances would be present depending on the number of

officers or Emergency Medical Services (EMS) personnel on the scene, the State

responded as follows: “I guess if there were two – two hundred officers at the

scene, no. But again, you’ve got to look at the circumstances of the individual

case.” A follow up question asked: “In order to resolve this case, do we have to

address every possible accident scene or do we just have to address this one?” The

State responded: “Just this one here; it’s the circumstances of this individual

case.”

Pointing to a supposed per se accident investigation rule allows the majority

to posit what looks like a simple argument at first glance: (1) The State advocates

a per se rule; (2) McNeely rejected a per se rule; and (3) McNeely therefore

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compels rejection of the State’s position. This simple argument falls apart because

the majority’s first assumption is wrong.

The State’s focus on individual circumstances comports with McNeely and

Schmerber. This focus appropriately allows courts to distinguish among different

types of accidents and accompanying levels of law enforcement response. The

spectrum of possible accidents ranges from injury-free fender benders to

catastrophic crashes involving fatalities and life-threatening wounds. There may

be one officer on the scene, or more than one officer. The accident circumstances

here, like those in Schmerber, fall somewhere towards the middle of this spectrum.

Sensitivity to individual circumstances allows courts to distinguish minor

accidents from serious accidents requiring a more involved investigation and

response from officers on the scene. Certain circumstances involving certain

accidents may make a warrantless blood draw permissible; other circumstances

involving other accidents may not. This sensitivity defeats any parade-of-horribles

suggestion that considering the demands placed upon law enforcement at the scene

inevitably will lead to warrantless blood draws for all accidents regardless of

severity or particular circumstances.

Eventually, the majority tacitly concedes that this case does not really

involve a per se accident investigation rule after all. The majority does so when it

argues that the State’s focus on individual circumstances unwisely will require

courts to “grade the severity of accidents” and thereby “lead inevitably to

inconsistent outcomes.” See ante, at 15, 17. But this argument, too, is a caricature.

No grading is required. All that is required is all that McNeely and Schmerber

demand: a focus on individual facts and circumstances surrounding individual

cases. A warrantless blood draw may be justified in one circumstance and not

justified in another – just as one would expect from a facts-and-circumstances

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standard that eschews per se rules allowing warrantless blood draws in all cases.

If the majority’s real objection to the State’s position stems from a fear of

“inconsistent outcomes,” then we have departed the realm of a per se rule entirely.

Straw Man No. 2. The second straw man rests on the majority’s reference

to “Officer Tran’s testimony that the statute required a blood draw under the total

circumstances . . . .” See ante, at 26-27; see also Tex. Transp. Code Ann. §

724.012(b) (Vernon 2011).

The majority opinion’s reference differs from Officer Tran’s testimony in

the transcript of the April 18, 2011 hearing on appellant’s motion to suppress.

Q. Okay. And when you arrived at the Pearland Police

Department, what did you do?

A. I read to him his DUI statutory warning and request a specimen

of his breath.

Q. And did Mr. Douds volunteer a specimen?

A. He refused.

Q. Okay. What did you do at that point?

A. Well, based on the total circumstances and based on my belief

that his wife was hurt and that need medical attention, I complete the

mandatory blood draw and took him to a local medical center,

Pearland Emergency Room, and had his blood drawn there.

The difference is material.

This difference matters because the transcript supports a conclusion that the

trial court was presented with testimony from Officer Tran and argument from

appellant’s counsel addressing two independent justifications for a warrantless

blood draw – one justification based on the totality of the circumstances, and

another based on statutory grounds. The majority creates a straw man argument

when it (1) collapses the two justifications into a single justification under Chapter

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724; and then (2) contends that this single justification does not suffice because

“the Transportation Code does not address whether a warrant is required before

obtaining a mandatory blood draw, nor does it address exigent circumstances.”

See ante, at 26. Even assuming for argument’s sake that the proffered statutory

justification alone would not suffice, the court still must consider an independent

exigent circumstances justification based on Officer Tran’s testimony about the

totality of the circumstances and references during the suppression hearing to

Schmerber.

Most of Officer Tran’s testimony at the suppression hearing concerned the

statutory factors under section 724.012. But section 724.012 was not the hearing’s

exclusive focus. Officer Tran referenced the “total circumstances” in the hearing

transcript excerpt quoted above; during cross-examination, Officer Tran also

stated: “The report is written based on totality of the circumstances, sir, and you’re

breaking things apart and it doesn’t make sense to me.” At the hearing’s close,

appellant’s counsel specifically identified Schmerber in response to the trial court’s

request for cases on point addressing warrantless blood draws. Appellant’s

counsel cited Schmerber again in his post-hearing Brief in Support of Defendant’s

Motion to Suppress, filed on May 4, 2011. The trial court signed its order denying

the motion to suppress on May 4, 2011, after considering the evidence, the parties’

arguments, and the parties’ briefs; it made no findings of fact in so doing.

“[W]hen the trial court fails to file findings of fact, 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 that support its ruling as long as those findings are

supported by the record.” State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App.

2000) (citing Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000)).

The trial court’s denial of appellant’s motion to suppress blood test results must be

5

sustained “[i]f the trial judge’s decision is correct on any theory of law applicable

to the case . . . .” Ross, 32 S.W.3d at 855-56.

The constitutional propriety of a warrantless blood draw based on McNeely,

Schmerber, and the totality of these particular circumstances is discussed further

below. As to the historic fact of identifying specific justifications proffered during

the suppression hearing, viewing the evidence in the light most favorable to the

trial court’s ruling compels this conclusion: Two separate justifications were

identified at the suppression hearing, one based on totality of the circumstances

under Schmerber and another based on Chapter 724. This circumstance

distinguishes this case from Weems v. State, No. 04-13-00366-CR, slip op. at 14

(Tex. App.—San Antonio May 14, 2014, pet. filed) available at

http://www.search.txcourts.gov/Case.aspx?cn=04-13-00366-CR, which involved a

record predicated solely on “the mandatory blood draw and implied consent

statutes to authorize the blood draw.” The majority errs by treating these separate

justifications as a single statutory justification.

The Real Issue. The real issue here is whether the Fourth Amendment

permits a warrantless blood draw under the particular facts and circumstances

present in this case. The majority wants to know why the record does not contain

more evidence. The correct approach is to ask instead whether the record contains

enough evidence. This record does indeed contain enough evidence to establish

circumstances allowing a warrantless blood draw because (1) the circumstances

here are indistinguishable from Schmerber in all material respects; and (2)

McNeely reaffirmed Schmerber. The majority errs when it attributes a broader

holding to McNeely than the one the Supreme Court actually made.

FACTS

The discussion of McNeely and Schmerber that follows must be considered

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against the backdrop of a chronology surrounding the investigation, arrest, and

blood draw arising from a collision that occurred when a Hummer H2 driven by

appellant rear-ended a Toyota Tundra near an intersection in Pearland.

 The accident was reported on the police radio at 2:34 a.m. According to the

dashboard camera video, Officer Tran arrived at the accident scene about

2:36 a.m. He arrived to find that the two vehicles had been removed to a

corner gas station parking lot “but the debris was all over the road.” He

parked his car in the roadway “to keep traffic from driving through it.”

Wreckers were called for both vehicles. Officer Niemeyer also was present

at the scene.

 Officer Tran began investigating the accident when he arrived; Pearland

EMS already had been summoned by that time and was on the scene.

Officer Tran undertook an investigation at the scene “[t]o determine what’s

going on at all. The crash and then things related to it.”

 Officer Tran determined that appellant’s wife, who was a passenger in

appellant’s Hummer, had been injured in the accident. She complained of

chest pain and said she could not move her right arm.

 Officer Tran spoke with appellant while EMS personnel treated his wife.

 Officer Tran’s initial observations of appellant’s condition caused him to

believe that appellant was intoxicated. Officer Tran asked appellant to

perform three field sobriety tests, after which he concluded that appellant did

not have the normal use of his mental or physical faculties that would allow

him to operate a vehicle safely.

 Officer Tran arrested appellant at the accident scene at 3:19 a.m. based on

his observations of appellant’s condition and deficient performance on the

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field sobriety tests.

 After Officer Tran conducted the field sobriety tests, arrested appellant and

put him in the patrol car, Officer Tran spoke with Officer Neimeyer and with

appellant’s wife to determine whether she wanted to have the EMS unit take

her to the hospital. Appellant’s wife refused transport by EMS to the

hospital and signed a form so stating. Officer Tran continued talking to

appellant and to his wife after the ambulance left the scene.

 Officer Tran then took appellant to the Pearland Police Department; they

arrived at about 3:33 a.m. according to the dashboard camera video. After

they arrived at the police station, Officer Tran gave appellant the statutory

DWI warning as reflected in form DIC-24. The warning was given orally

and in writing at 3:45 a.m.

 The form states that appellant will be asked to give a specimen of his breath

and/or blood, and that his license will be suspended if he refuses.

 The form, which is signed by appellant, indicates that appellant was asked to

give a breath sample and refused. The form does not indicate that appellant

was asked to give a blood sample. The DWI Case Report states: “Since

[appellant] caused the crash, wherein his wife, Christen, sustained bodily

injuries, a mandatory blood draw form was completed.”

 Officer Tran drove appellant to Texas Emergency Care in Pearland, where

his blood was drawn at 4:45 a.m.

 According to the Brazoria County Crime Laboratory, testing on the

specimen determined that appellant’s blood alcohol level was “0.209 grams

per 100mL of Blood.”

Appellant filed a motion to suppress the results of the blood test conducted after

8

the warrantless draw. The motion was discussed at length during a suppression

hearing, and the trial court requested supplemental briefing on the issues raised

during the hearing. The trial court signed an order denying the motion to suppress

without specifying reasons for doing so. Neither party requested findings or

conclusions in connection with this order.

ANALYSIS

McNeely presented a narrowly drawn issue, and the Supreme Court

answered it narrowly. The majority erroneously broadens the narrow scope of

McNeeley’s holding.

A Missouri police officer stopped McNeely for speeding at 2:08 a.m.

McNeely, 133 S. Ct. at 1556. The officer arrested McNeely at the scene of the

traffic stop after he showed signs of intoxication, performed poorly on several field

sobriety tests, and refused to give a breath sample. Id. at 1556-57. The officer

drove McNeely from the scene of the traffic stop to a hospital for a blood draw

without stopping at the police station and without attempting to obtain a warrant.

Id. at 1557. The officer asked McNeely at the hospital whether he would consent

to a blood test, and McNeely refused. Id. The officer then directed a hospital lab

technician to take a blood sample, which was accomplished at 2:35 a.m. Id. The

elapsed time from traffic stop to blood draw was 27 minutes. Id.

“In his testimony before the trial court, the arresting officer did not identify

any other factors that would suggest he faced an emergency or unusual delay in

securing a warrant.” Id. at 1567. “He testified that he made no effort to obtain a

search warrant before conducting the blood draw even though he was ‘sure’ a

prosecuting attorney was on call and even though he had no reason to believe that a

magistrate judge would have been unavailable.” Id. “The officer also

acknowledged that he had obtained search warrants before taking blood samples in

9

the past without difficulty.” Id. “He explained that he elected to forgo a warrant

application in this case only because he believed it was not legally necessary to

obtain a warrant.” Id.; see also Sutherland v. State, No. 07-12-00289-CR, 2014

WL 1370118, at *7 (Tex. App.—Amarillo April 7, 2014 no pet. h.) (“The factual

background at issue in McNeely is not unlike the facts presented in the instant

case.”).

Here is what McNeely decided. “The State argued before this Court that

the fact that alcohol is naturally metabolized by the human body creates an exigent

circumstance in every case.” Id. at 1567. “The question presented here is whether

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.” Id. at 1556. “We

conclude that it does not, and we hold, consistent with general Fourth Amendment

principles, that exigency in this context must be determined case by case based on

the totality of the circumstances.” Id. “We hold that in drunk-driving

investigations, the natural dissipation of alcohol in the bloodstream does not

constitute an exigency in every case sufficient to justify conducting a blood test

without a warrant.” Id. at 1568.

Here is what McNeely did not decide. “The State did not argue that there

were exigent circumstances in this particular case because a warrant could not have

been obtained within a reasonable amount of time.” Id. at 1567. “In petitioning

for certiorari to this Court, the State . . . did not separately contend that the

warrantless blood test was reasonable regardless of whether the natural dissipation

of alcohol in a suspect’s blood categorically justifies dispensing with the warrant

requirement.” Id. at 1568. “Here and in its own courts the State based its case on

an insistence that a driver who declines to submit to testing after being arrested for

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driving under the influence of alcohol is always subject to a nonconsensual blood

test without any precondition for a warrant.” Id. “That is incorrect.” Id.

Emphasizing the bright-line nature of the position adopted by the State of

Missouri in McNeely, the Supreme Court was careful to limit the scope of its

holding in light of the overreaching interpretation of Schmerber that was presented

to it. “Because this case was argued on the broad proposition that drunk-driving

cases present a per se exigency, the arguments and the record do 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.” Id. “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.

“No doubt, given the large number of arrests for this offense in different

jurisdictions nationwide, cases will arise when anticipated delays in obtaining a

warrant will justify a blood test without judicial authorization, for in every case the

law must be concerned that evidence is being destroyed.” Id. “But that inquiry

ought not to be pursued here where the question is not properly before this Court.”

Id. “Having rejected the sole argument presented to us challenging the Missouri

Supreme Court’s decision, we affirm its judgment.” Id.

Justice Alito emphasized the narrow scope of McNeely’s holding when he

stated:

As the opinion of the Court is correct to note, the instant case, by

reason of the way in which it was presented and decided in the state

courts, does not provide a framework where it is prudent to hold any

more than that always dispensing with a warrant for a blood test when

a driver is arrested for being under the influence of alcohol is

inconsistent with the Fourth Amendment.

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Id. at 1569 (Alito, J., concurring in part).

The majority focuses instead on the following statement, which the majority

treats as McNeely’s holding: “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

Amendment mandates that they do so.” See ante, at 16 (quoting McNeely, 133 S.

Ct. at 1561) (emphasis omitted). But the Supreme Court goes on to say this: “We

do not doubt that some circumstances 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.” McNeely, 133 S. Ct. at

1561. “That, however, is a reason to decide each case on its facts, as we did in

Schmerber, not to accept the ‘considerable overgeneralization’ that a per se rule

would reflect.” Id. (citation omitted).

Applying McNeely. Affirmance of the trial court’s order and judgment does

not require endorsement of the specific per se rule specifically advocated by the

State of Missouri and specifically rejected in McNeely. Therefore, McNeely does

not compel reversal here.

Officer Tran testified that his decision to obtain a warrantless blood draw

was based at least in part on “the total circumstances.” The “total circumstances”

established by the evidence in this case – set out above in the chronology –

involved delay attendant to investigating the accident scene, determining

appellant’s condition, determining the condition of appellant’s wife, and

determining whether she needed to be and would be taken to the hospital.

This evidence supports the trial court’s implied factual determination that

Officer Tran did not obtain a warrant because the circumstances existing at the

time made “obtaining a warrant impractical such that the dissipation of alcohol

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from the bloodstream” supported “an exigency justifying a properly conducted

warrantless blood test.” See id.

This evidence refutes the majority’s assertion that there is no evidence

tending to show exigent circumstances on these particular facts.

These conclusions are underscored by McNeely’s treatment of Schmerber.

The petitioner in Schmerber was arrested at a hospital while receiving

treatment for injuries suffered in an accident involving the car he had been driving.

Schmerber, 384 U.S. at 758. The arrest occurred within two hours of the accident.

Id. at 769. At the hospital, a police officer ordered a physician to take a blood

sample from the driver over the driver’s refusal and without obtaining a warrant.

Id. at 758, 768. After acknowledging that “[t]he importance of informed, detached

and deliberate determinations of the issue whether or not to invade another’s body

in search of evidence of guilt is indisputable and great,” the Supreme Court found

the blood draw to be constitutionally valid:

The officer in the present case, however, 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.” Preston v. United States,

376 U.S. 364, 367, 84 S. Ct. 881, 883, 112 L. Ed. 2d 777 (1964). We

are told that the percentage of alcohol in the blood begins to diminish

shortly after drinking stops, as the body functions to eliminate it from

the system. Particularly in a case such as this, where time had to be

taken to bring the accused to a hospital and to investigate the scene of

the accident, there was no time to seek out a magistrate and secure a

warrant. Given these special facts, we conclude that the attempt to

secure evidence of blood-alcohol content in this case was an

appropriate incident to petitioner’s arrest.

Schmerber, 384 U.S. at 770-71.

McNeely states that “our analysis in Schmerber fits comfortably within our

case law applying the exigent circumstances exception.” McNeely, 133 S. Ct. at

13

1560. “In 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. “[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. at 1561. “This fact

was essential to our holding in Schmerber, as we recognized that, under the

circumstances, further delay in order to secure a warrant after the time spent

investigating the scene of the accident and transporting the injured suspect to the

hospital to receive treatment would have threatened the destruction of evidence.”

Id. (citing Schmerber, 384 U.S. at 770).

“[A]ll of the facts and circumstances” here and in Schmerber are the same in

all material respects.

The majority does not suggest that a different outcome is warranted because

the delay in Schmerber stemmed in part from the need to transport Schmerber to

the hospital, while the delay in today’s case stemmed in part from the need to

determine whether appellant’s passenger needed and would accept transportation

to the hospital. The majority does not suggest that a different outcome is

warranted because the arresting officer conducted his investigation of Schmerber’s

accident at Schmerber’s bedside, while Officer Tran conducted his investigation at

the accident scene and the police station. The majority does not suggest that the

timeframe here is comparable to McNeely’s 27-minute, nonstop trip from driver’s

seat to needle stick.

The majority contends instead that reversal is warranted because there is no

evidence expressly addressing whether (1) obtaining a warrant would have further

delayed the blood draw; (2) technologies or procedures were available to expedite

the warrant application process; (3) any delay would have lasted long enough to

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undermine the blood test results; or (4) another officer could have taken reasonable

steps to secure a warrant. See ante, at 13, 19-20, 21.

No evidence addressing factors (1), (2), or (3) was adduced in Schmerber.

The Schmerber opinion, the petitioner’s brief (1966 WL 100527), and the

respondent’s brief (1966 WL 100528) contain no such references. The absence of

such evidence here does not require reversal – just as it did not require reversal in

Schmerber.

As for the fourth factor concerning the presence of other officers, Schmerber

cuts against the majority’s position. The majority focuses in particular on Officer

Niemeyer’s presence at the accident scene in Pearland and questions why there is

no testimony addressing whether he could have “begun the process of obtaining a

warrant as soon as Officer Tran’s investigation revealed evidence that would

support it.” Ante, at 20-21. Similar circumstances in Schmerber did not invalidate

a warrantless blood draw.

Two officers were involved in the accident investigation in Schmerber. One

was Officer Edward A. Slattery, who arrived at approximately midnight; as

Schmerber was being loaded into the ambulance, Officer Slattery “observed

petitioner’s face at this time and noted that his eyes were bloodshot and watery and

had a glassy appearance, and an odor of alcohol was on his breath.” 1966 WL

100528 at *4. The other was Officer Thomas E. Buell, who also investigated the

accident; Buell “stated that from the way petitioner walked and acted, he was able

to form the opinion that petitioner was well under the influence of an alcoholic

beverage.” Id. at *6.

Officer Slattery “saw petitioner again at the hospital, within two hours of the

accident” and arrested him there. Schmerber, 384 U.S. at 769; 1966 WL 100528 at

*5. Blood then was drawn over Schmerber’s objection after his arrest at the

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hospital. Schmerber, 384 U.S. at 758, 769; 1966 WL 100528 at *5-*6.

Nothing in Schmerber indicates that the Supreme Court viewed the

participation of two officers in the investigation as a basis to invalidate the

warrantless blood draw. See Schmerber, 384 U.S. at 770-71. Schmerber does not

suggest that the blood draw was impermissible because Officer Buell (having

already concluded from his own observations that Schmerber “was well under the

influence of an alcoholic beverage,” 1966 WL 100528 at *6) failed without

explanation to obtain a warrant during the two hours or so that preceded Officer

Slattery’s arrest of Schmerber at the hospital. Id. Nor does Schmerber suggest that

the passage of approximately two hours invalidated the draw. Id.

The majority states as follows in a footnote disclaimer: “We do not hold

that the State must invariably present evidence of each or any of these facts.” Ante,

at 15 n.9. This disclaimer rings hollow because the majority reverses and remands

after discussing at length the absence of evidence addressing these facts. The

majority’s analysis is faulty because it (1) seizes on a handful of potentially

relevant factors identified in McNeely, and then (2) elevates those factors to the

status of a rigid evidentiary checklist for a warrantless blood draw. The majority

thereby disregards the Supreme Court’s express limitations on the scope of

McNeely’s holding; it also disregards the Supreme Court’s insistence on a flexible

totality-of-the-circumstances standard. See McNeely, 133 S. Ct. at 1567-68.

The majority compounds these errors by making an additional unwarranted

assumption. It does so by confining the State to reliance solely upon a category of

exigent circumstances addressing efforts to prevent destruction of evidence or

contraband. See ante, at 10-11. To be sure, destruction of evidence resulting from

dissipation of alcohol in the bloodstream is a significant consideration. But it is

not the only consideration.

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According to the majority opinion, the State cannot invoke a separate

exigent circumstances situation involving the provision of assistance “to persons

whom law enforcement reasonably believes are in need of assistance . . . .” See

ante, at 10; see also Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.

2007). The majority equates this separate circumstance with the “emergency

doctrine” involving an officer’s “immediate, reasonable belief that he or she must

act to ‘protect or preserve life or avoid serious injury.’” See ante, at 11 (quoting

Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim. App. 2003)) (internal citation

omitted). The majority asserts that the emergency doctrine does not apply because

“nothing in the record indicates that appellant’s blood was seized in the course of

protecting life or providing needed aid.” Ante, at 11.

The categories identified by the majority are not necessarily as rigid or as

mutually exclusive as the majority opinion would suggest; subtle differences in

circumstances, facts, and location can impact the nomenclature and result. See

Laney, 117 S.W.3d at 858-62. It follows that the majority is too parsimonious

when it concludes that exigent circumstances involving the provision of aid cannot

be present unless the blood draw itself was law enforcement’s specific means of

“protecting life or providing needed aid.”

Looking at the particular context of this particular case, the majority’s

narrow view is at odds with Schmerber’s recognition that law enforcement’s

responsibilities to address transportation of the injured and investigation of the

accident scene also warrant consideration when delay attendant to those

responsibilities could lead to evidence destruction via dissipation of alcohol in the

blood stream. See Schmerber, 384 U.S. at 770-71 (“Particularly in a case such as

this, where time had to be taken to bring the accused to a hospital and to

investigate the scene of the accident, there was no time to seek out a magistrate and

17

secure a warrant.”); see also McNeely, 133 S. Ct. at 1560 (“[W]e concluded [in

Schmerber] that the warrantless blood test ‘in the present case’ was nonetheless

permissible because the 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.’”) (quoting

Schmerber, 384 U.S. at 770) (internal quotation marks omitted).

The majority grows stingy again when it attempts to limit Officer Tran’s

time for assessing injuries and this accident scene to a few minutes. The dashboard

camera video shows that Officer Tran arrived at the scene at approximately 2:36

a.m.; questioned the Toyota’s driver at 2:47 a.m. to see if she had been injured;

questioned the Toyota’s passenger at 2:49 a.m. to see if he had been injured; asked

at 2:52 a.m. to find out if appellant’s wife was going to the hospital; learned at 2:56

a.m. that appellant’s wife was in significant pain because she had not been wearing

a seatbelt; heard from appellant’s wife at 3:04 a.m. that “I don’t think I’m okay but

I don’t want to go the hospital;” was told by the Toyota’s driver at 3:28 a.m. that

“we’re taking her,” which he understood to mean the driver would be taking

appellant’s wife to a hospital or emergency center; and told appellant’s wife at 3:29

a.m. to “go get checked out please.” In between these instances Officer Tran

(among other things) coordinated the wreckers; spoke with fire fighters on the

scene; conducted the roadside sobriety test on appellant; arrested appellant; and

checked the intersection where the collision occurred.

A complete description of Officer Tran’s activities at the accident scene

confirms that he was juggling various tasks at various times. Some of those tasks

involved attending to the well-being of appellant’s wife; other tasks involved

attending to the well-being of others involved in the accident. Officer Tran’s

activities are fully consistent with, in the majority’s words, “protecting life or

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providing needed aid.” See ante, at 11; see also Sutherland, 2014 WL 1370118, at

*8 (“[W]e should consider whether additional delay related to accident

investigation and medical treatment made the time required to secure a warrant

more burdensome and more likely to result in the destruction of evidence.”) (citing

McNeely, 133 S. Ct. at 1560, and Schmerber, 384 U.S. at 770-71).

CONCLUSION

The majority cannot explain how Schmerber continues to be good law under

the majority’s unduly expansive interpretation of McNeely. Because the

circumstances of today’s case are indistinguishable from those in Schmerber in all

material respects, and because McNeely reaffirmed Schmerber, the trial court’s

order and judgment should be affirmed.

/s/ William J. Boyce

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 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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