### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00727- CR

The State of Texas, App ellant

v. John Philli p Couch, II, Ap pellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2013 -44 4, H ONO RAB LE R. B RUCE B OY ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Texas Depa

rtment of Public Safet y Trooper David Kra l arr ested J ohn Phill ip Couch, I I , following an automobil e accident, for d ri v i ng while i ntox icated. Kra l then t ranspor ted Couch to a hospital, w here his blood was draw n without a sear ch war rant. The State later char g ed Couch with intox ication assault and ag g ravated assault with a deadly wea pon. Be fore trial, Couch moved t o suppress the blood-draw results as an unrea sonable searc h and seiz ure under the Four th Amendment. The district court g rante d the motion. Be cause the totality of the circ umstances at the

1 time of the blood draw satisfied the exigent-c ircumstance s exceptio n t o t he war rant require ment,

we r ever se.

See U.S. Const. amend. I V (“The rig ht of the people to be secur e in their persons, houses, 1 paper s, and eff

ects, ag ainst unrea sonable s ea rc h es and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause , supported b y Oath or aff irmation, and particula

rly descr ibing the pla ce to be sear ched, a nd the per sons or things to be se ized.”).BACK GR OUND 2 Around 8:00 p.m. on Febr uary 25, 2012, Kra l was notified of a vehicle c ollisi on in Comal County , on FM 306 near C an y o n P ark Road. Kra l arr ived at the scene approximately 30 minutes later. Upon arr ival, Kra l saw that a Corvette and a Chevy pickup truck had collided in the roadw ay and wer e blocking traff ic. Emerg ency personne l and la w - e n f o r c e me n t o f

f icer s wer e alre ady at the scene . Kra l spoke with a sheriff ’s deputy who informed him that ey ewitnesses had observe d the driver of t he C orvette, later i d entified as Couch, “driving rec klessly within the parking lot” of

a convenie nce store and “attempting to g et onto [FM] 306.” The deputy added that as the Corvette

was ex iting the parking lot, it “wen t i n t o t h e wr o ng lane and went head on with another vehicle.” There wer e two individuals in the Chevy pickup at the time of the collisi o n , o n e o f whom was hospitaliz ed with a br oken thumb.

As the lead investigator at the scene , Kra l was responsible for “[g]ather ing all the fac ts as far as wher e the vehicles wer e on the roadw ay ,” “g etti ng . . . cer tain documents from the

cra sh , ” “i d en t i fy ing the other occupants of the crash,” “g etting witness statements,” and speaking with “the other deputies that wer e there on s ce ne.” As the only trooper prese nt, Kra l alone could complete a written repor

t of the coll i s ion. The role of the other office rs was to “assist[] with the

overa ll cra sh scene ” by “g etting witness statements,” “identify ing drivers,” “g et t i n g fa cts,” and “sec uring the s cene , maki n g s u re t hat—that nobody else crashe s into these cars while they ’re just sitti ng in the middle of the roa d.”

The following rec itat i o n o f fa ct s is based on the evidenc e admitted at the suppression 2 hear ing, including testim ony by T ro o p er Kra l, whom the di strict court found to be a “truthful and cre dible witness.” 2Whil e t h e other office rs wer e completing those tasks, Kra l spoke with Couch. He

noticed that Couch “had an abra sion acr oss [t he] left part of his head, and he was also complaining of his chest.” As a prec autionary measure , Kra l “broug ht him over to Cany on L ake EMS personne l,” who informed Kra l that they had alre ady “che cked [C ouch] over ” an d that he “had ref used any further trea tment.” Kra l then broug ht Couch to his patrol car and asked him questions perta ining to the collision. Kr al s melled alcohol on Couch’s breath and suspected that he was intox icated. Kra l administered field sobriety tests to Couch to confirm his suspicions and arr ested Couch for driving while intox icated. Be fore leaving the sce ne of the collision, Kral spoke with the other office rs to 3 inform them of Couch’s arr est, “che ck the status” of the occupa nts in the other vehicle, and ensure that t h e co l l i s i o n clea

n-up was under control. Kra l then transporte d Couch to a hospital in 4 downtown New

Br aunfe ls, a drive that took ar ound 45 minutes. Upon arrival at the hos pital, Kra l beg an drafting a search warr ant t o draw Couch’s b l o o d

. I t would not have been “pra ctical” to prepa re the war

rant ear lier beca

use Kra l was still gat h er i n g fac ts, and the other office rs at the scene had other responsibilities that require d th ei r attention. The proce ss of draf ting a wa rrant takes “roug hly 30 minutes” and, “[a]fter completing [and] proofr eading it,” Kra l would need to find a judge to sign the war rant. The “majority of judge s [] just do it by fax,” althoug h some judge s “will come to the hospital and persona lly sign it.” Under
Couch exhibi ted 6 of 6 indications of intox ication on the horizontal g aze ny stag mus 3 (HGN ) test; 3 of 8 indications on the walk-a nd-turn test; and 2 of 4 indications on the leg /stand test. Couch’s field br eath- test specimen r esult was .147.

10 to 2 0 m i n u t es el apsed betwee n the time of Couch’s arr est and their depar ture from 4 the sce ne. 3the “best-case scena rio,” it would take “roug hly 20 minutes” afte r Kral’s p reparation of a warra nt fo r a judge to sign it, and under the “wor st-case scena rio,” it would take “an hour and a half, t wo hours.” Roughly two hours passed from the time of Kra l’s dispatch to his arr ival at the hospital. I t would have taken Kra l an additional 50 minutes to two hours t o d ra ft a war rant and obtain a judge ’s sig nature
.

Kra l neede d to obt ain a blood sample to deter mine Couch’s blood-alcohol content at the time of the collision. Kra l explained that “the human body metab o l izes alcohol, so it dissipates afte r a cer

tain point.” He was conce rned that adding another hour or two to the time that had alre ady elapse d following Couch’s arr est cre ated a risk that the test results would not be “ac cura te.” “The longe r that we . . . wait past the time of arr est, the lower that blood-alcohol content is going to be,” he explained.

Also, at some point prior to Couch’s arr est, Kra l asked Couch “if he had any thing else in his sy stem or if there ’s any thing else in the car .” Couch, who was the owner of the Corvette, stated t h at there was marihuana in the cente r console of his vehicle, inside a pill bottle. After making this admission, Couch then took a pill bot t l e o u t of his pocket that contained a “g ree n leaf y substance.”

Although Couc h claimed that he had not smoked any marihuana that day , and Kr al “had no idea” of the rate at which marihuana metabolizes in a person’ s bloodstream, Kra l suspected t hat marihuana might also be prese nt in Couch’s blood. This was another rea son t o “ge t t h at specimen in a timely manner .” And since Couch was still complaining of chest and head pain, Kra l worrie d that any trea tment tha t Couc h might rec eive at the hospital would interfe re w ith the blood

4draw

. I t could further delay the proce ss or taint the blood sample with other substance s s u ch as

pain medica tion.

Kra l ultim ately

decide d to forg o the sea

rch- war rant proc ess and obtain a sample of Couch’s blood without a war rant under the mandatory blood draw statute, Texas Transpor tation Code section 724.012(b). When asked if he believed that he “would have had time to g et a sear ch 5

war rant and adequa

tely g et an acc urate and reliable blood ana l y s i s d o n e on the defe ndant,” Kra l

answe red, “ No.” Kr al obtained a sample of Couch’ s blood at approximately 10:50 p.m. On cross-e x amination, Kra l acknow ledg ed that there was a “24/7 no-re fusal policy ” in place in Comal County at t he time of Couch’ s arr est. I t provided “a cce ss and mecha nisms” for office rs to obtain war

rants, althoug h Kral d i sputed Couch’s char acte rization of this policy as “an easy proce ss.” Kra l also acknow ledg ed that he did not know if any of the other of fice rs who we re prese nt at the scene of t h e co l l i sion might have been able to obtain a sear ch war rant or transport Co u ch t o t h e h o spital. But he emphasized that during the investigation, the office rs wer e busy “doing exactly what they neede d to be doing in that specific instance to assist [Kral] with that cra sh investiga tion.” Kra l added: “The y wer e all out scatter ed, doing work. So blocking traff ic, notify ing

See Tex. Tran sp. Code 724.012(b) (per mitti ng war

rantless blood draw if, among other 5 rea sons, “an individual other than the [ suspect] has suffere d bodily injury and been t ranspor ted t o a hospital or other medical fac ility for medical trea tment”). I n this case , one of the occupa nts of the other vehicle had been injured and transporte d to a hospital for medical trea tment. Thus, at the time of Couch’s a

rre st, the statute permitted Couch’s blood to be dr awn without a wa rra nt. Howeve r, in 2014, the Texas Court of Criminal Appea ls held that “a nonconsensua l sear ch of a DWI suspect’s blood conduc ted pursuant to the . .

. Transpor tation Code , when underta ken in the absenc e of a war

rant or any applicable exception to the war rant require ment, violates the Four th Amendment.” State v. Villarreal , 475 S.W .3d 784, 815 (Tex. Crim. App. 2014). 5communications of dri v er ’s license information, vehicle information, g etting wre cker s en route,

talking to witnesses, things like that.” Kra l also believed that it would not have been “pra ctical” for him to stop what he was doing during the investiga tion and take the time to explain to another office r the basis for obtaining a war rant: “I t wouldn’t have been prac tical beca use . . . . I ’m the investiga tor. I ’m the one w ith all the pertinent—the totality of the c ircumstance s are on my plate.” Also admitted into evidenc e at the suppres sion hear ing was a copy of a video

rec ording taken from Kra l’s patrol-c ar d as h camera. The rec ording larg ely confirme d Kra l’s t es t imony and provided additional information as to the events that occur red at the hospit al

. I t showed Kra l parke d in his patrol car at the hospital parking lot, speaking with Couch and discussing the proce ss for obtaining a war rant with other office rs, beg inning to draf t the sear ch war

rant on his laptop computer, and unsucce ssfully attempting to contac t a judge to sign the war rant, b efore ultimately

deciding to forg o the war rant proc ess altog ether

. At the conclusion of the hear ing, the district court took the matter under advisement and later g rante d the motion to suppress, concluding that the draw ing of Couch’s blood constituted

a war rantless sear ch and seizure and that “the overa ll circ umstances of the incident do not demonstrate exigent circ umstances so c o mp e ll in g th a t a w a r r a n tl e s s , non-conse nsual blood draw was objectively

rea sonable.” This appea l by the State followed.

STANDARD OF REVIEW We reviewa trial c ourt’s ruling on a mot ion to suppress for an abuse of discre tion. State v. Story , 445 S.W .3d 729, 732 (Tex. Crim. App. 2014) (citing State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)). “The rec ord wi ll be viewed in the light most favor able to the trial
6court’s deter mination, and the judgme nt will be reve rsed only if it is arb i t ra ry , unrea sonable, or ‘outside the zone of rea sonable disag ree ment.’” Id

. (citing Dixon , 206 S.W .3d at 590; Montgomery

v. State , 810 S.W .2d 372, 391–92 (Tex. Crim. App. 1991)). “W e wi ll sustain the lower court’s ruling if it is rea sonably supported by the rec ord and is corr ect on any theory of law applicable to the case .” Dixon , 206 S.W .3d at 590 (citing Romero v. State , 80 0 S

. W

. 2 d 5 3 9, 543 (Tex. Crim. App. 1990)). Additionally , “[w]e revie w a trial judge ’s ruling on a motion to suppress under a bifurca ted standard of revie w.” Cole v. State , 490 S.W .3d 918, 922 (Tex. Crim. App. 2016) (citing Turrubiat e v. State , 399 S.W .3d 147, 150 (Tex. Crim. App. 2013)). First, we are to “af ford almost total defe renc e to a trial judge ’s deter mination of historical fac ts,” as “[t] he judge is the sole trier of fac t and judge of witnesses’ cre dibilit y and the weig ht to be g iven their testimo n y . ” Id

. (citing Valtierra v. State , 310 S.W .3d 442, 447 (Tex. Crim. App. 2010)). There fore , “[w]hen the trial judge makes expli cit finding s of fac t, we aff ord those finding s almost total defe renc e as long as the rec ord supports them, reg ardle ss of whether the motion t o s u p press was g rante d or denied.” State v. Castleberry , 332 S. W.3d 460, 465 (Tex. Crim. App. 2011) (citing State v. Garcia-Cantu , 253 S.W .3d 236, 241 (Tex. Crim. App. 2008); Guzman v. State , 955 S.W .2d 85, 89 (Tex. Crim. App. 1 9 9 7 ))

. “S ec o n d , we revie w a judge ’s application of the law to the fac ts de novo.” Cole , 490 S.W .3d at 922. This i n cl u d es t h e lega l question of whether ex ige nt circ umstances just ified a

war rantless sear ch or seizure. S ee Valtierra , 310 S.W .3d at 447; Roop v. State , 484 S.W .3d 594, 597–98 (Tex. App.—Austin 2016, pet. ref ’d).

7ANALYSIS Reasonable ness is the “ultimate touchstone” of the Four th Amendment’s protec tion ag ainst unrea sonable searc hes and seizures. Riley v . Calif ornia , 134 S. Ct . 2473, 2482 (2014). A

war rantless blood draw “is rea sonable only if it falls within a rec og nized exception” to the war rant require ment. Missouri v. McNee ly , 569 U.S. 141, 148 (2013).

A well-re cog nized ex ception contr ols this case. This e x ception “‘a pplies when the exigenc ies of the situation make the needs o f law enfor ceme nt so compelling that a war rantless

sear ch is obje ctively rea sonable under the Four th A mendment.’” Id

. at 148–49 (quoting Kentucky

v. King , 563 U.S. 452, 460 (2011))

. Ex ige nt circ umstances i n cl u d e “the need to preve nt the destruction of e vidence .” Preston v. United States , 376 U.S. 364, 367 (1964).

I n DWI case s, the evidenc e at risk of destruction is a suspect’s blood-alcohol content, which “ beg ins to dim inish shortly afte r drinking stops, as t he body functions to eliminate it from the sy stem.” Schme rber v. Calif ornia , 3 8 4 U. S

. 757, 770 (1966). Acc ording ly , the

war rantless collection of blood from a DWI suspect does not violate the Four th Amendment in case s wher e the arr esting office r “mig ht rea sonably have believed that he wa s confr onted with an emerg ency , in which the delay nece ssary to obtain a warra nt, under the circ umstances, thr ea t en ed ‘the de struction of evide nce.’ ” Id . (quoting Preston , 376 U.S. at 367).

Rece ntly , howeve r, the United States Supreme Court reje cted the contention that “ the natura l metabolization of alcohol in the bloodstream prese nts a per s e ex i gency that justifies an excepti o n t o the Fourth Amendment’s warra nt require ment for nonconsensual blood testing in all d ru n k -d ri ving case s.” McNee ly , 569 U.S. at 145. I nstead, “exige ncy in this context must be

8deter

mined case by case based on th e t o t al i ty of the circ umstances.” Id

. The proper analy sis demands “an objec tive evalua tion of the fac ts reasona bly available to the office r at the time of the

sear ch.” Cole , 490 S.W .3d at 923 (c iting Brigham City v. Stuart , 547 U.S. 398, 404 (2006)).

Rel e v a n t f acts in the exigenc y analy sis include the office r’s knowledg e of “the body ’s natura l metabolic proce ss and the attendant evidenc e destruction o v e r ti me , ” “the proce dures in place for obtaining a war

rant,” “the availability of a mag istrate judge ,” and “the p ractical problems of obtaining a war

rant within a timeframe th at still prese rves the opportunity to obtain reliable evidenc e.” McNee ly , 569 U.S. at 164. Moreove r, when the circumstances include an automobil e

acc ident, additional consid er at i o n s include “the time require d to complete the acc ident investiga tion,” “the lack of available law enfor ceme nt personne l” to assist in the investigation, “[t] he

acc ident’s sever ity ,” and the “potential medical intervention,” if any , that the circ umstances require

. Cole , 490 S.W .3d at 925–27.

Courts revie w “the totality of the circ umstances found in the rec ord” to deter mine wh et h er the fac ts justify a war rantless blood draw

. W

eem s v. State , 493 S.W .3d 574, 580 (Tex. Crim. App. 2016). Courts are not to “pronounc e what law enfor ceme nt ideally should have done in

a particula

r case afte r all the fac ts are kno wn,” beca use “hindsig ht distorts a proper exigenc y analy sis’s focus: whethe r off icer s had a r easona

ble belief that obtaining a war rant was imprac tical based on the circ umstances and information known at the time of the sear ch.” Cole , 490 S.W .3d at 925. I ns tead, courts consider “the prac tical problems and considerations found in the rec ord that made obtaining a wa

rra nt impractica l.” Id

.

9Her e, multipl e fac tors justify the war rantless blood draw

. This case i n v olves an

acc ident i n vestig ation, which the United States Supreme Court and the Texas Court of Criminal Appea ls have identified as a fac tor that supports a finding of exigenc y . See Schme rber , 384 U.S. at 770–71; Cole , 490 S.W .3d at 925–26. Although the district court found that this was not an acc ident in which officer s had to take “extrem e ac t i o n” to extract passeng ers from the vehicles or ex erc ise “extraordinar

y eff ort” in clea

ring the scene , two vehicles h ad co l l ided in the roadw ay and wer e blocking traff

ic. One of the deputies at the scene descr ibed the acc ident as one vehicle co l l i d i n g “hea d on with another vehicle

. ” T h e acc ident was serious enoug h that emer g ency personne l and

sever al office rs had been dispatched to the s ce n e. And one of the vehicle occupa nts had to be transporte d via ambulanc e to a hospital for trea tment. Fur ther, “the availability of other office rs is a rele vant consideration in a n exigenc y

an al y sis.” Cole , 490 S.W .3d at 926. I n Cole , the ot her office rs present at t he scene of a collis ion “we re a ll pe rfor

ming important law enf

orce ment or public-sa fety duties.” Id . “Ta king a

ny one of t hem awa y . . . would have left a nece ssary duty unfulfilled.” Id

. And while the investiga tion continued, ther e wa s no “re adily available office r who c ould have g otten a wa rra nt.” Id

. Additionally , the office rs who had been dispatched to the scene of the collision wer e not idle observe rs. I nstead, they wer e busy “wor king, doing exactly what they neede d to be doing” to assist with the investigation. Their tasks included “g etting wi t n es s statements,” “identifying drivers,” “g etting fac ts,” and “sec uring the scene , making sure . . . that nobody else cra shes into these

car s while they ’re just sitti ng in the middle of the road.” Kra l testified that he had simil ar duties. As the lead acc ident investiga tor, howeve r, he also had to prepa re a written repor

t based on all of the

10information that he and the other office rs had g ather ed during the investigation. Whil e Kra l was on

the s cene , he had to interview Couch, have him examined by EMS, administer field sobriety tests to him once he suspected that Couch had been driving while intox icated, and ultimately arr est him for that offe nse. These tasks took Kra l approximately 20 to 30 minutes to complete. Kra l believed that it would not have bee n “pra ctical” for him to stop what he wa s doing dur ing the investiga tion and prepa re a war rant or direc t another office r to prepa re a war rant for him. As Kra l explained, “I ’m the investig ator. . . . The totality of the c ircumstance s are on my plate.” Also rele vant to the exigenc y analy sis is the location of the suspect’s arr est in rela tion to hospitals, jails, or other fac iliti es wher e blood can be drawn, beca use that aff

ects the timing of any blood draw

. See, e.g. , Cosino v. State , 503 S.W .3d 592, 60 0–01 (Tex. App.—Waco 2016, pet. ref ’d); State v. Robinson , No. 03-15-00153- CR, 2016 Tex. App. L E XIS 11088, at *24 (Tex. App.—Austin Oct. 12, 2016, pet. ref ’d) (mem. op., not desig nated for publication). Her e, the collision occur

red in Comal County on FM 306 near Cany on Park Road. A drive from that location to Hig hway Patrol headqua rters, the sheriff

’s office , or the near est hospital in New Br aunfe ls would take approximately 45 minutes. Kra l was dispatched to the collision at 7:53 p.m. He did not arr ive at the scene until approximately 30 minutes later and did not arr est Couch until approximately 9:04 p.m. Following Couch’s arr est, the drive from the scene of the collision to the hospital took approximately 45 minutes, and Kra l and Cou ch d i d not arr ive at the hospital until approximately 10:05 p.m, over two hours afte r the collision had occur red. Such a delay supports a conclusion that exigent circ umstances wer e prese nt. See Schme rber , 384 U.S. at 770–71 (conc luding that, “whe re time had to be taken to bring the acc used to a hospital and to investigate the scene of the acc ident,”

11office r could have rea sonably conclude d that “ther e was no time to seek out a mag istrate and secur e

a war rant” ); see also Schneide r v. State , No

. 03-14-00189- CR, 2016 Tex. App. L EXI S 3505, at *15–16 (Tex. App.—Austin Apr. 6, 2016, pet. ref ’d) (mem. o p . , not desig nated for publication) (holding that, althoug h “a traff ic acc iden t alone does not constitute an exigenc y ,” “the need to investiga te a tra ffic a ccide nt can c ontribute to the exigenc y of a situation”)

. Other rele vant considerations include the office r’s knowledg e of “the body ’s natura l metabolic process and the attendant evidenc e des t ru ct i o n over tim e,” “the procedure s in place for

o b taining a war

rant,” “the availability of a mag istrate judge ,” and “the prac tical problem s o f obtaining a war

rant within a timeframe that s till prese rves the opportunity to obtain reliable evidenc e.” See McNee ly , 569 U.S. at 164. Kra l was awar e that alcohol in a person’s bl oodstream “dissipates afte r a cer

tain point,” that add i n g an h our or two to the time that had alre ady elapse d following Couch’s arr est cre ated a risk that the test results would not be “ac cura t e, ” an d that the longe r the de lay

“past the time of a

rre st, the lower that blood-a lcohol content is g oing to be .” Moreove r, althoug h Kra l acknow l ed ged that there wer e proce dures in place for obtaining a war

rant, including the ability of mag istrates to sign a war rant via fax, he testified that this

was “ce rtainly not an easy proce ss.” Kra l explained that a war rant usually takes “roug hly 30 minutes” to draf

t and that, “[a]fter completing [and] proofr eading it,” he would need to find a judge to sign the war

rant. Acc ording to Kra l, obtaining a judge ’s signa ture could take betwee n 20 minutes t o two hours, depending on the circ umstances. On the night in question, Kra l did not for go t h e

war rant proce ss until afte r his initial attempt to contac t a judge was unsucce ssful, which was approximately 30 minutes a fter his a rrival a t the hospital. At that tim e, over two-and- a-ha lf hours

12had elapse d since the collision had been repor ted, and Kra l could have rea sonably conclude d that any additional delay to wait for a judge ’s signa ture would have incre ased the risk that the sample would not a ccur ately ref

lect the substance s that were in Couch’s bloodstream a t the time of the collision. The district court found that if Kra l had obtained a war rant, he “would have likely obtained the Def endant’ s blood by

about 11:05, g ive or take 15 minutes.” As the State observe s, howeve r, this repr esente d the “be st-case scena rio.” Unde r the “wor st-case scena rio,” waiting for a judge to sign

a wa rra nt could have de lay ed the blood dra w by at least a n additional hour. Finally , Kra l was conce rned that Couch might rec eive trea tment a t the hospital tha t would further delay the blood draw or taint the results. Although the district court found that it was “unlikely ” that p o t en t ial medical intervention at the hospital would have impeded or delay ed the blood draw , it was at least possible that medical intervention could have occur red prior to Kra l obtaining a

war rant. Couch appea

red to be injured at the scene of the collision and was complaining of head and chest pain when they arr ived at the hospital. As a result, doctors decide d to perf orm a CAT scan on Couch. K

ral wa s conce rned tha t doctors m ight also administer pain medication to C ouch befor e Kra l was able to obtain a sear ch war rant and that any such medication would taint the blood sample. An office r’s “re asonabl[e] conce rn[] that the administration of pain medication, specific ally

narc otics, would aff

ect the blood sample’s integ rity ” is another fac tor that weig hs in favor of a finding of exige ncy . See Cole , 490 S.W .3d at 926.

I n summary , the circ umstances in this case include a two-vehic le collision that had resulted in injurie s and that was blocking the road; the need for multipl e office rs to inve stiga te the

13collision and deter mine its probable cause befor e a war rant could be prepa

red; a DWI suspect who neede d to be transporte d to a hospital that was approximately 45 minutes from the s ce n e o f the collision; an uns u cc es s fu l attempt by the arr esting office r to find a judge to sign a sear ch war rant approximately 30 minutes afte r the office r had arr ived at the hospital with the suspect; the possibili ty that obtaining a sear ch war rant could delay the blood draw by at l east another hour; a rea sonable

conce rn that the suspect could rec eive medical intervention at the hospital that might interfe re with the blood draw ; and an awar eness by the arresting office r t hat t he suspec t’s blood-alcohol c ontent was diminishing and tha t over two-a nd-a- half hours ha d elapse d since the c ollisi on had occ urre d. These circ umstance s in th e ir to ta li ty d e mo n s tr a te th a t T r o o p er Kra l “mig ht rea sonably have be lieved that he w as conf ronted with an e merg ency , in which the dela y nece ssary

to obtain a

war rant, under the circ umstances, threa tened ‘the destruction of e vidence .’” Schme rber , 384 U.S. at 770; Cole , 490 S.W .3d at 927. Acc ording ly , the war rantless blood draw did not violate the Four th Amendment, and the district court err ed in concluding otherwise. On this rec ord, we conclude that the district court a

bused its discretion in g ranting the motion to suppress. We sustain the State’s sole issue on appe al.

CONCLUSION We reve rse the district court’s order g ranting the motion to suppress and rema nd the

case to the district court for further proce eding s consistent with this opi nion.

_________________________________________ Michae l Toth, J ustice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Toth 14Reverse d and Remande d

Filed: Oc tober 31, 2018 Do Not Publish

15