The State of Texas v. Joel Garcia Appeal from 210th District Court of El Paso County (opinion by chief justice mcclure)
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § THE STATE OF TEXAS, No. 08-15-00264-CR § Appellant, Appeal from § v. 210th District Court § JOEL GARCIA, of El Paso County, Texas § Appellee. (TC # 20150D00100) § OPINION This case arises out of a tragic car accident that occurred on or about December 24, 2014. Joel Garcia was indicted for three counts of intoxication manslaughter, in which he was alleged to have caused the deaths of Joshua Deal (Count I), Isaiah Deal (Count II), and Shannon Del Rio (Count III), and one count of possession of cocaine in an amount of less than one gram (Count IV). Garcia filed a pretrial motion to suppress the results of his blood alcohol test, asserting that his blood was drawn “without a search warrant, and without valid consent or other justification under the law.” The trial court held several hearings and ultimately granted Garcia’s motion to suppress, concluding that the blood taken from Garcia was procured without a warrant, and without any exigent circumstances excusing a warrant’s absence. The State now appeals. For the reasons that follow, we reverse and remand. FACTUAL SUMMARY The Accident On December 24, 2014, El Paso Police Officer Steven Torres arrived between 1:52 a.m. and 1:55 a.m. on the scene of a serious car accident at the intersection of Joe Battle Boulevard and Vista Del Sol Drive. Torres described the scene as “hectic” and “chaotic” and noted that one vehicle was completely engulfed in flames, while the other vehicle had flames coming from inside of the car. There were several bystanders, and Torres testified that his initial duties involved controlling the crowd, separating witnesses, and obtaining vehicle information. Officer Andres Rodriguez arrived at 1:52 a.m. and similarly described the scene as hectic -- officers were trying to control traffic, two cars were on fire, and people were walking around the entire area. Officer Gabaldon was walking with Garcia who was already in handcuffs and Gabaldon advised Rodriguez that Garcia was the driver. At that point in time, Rodriguez did not yet know who had caused the crash or exactly how many people were involved in the accident. Rodriguez described Garcia as having bloodshot eyes, slurred speech, and because he had a strong odor of alcohol about him, Rodriguez believed he was intoxicated. When Rodriguez asked Gabaldon why Garcia was handcuffed, Gabaldon indicated that Garcia might have tried to flee the scene. Rodriguez placed Garcia in the back of his patrol car and asked him what had happened. Garcia, who seemed dazed, told Rodriguez a story that did not make sense, but established that he was the driver of the Camaro. Later, Garcia told Rodriguez that he was not the driver. Officer Keisel confirmed that Garcia was indeed the driver, and relayed that officers thought he might have run a red light. A witness at the scene named Renteria said she saw another passenger exit the Camaro, and that Garcia was the driver. When Rodriguez confronted Garcia with this information from the eyewitness, Garcia again denied driving and even denied that there had 2 been an accident. Garcia admitted to Rodriguez that he “had about three or four beers or drinks . . . .” The dash-cam video recording of this discussion between Rodriguez and Garcia reflects that Rodriguez Mirandized Garcia at approximately 2:20 a.m. Rodriguez initially intended to take Garcia to the Pebble Hills Regional Command for further questioning, but by this time, EMS approached his patrol car and indicated that Garcia would be transported to Del Sol Medical Center due to the nature and severity of the accident. Because Garcia already refused to provide a blood specimen at the scene, Rodriguez knew he needed a search warrant to obtain Garcia’s blood. Officers selected Torres to ride with Garcia to the hospital. Torres informed Rodriguez that he had never requested a blood draw before, so Rodriguez told him he would meet him at the hospital after he procured a search warrant. Rodriguez further explained that because of his training and experience as a DWI and drug recognition officer and studying what types of drugs might affect blood alcohol concentration (BAC), intravenous (IV) solution dilutes BAC and that some medications could either increase or decrease BAC. Consequently, Rodriguez told Torres to observe Garcia closely and notify him if hospital personnel administered any IV solutions or medications to Garcia. Rodriguez then left the scene at 2:40 a.m. to begin drafting a search warrant. Telephone records indicated Rodriguez called Officer Wilkinson at 2:40 a.m. and again at 2:46 a.m. because he wanted help with the warrant, but Officer Wilkinson was assisting with another arrest. It took Rodriguez ten to twelve minutes to reach the command station. He acknowledged that Pebble Hills was not the closest station, but he chose it because of its proximity to the hospital. Rodriguez arrived at 2:53 a.m. and verified Garcia’s identification. He learned that one of the victims had already died in transit to the hospital, and that there were two other passengers in the vehicle that Garcia allegedly struck. He had no information on the passenger riding with Garcia in the Camaro. He called his sergeant 3 and Officer Candia for more information on the involved vehicles, the passenger who died in transit, and any possible witnesses. Rodriguez then attempted to write out sufficient facts, based on his own recollection along with information from other investigating officers, to satisfy the requirements that probable cause existed so that a magistrate would sign both an arrest and search warrant for Garcia. He had not yet ascertained which magistrate was on duty. Rodriguez was familiar with the requirements for a blood draw and the procedure for obtaining a search warrant from the magistrate. At the time of the accident, Rodriguez had already prepared between fifty and sixty search warrants, mostly for routine DWIs. Rodriguez described the general process of preparing a search warrant, and explained that it routinely took him anywhere from thirty to forty-five minutes to draft one. He usually prepared an arrest warrant to accompany the search warrant because the magistrate judges required him to do so. After drafting a warrant, Rodriguez would take it downtown where the magistrates were located, and would try to expedite the process by informing the on-call magistrate that he needed a warrant. According to Rodriguez, El Paso County did not have any procedures in place that allowed a warrant to be sent by fax or email. While warrants could be obtained by phone, Rodriguez did not believe any of the magistrates would recognize his voice. He estimated that the process of having a magistrate review and sign a warrant took approximately twenty to thirty minutes. The trial court then elicited testimony from Rodriguez indicating that at the time he arrived at the police station, he possessed facts routinely used for blood draw search warrants for simple DWI cases. Rodriguez revealed that Garcia was already in their system because of a previous DWI arrest. El Paso Fire Department paramedic Jose Luis Cavazos was also dispatched to the intersection of Joe Battle and Vista Del Sol. He arrived at 2:32 a.m. where he observed several other units already at the scene. Cavazos was directed to examine Garcia, who was already 4 handcuffed in a police car. Cavazos noticed that Garcia seemed dazed, his eyes were bloodshot and Cavazos also detected a strong smell of alcohol on his breath. Adrian Palomo, a thenparamedic student, accompanied Cavazos. Garcia’s only complaint was that he felt pain in his right foot. Garcia told Cavazos he had consumed a couple of beers and denied that he was the driver of the vehicle. While Cavazos did not see any obvious life-threatening injuries during his initial external examination of Garcia, he ordinarily exercised precaution and assumed that a patient may also have internal injuries that would not be revealed until further diagnostic testing at a hospital. When Garcia told Cavazos that he wanted to be transported to the hospital, Cavazos and Palomo placed him on a stretcher with a C-collar around his neck to immobilize him and prevent further injury. Because of the severity of the crash, the extensive damage to the vehicles, and the potential for Garcia to have sustained life-threatening injuries, he was classified as a Level II trauma patient such that paramedics were required to transport him to a hospital with a trauma center. Level II trauma patients also typically receive advanced life support care on the way to the hospital, including an IV, an EKG, and possibly medication if the patient suffers from pain so severe that it compromises his vital signs. Cavazos, Palomo, and Torres left for the trauma center at Del Sol Medical Center at approximately 2:46 a.m. During transit, Garcia refused to allow Palomo to treat him with an IV or cardiac monitor, but permitted him to take his vital signs, including his pulse and blood pressure, and perform a general head-to-toe assessment for injuries. The Hospital At 3:06 a.m., Garcia was admitted to the emergency room at Del Sol for treatment. Elsie Andrade was one of the nurses on the trauma team. She confirmed that the hospital received Garcia as a Level II trauma patient, and recalled Garcia “babbling” about his Camaro when he 5 arrived, and stating that he said he had done nothing wrong. Andrade explained that once the hospital receives a Level II trauma patient, the process moves very quickly. While a patient is moved onto a bed, the emergency medicine physician assesses the patient and medical personnel connect the patient to machines to monitor vital signs. When Garcia entered the ER, Andrade was already near the curtain by his bed, waiting with the equipment to begin the IV process. Specifically, she had a metal tray which included an Angiocath (the needle used to administer the IV), a saline lock (a piece of tubing attached to the Angiocath), a saline flush, tubing for the blood, Tegaderm tape, and a tourniquet. Andrade was aware that there were several officers nearby. She did not know whether the officers could hear her, but she knew that her actions were visible to them. When asked how close she came to administering the IV to Garcia, Andrade responded: [Andrade]: I did get close. I started to, you know, look through the arm to see where I could start the I.V. [State]: Are you holding--can you describe that for us? Are you holding his arm? [Andrade]: Yes. [State]: Okay. [Andrade]: I touch certain areas to see where I could feel a vein, see where I could start an I.V. And then during that time I was told that only scans were going to be done, an I.V. wasn’t needed or blood wasn’t going to be needed either, so I stopped and I didn’t start the I.V. Andrade did not relay this information to the nearby police officers. On cross-examination, Andrade acknowledged that the administration of an IV was a routine procedure in the ER. The purpose of administering a saline solution was to replenish volume. In Garcia’s case, Andrade had only planned on administering a saline flush. “I was there where I was going to start the IV, but I never actually did start it.” On re-direct, Andrade 6 also explained that an IV may be used to administer medications, other fluids, and even blood transfusions. Upon the trial court’s examination, Andrade mentioned that the nearby officers were standing approximately ten to twelve feet away from Garcia’s cubicle and that the curtain around his bed was not drawn. When the trial court asked Andrade whether the officers were capable of seeing what was being done to Garcia, the following exchange occurred: [Trial Court]: They were seeing everything that was being done? [Andrade]: They could possibly be seeing. [Trial Court]: From where they were at, based upon what you were able to see, they were able to see what you guys were doing? [Andrade]: Uh-huh. [Trial Court]: You could see them? [Andrade]: Yeah. Andrade indicated that Garcia had been in the ER for approximately five to ten minutes when she was told not to administer an IV. Because Garcia no longer needed an IV, she left. Dr. Gary Kavonian, an emergency medicine physician at Del Sol, treated Garcia when he arrived at the hospital. Kavonian recalled Garcia as being uncooperative, and opined that he did not appear to be acting in the best interest of his health by resisting certain treatments. Kavonian smelled alcohol on Garcia’s person. According to Kavonian, ER nurses routinely administer IVs while he assesses the trauma patient’s condition. He recalled that nurses were standing to the right of Garcia, ready to proceed with an IV bag and equipment on a stainless steel stand, but Garcia did not want an IV administered. Because Garcia was so uncooperative, Kavonian advised the staff not to begin the IV at that time. 7 Kavonian testified about the IV process generally. He explained that fluids, pain medications, and sedatives could all be administered via IV. Counsel asked if any of these could compromise a patient’s BAC, and Kavonian responded that saline solution could possibly dilute any solute in the blood and agreed that it would dilute a person’s BAC. Because Garcia complained of foot pain, and had some bruising on his head, Kavonian also ordered a computed tomography scan of Garcia’s brain and cervical spine, as well as x-rays of his chest, pelvis, and right ankle. Garcia’s medical records reflect that Kavonian ordered the CT scans at 3:18 a.m. and they were taken ten minutes later. On cross-examination, defense counsel suggested that an untrained person could have assumed from the IV equipment that the nurse was simply going to perform a routine blood draw, but Kavonian clarified that a blood draw would not actually require the insertion of intravenous tubing because the sole purpose of administering an IV is to provide fluids to the patient. Kavonian agreed that if an untrained individual observed an IV bag, he may assume that an IV is about to be administered. Police Officer Raul Lom testified that he had been a police officer from 1978 until his retirement in 2015. On the morning of the accident, Lom was working in an off-duty capacity providing security at Del Sol. As a police officer, Lom was assigned to the DWI task force unit and indicated that he conducted an average of twenty-five DWI investigations per month over the span of thirty years. Lom remembered when Garcia was admitted to the ER because he escorted Garcia and the medical team through the hospital, ensuring the aisles were kept clear. Lom stood approximately ten feet away from Garcia’s cubicle and, due to distance and noise, he was unable to hear any conversations between Garcia and the nurses. He did see the nurse with an IV bag in her hand and saw Garcia subsequently shake his head “no.” 8 Lom became concerned, and explained that based on the years working off-duty security at the hospital, he knew that the bag of fluid in the nurse’s hand was an IV bag. Lom did not know exactly what type of substance was inside the bag and admitted that he never saw the nurse swabbing Garcia’s arm, or preparing the arm to insert the needle. Lom had already spoken with Officer Candia, who informed him about the car accident. Candia told Lom that they were in the process of obtaining a search warrant for Garcia’s blood. Because the officers at the hospital were unsure as to whether anyone had administered the DIC-24, Miranda warnings, or conducted any standard field sobriety tests, Lom called Rodriguez who assured him that Garcia had already been properly admonished and that he was currently in the process of preparing the warrant. Concerned, Lom relayed to Rodriguez that administration of an IV was imminent. But he failed to inquire of any medical personnel whether Garcia was actually going to receive an IV. Lom knew that once Rodriguez finished preparing the search warrant, he still needed to drive downtown to locate a magistrate to sign the warrant, which would take around fifteen minutes, and then drive back to the hospital with the warrant, which he estimated would take another ten minutes. Lom also admitted that Rodriguez did not actually need to drive back to the hospital with the signed warrant because he could inform the officers at the hospital by cell phone that the warrant had been signed. Lom was also unsure whether Rodriguez would be able to locate the magistrate because it was Christmas Eve and the on-duty magistrate sometimes took his lunch break between 3 and 4 a.m. Lom and Rodriguez then decided to perform the warrantless blood draw because Lom was “very certain that any moment it could happen that [Garcia] would be injected with an I.V.” Lom directed Torres to obtain a sample and Torres then had the phlebotomist, Adriana Gandara, draw the blood. Lom was aware that mandatory blood draws were no longer performed in 9 Texas, but Garcia’s blood was not drawn pursuant to the mandatory blood draw statute, but rather, based on exigent circumstances. While he did not actually know if IV fluids would dilute Garcia’s BAC, he was still concerned the issue may arise in court. Lom further explained that if a suspect was being medically treated, “there’s no power in the face of the earth” that permitted an officer to instruct medical personnel to cease treatment until the officer obtained a search warrant. After the officers obtained Garcia’s blood, Lom resumed his duties at the hospital, including monitoring parking lots, the floors, and the front area of the hospital. Torres described the ER at Del Sol as crowded and hectic when he arrived with EMS and Garcia. While he stood approximately five to ten feet away from Garcia, he saw medical personnel removing Garcia’s clothes, connecting him to monitors, and examining him. He noticed a nurse organizing a “prep table” that contained an IV bag and tubing and thought she was preparing to administer an IV. He attempted to ask medical personnel about Garcia’s treatment but was unsuccessful because they were preoccupied. While Torres was trying to find out more information, Lom approached him and asked if he needed assistance. Torres told Lom that he did not have a blood kit with him. Lom then contacted Rodriguez at 3:10 a.m. to determine the status of the search warrant, indicating that the administration of an IV or medication was imminent. Rodriguez, through Lom, directed Torres to perform the blood draw. The phlebotomist drew Garcia’s blood at 3:17 a.m. The lab reports revealed that Garcia had a BAC of .268 and tested positive for cocaine metabolites. Like Lom, Torres was also aware that he needed a search warrant for a nonconsensual, warrantless blood draw, unless immediate action became necessary under exigent circumstances. Torres similarly testified on cross-examination, that he believed exigent circumstances existed when he observed what he thought to be the imminent administration of the IV bag. 10 At approximately 4:30 a.m., Rodriguez learned that Garcia’s scans revealed no serious injuries. Garcia was released into Rodriguez’s custody at 4:45 a.m., and Rodriguez transported Garcia to the police station. Ultimately, Rodriguez was unable to produce the warrant he originally started. MOTION TO SUPPRESS In its sole issue presented for our review, the State contends that the trial erred in granting Garcia’s motion to suppress the blood analysis results because Garcia’s warrantless blood draw was justified under the exigency exception to the Fourth Amendment warrant requirement. Standard of Review We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex.Crim.App. 2013). Under that standard, the record is “viewed in the light most favorable to the trial court’s determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or ‘outside the zone of reasonable disagreement.’” State v. Story, 445 S.W.3d 729, 732 (Tex.Crim.App. 2014), quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006). Moreover, we apply “a bifurcated standard, giving almost total deference to the historical facts found by the trial court and analyzing de novo the trial court’s application of the law.” State v. Cuong Phu Le, 463 S.W.3d 872, 876 (Tex.Crim.App. 2015); see Arguellez, 409 S.W.3d at 662 (explaining that appellate courts afford “almost complete deference . . . to [a trial court’s] determination of historical facts, especially if those are based on an assessment of credibility and demeanor”). The trial judge is the sole trier of fact as to the credibility and weight to give witness testimony at a suppression hearing. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). As such, the trial judge may choose to accept or reject any or all of the 11 testimony offered. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Gaines v. State, 888 S.W.2d 504, 507-08 (Tex.App.--El Paso 1994, no pet.). We do not engage in our own factual review of the trial court’s decision. Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). “The same deference is afforded the trial court with respect to its ruling on application of the law to questions of fact and to mixed questions of law and fact, if resolution of those questions depends on an evaluation of credibility and demeanor.” Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010). We also review “a trial court’s application of the law of search and seizure to the facts de novo.” Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010), including whether a warrantless search was justified by the presence of exigent circumstances. Roop v. State, 484 S.W.3d 594 (Tex.App.--Austin 2016, pet. ref’d); see Evans v. State, No. 1413-00642-CR, 2015 WL 545702, at *6 (Tex.App.--Houston [14th Dist.] Feb. 10, 2015, pet. ref’d)(mem.op., not designated for publication)(providing that “[a]lthough all findings of historical fact supported by the record must be implied in favor of the trial court’s ruling that the blood draw should not be suppressed, whether those facts meet the legal standard of exigent circumstances is a legal question that we review de novo”). Further, we view the evidence in the light most favorable to the trial court’s ruling on the motion, State v. Robinson, 334 S.W.3d 776, 778 (Tex.Crim.App. 2011), and the trial court’s ruling will be upheld if it is correct under any theory of law regardless of whether the trial court based its ruling on that theory. Story, 445 S.W.3d at 732. Applicable Law The drawing of a person’s blood constitutes a search under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 769, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966). 12 Accordingly, a blood draw generally requires a search warrant, unless a “recognized exception” to the warrant requirement applies. See Missouri v. McNeely, 133 S.Ct. 1552, 1558, 185 L.Ed.2d 696 (2013). “‘One well-recognized exception,’ and the one at issue in this case, ‘applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.’” Id., quoting Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). One such exigent circumstance is preventing the destruction of evidence or contraband. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App. 2007), citing McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App. 1991). In DWI cases, the evidence that is at risk of destruction is a suspect’s blood alcohol content, which “begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” Schmerber, 384 U.S. at 770, 86 S.Ct. at 1836. As such, the Supreme Court has held that the warrantless collection of blood from a DWI suspect does not violate the Fourth Amendment in cases when the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’” Id., quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). More recently, however, the Supreme Court clarified its holding in Schmerber, rejecting the argument that “the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133 S.Ct. at 1556. Instead, exigency in this context must still be determined on a case-by-case basis, evaluating the totality of the circumstances. Id. Although “some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency 13 justifying a properly conducted warrantless blood test,” in other cases, “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.” Id.; see also McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948)(“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 [the search] imperative.”). This is because it is inevitable that there is “some delay between the time of the arrest or accident and the time of the test” regardless of whether police officers are required to obtain a warrant. McNeely, 133 S.Ct. at 1561. If, under the circumstances of the case, “the warrant process will not significantly increase the delay before the blood test is conducted,” there can be “no plausible justification for an exception to the warrant requirement.” Id. As with other warrantless searches, the State bears the burden to prove that the warrantless blood draw was reasonable under the totality of the circumstances. See Amador v. State, 221 S.W.3d 666, 672-73 (Tex.Crim.App. 2007); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). “We apply an objective standard of reasonableness in determining whether a warrantless search is justified, and take into account the facts and circumstances known to the police at the time of the search. Colburn v. State, 966 S.W.2d 511, 519 (Tex.Crim.App. 1998); State v. Anderson, 445 S.W.3d 895, 910 (Tex.App.--Beaumont 2014, no pet.). Analysis In its brief, the State asserts the following factors to support its contention that exigent circumstances justified Garcia’s warrantless blood draw: (1) the delay necessary to control and 14 investigate the crash scene and the gravity of the offense; (2) the delay caused by Garcia’s actions, including his attempts to thwart the investigation; (3) exigencies created by Garcia’s request to be taken to the hospital; (4) the unavailability of an expedited warrant process in El Paso County and (5) the officers’ inability to obtain a warrant without significantly undermining the efficacy of the search. Delay necessary to control and investigate crash scene and the gravity of the offense The State first argues that both the delay that arose from the necessity to control and investigate the scene and the gravity of the offense contributed to the creation of exigent circumstances that justified the officers’ warrantless blood draw. 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. Cole v. State, 454 S.W.3d 89, 100 (Tex.App.--Texarkana 2014, pet. granted). The court of appeals in Cole explained how 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’ accident 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 discovers an apparently intoxicated driving 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. Id. at 100-01, citing Douds v. State, 434 S.W.3d 842, 853-54 (Tex.App.--Houston [14th Dist.] 2014, pet. granted). We do not consider the gravity of the offense when focusing on our exigent circumstances analysis. See Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290 (1978)(declining to hold that the seriousness of the offense under investigation itself 15 creates exigent circumstances of the kind that justifies a warrantless search under the Fourth Amendment); Cole, 454 S.W.3d at 103 (explaining that a court should neither be grading the severity of an accident nor focusing its analysis on the delay attendant to an investigation and reiterating that as in McNeely and Schmerber, our exigent circumstances analysis should focus on the delay attendant to obtaining a warrant, i.e., whether the State showed that, under the circumstances, the police could not reasonably obtain a warrant); see also McNeely, 133 S.Ct. at 1561; Schmerber, 384 U.S. at 770, 86 S.Ct. 1835; Turrubiate v. State, 399 S.W.3d 147, 153 n.4 (Tex.Crim.App. 2013), 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)); Evans v. State, No. 14-13-00642-CR, 2015 WL 545702, at *6 (Tex.App.--Houston [14th Dist.] Feb. 10, 2015, pet. ref’d)(declining to focus on the severity of the accident because doing so would lead inevitably to inconsistent outcomes). Additionally, as Garcia correctly points out, even if we were to consider the seriousness of the offense with which he was charged, at that point in time, Garcia had only been arrested for a DWI, not intoxication manslaughter. Moreover, the record reflects that when Rodriguez arrived at the scene at approximately 1:52 a.m., several other law enforcement officers, including Torres and Gabaldon, had already arrived and were controlling bystanders and investigating along with medical personnel and the fire department. While Rodriguez’s initial duties included conducting a preliminary investigation, he was not alone in his efforts. In 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), the court concluded that exigent circumstances justified a warrantless blood 16 draw where the officer was the only officer on duty that morning solely responsible for securing the scene, preserving, and collecting evidence, resulting in a six hour delay between the time of the accident and the time the officer arrived at the hospital and drew defendant’s blood. Clearly, we cannot equate Rodriguez’s situation with that of the officer in Pearson. At most, Rodriguez was delayed an hour, from the time he arrived at the scene 1:52 a.m., to the time he left the scene at 2:40 a.m. to begin drafting the search warrant. The court in State v. Anderson similarly discussed the availability of several officers to assist with obtaining a search warrant for Anderson’s blood. 445 S.W.3d 895, 911 (Tex.App.-Beaumont 2014, no pet.). While one officer remained with Anderson at the hospital, one or more of the other officers present at the scene of the accident, with the assistance of the assistant district attorneys, could have taken steps to secure a warrant for a blood draw. Id. at 911; see also McNeely, 133 S.Ct. at 1561 (noting that no warrant exception applies when “between the time of the arrest or accident and time of the test,” an officer other than the one handling the suspect “can take steps to secure a warrant”); see also State v. Martinez, No. 03-14-00588-CR, 2016 WL 1317984, at *3 (Tex.App.--Austin Mar. 30, 2016, pet. ref’d)(not designated for publication). The record in this case is clear that Torres rode with Garcia to the hospital while Rodriguez initiated the warrant process. It is also apparent that several other officers remained at the scene and arrived later at the hospital to assist with the investigation. The State further relies on Garcia v. State, No. 14-14-00387-CR, 2015 WL 2250895, at *1 (Tex.App.--Houston [14th Dist.] May 12, 2015, pet. ref’d)(not designated for publication), which held exigent circumstances justified a police officer’s warrantless blood draw. However, Garcia is distinguishable for several reasons. Transportation from the scene to the hospital was significantly delayed because an arriving helicopter prevented incoming and outgoing traffic 17 from leaving; probable cause was not developed until after the appellant was taken to the hospital; and there was not an available magistrate in the entire county. Id. at *7-8. Here, there was no helicopter blocking transport, probable cause was developed at the scene shortly after arrival, and the record reflects that a magistrate was on call that morning to review the warrant. Accordingly, we cannot agree with the State that the delay in investigating and controlling the accident scene or the severity of the accident contributed in creating an exigency. Garcia’s efforts to thwart the investigation The State next contends that the delay caused by Garcia’s actions, including his attempts to thwart the investigation with his claims that he was not driving, contributed to the exigent circumstances that justified Garcia’s warrantless blood draw. In Roop v. State, 484 S.W.3d 594 (Tex.App.--Austin 2016, pet. ref’d), the State similarly argued that the totality of the circumstances constituted exigency sufficient to justify the warrantless blood draw. It compared Roop to Schmerber in that both cases involved a traffic accident. Id. Roop involved a car crash with multiple occupants and witnesses; two individuals were transported to a medical facility for treatment; and more than an hour elapsed from the time the officer arrived on the scene to the time he arrived with Roop at the jail. Id. The court of appeals distinguished the facts from those in Schmerber. Id. It concluded that although Roop was involved in a traffic accident, nothing in the record suggested that this fact significantly delayed the collection of his blood. Id. The officer testified that he came into contact with Roop at about 4 a.m., placed Roop under arrest at 4:25, and ordered her blood to be drawn at 5:09. Id. The officer stopped to allow Roop to use the restroom, which took only a few minutes, and the drive to the jail took only seven to eight minutes. Id. The court was not persuaded that the mere existence of a traffic accident constituted a per se exigency justifying a warrantless blood draw. 18 Id.; see also Evans, 2015 WL 545702, at *6 (holding that accident investigation, by itself, is not exigent circumstance). Nor are we persuaded that Garcia’s denial that he was the driver significantly delayed Rodriguez’s ability to collect blood. Rodriguez arrived at the scene around 1:52 a.m. and initially focused his attention on a preliminary investigation. He left at 2:40 a.m., to begin procuring the search warrant and arrived at Del Sol about ninety minutes later. Garcia’s attempts to convince Rodriguez that he was not the driver took a minimal amount of time, at best. Unavailability of expedited warrant process The State contends that the trial court improperly relied on technological advances that El Paso County does not have in place to deal with the expediency of procuring warrants. Pursuant to McNeely, the relevant factors in determining whether a warrantless search is reasonable include “the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence.” McNeely, 133 S.Ct. at 1568; see also Bowman v. State, No. 05-13-01349-CR, 2015 WL 557205, at *11 (Tex.App.--Dallas Feb. 10, 2015, no pet.). That factor “will no doubt vary depending upon the circumstances in the case.” Id. “[I]n order to establish a plausible justification for an exigent circumstances exception to the warrant requirement, the State ha[s] the burden to show facts and circumstances beyond the passage of time and the resulting dissipation of alcohol in the bloodstream.” Douds, 434 S.W.3d at 851. Additionally, the McNeely court noted that technological developments 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. Id. at 1562-563 (citing various state statutes that allow police to use technology-based developments to “streamline the warrant process”); see also Clay v. State, 391 S.W.3d 94, 103-04 (Tex.Crim.App.2013)(holding that “no 19 compelling reasoning” contemplated in the search warrant statute requires that the oath always be administered in the corporal presence of the magistrate, so long as sufficient care is taken in the individual case to preserve the same or equivalent solemnizing function to that which corporal presence accomplishes). Rodriguez testified that El Paso County warrant procedures permitted officers to obtain a warrant over the phone. Even though it was Christmas Eve, there was a magistrate on-duty and there is no evidence to suggest that the magistrate was unavailable; only that Lom thought that the magistrate might have taken his lunch break sometime between 3 and 4 a.m. See McNeil v. State, 443 S.W.3d 295, 302 (Tex.App.--San Antonio 2014, pet. ref’d)(declining to find exigency even where a magistrate was not “on-call” for purposes of obtaining a warrant); Anderson, 445 S.W.3d at 911 (evidence at suppression hearing indicated that there was a judge available and on stand-by and that there were other officers on the scene able to assist with the warrant); Chidyausiku v. State, 457 S.W.3d 627, 631 (Tex.App.--Fort Worth 2015, pet. ref’d)(record established that Arlington Police Department established a protocol and procedure to obtain search warrants efficiently and without undue delay; and judge was available twenty-four hours a day, seven days a week, holidays included). Even if Rodriguez had waited the maximum estimated time to obtain a warrant, according to our calculations, he would have had one shortly after 4 a.m. This is slightly more than two hours from the time officers arrived at the scene of the accident and well before the hospital discharged Garcia into Rodriguez’s custody at 4:45 a.m. See Gore v. State, 451 S.W.3d 182, 197-98 (Tex.App.--Houston [1st Dist.] 2014, pet. ref’d). 20 Request to go to hospital The State emphasizes Garcia’s request to be taken to the hospital as an additional circumstance supporting the reasonableness of the officers’ decision to draw Garcia’s blood without a warrant. First, the record plainly reveals that Garcia was going to Del Sol regardless of whether he asked to be transported. Cavazos testified that due to the mechanism of the injury, Garcia was classified as a Level II trauma patient such that paramedics were required to transport him to a hospital with a trauma center. Moreover, the context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a “now or never” situation. McNeely, 133 S.Ct. at 1561. The McNeely court noted that blood alcohol evidence from a drunk-driving suspect “naturally dissipates over time in a gradual and relatively predictable manner,” rather than in “circumstances in which the suspect has control over easily disposable evidence.” Id. Additionally, the time expended by a police officer to transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test creates an inevitable delay between the time of the arrest or accident and the time of the test, regardless of whether the police officers are required to obtain a warrant. Id. Here, the State attempts to distinguish the officers’ beliefs that Garcia may have fluids suddenly injected into him, from McNeely’s notion that blood alcohol evidence from a drunkdriving suspect dissipates gradually and in a predictable manner. McNeely, 133 S.Ct. at 1561. In doing so, the State tries to categorize this situation that the officers were confronted with, as a truly “now or never” scenario that we more often see in non-DWI Fourth Amendment search warrant cases. And thus we come to the crux of the case. Two recent decisions by the Texas 21 Court of Criminal Appeals guide our analysis. Both opinions were written by Judge Keasler and issued on May 25, 2016. Weems v. State In Weems v. State, 493 S.W.3d 574 (Tex.Crim.App. 2016), the defendant moved to suppress the results of a warrantless blood draw. The trial court denied the motion but the court of appeals reversed, holding that the State failed to establish that the blood draw was justified by exigent circumstances. Weems and a friend were returning home from a bar where they had been drinking. Weems’ car veered off the road, flipped over and struck a utility pole. The driver of a passing car saw Weems climb out of the car through the driver’s side window. He was stumbling and when asked whether he was alright or if he were drunk, he answered that he was drunk. He then fled on foot. The passenger appeared “beat up pretty bad” and a strong odor of alcohol emanated from the car. The passerby called 911. Sheriff’s Deputy Munoz responded to the call and the passerby pointed to a parked car and told him someone was underneath it. Munoz saw an injured man who matched the description of the driver. Munoz detained Weems at 12:17 a.m. and noticed his bloodshot eyes, slurred speech, and bloodied face. Weems refused to give a breath or blood sample. He was treated at the scene by EMS but because he complained of back and neck pain, he was taken to University Hospital where he was placed in the trauma unit. An officer requested a blood draw, but the blood was taken over two hours after his arrest. Blood alcohol concentration was .18, above the .08 definition of intoxication. The Court of Criminal Appeals granted petition for discretionary review of the court of appeals decision that Texas’ implied consent and mandatory blood draw schemes do not support a warrantless draw under the exigency exception. It recounted the holding of Schmerber v. California, 384 U.S. 757, 770-72 (1966) that, based on the circumstances surrounding the search, 22 a warrantless seizure of a driver’s blood was reasonable where (1) the officer had probable cause that the driver operated a vehicle while intoxicated; (2) alcohol naturally dissipated after drinking stops; (3) the time necessary to investigate the accident scene and transport the driver to a hospital impacted the time to obtain a warrant; (4) the means of determining whether an individual is intoxicated are highly effective; (5) venipuncture is a common procedure with little risk; and (6) the test is performed in a reasonable manner. The court then tracked Missouri v. McNeely, as necessary to resolve a split of authority after Schmerber “as to whether the body’s natural metabolization of alcohol in the bloodstream creates a “per se exigency that justices an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” The State of Missouri argued that the body’s natural dissipation of alcohol in and of itself created an exigent circumstance. This “per se” approach was rejected in favor of an analysis that considers the totality of the circumstances. There may be circumstances relevant to an exigency analysis, including “the procedures in place for obtaining a warrant, the availability of a magistrate judge, and the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence.” McNeely, 133 S.Ct. at 1568. The Court of Criminal Appeals then reviewed the totality of the circumstances and concluded that the warrantless blood draw was not justified by exigent circumstances. Cole v. State In Cole v. State, 490 S.W.3d 918 (Tex.Crim.App. 2016), the trial court denied Cole’s motion to suppress evidence obtained by a warrantless blood draw. The court of appeals reversed, holding that the record did not establish exigent circumstances. Here, the Court of Criminal Appeals determined that the warrantless search was justified. 23 The accident occurred at 10:30 p.m. in early December. Traveling at 110 miles per hour, Cole drove his large pickup down a city street. He ran a red light at a busy intersection, struck another truck causing an explosion which engulfed the latter in flames, killing the driver instantly. Officer Castillo testified because of the traffic and activity, many officers were needed on the scene to block off several major intersections and keep people away. The lead investigator, Officer Higginbotham, spent some three hours investigating the scene. Fourteen other officers were dispatched to assist. There was extensive damage to the victim’s truck which had been T-boned such that the frame was bent into a crescent shape. The accident was not cleared until 6 a.m. the following morning. Officer Wright spoke with Cole, who was confused and did not know where he was. He told EMS that he had taken some methamphetamine. He was transported to the hospital. Wright arrested Cole at 11:38 p.m. and attempted to obtain a blood sample. Cole kept interrupting her while she read the statutory warnings, insisted he wasn’t drunk, and refused to provide a sample. The officer asked hospital staff to draw the blood and this was performed forty-two minutes later. The sample contained intoxicating levels of amphetamine and methamphetamine. Cole moved to suppress the results. Higginbotham testified that medical treatment, such as the administration of narcotic medicines, could affect the integrity of a blood sample. The trial court denied the motion, concluded that exigent circumstances justified the warrantless seizure, and noted the following circumstances: the accident required shutting down a major intersection; the severity of the accident and large debris field required the accident reconstruction expert to remain at the scene; the number of officers involved and the time to clear the intersection; the accident involved a death and was not a “regular DWI”; and 24 the uncertainty of Cole’s physical condition and the valid concern that medication administered at the hospital could affect the blood sample. The court of appeals found that the trial court erred in failing to suppress the evidence. It noted that Higginbotham made no attempt to procure a warrant even though a magistrate was available. There was no indication what another officer was not available to obtain a warrant; and there was no evidence of the elimination rate of methamphetamine. The Court of Criminal Appeals granted discretionary review. Referring to Weems, the court concluded this case was controlled by Schmerber and McNeely. After recounting the testimony, it held: We do not disagree with the court of appeals’ conclusion that ‘[t]here is no indication that officers not on the scene were unable to help obtain a warrant.’ We do disagree, however, that an exigency finding cannot be made without the record establishing -- and by extension, the State proving -- that there was no other officer available to get a warrant in the lead investigator’s stead. In all but the rarest instances, there will theoretically be an officer somewhere within the jurisdiction that could assist the lead investigator. Requiring such a showing in every case where exigency is argued improperly injects the courts into local lawenforcement personnel management decisions and public policing strategy. It further reduces the exigency exception to an exceedingly and inappropriately small set of facts, and would defeat a claim of exigency on the basis of a single circumstance in direct opposition to the totality-of-circumstances review McNeely requires. Id. at 925-26. The court was particularly concerned about the integrity of the blood sample, noting that Higginbotham knew that during the ninety minutes necessary to obtain a warrant, Cole’s body would continue to metabolize the methamphetamine. The court of appeals correctly notes that the record does not contain evidence regarding the rate the body metabolizes methamphetamine. But the lack of a known elimination rate of a substance law enforcement believes a suspect ingested does not necessarily mean that the body’s natural metabolism of intoxicating substances is irrelevant to or cuts against the State’s exigency argument. In fact, it serves to distinguish this case from McNeely. The McNeely Court relied in significant part on the widely known fact that alcohol ‘naturally dissipates over time in a gradual and relatively predictable manner.’ The lack of a known elimination rate is at odds with the undercurrent running through the McNeely opinion: While time is of the essence, a minimally 25 delayed test when dealing with an alcohol-related offense does not drain the test of reliability because experts can work backwards to calculate blood-alcohol content at an earlier date. In this case, without a known elimination rate of methamphetamine, law enforcement faced inevitable evidence destruction without the ability to know -- unlike alcohol’s widely accepted elimination rate -- how much evidence it was losing as time passed. Id. at 926-27. The opinion ends with a comparison to Schmerber, emphasizing that law enforcement was confronted not only by the destruction of evidence through natural dissipation but also with the constraints posed by a severe accident involving a death. Id. at 927. We therefore conclude that Garcia’s circumstances are more akin to Cole than to Weems. Garcia’s accident resulted in three deaths, several cars afire, and the necessity of numerous officers on the scene. While his intoxication was induced by alcohol and cocaine metabolites rather than by methamphetamines, the Higginbotham concern persists. Inducing intervenous saline or other medication, particularly narcotic medication, would likely compromise the blood sample by impeding the ability to determine the rate of dissipation. For these reasons, we sustain the State’s sole point and reverse and remand for trial. February 24, 2017 ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. Hughes, J., not participating (Do Not Publish) 26
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