PD-0077-15
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS

STEVEN COLE, Appellant

v. THE STATE OF TEXAS, Appellee

Appeal from Gregg County

* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300
P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512/463-1660 (Telephone) 512/463-5724 (Fax) PD-0077-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 2/19/2015 7:53:53 PM Accepted 2/20/2015 8:37:36 AM

ABEL ACOSTA CLERKTABLE OF CONTENT S

IDENTITY OF PARTIES.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUT HORITIES.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii i
STATEMENT REGARDING ORAL ARGUMENT.

. . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF TH E CASE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF PROCEDURAL HISTORY.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 QUESTIONS FOR REVIEW

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1) Did the Cou rt of Appea ls co nduc t an in co rrec t ex ig ent ci rcumsta nces an al ys is w hen i t req ui red p ro of

of a “n ow or nev er” lev el of u rg ency ?
2 ) Wer e ex ig ent ci rcumsta nces pres ent to dra w Appel la nt’s bl oo d w ith ou t a w ar ra nt w hen the ac ci dent crea ted a su bs ta nti al peri od of del a y befo re bl oo d co ul d be dra w n, the of

fic er k new tha t it ty pi ca ll y to ok on e to on e an d a ha lf ho urs to ob ta in w ar ra nt, an d he su sp ecte d the defe nda nt w as unde r the in flu ence of il le ga l d r u g s a s op po se d to al co ho l, w hi ch ha s a pred ic ta bl e ra te of el imina tio n? 3) Doe s a w ar r a n t l e ss bl oo d dra w co nduc ted purs ua nt to T E X . T R A N S P . C O D E § 7 24 .01 2( b) v io la te the Four th Am endment? 4) If a w ar ra ntl es s bl oo d dra w co nduc ted purs ua nt to T E X . T R A N S . C O D E § 72 4.0 12 (b) vi ol at es the Four th Am endment, m us t tha t ev id ence b e s u ppre ss ed w hen, a t the t ime of th e se ar ch, the sta tute w as pres umptiv el y v al id an d tha t it di sp ens ed w ith the w ar ra nt re qui rement?
ARGUMENT.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
PRAYER FOR R ELIEF.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CERTIFI CATE OF COMPLIANCE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
iCERTIFI CATE OF SERVICE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX (Opi ni on of t he Co ur t o f App eal s)

IDE NTI TY OF THE PARTIES App el la nt : Stev en Co le

. App el le e: The S ta te o f Tex as
. Tria l J ud ge : Ho n. Alfo ns o Cha rl es . Tria l co un se l fo r App el la nt : Ja m es R. (Ric k ) Ha ga n , P.O. Bo x 33 47 , Lon gv ie w, Tex as 75 60 6- 33 47

. App el la te Co un se l fo r th e St at e, Ebb Mob le y , P.O. Bo x 23 0 9 , Lon gv ie w, Tex as 75 60 6.
Tria l co un se l fo r th e S t at e: Sta cey L. Bro w nl ee an d Mad is on Ho od , Ass is ta nt Dis tri ct Att or ne y s, 1 01 East Met hv in , Sui te 33 3, Lo ng vi ew, Texa s, 7 56 01

. App el la te co un se l fo r th e St at e: Z an Col so n Bro w n , Ass is ta nt Dis tri ct Att or ne y , 10 1 East Met hv in , Su it e 33 3, Lon gv ie w, Te xa s, 75 60 1, an d Li sa C. McMi nn , St at e Pro se cu ti ng Att or ne y , P.O. Box 13 04 6, Ca pi to l St at io n, Au st in , Texa s 7 87 11

.

iiINDEX O F AUTHORI TI ES

Cas es Ali ff v. St at e , 62 7 S .W .2d 16 6 (Te x. Cr im . App . 19 82 ).

. . . . . . . . . . . . . . . . . . . . 15
Beema n v . St at e , 86 S.W .3d 61 3 (Te x. Cr im . App . 20 02 ).

. . . . . . . . . . . . . . . . . . 15
Co lb ur n v . St at e , 96 6 S .W .2d 51 1( Tex . Cri m . App . 19 98 ).

. . . . . . . . . . . . . . . . . 11
Co le v. St at e , __ S.W .3d

__ , No. 0 6- 13 -0 02 64 -CR ( Tex . App .–Tex ark an a, 20 14 ).

. . . . . . . . . 2, 3 , 5 ,9 ,14
Dav is v. Uni te d S ta te s , 13 1 S . Ct. 2 41 9 (2 01 1)

. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Dou ds v. St at e , 43 4 S .W .3d 84 2 (Te x Ap p.– Hou st on [14 Dis t.] 20 14 ).

. . . . . . . .9 th
Ill in oi s v. K

ru ll , 48 0 U.S. 3 42 (1 98 7) ,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Ka rn ev v. S ta te , 28 1 S .W .3d 42 8 (Te x. Cr im . App . 20 09 ).

. . . . . . . . . . . . . . . . . . 14 Mil es v. St at e , 24 1 S .W .3d 28 (Tex . Cri m . App . 20 07 ).

. . . . . . . . . . . . . . . . . . . . 15
Mis so ur i v. McN

eel y , 13 3 S .Ct. 1 55 2 (2 01 3)

. . . . . . . . . . . . . . . . . . . . . 5- 6, 8 , 9, 1 5 Rho de s v. S ta te , 24 0 S .W .3d 88 2 (Te x. Cr im . App . 20 07 ).

. . . . . . . . . . . . . . . . . . 13
Roa de n v . Ken tu cky , 41 3 U.S. 4 96 (19 73 ).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Roc ha v. St at e , 16 S.W .3d 1 (Tex . Cri m . App . 20 00 ).

. . . . . . . . . . . . . . . . . . . . . . 16
St at e v. Jo hn st on , 33 6 S .W .3d 64 9 (Te x. Cr im . App . 20 11 ).

. . . . . . . . . . . . . . . . 12
St at e v. Vil la rr ea l, __ S.W .3d

__ No. PD-0 30 6- 14 (Tex . Cri m . App . 20 14 ).

. . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. v. Mo nt oy a De Her na nd ez , 47 3 U.S. 5 31 (19 85 ).

. . . . . . . . . . . . . . . . . . . . . . 5

ii iVern on ia Sc ho ol Dis t. 4 7J v. Acto n , 51 5 U.S. 6 46 (19 95 ).

. . . . . . . . . . . . . . . . . . 13
W il so n v . St at e , 31 1 S .W . 3d 45 2 (Te x. Cr im . App . 20 10 ).

. . . . . . . . . . . . . . . . . . 15

Sta tute s T E X
. C O D E C R IM
. P R O C . art . 38 .23 (a).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
T E X
. T R A N S P
. C O D E § 7 24 .01 1.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 T E X
. T R A N S P
. C O D E § 7 24 .01 2( b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Othe r ht tp :/ /www.ta bc .st at e.tx .us /p ub li cat io ns /b ro ch ur es /B ACCh art s.p df

. . . . . . . . . 11 n

ivPD-0 07 7- 15 TO TH E COURT OF CRIM INAL APPEALS
OF THE STAT E OF TEXA S

STEVEN COLE , App el la nt

v. THE STAT E OF TEXA S, App el le e

* * * * *
STATE ’S PETI TI ON FOR DIS CRETI ONARY REVIEW
* * * * *
TO THE HONORABLE COURT OF CRIMI NAL APPEALS: The St at e Pro se cu ti ng Att or ne y res pe ct fu ll y ur g e s t h i s Co ur t to gr an t di sc ret io na ry

rev ie w. STATE MENT REG ARDING ORAL ARGUMENT The Sta te Pro se cu ti ng Att or ne y do es no t re qu es t o ral arg um en t. STATE MENT OF TH E CASE
A jury c o n v i ct ed App el la nt of in to xi cat io n m an sl au gh te r, en ha nc ed by two
pr io r fel on y co nv ic ti on s, an d as se ss ed a li fe se nt en ce. The Co ur t of App eal s rev ers ed , h o l d i n g th at th e tri al co ur t erre d by ad m it ti ng bl oo d te st res ul ts ob ta in ed fro m a 1n on co ns en su al , warra nt le ss bl oo d dr aw. Co le v. St at e ,

__ S.W .3d

__ , No. 06 -1 3-

00 26 4- CR (Tex . App .–Tex ark an a, 20 14 ).

STATE MENT OF PROCEDURAL HI STO RY The Co ur t of App eal s’ pu bl is he d o pi ni on was i ss ue d o n Dec em be r 18 , 2 01 4. Neit he r pa rty so ug ht reh eari ng
. Thi s Co ur t gr an te d th e St at e o ne ex te ns io n o f ti m e

un ti l Fe br ua ry

19 , 20 15 , to fil e th is pe ti ti on
.

QUEST IO NS FOR REVIE W 1) Did the Cou rt of Appea ls co nduc t an in co rrec t ex ig ent ci rcumsta nces an al ys is w hen i t req ui red p ro of

of a “n ow or nev er” lev el of u rg ency ?
2 ) Wer e ex ig ent ci rcumsta nces pres ent to dra w Appel la nt’s bl oo d w ith ou t a w ar ra nt w hen the ac ci dent crea ted a su bs ta nti al peri od of del ay befo re bl oo d co ul d be dra w n, the of

fic er k new tha t it ty pi ca ll y to ok on e to on e an d a ha lf ho urs to ob ta in w ar ra nt, an d he su sp ecte d the defe nda nt w as unde r the in flu ence of il le ga l d r u g s a s op po se d to al co ho l, w hi ch ha s a pred ic ta bl e ra te of el imina tio n? 3) Doe s a w ar ra n t l e s s bl oo d dra w co nduc ted purs ua nt to T E X . T R A N S P . C O D E § 7 24 .01 2( b) v io la te the Four th Am endment? 4) If a w ar ra ntl es s bl oo d dra w co nduc ted purs ua nt to T E X . T R A N S . C O D E § 72 4.0 12 (b) vi ol at es the Four th Am endment, m us t tha t ev id ence b e s u p p res se d w hen, a t the t ime of th e se ar ch, the sta tute w as pres umptiv el y v al id an d tha t it di sp ens ed w ith the w ar ra nt re qui rement?

2ARGUMENT

Gro unds I a nd I I Thi s ca se in vo lv es a warra nt le ss bl oo d dr aw fo ll owi ng App el la nt ’s arres t fo r in to xi cat io n m an sl au gh te r. The Co ur t of App eal s no te d th at warra nt le ss se arch es ha ve be en u p h el d “ [w]here th ere are ex ig en t ci rcu m st an ces in whi ch po li ce act io n li te ral ly m

us t be ‘now or ne ve r’ to pr es erv e th e ev id en ce of t h e c rime. Roa de n v. Ken tu cky , 41 3 U.S. 49 6, 50 5, 93 S. Ct

. 27 96 , 37 L. Ed. 2d 75 7 (1 97 3) .” Co le , sl ip op
. at 11 n. 5. It co nc lu de d th at , be cau se App el la nt ’s bl oo d co ul d ha ve be en dr awn wit h

a warra nt th ree ho ur s a nd fo rty m in ut es aft er th e acci de nt , whe n po li ce su sp ect ed
in to xi cat io n by m et h a mp h e t a m in e, th e pe rio d of de la y “ fai ls to reac h th e ‘now or

ne ve r’ le ve l co nt em

pl at ed by ex ig en t c i r cu m st an ces pr eced en t.” Id

. at 20 -2 1. Bu t whi le a “ no w or ne ve r” si tu at io n al way s pr es en ts ex ig en t ci rcu m st an ces , th e Su pr em e Co ur t do es no t req ui re th at le ve l of ur ge nc y in ev ery cas e. The C o u r t o f A p pe al s

erre d by im

po si ng an im

pr op erl y hi gh bu rd en on th e St at e an d by fin di ng th at ex ig en t ci rc u msta nc es were no t pr es en t in th is cas e, whi ch in vo lv ed a si gn ifi can t pe rio d of de la y an d a su sp ect ed in to xi can t o th er t ha n a lc oh ol

. At 10 :2 0 p.m
. in do wnt own Lon gv ie w, App el la nt ran a red li gh t at an es ti m at ed
11 0 m il es pe r ho ur an d st ru ck a car in th e in te rs ect io n, ki ll in g th e dr iv er an d cau si ng hi s car to bu rs t in to fla m es
. RRII I: 24 , 27 -3 2, 47 , 52 , 15 3, 16 5, 17 5. Due to th e fir e
3an d de gr ee of im pa ct , th ere was a la rg e de br is fie l d , an d tra ffi c was bl oc ke d in al l di rect io ns . RRIII: 37 -3 9, 1 14 -1 16

. App el la nt was ta ke n to th e ho sp it a l fo r ev al ua ti on
. RRII I: 23 4. He ad m it te d
to ta ki ng “ a co up le of hi ts of m et h,” an d an of fic er ob se rv ed th at he was “ twea ki ng ,” i.e., m ak in g in vo lu nt ary bo di ly m ov em en ts

. RRII I: 87 , 92 , 22 1, 23 5. He was arre st ed
at th e ho sp it al at 11 :3 8, an d aft er he refu se d t o v o l un ta ril y pr ov id e a sp eci m en , hi s bl oo d was dr awn wit ho ut a wa r r a n t at 12 :2 0 a.m
. SX 9, SX 10

. RRII I: 22 3- 24

. App el la nt ’s bl oo d ha d a 0.2 le ve l o f a m ph et am in e an d a 0.2 3 le ve l of

m et ha m ph et am in e, whi ch was d e s cri be d by th e to xo lo gi st as at be in g at th e “ ve ry hi gh en d of a th erap eu ti c ran ge ,” bu t a “ m od erat e d o se ” fo r recr eat io na l us e th at

“ co ul d” cau se in to xi cat io n. RR IV: 2 0- 21

. Offi cer Hig gi nb ot ha m te st ifi ed th at , in hi s ex pe rie nc e in Greg g Co u nt y , it

wou ld ta ke an ho ur to an ho ur an d a ha lf to ob ta in a warra nt “ at th e be st ” an d it wou ld
ha ve be en po ss ib le , bu t no t feas ib le , to writ e up a pr ob ab le cau se affi da vi t to su bm it
to a jus ti ce of th e pe ace. RRII I: 18 3- 85

. A do zen of fic ers wor ke d th e acci de nt , whi ch
ha pp en ed du rin g sh ift ch an ge
. RRII I: 3 8

. No of fic er was av ai la bl e to ob ta in a 1

warra nt , as th ey were al l were pe rfo rm in g ne ces sa ry fu nc ti on s at th e sc en e or at th e

The Lon gv ie w po li ce de pa rtment ha d 13 of fic ers on th e ev en in g sh ift an d 11 on 1 th e m id ni gh t s hi ft t ha t n ig ht . RRIII: 17 8- 80

. 4ho sp it al

. The t r i a l co ur t ad m it te d th e ev id en ce fro m th e warra nt le ss bl oo d dr aw,

ba se d on ex ig en t ci rcu m st a n c e s
. The tri al co ur t de te rm in ed th at un li ke a “ reg ul ar DW I,” t he cir cu m st an ces he re d id no t al lo w ti m e fo r a warra nt . RRIII: 19 7- 99

. 2
Po l i c e ne ed no t ob ta in a warra nt whe re ex ig en t ci rcu m st an ces wou ld m ak e do in g so im

pr act ic al

. U.S. v. Mon to

ya De Her na nd ez , 47 3 U.S. 53 1, 55 3 (1 98 5)

. The
Co ur t of App eal s co rrec tl y no te d th at , “ The rel ev an t in q u i ry is whe th er, gi ve n th e fact s an d ci rcu m st an ces kn own to po li ce at th e ti m e, it wou ld be o b je ct iv el y

reas on ab le fo r an of

fic er to c o nc lu de th at ta ki ng th e ti m e ne ces sa ry to ob ta in a

warra nt be fo re dr awin g a bl oo d sa m pl e wou ld si gn ifi can tl y un de r m in e th e effi cacy of a bl oo d- al co ho l tes t.” Co le , sl ip op
. at 12 (ci ti ng Mis so ur i v. McNee ly , 13 3 S.Ct

.

W he n a dm it ti ng th e ev id en ce, t he tri al jud ge m ad e th e fo ll owi ng co m m en ts , 2
Th i s c a s e , y ou ha ve on e of th e m os t m ajor in te rs ect io ns in Lon gv ie w, Tex as , s h u t do wn. Yo u h av e n um ero us off ic ers on th e sc en e. W hi le th ere a re o th er of fic ers who co ul d as si st in so m e way s, th e le ad in ve st ig at or , th e pe rs on who ha s th e sp eci al iz ed tra in i ng in or de r to do an acci de nt reco ns tru ct io n, an acci de nt in ve st ig at io n, is th e of

fic er who ha s to rem ai n on th e sc en e. So th ere are th os e ex ig en t ci rcu m st an ces
. You ha ve fact or s th at le ad th at of fic er hav in g to rem ai n th ere. The re was a la rg e de br is fie ld ; fir e; ag ai n, a m ajor i n t e r s e c t i o n be in g in vo lv ed . I t was no t jus t a typic al li tt le DW I arre st

. Seco nd ly, y ou al so ha ve th e de fen da nt cu rren tl y at th e ho sp it al be in g tra ns po rte d by EMS. The of fic ers al so ha ve to be co nc ern ed of whe th er he ’s gi ve n an y ad di ti on al m ed ic at io ns , wha t hi s he al th an d sa fet y is

. So th ere are ot he r fact or s in vo lv ed , ot he r -- t ha t d o no t gi ve ti m e fo r a warra nt th at m ay be th ere in a reg ul ar DW I. Als o, th e ti m in g of al l to ge t th e sc en e cl ear e d i s a n ex ig en t ci rcu m st an ce. RRI II: 19 7- 98

.
515 52 , 15 61 (2 01 3) ). Howev er, in ap pl y in g th at te st , th e Co ur t of App eal s wen t as tra y

by requ iri ng a “ no w or n ev er” s it ua ti on for ev ery type o f ex ig en cy
. W he n th e Co ur t of App eal s he ld th at th e “ no w or ne ve r”t hr es ho ld ha d no t be en

m et , it ci te d cas es th at in vo lv ed th e im m in en t de st ru ct io n of ev id en ce. Tha t m ay be
th e ap pr op ria te st an da rd when th ere i s a po ss ib il it y th at co nt rab an d m ay be flu sh ed do wn t he to il et , bu t McNee ly no te d th at bl oo d dr aws are di ffer en t. “ The co nt ex t o f bl oo d te st in g is di ffer en t in cri ti cal res pe ct s fro m ot he r de st ru ct io n- of -ev id en ce cas es in whi ch th e po li ce are tru ly con fro nt ed wit h a ‘now or ne ve r’ s it ua ti on .” 13 3 S.Ct

. at 15 61

. Tha t is , di ss ip at io n of al co ho l fro m th e syste m is di st in gu is ha bl e fro m whe n “a su sp ect act ua ll y ha s ph y si cal co nt ro l ov er eas il y di sp os ab le ev id en ce.” Id

. B u t th is do es no t m ean th at di ss ip at io n can no t be an i mp o r t a nt fact or al on g wit h th e
pa ss ag e of ti m e. The Co ur t ex pl ai ne d th at “ a si gn ifi can t d e l a y i n te st in g wil l

ne ga ti ve ly affe ct th e pr ob at iv e va lu e of th e res ul ts ” an d ack n o wled ge d th at “ so m e ci rcu m st an ces wil l m ak e ob ta in in g a warra nt im pr act ic al su ch th at th e di ss ip at io n of
al co ho l fro m th e bl oo ds tre am wil l su pp or t an e x i ge nc y jus ti fy in g a pr op erl y

co nd uc te d warra nt le ss bl oo d te st .” Id

. (in te rn al qu ot at io n m ark s om it te d)

. The re are
two im po rta nt co m

po ne nt s t o t hi s o bs erv at io n: ti m e an d d eg ree o f de st ru ct io n. W he n a su sp ect ha s ph y si cal po ss es si on of an eas il y de st ru ct ib le it em an d th e ci r c u ms ta nc es su gg es t th at he m ay be ab ou t to de st ro y it , of fic ers m us t se iz e it

6im m ed ia te ly or lo se it fo rev er. Bu t whe n th e it em is in th e su sp ect ’s bl oo ds tre am he

do es no t ha ve in de pe nd en t co nt ro l ov er it an d c a n n o t im m ed ia te ly de st ro y it

. The bo dy wil l el im in at e it au to m at ic al ly ov er a p e r i o d of ti m e. W he n th e pe rio d of di ss ip at io n is un kn own or is kn own an d ev id en ce wil l be el im in at ed du rin g th e ti m e

r eq ui red to ob ta in a warra nt , th e ev id en ce is jus t as su sc ep ti bl e to de st ru ct io n a s

ev id en c e th at is ab ou t to be co ns um ed by fir e or flu sh ed do wn th e to il et

. In th e fo rm er s it ua ti on , be cau se th e de st ru ct io n ti m e is sl owe d, t he “ im m in en ce” f act or is
al so sl owe d. So th e “ no w” in “ no w or ne ve r” is n’t no w; it ’s wit hi n th e ne xt , pe rh ap s,
two ho ur s. S i mi l a r l y, th e th reat to th e ev id en ce ne ed no t ris e t o t h e l e v e l o f t o t a l de st ru ct io n. Evi de nc e can lo se pr ob at iv e va lu e ov er tim e. Id

. (“ a si gn ifi can t del ay in te st in g wil l ne ga ti ve ly affe ct th e pr ob at iv e va lu e of th e res ul ts .”). A l t h o u g h no t de st ro y e d , e v i d e n c e can be de gr ad ed to th e de gr ee th at it is us el es s or si gn ifi can tl y le ss us efu l. Ret ro gr ad e ex tra po la ti on is po ss ib le be cau se th e de gr ee of ab so rp ti on an d el im in at io n of alco ho l is rela ti ve ly fix ed

. Bu t ot he r va ria bl es th at m ay be un kn own wil l effe ct th e eq ua ti on so th at th e m eas ur e o f i nt ox ic at io n at a gi ve n ti m e is le ss
cert ai n. Oth er dr ug s li ke co cai ne m ay no t be co m pl et el y el im in at ed , fro m th e bl oo ds tre am , bu t th e m et ab ol it es le ft be hi nd do no t pr ov e in to xi cat io n or pi np oi nt th e

am ou nt or t im e o f co ns um pt io n.
7The McNee ly Co ur t refu se d th e St at e ’s in vi ta ti on to ho ld th at “ th e na tu ral

m et ab ol iz at io n of al co ho l in th e bl oo ds tre am pr es en ts a pe r se ex ig en cy th at jus ti fie s

an ex cep ti on to th e Fo ur th Am en dm e n t ’s warra nt req ui rem en t fo r no nc on se ns ua l bl oo d te st in g in al l dr un k- dr iv in g cas es .” 13 3 S.Ct

. at 15 56

. In st ead , it he ld th at th e

ex is te n c e o f ex ig en t ci rcu m st an ces m us t de te rm in ed on a cas e-b y -cas e ba si s,

co ns id eri ng th e to ta li ty of th e ci rcu m st an ces
. Id

. McNee ly di d no t ad dr es s whe th er th e fact s of th at cas e pr es en te d ex ig en t ci rcu m st an ces , so it is n o t a u t ho rit at iv e on whe th er ex ig en t ci rcu m st an ces are pr es en t in an y pa rti cu la r se t of ci rcu m s t a n c e s
. 3
Unf or tu na te ly, se ve ral co ur ts of ap pe al s ha ve m is co ns tru ed i t s l i m it ed ho ld in g an d
ha ve he ld th at un de r McNee ly , exi ge nt cir cu m st an ces were no t pr es en t. Thi s C ou rt

s h o u l d gr an t rev ie w an d di sp el th e no ti on th at McNee ly se ts ou t a ne w te s t f o r de te rm in in g ex ig en t ci rcu m st an ces for bl oo d dr aws an d sp eci fic al ly t ha t it im po se s

Se e i d

. a t 1 5 6 7 , 15 68

. (“ The St at e di d no t arg ue th at th ere were ex ig en t 3 ci rcu m st an ces in th is pa rti cu la r cas e be cau se a warra nt co ul d no t ha ve be en ob ta in ed wit hi n a reas on ab le am ou nt of ti m e....Beca us e t h i s c a s e was arg ue d on th e br oa d pr op os it io n th at dr un k- dr iv in g cas es pr es en t a pe r se ex ig en cy , th e arg um en ts an d th e reco rd do no t p ro vi de th e Co ur t wi th an ad eq ua te an al y ti c fra m ewo rk for a de ta il ed di sc us si on of al l th e rel ev an t fact or s th at can be ta ke n in to acco un t in de te rm in in g th e reas on ab le ne ss of act in g wit ho ut a warra nt

.... No do ub t, gi ve n th e la rg e nu m be r of arre st s f o r th is of fen se in di ffer en t juri sd ic ti on s na ti on wid e, cas es wil l ari se whe n an ti ci pa te d de la y s in ob ta in in g a warra nt wil l jus ti fy a bl oo d te st wit ho ut jud ic ia l au th or iz at io n, fo r in ev ery cas e th e la w m us t be co nc ern ed th at ev id e n c e i s be in g de st ro y ed

. Bu t th at in qu iry ou gh t no t to be pu rs u e d h e r e whe re th e qu es ti on is no t pr op erl y be fo re t hi s C ou rt.” ) 8a st ric t “ no w or n ev er” s ta nd ard

.

Alt ho ug h McNee ly he ld th at al co ho l’s na tu ral el im in at io n fro m th e bo dy is no t

en ou gh to au to m at ic al ly es ta bl is h ex ig en t ci rcu m st an ces in al l D WI c a s es , whe n

s o m et hi ng ou t of th e or di na ry oc cu rs th at cau se s si gn ifi can t de la y an d im pe de s th e ab il it y to ob ta in an d ex ecu te a warra nt , th e el im in at io n rat e of th e su bs ta nc e be co m es in crea si ng ly im

po rta nt

. Unl ik e a “ reg ul ar” DW I, th is cas e i n v o l v e s a si tu at io n whe re co ns id erab le de la y ha d al read y ta ke n pl ace. Two ho ur s ha d al read y el ap se d whe n Hig gi nb ot ha m

m ad e th e d eci si on to for eg o a warran t. The Co ur t of App eal s he ld th at a to ta l de la y of th ree ho ur s an d fo rty m in ut es was no t en ou gh to co ns ti tu te ex ig en t ci rcu m st an ces
. Co le , sl ip op
. at 20

. Bu t, as po in te d ou t ab ov e, si gn ifi can t de la y can ris e to th e le ve l of ex ig en t ci rcu m st an ces
. Th e se ve rit y of th e acci de nt can in te rfer e wit h th e ab il it y to ti m el y ob ta i n a

warra nt

. The nu m

be r of po li ce in vo lv ed in th e in ve st ig at io n, th e ab il it y to pr oc es s a

warra nt ap pl ic at io n du rin g th e in ve st ig at io n, an d de la y cau se d by th e ti m e ne ed ed to in ve st ig at e is rel ev an t. Dou ds v. St at e , 43 4 S.W .3d 84 2, 85 3- 54 (Tex App .–Ho us to n [1 4 Dis t.] 20 14 , pe t gr an te d)

. th 4 “ The St at e sh ou ld be res po ns ib le fo r as ki ng of fic ers

Thi s Co ur t gr an te d rev ie w of th ree gr ou nd s, in cl ud in g gr ou nd th ree, whi ch as ks , 4

“ Did th e Co ur t of App eal s err in fin di ng in su ffi ci en t ex ig en t ci rcu m st an ces whe re th e arre st in g of

fic er was de la y ed in ob ta in in g th e bl oo d dr aw by hi s in ve st ig at io n of th e 9who ha nd le acci de nt s to ex pl ai n th e de m an ds of a pa rti cu la r in ve st ig at io n th at m ad e

it i mp r a c t ic al fo r po li ce to ob ta in a warra nt be fo re an y bl oo d al co ho l ev id en ce di ss ip at ed .” Id

. at 85 4. Tha t is ex act ly wha t th e St at e di d he re. Half of th e Lon gv ie w
po li ce fo rce on du ty du rin g th e ev en in g an d m id ni gh t sh ift s was at th e acci de nt sc en e,
pe rfo r mi n g ne ces sa ry fu nc ti on s. Yet th e Co ur t of App eal s ob se rv ed , “ The re is no in di cat io n t ha t offi cers no t on th e sc en e were un av ai la bl e to he lp ob ta in a warra nt .”
Co le , sl ip op
. a t 2 1

. U n d e r th is th eo ry , if th ere is ev en on e rem ai ni ng of fic er no t
act iv el y in vo lv ed in th e cas e, th ere wi ll ne ve r be ex ig en t ci rcu m st an ces
. In ad di ti on to th e su bs t a n t i al de la y , th is cas e in vo lv ed m et ha m ph et am in e
. St reet dr ug s ha ve di ffer en t m et ho ds of in ge st io n wit h co rres po nd in gl y di ffer en t rat es of ab so rp ti on
. The Co ur t of App eal s r e c o g n i zed th e po ss ib il it y th at 5

m et ha m ph et am in e ha s a di ffer en t rat e of el im in at io n, bu t req ui red pr oo f of th e act ua l
rat e, ho ld in g, “ W it ho ut so m e in di cat io n o f w he n th e m et ha m ph et am in e ev id en ce

wou ld be gi n to di ss ip at e, we can no t co nc lu de th at su c h e v i d e nc e wou ld li ke ly be de st ro y ed ev en if ob ta in in g th e warra nt to ok an ex tra ho ur an d a ha lf.” Id

. at 18 n. 7.

acci de nt sce ne whi ch in vo lv ed an in jury?” Th e to xi co lo gi st te st ifi ed th at th e rat e of ab so rp ti on of m et ha m ph et am in e 5 de pe nd s on th e m ean s of in ge st io n. The fas te st is by in jecti on , fo ll owe d by sn or ti ng , sm ok in g, an d or al ad m in is tra ti on
. RRIV: 15

. B u t t hi s ev id en ce was no t be fo re th e tri al co ur t at th e ti m e o f it s ru li ng
. 10Bu t th e is su e is no t th e ev id en ce be fo re th e t r i a l or ap pe ll at e co ur ts , bu t th e

reas on ab le ne ss of th e of

fic er’s acti on s bas ed on th e fact s kn own to hi m at th e ti m e. Se e Co lb ur n v. St at e , 96 6 S.W .2d 51 1, 51 9 (Tex

. Cri m
. App

. 19 98 ) ( “We a p pl y an ob jecti ve st an da rd of reas on ab le ne ss in de te rm in in g whe th er a warra nt le ss se arch is jus ti fie d, tak in g in to acco un t th e fact s and ci rcu m st an ces kn own to th e p ol ic e at th e ti m e of th e se arch .”). Unl ik e al co ho l, th e ab so rp ti on an d el im in at io n rat es of st reet

or pr es cri pt io n dr ug s is ne it he r co m m on ly kn own no r pu bl ic iz ed

. A r e a so na bl e 6
of fic er sh ou ld no t be ex pe ct ed to kn ow th e rat e of ab so rp ti on an d el im in at io n of st reet dr ug s of un kn own pu rit y an d m et ho d of ad m in is tra ti on
. The un kn own di ss ip at io n
rat e mak e s i t al l th e m or e reas on ab le to be li ev e th at th e ev id en ce wou ld li ke ly be de st ro y ed or si gn ifi can tl y de gr ad ed ha d th e of fic er wait ed an ad di t i o n a l ho ur an d a ha lf t o g et a warra nt fro m th e ti m e th e b lo od was a ct ua ll y dra wn. 7
Gro und I II The Co ur t of App eal s he ld th at th e warra nt le ss bl oo d dr aw was no t pe rm is si bl e

un de r T E X
. T R A N S P
. C O D E § 72 4.0 12 (b ) (m an da to ry bl oo d dr aw st at ut e), ci ti ng St at e

v. Vil la rr ea l,

__ S.W .3d

__ No. PD-0 30 6- 14 , 20 14 Tex

. Cri m
. App

. LEXIS 18 98 (Tex

.
ht tp :/ /www.ta bc .st at e.tx .us /p ub li cat io ns /b ro ch ur es /B ACCh art s.p df 6 Th e of fic er was al so co nc ern ed ab ou t th e effe ct th at ot he r m ed ic at io ns C o l e 7
m ig ht rece iv e at th e ho sp it al wou ld ha ve on th e ab il it y to de te rm in e wha t was in hi s syste m at t he ti m e o f th e acc id en t. RRI II: 18 7. 11Cri m
. App

. 20 14 ). Vil la rr ea l is no t cu rren tl y fin al , be cau se th e m ot io n fo r reh eari ng

is pe nd in g. Thi s Co ur t ha s gr an te d St at e’s pe ti ti on s ch al le ng in g op in io ns fro m ot he r

co ur ts of ap pe al s ho ld in g th at of fic ers who ob ta in a no n- co ns en s u a l b lo od dr aw
pu rs ua nt to th e st at ut e wit ho ut a warra nt vi ol at e th e Fo ur th Am en dm en t. See Smi th , PD -161 5, Reed

er , PD 0601 -1 4, H

oli dy , PD -0 622- 14, W

ee m s , PD -0 635- 14, an d D ouds , PD-0 85 7- 14 . This pe ti ti on rai se s t he same iss ue s. Sp eci fic al ly, th e St at e co nt en ds th at th e m an da to ry bl oo d dr aw pr ov is io n in th e
st at ut e ap pl ie s on ly in th e ab se nc e of a se arch warra nt , un de r th e ex pr es s te rm s of th e
st at ue
. Se e St at e v. Jo hn st on , 33 6 S.W .3d 64 9, 66 0 (Tex

. Cri m
. App

. 20 11 ) (“ Ch ap te r 72 4 is in ap pl ic ab le whe n th ere is a se arch warra nt ” an d th at th e st at ut e “ go ve rn s th e St at e’s ab il it y to ob ta in a br eat h or blo od sa m pl e fro m a DW I su sp ect when th ere is

no warran t.”)

. In ad di ti on , whe n a de fen da nt dr iv es a ve hi cl e on a pu bl ic ro a d w a y whi le
in to xi cat ed , he gi ve s ad va nc e, irr ev oc ab le co ns en t an d ei th er waiv es an y w a rran t
req ui rem en t o r is est op pe d fr om de m an di ng it

. T E X
. T R A N S P
. C O D E § 72 4. 01 1 pr ov id es th at a pe rs on arre st ed fo r cert ai n of fen se s, i nc lu di ng dri vi ng whi le in to xi cat ed , is de em ed to ha ve co ns en te d, s ub ject
to ch ap te r 72 4, to su bm it to th e ta ki ng of a s p e c i men o f hi s br eat h or bl oo d to de te rm in e th e pr es en ce of an in to xi can t. A de fen da nt who ex erci se s th e pr iv il eg e of

12dr iv in g on pu bl ic ro ad s an d is arre s t e d f o r un de r ci rcu m st an ces pr ov id ed in

su bs ect io n (b ) ha s co ns en te d to th e ta ki ng of hi s bl oo d, is no t en ti tl ed to req ui re th at
po li ce fi rs t o bt ai n a warran t o r m eet an y reco gn iz ed warran t ex cep ti on
. C f. Rh od es

v. St at e , 24 0 S.W .3d 88 2, 8 9 1 ( Te x . Cri m
. App

. 20 07 ) (th e do ct rin e of es to pp el by

co nt ract ba rs a pa rty who acce pt s th e be ne fit s of a co nt ract fro m co m pl ai ni ng ab ou t it s ex is te nc e, va li di ty, or effe ct ).
Nex t, th e Fo ur th Am en dm en t req ui re s on ly rea so na bl en es s; a se arch warra nt

or ex cep ti on is no t es se nt ia l fo r a se arch to be reas on ab le

. “ The ul ti m at e m eas ur e of
th e co ns ti tu ti on al it y of a go ve rn m en ta l se arch is ‘reaso na bl en es s.’” Vern on ia Sc ho ol
Dis t. 47 J v. Acto n , 51 5 U.S. 64 6, 65 2 (1 99 5)

. A se arch th at : co m pl ie s wit h th e st at ut e, is gi ve n wit h ad va nc ed , su bs eq ue nt ly wit hd rawn co n s e n t , an d co ns ti tu te s a se arch
in ci de nt to arre st for ev id en ce o f th e cri m e o f arre st (se e b el ow) is reas on ab le

. Fi na ll y , t he st at ut e is a co di fic at io n of th e se arch in ci de nt to arre st ex cep ti on
to th e warra nt req ui r e men t fo r a na rro w cl as s of cri m es an d a bl oo d dr aw is a

reas on ab le type of se arch

. The st at ut e req ui res a sp eci fic type of se arch –a sp eci m en of br eat h or b lo od –i nc id en t t o a na rro w cla ss of fel on y in to xi cat io n- rel at ed arre st s. The sc op e of th e se arch is ti ed to th e o ffen se of a rres t. A b l o o d dr aw c ondu c t e d

i n

acco rd an ce wit h Ch ap te r 72 4 is a reas on ab le se arch in ci de nt to la wfu l arre s t a n d i s
pe rm is si bl e wit ho ut a warra nt

. 13Gro und I V

The bl oo d dr aw in th is cas e oc cu rred in 20 11 , b efo re an y co ur t ha d he ld th at th e st at ut e vi ol at es th e Fo ur th Am en dm en t. At th e ti m e of th e se arch , th e st at ut e was
pr es um pt iv el y co ns ti tu ti on al

. Se e Ka rn ev v. St at e , 28 1 S.W .3d 42 8, 43 4 (Tex

. Cri m
. App

. 20 09 ) (“ St at ut es are pr es um ed to be co ns ti tu ti on al un ti l it is d e t erm in ed
ot he rwis e.”). S o e v e n i f th is Co ur t de te rm in es th at th e st at ut e is in va li d, th e bl oo d
te st res ul ts in t h i s c a s e sh ou ld no t be su pp res se d un de r ei th er th e Fed eral or Tex as

ex cl us io na ry

rul es
. 8
The S u p rem e Co ur t ha s he ld th at th e go od -fai th ex cep ti on to th e Fo ur th
Am en dm en t’s ex cl us io na ry ru le ap p li es whe n la w en fo rcem en t, at th e ti m e of th e

se arch , a ct ed ob

jecti ve ly rea so na bl y by re lying on a st a t u t e t h a t was la te r de cl ared

un co ns ti tu ti on al , Ill in oi s v. Kr ul l , 48 0 U.S. 34 2, 34 9- 57 (1 98 7) , or on bi nd in g jud ic ia l
pr eced en t th at was su bs eq ue nt ly ov erru le d. Dav is v. Uni te d St at es , 13 1 S. Ct

. 24 19 , 24 28 -3 4 (2 01 1)

. In ad di ti on to th e pr es um

pt iv el y co ns ti tu ti on al m an da to ry dr aw st at ut e, be fo re Vil la rr ea l , th is Co ur t ha d he ld th at th e st at ut e “ ex pa nd s on th e St at e’s se arch

c ap ab il it ie s by pr ov id in g a fram ewo rk fo r dr awin g DW I su sp ect s’ bl oo d i n t h e

The co nc ur rin g op in io n in th is cas e ad dr es se d go od fai th , be li ev in g th a t t h e 8 fed eral go od fai th do ct rin e ap pl ie s, bu t th e go od fai th ex cep ti on to ou r St at e ex cl us io na ry

rul e d oe s n ot

. Co le , sl ip op . at 2 2- 26

. 14ab se nc e of a se arch warra nt ,” a n d “enab l[e s] [o ffi cers ] to dr aw bl oo d in cert ai n

li m it ed ci rcu m st an ces ev en wit ho ut a se arch warra nt .” Beema n v . St at e , 86 S.W .3d
61 3, 61 6 ( Te x . C r i m. App

. 20 02 ). Pri or to McNee ly , th is Co ur t he ld th at th at di ss ip at io n of al co ho l fro m t he bl oo d st ream al on e co ns ti tu te s ex ig en cy whi ch ,

co m bi ne d with pr ob ab le cau se an d a reas on ab le m et ho d of dr awin g bl oo d, do es no t
req ui re a warra nt

. Ali

f f v
. S t a te , 6 27 S.W .2d 16 6, 16 9- 70 (Tex . C rim. App . 1 98 2)

. Dav is he ld th a t i t w a s in ap pr op ria te to ap pl y th e ex cl us io na ry ru le to a se arch th at

was , at t he ti m e, pe rm is si bl e u nd er b id in g p rece de nt . 13 1 U.S. at 24 24 -2 8. Here, th e of

fic er dr ew Appell an t’ s bl oo d un de r th e au th or it y of a pr es um pt iv el y

va li d st at ut e an d c as el aw in te rp ret in g i t. Ap pl y in g th e ex cl us io na ry ru le wou ld no t

se rv e th e ru le ’s pu rp os e of de te rri ng po li ce m is co nd uc t. Fo r pu rp os es of th e Fo ur th
Am en dm en t, t he go od -fai th ex cep ti on pre ve nt s s up pr es si on
. Su pp res si on is al so no t jus ti fie d un de r Tex as ’ ex cl us io na ry ru le . T E X
. C O D E C R IM
. P R O C . a rt. 38 .23 (a) pr oh ib it s th e us e o f ev id en ce o bt ai ne d in vi ol at io n of th e la w. Bu t no t ever y vi ol at io n of the law i s s ub ject to ex cl us io n un de r art ic le 38 .23

. Thi s Co ur t ha s no t ap pl ie d th e pl ai n m ean in g of th e st at ut e an d in st ead ha s read in to it a req ui rem en t th at th e vi ol at io n be rel at ed “ to th e pu rp os e of th e ex cl us io na ry ru le

or to th e pr ev en ti on of th e il le ga l pr oc ur em en t of ev id en ce of cri m e.” W il so n v. St at e , 31 1 S

. W. 3 d 45 2, 45 9 (Tex

. Cri m
. App

. 20 10 ). In Mil es v. St at e , 24 1 S.W .3d 28

15(Tex

. Cri m
. App

. 20 07 ), th e Co ur t he ld th at a pe rs on ’s vi ol at io n o f tra ffi c la ws in

or de r to m ak e a ci ti zen ’s arre st di d no t im pl ic at e art ic le 38 .23 , no ti ng th at “ on ly th os e
act s whi ch vi ol at e a pe rs on ’s pr iv acy rig ht s or pr op ert y in te res ts are su b je c t t o th e
st at e or fed eral ex cl us io na ry ru le .” Id

. at 36 , 46

. And in Roc ha v. St at e , 16 S.W .3d 1, 18 -1 9 (Tex. Crim

. App

. 20 00 ), th e Co ur t he ld th at art ic le 38 .23 do es no t app ly to

ev id en ce ob ta in ed in vi ol at io n of th e Vien na Co nv en ti on be cau se th e tre at y is
in te nd ed to pro te ct na ti on s; it do es no t cr eat e en fo rcea bl e in di vi du al rig ht s. A si m il ar su pp res si on ex em pt io n sh ou ld be reco gn iz ed h e re be cau se th e
pr im ary pu rp os e of art ic le 38 .23 is no t fu rth ered whe n po li ce co m pl y wit h an ex is ti ng , pr es um pt iv el y va li d s ta tu te an d c as e la w in te rp ret in g i t.

16PRAYER FOR RELIE F

W HEREFORE, th e St at e of Tex as pr ay s th at th e Co ur t o f C r i mi na l App eal s
gr an t th is Pet it io n fo r Dis cret io na ry Rev ie w, th at th e cas e be se t fo r su bm is si on , an d
th at aft er s ub m is si on , th is Co ur t re ve rs e th e d eci si on of t he Co ur t o f App eal s. Res pe ct fu ll y

su bm it te d,

/s / LISA C. M cMI NN
LISA C. McM INN Sta te Pro se cu ti ng Att or ne y Bar I.D. No . 13 80 33 00
P.O. Box 13 04 6 Aus ti n, Tex as 78 71 1 in fo rm at io n@ sp a.te xa s.g ov 51 2/ 46 3- 16 60 (Tele ph on e) 51 2/ 46 3- 57 24 (Fax )

17CERTI FICATE OF COMPLI ANCE

I cert ify t h a t , acco rd in g to th e W or dP erfe ct wor d co un t to ol , th is do cu m en t

co nt ai n 4 42 5 wo rd s.

/s / LISA C. M cMI NN LISA C. McM INN St at e Pro se cu ti ng Att or ne y

CERTI FICATE OF SERVI CE
I cert ify th at on th is 19 da y of Feb ru ary, 20 15 , th e St at e’s Pet it i o n f or th
Dis cret io na ry

Rev ie w was s erv ed vi a cer ti fie d e le ct ro ni c se rv ic e p ro vi de r to : Zan C ol so n B ro wn Ass is ta nt Dis tri ct Att or ne y 10 1 Eas t M et hv in , Sui te 33 3 Lon gv ie w, Texas , 75 60 1 Zan Co ls on Bro wn zan .bro wn@ co .gre gg .tx .us Ebb Mo bl ey P.O. Box 23 09 Lon gv ie w, Texas 75 60 6 eb bm ob @a ol .co m /s / LISA C. M cMI NN LISA C. McM INN Sta te Pro se cu ti ng Att or ne y

18APPENDIX

### In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 13

- 00179

- CR

STEVEN COLE, Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 41312

- A

Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Justice Carter Concurring Opinion by Justice Moseley2 O P I N I O N
Steven Cole drove a Ford F

- 250 through downtown Longview, Texas , at 10:20 p.m

. , ran a red light, and collided with a Toyota Tundra driven by Jim Hightower. Witnesses described the collision as an explosion. Hightower died instantly, and the Toyota caught fire and burned.
C ole admitted that he had taken meth amphetamine that night. Police attempted to obtain a voluntary blood sample from Cole, but he refused. In accordance with Texas statutory law, a nurse obtained a sample of Cole ’ s blood , which contained methamphetamine a nd amphetamine. Cole moved to suppress evidence pertaining to the blood specimen claiming that the specimen was seized without a warrant, consent, or exigent circumstances. The trial court found that exigent circumstances existed and admitted the blood te st into evidence. A jury found Cole guilty of intoxication manslaughter and assessed a life sentence. 1 Cole argues that the trial court erred in denying his motion to suppress the evidence obtained through a warrantless , nonconsensual blood draw. We fi nd that no exigent circumstances existed to justify the warrantless blood draw and reverse the judgment and remand to the trial court for further proceedings.
I. Factual Background This collision occurred a round 10:20 p.m., December 1, 2011, in downtown Longview, Texas. Several witnesses testified that Cole was speeding just prior to impact. Hightower was killed in the crash , and when emergency responders arrived, Hightower ’ s Toyota was engulfed in

1 The State alleged and proved two prior Louisiana felony convictions to enhance the punishment range to twenty

five years’ to ninety

- nine years’, or life

. S ee T ex . P ENAL C ODE A NN
. § 12.42(d) (West Supp. 2014).3 flames. In order to remove Cole from his truck, police officers had to break out the rear window of the truck and pull him out. Prior to the arrival of emergency medical personnel, Officer Audrey Wright arrived on the scene and spoke briefly with Cole. Cole stated his address was on Texas Street, but he did not know where Longview was and had no idea why he was in Longview. Paramedics examined Cole , and he was suffering pain “ all over, ” specifically in the chest . H e also had lacerations to his hands. During the e xamination, Cole told one of the paramedics that he had taken two hits of methamphetamine that night. Cole was taken by ambulance to Good Shepherd Hospital. During the ambulance ride, Cole again indicated that he had taken methamphetamine that night, eve n commenting that he was “ getting too old for this shit , ” apparently referring to meth amphetamine

. Being on call that week and also being an accident investigator, Longview Police Officer Jeremy Higginbotham was called to the scene of the accident shortly after it occurred.
H igginbotham arrived at a pproximately 11:00 p.m. After examining the vehicles involved, taking measurements , and making calculations, Higginbotham estimated that Cole was driving about 110 miles per hour when he collided with the Toyo ta Tundra. H igginbotham left the scene at approximately 2:00 a.m. and went to the police station to complete his initial report and some other documentation

. H e returned to the scene around 3:45 a.m., when the trucks involved were being loade d onto wreck ers. Officer Wright accompanied Cole to the hospital, and she communicated, both directly and through another officer, with Higginbotham and told him that Cole had admitted taking meth amphetamine and that he was “ tweaking , ” making involuntary movements , mumbling to4 himself , and not making any sense

. 2 Wright was told to read the DIC

- 24 form, give Cole his statutory warnings , and obtain a blood sample. Wright gave Cole t he warnings, and Cole was arrested at 11:38 p.m. Cole did not consent to having his blood drawn, and at 12:20 a.m., his blood was drawn involuntarily, pursuant to the mandatory blood

- draw statute. Wright testified that , while she was reading him the warnings, he repeatedly interrupted h er saying that he was not drunk but rat her that he h ad taken meth amphetamine

. About a dozen officers were working the accident scene and the surrounding area. Due to the accident, the officers on the scene had to block traffic at the intersection where the accident occurred as well as nearby intersection s. The fire department was also on the scene to deal with the burning Toyota. Higginbotham testified that all available officer s were performing necessary functions either at the scene or at the hospital with Cole and that there was not an officer ava ila ble to pursue a warr ant for Cole ’ s blood. Justin Schwane, a toxicologi cal chemist at Dallas County Southwester n Institute of Forensic Science, tested Cole ’ s blood sampl e. The test revealed that Cole ’ s blood had a 0.2 level of amphetamine and a 0.23 level of methamphetamine. Schwane testified that that level of methamphetamine in Cole’s blood “ would be at the very high end of a therapeutic range ” but that , in terms of other drug levels, this was a “ mo derate dose. ” Th at level of meth amphetamine could cause intoxication, but h e could not say with 100 percent certainty that Cole was intoxicated.

2 A nurse that treated Cole at the hospital testified that, while taking his history and questioning Cole in order to determine the treatment needed, he was oriented to person, place, time, and event and was able to answer her questions coherently.5 II. Admissibility of Evidence Obtained T hrough the Warrantless B lood D raw At trial, Cole moved to suppress the evidence obtained through the warrantless blood draw. The State argued that there were exigent circumstances negating the need for a search
warrant. 3 After the issue was addressed during the voir dire of Higg i nbotham

— the officer in charge of the acci dent scene

— the trial court made detailed findings, denied Cole ’ s motion, and admitted evidence regarding the results of the blood test. In his first point of error, Cole contends that the trial court erred in denying his motion to suppress because the Sta te failed to sufficiently “ establish exigent circumstances to justify a warrantless [,] nonconsensual blood draw. ” A. Standard of Review We review a trial court ’ s ruling on a motion to suppress under a bifurcated standard. Vasquez v. State , 324 S.W.3d 912, 918 (Tex. App.

— Houston [14th Dist.] 2010, pet. ref ’ d) ( citing Guzman v. State , 955 S.W.2d 85, 89 ( Tex. Crim. App. 1 997)). The trial court is the sole finder of fact and is free to believe or disbelieve any or all of the testimony presented at a suppr ession hearing. Wiede v. State , 214 S.W.3d 17, 24

– 25 ( Tex. Crim. App. 2 007). When, as here, there are no explicit findings of historical fact, we review the evidence in the light most favorable to the trial court ’ s ruling, assuming that the trial court m ade implicit findings of those fact s that are supported by the record and that buttress its ruling. Carmouche v. State , 10 S.W.3d 323, 327

– 28 (Tex. Crim. App. 2000). We will uphold the court ’ s ruling if it is correct under any theory of law applicable to the case. Estrada v. State , 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

3 The goo d

- faith exception, discussed in the concurring opinion, was not raised at trial or on appeal and, therefore, we do not address it.6 Although we “ give almost total deference to [the] trial court ’ s express or implied determination of historical facts, ” we “ review de novo the court ’ s application of the law of

searc h and seizure to those facts. ” Shepherd v. State , 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). To be sure, the reasonableness of a seizure is a fact

- sensitive inquiry, but it is “ ultimately a question of substantive Fourth Amendment law. ” Kothe v. State , 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). Therefore, we assume that the trial court made findings of historical fact favorable to its ruling, but whether those facts amount to a reasonable seizure is a question of law that we review de novo. See i d

. B. Requirement of a Search Warrant The Fourth Amendment to the United States Constitution provides , “ T he right of the people to be secure in their persons .

. . against unreasonable searches and seizures, shall not be violated, and no warrants shall issue ” unless certain requirements are met

. U.S. C ONST
. A MEND
. IV; see also T EX
. C ONST
. art. I, § 9. This right “ proscribes all unreasonable searches and seizures, ” Gonzales v. State , 369 S.W.3d 851, 854 (Tex. Crim. App. 2012), and its “ basic
purpose . . . is to safeguard the privacy and security of individuals against arbitrary invasion by government officials , ” Haynes v. State , 475 S.W.2d 739, 741 (Tex. Crim. App. 1971).

“ Although the text of the Fourth Amendment does not specify when a search warrant
must be obtained, [the Supreme Court of the United States] has inferred that a warrant must generally be secured. ” Kentucky v. King , 131 S.Ct. 1849, 1856 (2011). Thus, “ it is a cardinal principle that ‘ searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment

— subject only to a few7 specifically established and well

- delineated exceptions. ’” Mincey v. Arizona , 437 U.S. 385, 390 (1978) ( quoting Katz v. United States , 389 U.S. 347, 357 (1967)); Gonzales , 369 S.W.3d at 854.

“‘ Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. ’” Bray v. State , 597 S.W.2d 763, 765 n.1 (Tex. Crim. App. [Panel Op.] 1980) ( quoting McDonald v. United States , 335 U.S. 451, 455 (1948)). The warrant requirement has been described as one of “ the most fundamental distinctions between our form of government, where officers are under the law, and the police

- state where they are the law. ” Johnson v. United States , 333 U.S. 10, 17 (1948). 4

“ The exceptions to the rule that a search must rest upon a search warrant have been jealously and carefully drawn

. . . . ” Jones v. United States , 357 U.S. 493, 499 (1958). Those exceptions include “ vo luntary consent to search, search under exigent circumstances, and search incident to arrest. ” McGee v. State , 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). It is the
State ’ s burden to show that a warrantless search falls within one of these exceptions. I d

. For example, a warrantless seizure of a blood sample can be constitutionally permissible if the State proves that officers have probable cause to arrest a suspect, exigent circumstances exist, and a

4 Judicial issuance of a warrant is important because it “ provides .

. . a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime. ” Hudson v. State , 588 S.W.2d 348, 351 (Tex. Crim. App. 1979) (quoting United States v. Chadwick , 433 U.S. 1, 9 (1977) , abrogated on other grounds by California v. Acevedo , 500 U.S. 565, 568

– 80 (1991) (internal quotation marks omitted)). A neutral magistrate ’ s prior review “ prevent[s] hindsight from coloring the evaluation of the reasonableness of a search or seizure. ” United States v. Martinez

– Fuerte , 428 U.S. 543, 565 (1976); see also Beck v. Ohio , 379 U.S. 89, 96 (1964) ( “ An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable proc edure o f an after

- the

- event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment. ” ); Clay v. State , 391 S.W.3d 94, 100 n.21 (Tex. Crim. App. 2013) ( “‘ [O]ne important function of the w arrant requirement is to facilitate review of probable cause and avoid justification for a search .

. . by facts or evidence turned up in the course of [its] execution. ’” (quoting Wayne R. LaFave, 2 Search and Seizure: A Treatise on the Fourth Amendment § 4.3(b), at 511 (4th ed. 2004))).8 reasonable method of extraction is available. Schmer ber v. California , 384 U.S. 757, 767

– 68 (1966); State v. Mosely , 348 S.W.3d 435, 440 (Tex. App.

— Austin 2011, pet. ref ’ d). C. Burden To Prove an Exception to the Warrant R equirement

“ A defendant who alleges a Fourth Amendment violation has the burden of producing evidence that rebuts the presumption of proper police conduct. He may carry this burden by establishing that the seizure occurred without a warrant. ” State v. Robinson , 334 S.W.3d 776,
778

– 79 ( Tex. Crim. App. 2 011) (footnotes omitted); see Robinson , 334 S.W.3d at 780 (Cochran, J., concurring); Ford v. State , 158 S.W.3d 488, 492 ( Tex. Crim. App. 2 005). The burden then shifts to the State to prove that the seizure was nonethel ess reasonable. Robinson , 334 S.W.3d at
779 ; Amador v. State , 221 S.W.3d 666 , 672

– 73 ( Tex. Crim. App. 2 007). Here, there is no dispute that Cole ’ s blood was taken without a warrant, and the record establishes that Cole would not consent to having his blo od drawn. Therefore, the State bore the burden of prov ing that the seizure was reasonable.
D. Implied C onsent and Mandatory Blood D raw S tatutes The State ’ s first argument is based on Section 724.011(a) of the Texas Transportation Code, which states, in relevant part: If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle, in a public place

. . . the person is deemed to have consented

. . . to submit to the taking of one or more specimens of the person ’ s breath or blood for analysis to determine

. . . the presence in the person ’ s body of a controlled substance, drug, dangerous drug, or other substance. The State contends that , under S ection 724.011(a), the seizure of Cole ’ s blood to test for intoxication was reasonable because “ Cole had impliedly consented to having his blood drawn9 when he chose to drive

. . . while intoxicated. ” Here, Cole explicitly refused consent to take his blood. This statute does not authorize draw ing blood from a defendant, without his/her consent, unless Section 724.012(b) is involved. T EX
. T RANSP
. C ODE A NN
. § 724.013 (West 2011) ( “ Except as provided by Section 724.012(b) , a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer. ” ) Next, the State argues that the blood draw was reasonable and/or consensual under the mandatory blood

- draw provisions of S ection 724.012(b )( 1 )( A) of the Transportation Code, which, in the absence of consent, req uires officers to obtain samples of breath or blood when someone is killed in a motor vehicle accident and the officer has reasonable grounds to believe the person was operating a motor vehicle while intoxicated. Here, there is no dispute that the officer s on the scene had reasonable grounds to believe that Cole was driving while intoxicated, that Cole refused to consent to having his blood drawn, and that a death resulted from the collision. The Texas Court of Criminal Appeals has very recently held th at the provisions in the Transportation Code

— the implied consent law and the mandatory blood draw law

— by themselves, do not form a constitutionally valid alternative to the F ourth Amendment warrant requirement. State v. Villareal , No. PD

- 306

- 14, 2014 WL 6 734178 (Tex. Crim. App. 2014)

. Prior to the Villareal opinion, this Court and several of our sister courts held that warrantless, nonconsensual blood draws, even taken pursuant to the mandatory provisions of the blood draw statute were unconstitutional in the absence of exigent circumstances. See Reeder v.
State , 428 S.W.3d 924 (Tex. App.

— Texarkana 2014, pet. granted); Sutherland v. State , 43610 S.W.3d 28 (Tex. App.

— Amarillo 2014 , no pet.); Douds v. State , 434 S.W.3d 842 (Tex. App.

— Houston [14th Dist.] 2014 , pet. granted) ; Weems v. State , 434 S.W.3d 655 (Tex. App.

— San Antonio May 14, 2014, pet. granted) ; Holidy v. State , No. 06

- 13

- 00261

- CR, 2014 WL 1722171 (Tex. App.

— Texarkana Apr. 30, 2014 , pet. granted ) ( mem. op., not designated for publication)

. E. McNe ely A ppl ies to this C ase The State contends that Missouri v. McNeely , 133 S.Ct. 1552 (2013) , is inapplicable to the present case because (1) it was decided after Cole ’ s blood was drawn; and (2) it is too narrow to apply to Cole ’ s case. The McNeely case was decided in April 2013. McNeely , 133 S.Ct. at 1552. The accident and blood draw in Cole ’ s case occurred in December 2011. Cole was indicted February 23,
2012 , and his trial was from July 29, 2013 , through August 1, 2013. The State contends tha t McNeely is inapplicable because it was not decided until after the events in this case. We disagree. New rules governing the conduct of criminal prosecutions apply retroactively to all cases pending on direct appeal or not yet final at the time the ne w rule is announced regardless of whether they constitute a clear break from past precedent. Griffith v. Kentucky , 479 U.S. 314,
326

– 28 (1987) , see McClintock v. State , No. PD

- 0925

- 13 , 2014 WL 4843959 (Tex. Crim. App.
Oct

. 1, 2014); Steadman v. State , 360 S.W.3d 499, 504 n

. 13 (Tex. Crim. App. 2012) )

. Therefore, McNeely must apply to this case. The State also argues that McNeely is too narrow to apply because the McNeely case did not involve exigent circumstances other than the dissipation of alcohol from the blood stream.11 The State contends that there are several exigent circumstances present in this case that distinguish it from McNeely and establish the reasonableness of the seizure.
F . Exigen t C ircumstances

“‘ We cannot .

. . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative. ’” Bray , 5 97 S.W.2d at 765 n.1 ( quoting McDonald , 335 U.S. at 456 )

. Exigent circumstances typically fall within one or more of three categories : (1) “ providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance ” ; (2)

“ p rotecting police officers from persons whom they reasonably believe to be present, armed, and dangerous ” ; and (3) “ preventing the destruction of evidence or contraband. ” Gutierrez v. State , 221 S.W.3d 680, 685 (Tex. Crim. App. 2007)

. Here, the State argued that this case falls within the third category , and “ t he need to prevent the imminent destruction of evidence has long been recognized as a sufficient justification for a warrantless search. ” 5 King , 131 S.Ct. at 1856 (internal quotation marks omitt ed).
F ollow ing McNeely and Schmerber , we determine exigency based on whether the specific “ facts and circumstances of the particular case ” made “ obtaining a warrant impractical. ” McNeely , 133 S.Ct. at 1560

– 61; Schmerber , 384 U.S. at 770. There is no per se rule that the time an officer takes to conduct ing an accident investigation in a suspected DWI case will provide exigent circumstances authorizing a warrantless blood draw. Douds , 434 S.W.3d at 854.

5 Courts have held that permitting a search “ without prior judicial evaluation ” is reasonable “ [w]here there are exigent circumstances in which police action literally must be ‘ now or never ’ to preserve the evidence of the crime. ” Roaden v. Kentucky , 413 U.S. 496, 505 (1973).12 The relevant inquiry is whether, given the facts and circumstances known to police at the time, it would be objectively reasonable for an officer to conclude that taking the time necessary to obtain a warrant before drawing a blood sample would significantly undermine the efficacy of a blood

- alcohol test. McNeely , 133 S.Ct. at 1561; Schmerber , 384 U.S. at 770. During the trial in this case, the State attempted to establish exigent circumstances through the voir dire examination of Higginbotham, and both Cole and the State examined th e witness regarding the exigencies of the circumstances. In admitting testimony and evidence regarding the blood test, the trial court found that the facts were distinguishable from McNeely , and that the S tate had shown the existence of exigent circumstances that authorize d the warrantless search. In summary, the trial court found that the following exigent circumstances justified the warrantless blood draw : (1) major intersections had to be closed and traffic rerouted; (2) numerous officers were at the scene, each with a specific job to do, and none could be spared to seek a warrant; (3) due to his role, Higginbotham had to remain at the scene; (4) the magnitude of the accident, i.e., that it involved a death, a fire, a large debris field , and traffic issues; (5) Cole ’ s h ealth and safety and concern that the hospital could give him additional medications; and (6) the time needed to get the scene cleared. The State argued at trial and on appeal two additional factors in support of an exigency finding : dissipation of the d rug levels in Cole ’ s blood and the time needed to obtain a warrant. The biggest concern in the State ’ s argument is the dissipation of the drug levels in Cole ’ s blood during the time the “ officers were investigating the scene, controlling traffic, document ing13 evidence, interviewing witnesses before anybody could get back to the office and seek a
warrant. ” While Higginbotham testified that Cole ’ s body was metabolizing whatever drugs were in his blood during the time the accident was under investigat ion , the re is no evidence in the record rega rding the rate methamphetamine is metabolized by the body or the rate at which it dissipates

. The State also urged exigency based on the time needed to obtain a warrant. Higginbotham testified that , in his experience i n Gregg County, it would take an hour to an hour and a half to obtain a warrant “ at the best. ” According to Higginbotham, to obtain a warrant, either he or Wright, who was with Cole at the hospital, or both, would have to give a statement,

“ draw up [their ] probable cause

. . . [,] send it to a judge, and get the judge to sign it, send it back
to us

. ” H igginbotham admitted that , on occasion, in the middle of a traffic accident investigation, he had taken time out of working the accident to obtain a warrant. Even though he knew that there was a rotation of judges “ on call ” and available at any time of day to make a probable cause determination for purposes of issuing a warrant, he admitted that at no time during this investigation did he discuss with any other police personnel the possibility of getting a warrant to draw Cole ’ s blood. McNeely shed s light on the specific types of facts that may be pertinent to a case - by

- case exigency inquiry. In McNeely , the United States Supreme Court agreed that metabo lization of alcohol is one factor to consider in analyzing exigency. “ [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. ” McNe ely , 133 S.Ct. at 1561. But the Court also14 recognized that , “ because a police officer must typically transport a drunk

- driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood t est, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant. ” Id . If the “ warrant process will not significantly increase [this] delay .

. . beca use an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer, ” the court reasoned, “ there would be no plausible justification for an exception to the warrant requirement. ” Id

. In additi on, the Court noted “ advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk

- driving investigations where the evidence offered to establish probable ca use is simple. ” Id. at 1561

– 62. The Court explained that “ technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge ’ s essential role as a check on police discretion, are relevant to an assessment of exigency, ” particularly given that blood

- alcohol evidence “ is lost gradually and relatively predictably. ” Id

. at 1562

– 63.
In Weems , the State argued that exigent circumstances existed because the case involved an accident and that, under Schmerber , the search was permissible

. However, the c ourt of

a ppeals, citing McNeely , noted that technological advancements have been made since
Sc hmerber , making it much easier and quicker to obtain a warrant. Weems , 434 S.W.3d at 665

– 66. In Weems , the officer testified (1) that he made no effort to obtain a warrant, (2) that there15 were other officers present at the scene, (3) that there was an ac cident, (4) that the suspect driver and passenger involved in the accident were injured and taken to the hospital, and (5) that it took three hours after the suspect arrived at the hospital for the blood to be drawn. Id. at 666. T he court noted that the record did not contain, as mentioned in McNeely , the procedures for obtaining a warrant, the availability of a magistrate judge, or the practical problems of obtaining a warrant within a timeframe that preserved the opportunity to obtain reliable evidence. Id. The court of appeals found that under the totality of the circumstances, the record did not show that the warrantless blood draw was justified by the exigenc ies of the circumstances. Id.
In Douds , people were injured in an accident involving a dr iver suspected of being under the influence. 434 S.W.3d 842. The driver ’ s blood was taken under the mandatory blood

- draw
statute. Id. at 845

– 46. The State argued that , because there was an accident involving injury or death, an exigent circumstance existed, but the Fourteenth C ourt of A ppeals stated , “ [T] he focus of exigent circumstances analysis in this context is not on the delay attendant to an investigation

.

. . bu t on the delay necessary to obtain a warrant. ” Id. at 853; see McNeely , 133 S.Ct. at 1563, ( “ [E]xigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application proces s. ” ). The Fourteenth Court of Appeals further noted that “ the State must prove that ‘ the delay necessary to obtain a warrant, under the circumstances , threatened the destruction of evidence. ’ ” Douds , 434 S.W.3d at 853 (quoting Schmerber , 384 U.S. at 770 ; a ccord Turrubiate v. State , 399 S.W.3d 147, 151 ( Tex. Crim. App. 2 013) (holding State has burden to show “ exigent circumstances .

. . made obtaining a warrant impracticable ” ); Crane v. State , 786 S.W.2d 338, 346 ( Tex. Crim. App. 1 990) ( “ In16 order for a warrantless arrest or search to be justified, the State must show .

. . the existence of circumstances which made the procuring of a warrant impracticable. ” ).
In Douds , the Fourteenth C ourt of A ppeals found that the record did not reflect exigent circumst ances because it contained no mention of a warrant and because there was no evidence regarding what the officer knew regarding the time needed to obtain a warrant. Douds , 434 S.W.3d at 855. It is noteworthy that , in Douds , much like the present case, the State and the dissent urged the court to grade the severity of the accident in determining the existence of exigent circumstances. Id. at 853

– 54. In response, the majority stated , To ensure that the exigencies of the situation make dispensing with the constitutional requirement of a warrant “ imperative, ” courts must focus on whether the State showed that police could not reasonably obtain a warrant, not on whether it showed how severe the accident was. This distinction is not merely a semantic one : t he difference between the delay attendant to investigating an accident and addressing injuries and the delay necessary to obtain a warrant can be substantial depending on the facts of a particular case. Even if an officer ’ s investigation of a “ serious ” ac cident lasts for an hour, the availability of another officer 15 minutes into the investigation, or the presence of medical personnel to treat injuries, could significantly reduce the delay necessary to obtain a warrant. Alternatively, if a lone officer di scovers an apparently intoxicated driver during a midnight traffic stop not involving any accident, the delay necessary to obtain a warrant could be substantial if there is no magistrate available

. . . . [T] he State should be responsible for asking office rs who handle accidents to explain the demands of a particular investigation that made it impractical for police to obtain a warrant before any blood alcohol evidence dissipated. Id. (citations omitted). In the unpublished case of Pearson v. State , seve ral people were injured in an accident and one of the drivers, Pearson, was suspected of being under the influence. Pearson v. State,
No. 13

- 11

- 00137

- CR, 2014 WL 895509 , at *3 (Tex. App.

— Corpus Christi Mar. 6, 2014 , pet. ref’d ) (mem. op., not designated for publication) . Trooper Aguilar arrived at the scene at about17 4:50 a.m. Id. Pearson smelled strongly of alcohol and told Aguilar and an emergency medical worker that he had been drinking that night. Id. When Aguilar completed his investigation at th e scene, he went to the hospital, arriving at about 10:00 a.m., about six hours after the accident, to speak with Aguilar. Id. When Pearson refused to consent to a blood

- draw, his blood was drawn pursuant to the mandatory blood draw statute. Id.
At t rial, Aguilar testified that he was the only officer on duty that morning and that he was solely responsible for securing the accident scen e and preserving and collecting the evidence. Id. Aguilar testified that he did not obtain a warrant because, as it was Sunday, it would have taken at l e ast three hours and because he feared the potential evidence of intoxication was rapidly degrading. Id. According to his testimony h e obtained Pearson ’ s blood sample in reliance on the mandatory blood

- draw statute. Id. Pearson argued that Aguilar created the exigent circumstances by waiting so long to seek a blood sample. 6 Id. The Corpus Christi
C ourt of A ppeals concluded that the trial court was “ within its discretion in determining that Trooper Aguilar acted und er exigent circumstances in having [Pearson ’ s] blood drawn without a
warrant. ” Id. at *4. Initially, we must note the primary difference between the facts of this case and those of McNeely and i t s progeny : this case involves alleged intoxication by me thamphetamine rather

6 D etermining whether an officer impermissibly manufactured an exigency depends on “‘t he reasonableness and propriety of the investigative tactics that generated the exig ency. ’” United States v. Rico , 51 F.3d 495, 502 (5th Cir. 1995) ( quoting United States v. Duchi , 906 F.2d 1278, 1284 (8th Cir. 1990)) . The Fourteenth court found the issue of whether Aguilar deliberately created the exigent circumstance was a mixed quest ion of fact and law and, therefore, deferred to the trial court’s implied finding that Trooper Aguilar went to the hospital as soon as was practicable considering the circumstances of that morning. Pearson , 2014 WL 895509, at *3.18 than alcohol. 7 The McNeely court recognized that “ an individual ’ s alcohol level gradually declines soon after he stops drinking ” and that a “ significant delay in testing will negatively affect the probative value of the results

. ” The Court explicitly noted that th e s e fact s w ere

“ essential ” to its holding in Schmerber , i.e., 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 injur ed suspect to the hospital to receive treatment would have threatened the destruction of evidence. McNeely , 133 S.Ct. at 1561; see Schmerber , 384 U.S. at 770

– 771. Here, while Higginbotham testified that Cole ’ s body was metabolizing the methamphetamine in his system, there is no evidence whatsoever of the dissipation rate for methamphetamine levels in a person ’ s blood. 8 However, in its findings regarding exigent circumstances, the trial court did not rely upon the dissipation rate in determining that ex igent

7 Most of the cases invol ving drawing a specimen involve consumption of an alcoholic beverage. The Texas Court of Criminal Appeals has written extensively on the science of “retrograde extrapolation.” Mata v. State , 46 S.W.3d 902, 909 (Tex. Crim. App. 2001) (“Retrograde extrapol ation is the computation back in time of the blood

- alcohol level

— that is, the estimation of the level at the time of driving based on a test result from some later time.”). Mata explains the process that occurs from consumption of alcohol, its absorption rate, and the many factors to consider. The Court of Criminal Appeals explained that, in order to present expert testimony on this subject, it is necessary for the expert to demonstrate (1) some understanding of the difficulties associated with retrograde extrapolation, (2) an awareness of the subtleties of the science and the risks inherent in any extrapolation, and (3) an ability to clearly and consistently apply the science. Id. at 916. One case discussing methamphetamine use is Haley v. State , 396 S.W.3d 756 (Tex. App.

— Houston [14th Dist.] 2013, no pet.). There, an expert witness testified that, even though there is no set blood

- methamphetamine level above which a person is considered intoxicated as a matter of law, such as the .08 rate applying t o alcohol consumption, appellant’s rate of 0.80 mpl was so high that his coordination, attention, and driving

- ability must have been affected. Id. at 766. Here, no evidence was offered concerning the absorption/dissipation rate of methamphetamine in the b lood. Without some indication of when the methamphetamine evidence would begin to dissipate, we cannot conclude that such evidence would likely be destroyed even if obtaining the warrant took an extra hour and a half.

8 When asked how quickly the body a bsorbs methamphetamine, the expert witness stated that it depended on the manner in which the drug was administered

— the slowest is by mouth, faster routes include snorting and smoking, and the fastest is intravenous injection.19 circumstances existed, even though the fact wa s “ essential ” to the United States Supreme Court ’ s decision in Schmerber

. Regarding exigent circumstances, McNeely requires that the officers identify other factors that would suggest they faced an eme rgency or unusual delay in securing a warrant

. McNeely, 133 S.Ct. at 1567. Although McNeely involved a “ routine ” DWI stop , the Supreme Court stated, The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case. Id. at 1568. In agreeing with the Schmerber case, McNeely confirmed that the State must show that the time necessary to obtain a warrant under the circumstances threatened the destruction of the blood evidence: 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

. . . . We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bl oodstream will support an exigency justifying a properly conducted warrantless blood test. 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 refl ect. McNeely , 133 S.Ct. at 1561 (internal quotation marks omitted ) ( emphasis added)

. The court further noted that “e xigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warra nt application process. ” Id. at 1563 ( e mphasis added). As it too is based upon McNeely , we agree with the well

- reasoned opinion of our sister court in Douds , as we agree that a court should neither be grading the severity of an accident nor20 focusing its analysis on the delay atten dant to an investigation. See Douds , 434 S.W.3d at 853

– 54. As in McNeely and Schmerber , our exigent circumstances analysis should focus on the delay
at tendant to obtaining a warrant , i.e., whether the State showed that , under the circumstances, the police could not reasonably obtain a warrant

. McNeely , 133 S.Ct. at 1561; Schmerber , 384 U. S. at 770; Turrubiate , 399 S.W.3d at 153 n.4 (citing United States v. Menchaca

– Castruita , 587 F.3d 283, 295

– 96 (5th Cir. 2009) (A finding of exigent circumstances “ must be based on an officer ’ s reasonable belief that the delay necessary to obtain a warrant will facilitate the destruction or removal of evidence

. . . . ” (emphasis added) ). In this case, the accident occurred around 10:20 p.m. C ole was already on the way to the hospital at the time Higg i nbotham arrived at the scene a round 11:00 p.m. At 11:38 p.m., after speaking with her sergeant, Wright arrested Cole, read him the statutory warnings (DIC

- 24), and ordered his blood drawn. Cole ’ s blood was drawn at 12:20 a.m., forty

- two minutes after Wright spoke to Higginbotham, about an hour and a half after Higgenbotham was called to the accident scene, and about two hours after the accident itself. As a warrant could have been obtained in an hour and a half, if Wright ’ s call at 11:38
p.m. had spurred the warrant process, then a warrant could have been in hand by 1:08 a.m.
A ssuming the same forty

- minute delay in drawing his blood, Cole ’ s blood could have been drawn pursuant to a warrant befo re 2:00 a.m., only an hour and forty minutes after it was actually drawn. Therefore, this fails to reach the “ now or never ” level contemplated by exigent circumstances precedent

. See King , 131 S.Ct. at 1856 ( need to prevent imminent destruction of eviden ce sufficient justification for warrantless search ); Tata v. State , No. 01

- 12

- 01119

- CR,21 2014 WL 4085462 (Tex. App.

— Houston [1st Dist.] Aug. 19, 2014 , pet. filed ) (burning building
create d exigency justifying warrantless entry by fire officials and the sear ch and seizure of arson evidence because destruction wa s imminent)

. No attempt was made to obtain a warrant in this case, and even though Higg i nbotham knew neutral magistrates were on call and available to consider warrant requests, he did not speak to a nyone about obtaining a warrant. Unlike in Pe a rson , t here were about one dozen police officers on the scene in this case , and this accident happened as one group of officers ’ shift was ending and another group’s was beginning . There is no indication that officers not on the scene were unavailable to help obtain a warrant. Finally, there is no evidence of the rate at which the drug was dissipating from Cole ’ s bloodstream. As per our findings hereinabove, having examined the totality of the circumstances, we find that the State failed to show that the warrantless blood draw was justified by exigent circumstances. Id.
III. Harm Analysis Because we find that the State failed to meet its burden, we must now perform a harm anal ysis. T he admission of evidence obtained in violation of the Fourth Amendment is subject to constitutional harm analysis pursuant to Rule 44.2(a) of the Texas Rule s of Appellate Procedure.
See T EX
. R. A PP
. P. 44.2( a); Hernandez v. State , 60 S.W.3d 106 ( T ex. Crim. App. 2 001). “ If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, [ we ] must reverse [ the ] judgment of conviction or punishment unless [ we ] determine [] beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
T EX
. R. A PP
. P. 44.2(a). The harmless error inquiry under Rule 44.2(a) should adhere strictly to22 the question of whether the error committed in a particular ca se contributed to the verdict obtained in that case. Snowden v. State , 353 S.W.3d 81 5 , 821 ( Tex. Crim. App. 2 011). Here, the results of the blood test were introduced through the testimony of an expert witness, Schwane, a toxicologi cal chemist . He chara cterized the methamphetamine level in Cole ’ s blood sample as being at “ the very high end of a therapeutic range ” and testified that such a level could cause intoxication. We are unable to find beyond a reasonable doubt that this evidence did not contribut e to the verdict. While there is testimony that Cole was driving erratically and giving incoherent answers after the accident, and Cole admitted to taking methamphetamine that day, there is no evidence of how much he took, when it was ingested, the method of ingestion, or the rate at which it dissipated from his body. The testimony as to the precise amount of methamphetamine in his bloodstream was very important. Accordingly, we reverse the trial court ’ s judgment and remand the case for a new trial.
B ecause our ruling on Cole ’ s first point of error is dispositive, we need not address his second point of error.

Jack Carter Justice

CONCURRING OPINION The elephant in the courtroom here (and the matter barely touched upon by the majority opinion) is the good

- faith exception to the exclusionary rule. In its brief and during oral argument, the State relied almost exclusively on the alleged existence of exigent circumstances23 to exculpate it from the need to obtain a search warrant before ha ving taken a sample of Cole’s blood. Until the United States Supreme Court issued its ruling in Missouri v. McNeely , 133 S.Ct. 1552 (2013), many judges and most law enforcement agencies in Texas believed that implied consent laws relieved authorities of the need to obtain a search warrant for a blood draw when there was intoxication of a driver on a public roadway suspected and the suspected miscreant refused to provide a breath

- test specimen. If we are to be candid, we will recognize that the genuine r eason that the police department did not promptly seek a search warrant to draw a sample of Cole’s blood likely had nothing to do with the severity of the situation or the lack of idle police officers who would have been available to seek a search warrant; rather, the police, relying on the implied consent laws of Texas, did not believe that such a warrant was required. Even though the good

- faith exception to the exclusionary rule was not strongly argued by the State, it is not necessary for the State to raise an issue at either the trial court level or at the court of appeals level if it elects not to do so; it may raise it for the very first time when presented to the Texas Court of Criminal Appeals. S ee Canida v. State , 434 S.W.3d 163 (Tex. Crim. App. 2014)

. Although the State did not raise this argument at trial and only touched on it at the appellate level, we may address it. See McClintock v. State , No. PD

- 0925

- 13, 2014 WL 4843959 (Tex. Crim. App. Oct. 1, 2014) (holding that State may raise good

- faith exception to exclusionary rule at any time provided it was prevailing party at trial). Therefore, I think it wise for us to demonstrate that our Court has considered the potential application of the good

- faith exception to the exclusionary rule.24 T he exclusionary rule is not found anywhere in the United States Constitution. Rather, it is a court

- mandated remedy for violations of the Fourth Amendment wherein the United States Supreme Court held that “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” Mapp v. Ohio , 367 U.S. 643, 655 (1961). “ The exclusionary rule was fashioned as a sanction to redress and deter overreaching governmental conduct prohibited by the Fourth Amendment.” Davis v. Mississippi , 394 U.S. 721, 724 (1969). The exclusionary rule is a “last resort” sanction designed to deter police misconduct. Davis v. U nited S tates , 131 S.Ct. 2419, 2427 (2011). The determination by the United States Sup reme Court in McNeely that the implied consent laws of the states did not work to abrogate the necessity of obtaining search warrants for blood draws came as a surprise to many in the law enforcement community. McNeely , 133 S.Ct. 1552. The majority has s aid, “ New rules for the conduct of criminal prosecutions apply retroactively to all cases pending on direct appeal or not yet final at the time the new rule is announced regardless of whether they constitute a cl ear break from past precedent” and cites

cas es to prove that point. An exception to this general rule is the good

- faith exception. The United States Supreme Court (looking back to the original purpose of using the exclusionary rule to deter intentional or reckless disregard of Constitutional protections under the Fourth Amendment) has held that when the police act with an objectively “reasonable good

- faith belief” that their conduct is lawful, or when their conduct involves only simple, “isolated” negligence, the deterrence rationale loses much of its intended force, having the result that the exclusionary rule cannot “pay its way” by insuring compliance with Constitutional safeguards

.25 Davis , 131 S.Ct. at 2427

– 28. Therefore, under the circumstances of the good

- faith belief as mentioned, there is a valid exception to the exclusionary rule mandated for the enforcement of United States c onstitutional Fourth Amendment protections. However, despite that commonly

- held belief that Texas’ implied consent law provided cover to circumvent the necessity of obtaining a search warrant, it appears that this wide belief was not the law in Texas anyw ay. The Texas good

- faith exception is much more limited than that announced by the federal courts. Unlike the federal , judge

- made exclusionary rule, the Texas good

- faith exception is a statutory rule that provides an exception to the exclusion of unlawf ully obtained evidence only if the law enforcement officer was “acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” T EX
. C ODE C RIM
. P ROC
. A NN . art. 38.23(b) (West 2005); see Douds v. State , 434 S .W.3d 842, 861 (Tex. App.

— Houston [14th Dist.] 2014, pet. granted) (en banc). The Texas “Court of Criminal Appeals has previously rejected an effort to broaden the [Texas] good

- faith exception using federal precedent. . . .” Douds , 434 S.W.3d at
861

– 62 ( citing Howard v. State , 617 S.W.2d 191, 193 (Tex. Crim. App. 1979) (op. on reh’g) (declining to apply federal good

- faith doctrine to Texas statutory good

- faith exception)). Since “the Texas good faith exception is more limited than the scope of its federa l counterpart . . . an officer’s good faith reliance on the law or existing precedent is not recognized as an exception to the Texas exclusionary rule.” State v. Jackson , 435 S.W.3d 819, 831 (Tex. App.

— Eastland 2014, pet. granted) (citations omitted) . Ac cordingly, because no warrant was issued in this case, the Texas good

- faith exception does not apply. See Jackson , 435 S.W.3d at 831; Douds , 43426 S.W.3d at 862; State v. Anderson , No. 09

- 13

- 00400

- CR, 2014 WL 5033262, at *14 (Tex. App.

— Beaumont Oct. 8, 2014, no pet. h.). Apparently, then, the police could not rely on their apparently good

- faith belief that no search warrant was required before they took a sample of Cole’s blood.

Bailey C. Moseley Justice Date Submitted: Septe mber 24, 2014 Date Decided: Decem ber 1 8 , 2014 Publish