### 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. 03-15-00153- CR

The State of Texas, App ellant

v. F rances A nita Robin son, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2013 -26 7, 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 Following a fata l automobile accident, appellee Fr ance s Anita Robinson was t ra n s p o rt ed to a hospital, wher e her blood was draw n without a war rant pursuant t o section 724.012(b) of the Texas Transpor tation Code, common l y k n own as the mandatory -blood-dra

w statute. Ro b in s o n w a s s u b s e q u e n tl y c h arg ed with the offe nse of intox ication 1 manslaug hter. Prior to trial, Robinson filed a motion to suppress evidenc e rela ting to the results of

2 the blood draw , which the district court g rante d following a hear ing. I n a single issue on appea l, the State asser

ts that the district court abused its discretion in doing so. Guided by decisions that the Texas Court of Criminal Appea ls has issued since the district court’s order , we will reve rse the order and re mand for f

urther pr ocee dings c onsistent with thi s opinion.

See Tex. Transp. Code § 724.012(b)

. 1 See Tex. P enal Code § 49.08. 2STANDARD OF REVIEW We revie w a trial court’s ruling on a motion to suppress for abuse of discretion. We 3

are to view the re co rd “i n the light most favor able to the trial court’s deter mination, and the judgme nt will be reve rsed only if it is arbitra ry , unrea sonable, or ‘outsi de the zone of rea sonable disag ree ment.’” “We will sustain the lower court’s ruling if it is rea sonably supported by the rec ord 4 and is corr ect on a

ny theory of law a pplicable to the c ase.” 5 Additionally , “[w ] e re v i ew a t ri al judge ’s ruling on a motion to suppress under a bifurcated standard of revie w.” First, we are to “af ford almost total defe re nce to a trial judge ’s 6 d etermination 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 given their testimony .” There fore , “[w]hen the trial judge makes 7 expli cit finding s of fac t, we aff ord those finding s almost to t al d ef er en ce as long as the rec ord supports them, reg ardle ss of whether the motion to suppress was g rante d or denied.” “Second, we 8

State v. Story , 445 S.W .3d 729, 732 (Te x . C ri m. App. 2014) (citing State v. Dixon , 3 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)). Id

. (quoting Dixon , 206 S.W .3d at 590); see Montgomery v. State , 810 S.W .2d 372, 391-92 4 (Tex. Crim. App. 1991) (op. on re h’g ). Dixon , 206 S.W .3d at 590 (citing Romero v. State , 800 S.W .2d 539, 543 (Tex. C ri m . 5 App. 1990)). Cole v. State , 490 S.W .3d 918, 922 (Tex. Crim. App. 2016) (citing Turrubiat e v. State , 6 399 S.W .3d 147, 150 (Tex. Crim. App. 2013)). Id . (citing Valtierra v. State , 310 S.W .3d 442, 447 (Tex. Crim. App. 2010)). 7 State v. Castleberry , 332 S.W .3d 460, 465 (Tex. Crim. App. 2011) (citing S t a t e 8 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. 1997)). 2revie w a judg e’s a pplication of the law to the fac ts de novo.” I n this case, we revie w de novo the 9 trial court’ s application of the la w of sea rch a nd seizure to the fa cts. 1 0

EVIDENCE The sole evidenc e prese nted at the hear ing on the motion to suppress wa s the testimony of Depa

rtment of Public Safety Trooper Richard Alvare z, whom the district court would later f ind “cr edible” a

nd that “the f

acts we re a s [he] believed the m to be.” Alvare z testifi ed that on Marc h 11, 2012, at approximately 1:04 a.m., he was dispatched to the scene of a single -ca r acc ident that had occur red in a “populate d subdivision” located in Cany on L ake. Alvare z testified that when he arr ived at the scene , approx i m at el y

seven minutes later, a vehicle was “flipped over on its top on the side of the road,” and the driver of the vehicle, later identified as Robinson, was “still being ex t ra cted out” of the vehicle. Alvare z

rec ounted that Robinson was “behind the whee l” and “upside down,” and firef ighte rs wer e “slowly g etting her out.” Alvare z added, “[T] hey wer e suspecting possibl e neck i njuries and back injury ”
to Robinson. Alvare z also testified that the body of a “dec ease d male,” later identified as Robinson’s fianc é, wa s ly ing ne x t to the vehicle.

Cole , 490 S.W .3d at 922. 9 See Valtierra , 310 S.W .3d at 447; Thompson v. State , 408 S.W .3d 614, 621 1 0 (Tex. App.—Austin 2013, no pet.); see also State v. Villarr eal , 475 S.W .3d 784, 798 (Tex. Crim. App. 2014) (“[B]eca

use the fac ts are undisputed and the questions befor e us are matters of law, we apply a de novo standard of revie w.”) ; Kothe v. State , 152 S.W .3d 54, 62 (Tex. Crim. App. 2004) (“O n appea l, the questio n o f wh et h er a specific sear ch or seizure is ‘re asonable ’ under the Four th Amendment is subject to de novo revie w. Despite its f a c t- s e n s it ive analy sis, ‘re asonable ness’ is ulti mately

a question of substantive F ourth Amendment law .”). 3Acc ording to Alvare z, there wer e alre ady “deputies

. . . at the scene ” when he arr ived,

includi n g De p u ty Dustin Savag e of the C omal County Sheriff’ s Offic e, and another DPS trooper, Kenny Mata, a rrived at the scene approximately fiftee n minutes afte r Alvarez. Alvare z ex plained that Savag e had assisted him during the investiga tion by “prote ct[ing] the scene ,” “dire cting traff ic,” and g ather ing information reg arding the dece ased’ s next of kin, while Mata assisted Alvare z by obtaining videotaped statements from witnesses at the scene who had observe d the cra sh. Alvare z, who was the l ead investiga tor in the case , attempted to re construct how the accident had occur red by examining the phy sical evide nce at the scene . Alvare z described this proce ss as follows:

I started photogr aphing the scene and started marking th e s c e ne with fluoresc ent paint as to wher e—eve ry

thing that appea

rs to be evidenc e. I mark it. And, y ou know, I try to backtr ack—at the final resting point, backtr ack wher e the vehicle—the path it took befor e it c rashe d and—and eventua lly try to meet with the—with the driver and try to ge t their version of w hat happe ned.

When asked to explain why it was important for h i m t o i m m ediately mark the scene with paint, Alvare z testi fied,
Well, in addition to fog , we’ re starting to g et a light mist. There ’s things that I have to mark with the paint beca use, y ou know, evidenc e tends to natura lly disappea r the next day : skid marks, shadow skids. I f y o u d o n ’t videotape or—or take still photos that night, due to tempera ture adjustments , t h o s e shadow skids are n’t g oing to be there the next day

. . . . You g et thi s d o n e now beca use y ou may only have one chanc e. You know, the wre ck is not g oing a ny wher e at that moment, but y ou need—y ou need to photogr aph it and—and prese rve it, photogr aph it, document it, and then—bec ause the next day , it may not be there

.
Alvare z added, “[T] his is, for all prac tical purposes, a crime scene .” Alvare z also testified that the deputies who wer e on the scene had not be en trained in acc ident rec onstruction and thus c ould not assist him wit h that task. 4Alvare z further testified that, as part of his investiga tion, he had interviewe d

Robinson afte r she had been remove d from the vehicle and car ried by stretche r into a

n ambulance

. Acc ording to Alvare z, during the c onversa tion, he observe d that Robinson had “g lassy , bloodshot ey es” and a “strong odor of alcohol coming from her brea th.” Additionally , Alvare z t es t i fi ed, Robinson had admitted to him that “she had a drink

. . . ear lier in the evening .” Alvare z rec ounted that as he attempted to g et more information from Robinson reg arding the acc ident, he was interrupted by EMS personne l, who “we re s u s pecting a lot of internal injuries on her, and they had to g et her out of there .” Robinson was subsequently t ra n s p o rt ed by ambulance to a hospital in San Antonio that Alvare z estimated was approximately 3 8 t o 40 miles awa y from the

acc ident’s location.

Meanw hile, Alvare z rec ounted, he rema ined at the scene of the acc ident to complete his investiga tion. Alva

r e z te s ti f ie d that his investiga

tion took approximately 30 minutes to complete, but he rema ined on the scene for “about two-and- a-ha lf hours, may be three ,” while he waited for “the funer al home and the justice of the pe ace ” to ar rive a nd tend to the body , and a tow truck to arrive and cle ar the vehicle f

rom the sce ne. Alvare z further testified that , afte r completing his investiga tion, he had perc eived

rea sons to believe that Robinson h ad committed the offe nse of intox ication manslaug hter and decide d to obtain a sample of her blood. To do so, Alvare z rec ounted, he called DPS and had them dispatch a San Antonio trooper, Rodney Z ara te, to the hospital to draw Robinson’s blood. Alvare z testified that he instructed Zar at e t o as k for Robinson’s consent but, if she ref used, to obtain her blood pursuant to the provisions of the mandatory -blood-dra w stat u t e. Alvare z testified that he

1 1

See Tex. Transp. Code § 724.012(b)

. 1 1 5decide d to rely on the statute, rathe r than a war rant, to obtain the blood sample beca use “time [was] of the e ssence .” He explained:
[T] he more time that goe s on, the evidenc e becomes t hinner. And, e ventually , I ’m g oing to lose that evidenc e. You know, her—a s we’ re trained, y ou need to try to g et to that defe ndant as soon as y ou can in or der to obtain a blood sample, because the faster y ou g et it, the more a ccur ate r eading y ou’re g oing to g et.

When asked if he could have stopped what he was doing to “g o write up a sear ch war rant,” Alvare z testified that he c ould not. W hen aske d if Troope r Mata c ould have a ssisted him wit h the war rant proce ss, Alvare z testified, “No, sir. He was—he was busy with the witnesses. And at that point, I ’m asking him for assistance with inventory , and also looking for information on the next of kin on the dece ased.” Alvare z added that Mata was “a fairly new trooper,” and he did not know whether Mata was qua lified to complete an aff idavit f or a blood sea

rch w arr ant. Alvar ez simi larly did not know whether Deputy Savag e was qualified to complete a sear ch-w arr ant aff idavit. Alvare z also testified that he was the only office r on the scene who had sufficie nt information reg arding how the acc ident had occ urre d to “dra

w up an a ffidavit for

a judg e to re view.” H e explained:
[F]or me t o let another trooper call t hem up and say , Hey , I n ee d a s ear ch warra nt, well, he—that’s hard to do beca use he does—he’ s not g ather ing the fac ts as I am, y ou know. So for him to draw up an aff idavit for a judge to revie w, the judge has to see the proper probable cause rea son for us to even reque st an evidentiar y sear ch war

rant.

Acc ording to Alvare z, the other office rs involved in t h e i n v es tiga tion did not have sufficie nt information re g arding the offe nse: Mata “ never rea lly actua lly g ot to look at the vehicle” ; Savag e “didn’t backtr ack [t he acc ident] as intense as [Alvarez] did”; and Z ara te, who was in San Antonio, did not possess the same knowledg e and fac ts a s Alvare z did reg arding the acc ident. Alvare z also

6testified that he did not have time to stop what he was doing and inform the other office rs of all the

fac ts on which he was rely ing to inform his probable -ca use det er mination that Robinson had committed the offe nse of intox ication manslaug hter. He explained that, as t h e l ea d investiga tor, “I need to stick with that cr ime scene .”

When asked how long it would have taken him to obtain a war rant afte r completing his investigation and c lear ing the scene , Alvare z testi fied,

I rea lly don’t know how to answe r that beca us e— i t would have taken quite some time beca use I would have to locate a judge —which I ’m not using that as an excuse. But look at the wea ther, the—that was working ag ainst us that night: misti ng , heavy fog

. I t would have—if I ’m having to g uess, i t wo u l d have been well—well up to three h o u rs t o b e able to even meet with a judge

. And—and I would have had to handwr itten—handwrite up a sear ch war rant. I can do that, but, y ou know, it would have been very difficult. I t wouldn’t have helped—the time and elements wer e rea lly ag ainst us that night.

Acc ording to Alvare z, the three hours that he estimated it would take to complete the war rant proce ss would have been in addition to the approximately three hours that had al re ad y el apsed since he had ar rived a t the scene of the acc ident. Howeve r, he later added that those additional three hours encompa ssed the entire proce ss for obtaining a war rant, “[n] ot three hours to find a judge .” Alvare z also testified that i n this case , even without obtaining a warrant, Robi nson’s blood was not draw n until 4:40 a.m., which was over three -and- a-ha lf hours af ter the a ccide nt had occ urre d. On cross-e x amination, Alvare z acknow ledg ed that there was a judge on call the night of the acc ident who could have been contac ted for the purpose of signing a sear ch war rant for Robinson’s blood. Howeve r, Alvarez explained that beca use this case “involved a f atality ,” ther e

wer e “other mitigating circ umstances that t en d to g et in the way of quickly contac ting a judge .” Alvare z also acknowledg ed that the pr ocess of obtaining a war

rant could be accomplished via fa x 7and that this proce ss “could take 30 minutes” or “it could take up to an hour and a half,” depending

on the circ umstances. Alvare z noted, howeve r, that this estimate was based on cases “w hen the prisoner is with me in the car . I g o to the hospital; I contac t the judge .” And Alvare z also testified that those case s in which he could obtain a wa rr an t in 30 to 90 minutes did not include case s in which there had been a fata lity

. I n those case s, Alvare z explained, “I ’m g oing to be the last person to leave tha t c rime scene . . . . And if there ’s g oing to be someone to g et a wa rra nt, that’s g oing to have to be me.”

Also on cross-e x amination, Alvare z acknow ledg ed that there was a th ir d D PS tr o oper who was briefly at the scene of the acc ident that night, Kurt McWhinney , who “showe d up and then [ ] l eft” and “we nt back on patrol” beca use “ther e was not much he could do.” When asked if h e could h av e s en t M cW hinney “to g et the sear ch war rant or to assist [Alvarez] in g etting a sear ch

war rant that night,” Alvare z testified, “You know, there ’s a lot of things I could have done, but I didn’t send him. I ’m not in char g e of him.” Alvare z also testified that there was fourth trooper on duty that night, but “he was a lrea dy at the jail . . . with [a] DWIdriver.” At the conclusion of the hear ing, the district court took the matter under advisement and later g rante d the motion to suppress. Upon reque st, the district court made finding s of fac t and conclusions of law , including the following :

On Marc h 11, 2012, at 1 : 0 4 a. m . , Trooper Richard Alvare z was dispatched to a v eh i cl e ac cident

. . . in the Oaks Subdivis ion of Cany on L ake, Texas. He arr ived at 1:11 a.m. There wer e a minimum of three office rs at the sc ene. Due to suspected injuries, the Def endan t wa s transporte d by EMS to University Hospital in San Antonio.

8Trooper Alvare z was at the sce ne for 2 1⁄2 to 3 hours. Trooper Rodney Z ara te was dispatched to the hospital wher e he obtained a war rantless, non-c onsensual blood dra w from the D efe ndant. Comal Coun t y i mplemented a “No Refusal Policy ” for law enfor ceme nt in 2012, wher e a judg e is on ca ll for the purpose of obtaining blood-draw war rants. Trooper Alvare z testified that as he was the scene i n v estig ator, he was the only office r who c ould have obtaine d a wa rra nt. Trooper Alvare z testified that he did not b el i ev e there wer e any other troopers available at the time of his investig ation. I t g ener ally takes 30-90 minutes to obtain a blood draw war rant by fax proces s i n Comal County

. Trooper Alvare z was cre dible, and his testimony was likewise c redible. [T] he fa cts wer e as Tr ooper A lvare z believed them to be on the night of Marc h 11, 2012.

Ba sed on the above finding s, the district court conclude d that “the State did not demonstrate exigent circ umstances upon which to perf orm a war

rantless blood draw ,” and supp re s s ed t h e blood-draw evidenc e on that g round. This appe al followed.

ANALYSIS I n its sole issue on appea l, the State asser ts that the district court abused its discretion in g ranting Robinson’s motion to suppress. S pecif ically , the State claims that t he record does not support t h e d i strict court’s conclusion that the State failed to demonstrate exigent circ umstances sufficie nt to just ify

the war rantless blood dra

w in this case. “The Four

th Amendment provides in pertinent part that ‘[t] he rig ht of the people to be secur e in the ir persons, houses, paper s, and eff ects, ag ainst unrea sonable sear ches and seizures,

9shall not be viol ated, and no Warrants shall i s s u e, but upon probable cause .’” The drawing of a 1 2 person’ s blood is considere d a search and s eizure u n d er the Fourth Amendment. Consequently , 1 3

a b l o o d draw g ener ally require s a sear ch war rant, unless a “re cog nized exception” to the war ra n t require ment applies. “The established war rant-r equire ment ex ce p t i ons are permitted beca use 1 4

eac h is potentially rea sonable and ‘there is a compelling need for officia l action and no time to

secur e a w arr ant.’” 1 5

“‘O ne well-re cog nized exception,’ and the one at issue in this case , ‘applies when the exigenc ies of the situation make the needs of law enfor ceme nt so compelling that a war rant l es s

sear ch is objectively rea sonable under the Four th Amendment.’” One such exigent circ umstance 1 6 is preve nting the imminent destruction of evidenc e or co n traba nd. For intox ication-re lated 1 7 offe nses, the evidenc e that is at risk of destruction is a suspect’s blood-alcohol content, which “beg ins t o d i minish shortly afte r drinking stops, as the body functions to eliminate it from the sy stem.” Consequently , in Schme rber v. Calif ornia , the Supreme Court held that the war rantless 1 8 collection of blood from a suspect does not violate the Four th Amendment in case s “whe n the office r might rea sonably h av e believed that he was confr onted with an emer g ency , in which the delay

Cole , 490 S.W .3d at 922 (quoting U.S. Const. amend. I V). 1 2 See Sc hmerbe r v. Californi a , 384 U.S. 757, 769 (1966). 1 3 See M issouri v. McNee ly , 133 S. Ct . 1552, 1558 (2013); Cole , 490 S.W .3d at 922. 1 4 Cole , 490 S.W .3d at 923 (quoting McNee ly , 133 S. Ct . at 1559). 1 5 McNee ly , 133 S. Ct . at 1558 (quoting Kentucky v. King , 563 U.S. 452, 460 (2011)). 1 6 See Gutierrez v. State , 221 S.W .3d 68 0 , 6 8 5 (Tex

. Crim. App. 2007) (citing McNairy 1 7 v. State , 835 S.W .2d 101, 107 (Tex. Crim. App. 1991)).

Schme rber , 384 U.S. at 770. 1 8 10nece ssary to obtain a war rant, under the circ umstances, threa tened ‘the destruction of evidenc e.’” 1 9 I n Schme rber , a DWI case , the Supreme Court co n cluded that there wer e exigent circ umstances sufficie nt to justify a war

rantless blood dr aw “whe re time had to be taken to bring the acc used to a hospital and to investiga te the sce ne of the acc ident.” 2 0

“W h et h er l aw en fo rc em en t fa ce d an em er gency that justifies acting wi t h o u t a

war rant calls for a case -by -ca se deter mination based on the totality of circ umstances.” “An exigent 2 1 circ umsta n ce s an aly sis require s an objective evalua tion of the fac ts rea sonably available to the offic er a t the time of the sear ch.” These f acts include the offic er’ s knowledg e of “ the body ’s 2 2
natura l m et ab o l i c proce ss and the attendant evidenc e destruction over time,” “the proce dures in place for obtaining a war

rant,” “the availability of a mag istrate judge ,” and “the prac tical problems of obtaining a war

rant within a timeframe that still prese rves the opportunity to obtain reliable evidenc e.” 2 3 Our analy sis is further informed by two decisions that the Court of Criminal Appea ls issued subsequent to the district court’s ruling , eac h of which involves fac ts simil ar to those prese nt h er e— o n e i n which the court conclude d that the State had failed to establish that a war rantless blood draw was justified by exigent circ umstances, and one in which the court rea ched the opposite conclusion. First, in W

eem s v. State , a driving -while-intoxicated case , the defe ndant was in an

Id . (quoting Preston v. United States , 376 U.S. 364, 367 (1964)). 1 9 Id . at 770-71. 2 0 Cole , 490 S.W .3d at 923 (c iting McNee ly , 133 S. Ct . at 1559). 2 1 Id . (citing Brigham City v. Stuart , 547 U.S. 398, 404 (2006)). 2 2 McNee ly , 133 S. Ct . at 1568; Cole , 490 S.W .3d at 923. 2 3 11automobile acc ident and procee ded to flee from the scene of t he crash. Eventually , Weems was 2 4 found b y a sheriff

’s deputy hiding underne ath a parke d car . Be cause Weems appea red to be 2 5 injured, EMS transporte d him to a hospital. The a rre sting off

icer followed the ambulance to the 2 6 hospital and, accor ding to the officer, “it took only a ‘c o u p l e o f minutes’ to g et from the accident

scene to the hospital.” Once the office r arr ived at the hospital, he authorized a nu rs e to draw 2 7 Weems’s blood wi thout a war rant, and “Weems’s blood was taken at 2:30 a.m., over two hours afte r his arr est.” 2 8

“On revie w of the totality of the circ umstances found in the rec o rd , ” t h e Court of Criminal Appea ls held that “W ee m s ’s war rantless blood draw was not justified by exigent circ umstances.” The court first observe d that there was some support in the r ecor d for a finding 2 9 of exigenc y , specific ally the fac t that Weems had fled the scene of the acc ident and h i d from law enfor ceme nt, which resulted in “for ty minutes worth of alcohol dissipation.” Howeve r, 3 0

acc ording to the court, “little else in the rec ord lends support to finding exigenc y in this case .” For 3 1 example, the rec ord sug g ested that a mag istrate was “norma lly available to revie w” sear ch-w arr ant

493 S.W .3d 574, 575 (Tex. Crim. App. 2016). 2 4 Id . at 576. 2 5 Id

. 2 6 Id

. 2 7 Id

. 2 8 Id . at 580. 2 9 Id . at 580-81. 3 0 Id . at 581. 3 1 12reque sts, even at th e time Weems’s blood was draw n. Also, the rec ord did not ref lect “wha t 3 2 proce dures, if any , exis ted for obtaining a war ran t wh en an arr estee is taken to the hospital or whether [t he arresting office r] could have rea sonably o b t ai n ed a warrant, and if so, how l ong that proce ss would have taken.” As a result, the court was “lef t with the inability to weig h the time and 3 3 eff ort requir ed to obtain a wa rra nt ag ainst the circ umstances that informed [the office r’s] decision
to or der the war

rantless blood dra

w.” Additionally , beca

use the office r testified that the hospital 3 4

was only a “couple of minutes” awa y from t h e s ce ne of the acc ident, “tra nsporting Weems to the hospital did not nece ssarily make obtaining a war rant imp ra ct i ca l or unduly delay the taking of Weems’s blood to the ex tent that natura l dissipation would signific antly undermine a blood test’s eff icac y .” Finally , the arr esting office r “w as not alone c harg ed with both investiga ting the scene

3 5 of the acc ident and escor

ting Weems to the hospital for trea tment.” There was another office r who 3 6 had acc ompanied Weems and the arr esting office r “throug hout the investiga tion and while they wer e at the hospital waiting for Weems’s blood to be draw n,” and this other office r’s “continued prese nce

. . . milit ates ag ainst a finding that prac tical problems preve nted the State from obtaining a war rant within a time fra

me that prese rved the opportunity to obtain reliable evidenc e.” “On this rec ord,” 3 7 the co u rt concluded, “the State [was] unable to demonstrate that prac tical problems exis ted in

Id . at 581-82. 3 2 Id . at 581. 3 3 Id

. 3 4 Id . at 582. 3 5 Id

. 3 6 Id

. 3 7 13obtaining a war rant ‘w i t h i n a timeframe that still prese rved the opportunity to obtain reliable evidenc e” and thus had “fa iled to meet its burden and establish that exigen[t] circ umstances exis ted to satisfy the Four th Amendment’s re asonable ness standar d.” 3 8 On the same day that it decided W eem s , the Court of Criminal Appe als rea ched the opposite conclusion reg arding the state of the rec ord in Cole v. State , an intox ication-manslaug hter

case . I n Cole , the defendant “drove his larg e pickup truck 110 mi les per hour down a city street 3 9 in L ong view,” ran a red light at a “busy intersec tion,” and collided with another vehicle, causing an explos ion and instantly killing the driver of the other vehicle. The first office r to arr ive at the scene 4 0 observe d Cole trappe d inside his vehicle as the fire approa ched it, and this office r was “able to

remove Cole from his heavily damag ed t ru ck ’s d ri ver’ s seat” only with the assistance of other officer s . Cole was subsequently interviewe d at t he scene by one of the responding officer s, and

4 1 during the interview, Cole admitted to her t h at h e h ad taken “some meth” prior to the collision. 4 2 Cole was then transporte d by EMS to a hospi tal, wh er e his blood was drawn without a warra nt at 12:20 a.m., approximately two hours af

ter the c ollisi on had occ urre d. 4 3 At the time of the collision, “ther e was still considera b le activity and traff

ic in the are a of the acc ident,” and the rec ord ref lected that multipl e office rs wer e neede d at the scene to “sec ure

Id

. 3 8 490 S.W .3d 918, 919 (Tex. Crim. App. 2016). 3 9 Id . at 919-20. 4 0 Id . at 920. 4 1 Id . at 920. 4 2 Id . at 920-21. 4 3 14the are a,” “kee p[] people awa y for their own safe ty ,” and “block[] off sev er al major intersec tions around the are a.” Additionally , “the acc ident occur red around a shift chang e, when office rs would 4 4 be leaving evening shifts and others arr iving for the late-nig ht shift,” which “fur ther complicated satisfy ing the manpower neede d to secur e the scene , conduct an investiga tion, and maintain public safe ty .” “[A] signific ant number of office rs” wer e neede d at the scene beca use the acc ident’s 4 5 location “wa s in a larg e, busy downtown intersec tion” and “the acc ident inves t i gat i o n could become compromised if the are a was not bloc ked off.” The lead investiga tor in the case , Offic er 4 6 J ere my Hig g inbotham of the L ong view Police Depa rtment , “spent approximately three hours investiga t i n g the scene of the acc ident,” and the “entire acc ident scene was not clea ned up and clea red until 6:00 the following morning .” 4 7

Simi lar to Trooper Alvare z’s testimony in this case , Offic er Hig g inbotham testified that “ther e was no one else who could have deter mined the nature and cause of the acc ident or who

was at fault.” Hig g inbotham also testified that, d espite the availability of an on-ca ll judge , “he

4 8

was unable to leave the scene to g o to the courthouse and speak to a prosec utor to secur e a war rant for Cole’s blood” b ecause, acc ording to Hig g inbotham, “the war rant proce ss takes an hour to

an hour-a nd-a- half ‘at best,’ and it was not fea sible to wait until the acc ident inves t i gat i o n was

Id . at 920. 4 4 Id

. 4 5 Id

. 4 6 Id

. 4 7 Id . at 921. 4 8 15entirely complete befor e secur ing a war rant.” Hig g inbotham also expressed conce rn that medical 4 9 intervention and trea tment “could aff ect the integ rity of a blood sample,” and he further asser ted that “a s sign[ing] another office r at the scene the responsibility to obtain a war rant

. . . would leave an essential duty

unfulfilled.” 5 0 Although the intermediate court of appea ls had conclude d that the above evidenc e “fa iled to establish that an exigenc y exis ted to justify the war rantless sear ch,” the Court of Criminal 5 1 Appea ls disag ree d. The court first observe d that it wa s impermissible to “view[] law enfor ceme nt action throug h the lens of hindsig ht.” The c ourt explained: 5 2
Throug h rea soned delibera tion fre e from tense, uncer tain, and rapidly evolving ci rc umstances, there is a tempting draw for a revie wing court to pronounce wha t law enf orce ment ideally

should have done in a par ticular c ase a fter all the fa cts are known. But hindsight distorts a proper exigenc y analy sis’s focus: whether office rs had a rea sonable belief that obtaining a war rant was impractica l b ased on the circ umstances and information known at the time of the sear ch. This approa ch also overl o o k s t h e practica l problems and considerations found i n the record that made obtaining a

war rant imprac tical. 5 3

These “pra ctical problems and considerations,” acc ording to the court, included “the time require d to complete the a ccide nt investiga tion”; “the lac k of available l aw e nforc ement per sonnel”; “[t] he

acc ident’s seve rity ”; the fac t tha t only one office r “wa s capa ble of deter

mining the nature or ca

use of the acc ident, or who was at fault,” which made that offic er ’s continued prese nce at the scene

Id

. 4 9 Id

. 5 0 Id . at 922. 5 1 Id . at 925. 5 2 Id

. 5 3 16“vital”; “[t] he acc ident scene ’s location and the public-saf ety dang er,” which “re quired a number of office rs at the s ce n e to perf orm nece ssary responsibilities including secur ing the acc ident scene , direc ting traff

ic, and kee ping the public awa y from the sc ene” ; and the lac k of “a rea dily available office r who could have g otten a war rant while Hig g inbotham continued his in v e s ti g ation.” The court also observe d that “[e]ven had Hig g inbotham attempted to secur e a war rant fr o m an o n -call mag istrate, the issuance of a warra n t wo u l d h ave taken an hour to an hour and a half ‘at best,’” during which time “both potential medical intervention perf ormed at the hospi tal and the natura l dis s i p at ion of methamphetamine in Cole’s body would adver sely aff ect the reliability of his blood sample.” 5 4

Ba sed on its revie w of the totality of t he above circumstances, the court concluded that “law enfor ceme nt reas o n ably believed that obtaining a war rant in this case would have

s i gn i fi ca ntly undermined the eff icac y of sear ching Cole’s blood” and, there fore , that “exige n t circ umstances justified Cole’s war rantless blood draw .” Acc ording to the court, “law enfor ceme nt 5 5

was confr onted with not only the natura l destruct i o n of evidenc e throug h natura l dissipation of i n t o x i ca ting substances, but also with the logistica l and prac tical constraints posed by a sev er e

acc ident involving a de ath and the attendant duties this accide nt demanded.” 5 6

We rea ch the sa me conc lusion on the fac ts of this c ase. As noted, the district court expressly found that Alvare z was cre dible and that “the fac ts wer e as Trooper Alvare z believed them
to be.” The tot ality of t he cir cumstance s here , as desc ribed by Trooper Alvare z, are sim ilar t o the

Id . at 926. 5 4 Id . at 927. 5 5 Id

. 5 6 17circ umstances descr ibed in Cole , including: a serious automobile acc ident that resulted in a fata lity ;

an injured suspect who was tra nsported to a hospital for

trea tment; a “cr ime scene ” in a populate d

are a that needed to be immediate ly protec ted, investig ated, a nd subsequently clea

ned and clea

red;

a lead investiga tor who knew that “time was of the essenc e” reg arding the suspect’s blood-alcohol
content but who was unable to leave the scene of the acc ident to obtain a war rant until afte r his investiga tion and other duties as lead investiga tor w e r e c o mp le te , w h ic h w a s approximately two-anda-ha lf to thr ee hours afte r he had arr ived at the scene ; the limit ed availability of other office rs who

wer e prese nt at the scene but who wer e fulfilling other law-e nforc ement duties and who did not possess the same information as the lead investiga tor reg arding the p robable-ca use deter mination for a blood draw ; an d a wa rr an t p rocess that would take, at least, 30 to 90 minutes via fax, or,

acc ording to Trooper Al v ar ez , t h ree hours i f completed in person. Additionally , there wer e other circ umstances prese nt here that support a rea sonabl e belief by law enfor ceme nt that obtaining a

war rant would have been impractica l, including that Robinson was transporte d to a hospital that was 38 to 40 miles awa

y from the scene of t he acciden t and that the weather was “mis ty ” with “hea vy fog ,” which might have delay ed both Robinson’s arr ival at the hospital and the proce ss of obtaining

a wa rra nt. Also, Alvare z testified t hat obt aining a warra nt takes long er tha

n usual when the re is a fata lity involved and he does not have cu s t ody of the suspect, which wer e the circ umstances that

wer e pre sent here

.

At the time of the dist ri ct court’s decision g ranting the motion to suppress, the district court did not have the benef it of the Court of Criminal Appea ls’s analy sis in Cole , which we f ind to be dispositi ve. Under Cole , the totality of the c ircumstance s to which Troope r Alvar ez testified suffice to support a rea sonable belief that obtaining a war rant in this case would have

18signific antly undermined the eff icac y of sear ching Robinson’s blood. Acc ording ly , we conclude 5 7 that the State satisfied its burden to prove that the war rantless blood draw in this case was justified by exigent cir cumstance s, and the district cour t erre d in concluding otherwise. 5 8 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.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Bob Pembe rton, J ustice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Bour land Reverse d and Remande d Filed: Oc tober 12, 2016 Do Not Publish

See Cole , 490 S.W .3d at 927. 5 7 See Schme rber , 384 U. S

. at 770

- 71; Cole , 490 S.W .3d at 927; see also State v. Keller , 5 8 No. 05-15-00919- CR, 2016 Tex. App. L EXI S 8796, at *13-16 (Tex. App.—Dallas Aug

. 11, 2016, no pet. h.) (me m. op., not designa ted for publication). 19