Ruiz, Jose ( 2015 )

PD-1362-15
PD-1362-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/19/2015 4:19:13 PM
No. _______________ Accepted 10/19/2015 4:49:13 PM
ABEL ACOSTA
CLERK
COURT OF CRIMINAL APPEALS
OF TEXAS
The State of Texas,
Appellant
v.
Jose Ruiz
from the Court of Appeals for the
Thirteenth Judicial District at Corpus Christi
13-13-00507-CR
STATE’S PETITION FOR DISCRETIONARY REVIEW
An appeal from the 25th Judicial District Court, Gonzales County, Texas
The Honorable William D. Old III., Judge Presiding
Paul Watkins
County Attorney
Gonzales County, Texas
Keri L. Miller
First Assistant County Attorney
415 Saint Louis Street
Gonzales, TX 78629
October 19, 2015 State Bar No. 24051960
(830) 672-6527 FAX (830) 672-5868
kmiller@co.gonzales.tx.us
Identity of Judge, Parties, and Counsel
Trial Court............................The Honorable William D. Old, III.
Presiding Judge
25th Judicial District Court
Gonzales County, TX
Appellant ..............................The State of Texas
Paul Watkins
County Attorney
Keri L. Miller
First Assistant County Attorney
TRIAL AND APPELLATE COUNSEL
Gonzales County Attorney’s Office
415 Saint Louis Street
Gonzales, Texas 78629
Appellee ................................Jose Ruiz
Mark Symms
TRIAL AND APPELLATE COUNSEL
417 Saint George Street, Second Floor
Gonzales, Texas 78629
i
Table of Contents
Identity of Judge, Parties, and Counsel .................................................... i
Index of Authorities.................................................................................. iv
Statement Regarding Oral Argument ...................................................... v
Statement of the Case ............................................................................... v
Statement of Procedural History .............................................................. v
Grounds for Review ................................................................................... 1
Issue One
Is it unreasonable under the Fourth Amendment for
an officer to rely on a driver's implied consent to a
blood draw when the driver was involved in an
accident, there is probable cause to believe he is
intoxicated, and where the driver's own
unconsciousness prevents the officer from effectively
obtaining the driver's actual consent?
Issue Two
Were there sufficient exigent circumstances to justify
the warrantless blood draw where (1) officers were
occupied with the accident investigation (2) the
defendant had fled the scene and remained
unidentified for some time, and (3) where there were
few officers or magistrates on hand to expeditiously
obtain a warrant?
The Facts and Issues Argued Below ......................................................... 1
Argument ................................................................................................... 9
I. The blood results should not have been suppressed ........................... 9
A. Reasonable under the Fourth Amendment ................................... 10
ii
B. Sufficient Exigent Circumstances Existed .................................... 11
Prayer for Relief ...................................................................................... 13
Certificate of Service ............................................................................... 13
Certificate of Compliance ........................................................................ 14
Appendix A: Majority Opinion of the Court of Appeals
Appendix B: Dissenting Opinion by Justice Perkes
iii
Index of Authorities
Cases
Cole v. State, No. PD-0635-14
(granted Apr. 22, 2015) ......................................................................... 10
Holidy v. State, No. PD-0622-14
(granted Aug. 20, 2014) ........................................................................ 10
Missouri v. McNeely, 133 S. Ct. 1552
(2013)......................................................................................... v, 1, 5, 11
Parker v. State, 306 S.W.3d 593 (Tex. Crim. App 2006)......................... 11
Reeder v. State, No. 0601-14
(granted Aug. 20, 2014) ........................................................................ 10
State v. Ruiz, No. 13-13-0057-CR, 2015 Tex. App. LEXIS 8961
(Tex. App.--Corpus Christi August 27, 2015) ....................... v, 6, 7, 8, 11
State v. Smith, No. PD-1615-14
(granted Feb. 11, 2015) ......................................................................... 10
State v. Villarreal, PD-0306-14, 2014 WL 6734178
(Tex. Crim. App. Nov. 26, 2014), reh’g granted (Feb. 25, 2015)........... 10
Statutes, Codes, and Rules
Tex. Transp. Code § 724.011(a) ................................................................. 6
Tex. Transp. Code § 724.014(a) ............................................. 6, 7, 9, 10, 11
Tex. R. App. P. 66.3(b) ............................................................................... 9
Tex. R. App. P. 66.3(d) ............................................................................... 9
Tex. R. App. P. 66.3(e) ............................................................................... 9
Tex. R. App. P. 68.2(a) .............................................................................. vi
iv
To the Honorable Court of Criminal Appeals of Texas:
Statement Regarding Oral Argument
The State respectfully requests oral argument. The particular
issue presented in the State’s first ground for review has not yet been
decided by this Court post McNeely. In addition, the issue of exigent
circumstances will likely turn on a number of particular facts. Oral
argument is best suited to determine those factual assertions and their
importance to determine whether exigent circumstances existed.
Statement of the Case
Jose Ruiz was indicted for driving while intoxicated, third or
more. (Cl. R. vol. 1 of 1, at 3-4). Ruiz filed a motion to suppress the
results of his blood test based on Missouri v. McNeely, 133 S. Ct. 1552
(2013). (Ct. R. vol. 1 of 1 at 4-23). The trial court granted the motion,
and the State appealed. (Cl. R. vol. 1 of 1, at 16-18).
Statement of Procedural History
The court of appeals handed down its opinion on August 27, 2015.
State v. Ruiz, No. 13-13-00507-CR, 2015 Tex. App. LEXIS 8961 (Tex.
App.—Corpus Christi August 27, 2015) (designated for publication).
v
The State timely filed a motion for en banc reconsideration on
September 9, 2015, which was denied September 21, 2015. This petition
is thus timely filed on or before October 21, 2015. Tex. R. App. P.
68.2(a).
vi
Grounds for Review
Issue One
Is it unreasonable under the Fourth
Amendment for an officer to rely on a driver’s
implied consent to a blood draw when the
driver was involved in an accident, there is
probable cause to believe he is intoxicated, and
where the driver’s own unconsciousness
prevents the officer from effectively obtaining
the driver’s actual consent?
Issue Two
Were there sufficient exigent circumstances to
justify the warrantless blood draw where (1)
officers were occupied with the accident
investigation, (2) the defendant had fled the
scene and remained unidentified for some time,
and (3) where there were few officers or
magistrates on hand to expeditiously obtain a
warrant?
The Facts and Issues Argued Below
I. The offense
In September 2012—six months before the Supreme Court’s April
2013 decision in Missouri v. McNeely—Sergeant Bethany McBride
responded to a two vehicle accident around midnight. (Ct. R. vol. 1 of 1,
at 7). When Sergeant McBride arrived at the scene she observed a tan
Lincoln Navigator had collided with a tan Pontiac. (Ct. R. vol. 1 of 1, at
1
7, 13). The driver of the Pontiac remained on the scene but the driver of
the Lincoln fled. (Ct. R. vol. 1 of 1, at 7). As Sergeant McBride
investigated the scene two witnesses approached her and gave her a
description of the driver of the Lincoln and stated that the driver had
run behind a nearby carwash. (Ct. R. vol. 1 of 1, at 7). Sergeant
McBride looked in the Lincoln to determine the identity of the driver
and located insurance paperwork that belonged to Ruiz. (Ct. R. vol. 1 of
1, at 7-8). Sergeant McBride also ran the license plate of the Lincoln
which came back to Ruiz. (Ct. R. vol. 1 of 1, at 8). While inside the
vehicle Sergeant McBride observed several Bud Light cans in the front
seat area. (Ct. R. vol. 1 of 1, at 8).
After searching the area where the witnesses said the driver of the
Lincoln had fled, officers were able to locate Ruiz in a field behind the
car wash. (Ct. R. vol. 1 of 1, at 8-9). Ruiz was unresponsive, and it took
several officers to carry him to the patrol unit. (Ct. R. vol. 1 of 1, at 9).
Sergeant McBride observed the very strong odor of alcoholic beverages
coming from Ruiz. (Ct. R. vol. 1 of 1, at 9-10). Sergeant McBride did not
observe any injuries on Ruiz and determined that he was unresponsive
due to the amount of alcohol in his system. (Ct. R. vol. 1 of 1, at 10-11).
2
EMS arrived on scene to treat Ruiz. (Ct. R. vol. 1 of 1, at 11). EMS
performed several sternum rubs to try and get Ruiz to be responsive,
but Ruiz never responded. (Ct. R. vol. 1 of 1, at 11). EMS also checked
Ruiz’s blood pressure and based on Ruiz’s condition, EMS transported
Ruiz to the hospital for treatment. (Ct. R. vol. 1 of 1, at 11).
Sergeant McBride went to the hospital and placed Ruiz under
arrest for driving while intoxicated. (Ct. R. vol. 1 of 1, at 12). When
Sergeant McBride ran Ruiz’s criminal history she discovered Ruiz had
four convictions for driving while intoxicated. (Ct. R. vol. 1 of 1, at 17).
Sergeant McBride prepared the necessary paperwork and a qualified
lab technician with the hospital drew Ruiz’s blood. (Ct. R. vol. 1 of 1, at
12). Ruiz remained unresponsive the entire time. (Ct. R. vol. 1 of 1, at
12-13).
Sergeant McBride explained that it would have been impractical
to secure a warrant because there was no magistrate available at that
time and it would have been difficult to find one at that time on a
weekend. (Ct. R. vol. 1 of 1, at 15, 18). Sergeant McBride also was one
of only two officers on duty for the Gonzales Police Department at the
time, and it would have been impracticable to remove one officer from
3
duty to secure the warrant. (Ct. R. vol. 1 of 1, at 15). Sergeant McBride
explained that at the time there were no procedures in place to obtain a
search warrant and if she were able to obtain a search warrant it would
have taken probably two to three hours to write the affidavit and then
she would have had to drive the search warrant to the magistrate’s
house, if she could find one, to sign the warrant, and return to the
hospital to execute the warrant. (Ct. R. vol. 1 of 1, at 15, 18, 19).
Sergeant McBride explained that because Ruiz was involved in an
accident, which had to be investigated, Ruiz fled the scene of that
accident, Sergeant McBride had to perform an investigation to
determine the identity of the driver and his location, and with Ruiz
being found unresponsive in a field a distance away from the accident,
necessitating his treatment by EMS, the investigation was prolonged in
this case beyond a normal driving while intoxicated case. (Ct. R. vol. 1
of 1, at 17-20). Sergeant McBride knew that during this prolonged
process the alcohol in Ruiz’s bloodstream was dissipating. (Ct. R. vol. 1
of 1, at 19).
4
II. The trial court
Ruiz moved to suppress his blood-test results under Missouri v.
McNeely, 133 S. Ct. 1552 (2013). (Ct. R. vol. 1 of 1, at 4-5). At the
suppression hearing, the trial court took the matter under advisement.
(Ct. R. vol. 1 of 1, at 22). At the request of the State the trial court filed
findings of fact and conclusions of law. The trial court found Sergeant
McBride’s testimony credible in all respects. (Cl. R. Supp. vol. 1 of 1, at
11). The trial court further found that Ruiz was unconscious at the
time of the blood draw and did not revoke his implied consent to the
blood draw. (Cl. R. Supp. vol. 1 of 1, at 11, 12). The trial court found
itself bound by McNeely, and granted the motion to suppress. (Cl. R.
Supp. vol. 1 of 1, at 11). The trial court concluded there were no exigent
circumstances which justified the blood draw. (Cl. R. Supp. vol. 1 of 1, at
12).
III. The court of appeals
In its brief to the Thirteenth District Court of Appeals in Corpus
Christi, the State argued that Ruiz’s warrantless blood draw was
justified under the Fourth Amendment because Ruiz, had consented to
the blood draw. Ruiz was deemed to have consented to the blood draw
5
and throughout Sergeant McBride’s encounter with Ruiz, he was
unconscious and therefore Ruiz’s consent to the blood draw was never
revoked. Tex. Transp. Code Ann. §§ 724.011 (West), 724.014 (West).
In addition, the State argued that even if Ruiz did not consent to the
blood draw there were sufficient exigent circumstances that existed
which justified the warrantless blood draw.
The majority opinion held that Ruiz never gave his free and
voluntary consent to the blood draw because he was unconscious and
thus was unable to give his consent freely and voluntarily or have the
opportunity to revoke such consent. Ruiz, 2015 Tex. App. LEXIS 8961
at 8-9. The majority reasoned that because the implied consent
statutory scheme is premised on consent, Ruiz had to first consent to
the blood draw to trigger the applicable provisions of Chapter 724 of the
transportation code. Ruiz, 2015 Tex. App. LEXIS 8961 at 12.
Justice Perkes in his dissenting opinion held that the implied
consent laws in this instance do not offend the Fourth Amendment and
thus the blood sample was obtained legally. Ruiz, 2015 Tex. App.
LEXIS 8961 at 25. Justice Perkes reasoned that “Ruiz was precisely
the type of person—a person incapable of refusal—contemplated by
6
section 724.014.” Ruiz, 2015 Tex. App. LEXIS 8961 at 23. “This factual
scenario is the type of situation where implied consent makes perfect
sense. To hold otherwise would render ineffective the entire implied
consent statutory scheme.” Ruiz, 2015 Tex. App. LEXIS 8961 at 24.
“The majority states that it refuses to read the implied consent statute
‘expansively,’ but then requires the State contrary to the plain language
of the statute, to prove that the consent was freely and voluntarily
given. Such a reading encumbers the State with the impossible task of
obtaining consent freely and voluntarily from an unconscious person.
While the majority correctly states that consent must be freely and
voluntarily given, the cases it relies on are factually distinguishable.”
Ruiz, 2015 Tex. App. LEXIS 8968 at 24.
The majority opinion also concluded that there were no exigent
circumstances which justified the warrantless withdrawal of Ruiz’s
blood, reasoning that “the State produced no evidence to show that the
destruction of evidence was imminent, how it was deprived of an
opportunity to obtain reliable evidence within a timeframe, or how a
more expeditious process was not available to locate a magistrate and
obtain a warrant from the magistrate through alternative means such
7
as via telephone rather than physically driving to the magistrate’s
home.” Ruiz, 2015 Tex. App. LEXIS 8968 at 18.
Justice Perkes disagreed with the majority’s conclusion that no
exigent circumstances existed, holding that “McNeely supports a finding
of exigency sufficient to justify the warrantless blood test in this case.
After arriving at the scene of an accident in the middle of the night,
Sergeant McBride was required not only to investigate the scene of the
accident but also required to find Ruiz and identify him as a driver
involved in the accident. Additionally, when Sergeant McBride was
finally able to locate Ruiz, he was unconscious and in need of medical
attention. Sergeant McBride testified that no magistrate was on duty,
and that it would have taken time to find one, drive the warrant to their
residence to have it signed, then return to the hospital to serve the
warrant. She estimated that obtaining a warrant would have taken two
or three hours and it was impractical to remove one of the only two
officers on duty that night in order to prepare a search warrant
affidavit. Under these circumstances, it was reasonable for Sergeant
McBride to believe that she was facing imminent destruction of
evidence.” Ruiz, 2015 Tex. App. LEXIS 8968 at 26-27.
8
Argument
I. The blood results should not have been suppressed
This Court should grant review because the court of appeals
decided an important question of state and federal law that is unsettled
and should be settled by this Court. See Tex. R. App. P. 66.3(b). That
question is whether warrantless blood draws conducted under
Transportation Code § 724.014 are reasonable under the Fourth
Amendment. In addition, the court of appeals has misconstrued a
statute by ignoring the plain meaning of 724.014, by requiring the State
to prove free and voluntary consent from an unconscious individual
where the statute unequivocally establishes a presumption of consent.
See Tex. R. App. P. 66.3(d). Furthermore, the justices of the Thirteenth
Court of Appeals have disagreed on two material questions of law
necessary to the court’s decision, namely, (1) that implying consent
under § 724.014 for an unconscious driver who has never revoked his
consent is a reasonable exception to the Fourth Amendment’s warrant
requirement, and (2) whether exigent circumstances existed to justify
the warrantless blood draw. See Tex. R. App. P. 66.3(e).
9
A. Reasonable under the Fourth Amendment
Like numerous other cases, the issue in this case revolves around
whether a blood draw conducted pursuant to the implied consent
provisions of Chapter 724 of the Transportation Code is reasonable
under the Fourth Amendment. Because this Court has already granted
review to decide a similar issue, whether the mandatory blood draw
provisions are reasonable under the Fourth Amendment, in numerous
other pending cases, review is also warranted in the instant case. See,
e.g., State v. Villarreal, PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898
(Tex. Crim. App. Nov. 26, 2014), reh’g granted (Feb. 25, 2015); Holidy v.
State, No. PD-0622-14 (granted Aug. 20, 2014); Reeder v. State, No.
0601-14 (granted Aug. 20, 2014); State v. Smith, No. PD-1615-14
(granted Feb. 11, 2015); Cole v. State, No. PD-0635-14 (granted Apr. 22,
2015).
In addition, the majority’s opinion ignored the plain meaning of
the section 724.014 by holding that the State must first obtain the
voluntary consent of an unconscious individual where the statute
unequivocally establishes that a presumption of consent exists. Tex.
Transp. Code Ann § 724.014 (West). Because there is no guidance, post
10
McNeely, on the issue of whether withdrawing blood of an unconscious
person pursuant to §724.014, is reasonable under the Fourth
Amendment, and the majority and the dissent strongly disagree on the
issue, review is warranted in this case.
B. Sufficient Exigent Circumstances Existed
The majority opinion fails to take into account that the existence
of exigent circumstances is determined based upon the information
known to the officer at the time of the search. Parker v. State, 206
S.W.3d 593, 600 (Tex. Crim. App. 2006)(emphasis added). The majority
opinion ignored the testimony establishing what was known to Sergeant
McBride at the time of the warrantless blood draw and instead focused
on what was unknown from the testimony at the motion to suppress.
Ruiz, 2015 Tex. App. LEXIS 8968 at 18. At the time of the warrantless
blood draw, Sergeant McBride knew: (1) Ruiz’s blood alcohol content
was dissipating; (2) she had the obligation to investigate the scene of
an accident; (3) she had to identify Ruiz as the driver of the vehicle after
he fled the scene of the accident; (4) she had to find Ruiz who witnesses
stated had run behind a carwash; (5) once she found Ruiz she had to
call for EMS, wait on their arrival and their treatment of Ruiz; (6) Ruiz
11
after being assessed and treated at the scene required transportation to
the hospital; (7) finding a magistrate would be difficult; (8) if she could
find a magistrate she would have to drive the search warrant to his
house, because at the time Gonzales did not have any policies in place
for securing a search warrant in a more expeditious manner; (9) it was
impracticable to remove one of only two officers on duty that night to
spend two to three hours writing a search warrant affidavit, finding a
magistrate, if she could, driving to the magistrate’s house to get it
signed, and then returning to the hospital to execute the warrant. (Ct.
R. vol. 1 of 1, at 7-11, 45-18).
As the dissent correctly pointed out when focusing on the
circumstances known to Sergeant McBride, it was reasonable for her to
believe that she was facing imminent destruction of evidence.
The majority opinion fails to take into account what was known to
Sergeant McBride at the time of the warrantless blood draw in its
determination of the existence of exigent circumstances justifying the
warrantless withdrawal of Ruiz’s blood and therefore, review should be
granted in this case.
12
Prayer for Relief
Wherefore, the State of Texas prays that this Court will grant the
petition and ultimately reverse the decision of the court of appeals.
Respectfully submitted,
Paul Watkins
County Attorney
Gonzales County, Texas
/s/ Keri L. Miller
Keri L. Miller
First Assistant County Attorney
415 Saint Louis Street
State Bar No. 24051960
kmiller@co.gonzales.tx.us
(830) 672-6527
FAX (830) 672-5868
Certificate of Service
The State has e-served Mark Symms, counsel for Jose Ruiz,
through the eFileTexas.gov filing system and sent a copy to The
Honorable Lisa McMinn, State Prosecuting Attorney, on this, the 19th
day of October, 2015.
/s/ Keri L. Miller
13
Certificate of Compliance
This petition for discretionary review complies with the word
limitations in Texas Rule of Appellate Procedure 9.4(i)(2). In reliance on
the word count of the computer program used to prepare this petition,
the undersigned attorney certifies that this document contains 2402
words, exclusive of the sections exempted by Rule 9.4(i)(1).
Keri L. Miler
Assistant County Attorney
14
APPENDIX A
Majority Opinion of the Court of Appeals
August 27, 2015
NUMBER 13-13-00507-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
JOSE RUIZ, Appellee.
On appeal from the 25th District Court
of Gonzales County, Texas.
OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Opinion by Justice Benavides
In this appeal, the State challenges the trial court’s granting of appellee, Jose
Ruiz’s, motion to suppress blood alcohol test results that police seized following his arrest
for driving while intoxicated. We affirm.
I. BACKGROUND
On September 9, 2012, Gonzales Police Sergeant Bethany McBride arrived on the
scene of an accident shortly after midnight in Gonzales County to discover a collision
between a Lincoln Navigator and a Pontiac. Witnesses at the scene told Sergeant
McBride that the driver of the Navigator, later identified as Ruiz, had fled the scene and
had run behind a car wash.
Sergeant McBride looked into the Navigator and found insurance paperwork in
Ruiz’s name, as well as “several Bud Light . . . cans, that [had] exploded in the [front]
seat.” Other officers later located Ruiz in a field behind the car wash that witnesses had
described earlier. Sergeant McBride described Ruiz as “unresponsive” that night and
further observed that he “couldn’t open his eyes.” Additionally, his body emitted a
“strong odor of [alcohol].” According to Sergeant McBride, Ruiz did not appear to be
injured, but was “just unresponsive due to the amount of alcohol in his system.”
Emergency medical personnel eventually arrived, and also attempted to elicit
responses from Ruiz by performing several sternum rubs, but such tests were
unsuccessful. As a result, Ruiz was taken by ambulance to Gonzales Memorial
Hospital. At the hospital, Ruiz remained unresponsive. Sergeant McBride testified that
she had enough probable cause to place Ruiz under arrest for driving while intoxicated
and completed paperwork at the hospital for lab technicians to administer a blood draw.
Sergeant McBride also discovered that Ruiz had four prior convictions for driving while
intoxicated. Once Ruiz’s blood was drawn, Sergeant McBride took custody of Ruiz’s
blood evidence and returned to the Gonzales Police Station.
2
On cross examination, Sergeant McBride testified that it would have been
unreasonable to obtain a search warrant of Ruiz’s blood for a number of reasons, namely:
(1) it was difficult to find a magistrate or judge to sign a search warrant that late at night,
and she was required to drive to the judge’s house to retrieve the warrant; and (2) only
two officers were on duty that night, and Sergeant McBride did not want to take one of
the officers off duty to work on the warrant. According to Sergeant McBride, she
estimated that it would have taken her “about two or three hours” to obtain a search
warrant that night. Sergeant McBride also admitted that at the time, no procedures were
in place to obtain search warrants for blood draws. The record also shows that Ruiz was
admitted to the hospital overnight due to his sustained unconsciousness and did not
appear to be a flight risk.
At the suppression hearing, the State stipulated that it had conducted a warrantless
blood draw, but argued that the blood draw was nevertheless valid because: (1) section
724.014 of the transportation code provides implied consent of an accused who is
unconscious, and (2) exigent circumstances existed. The trial court granted Ruiz’s
motion to suppress, and issued the following relevant findings of fact and conclusions of
law:
Findings of Fact
1. [Ruiz] was involved in an accident late at night to early morning on
September 9, 2013. Gonzales Police Department Sgt. Bethany
McBride responded.
....
4. Following [Ruiz’s] arrest by McBride the attending physicians
indicated they wanted to keep [Ruiz] overnight.
3
5. There was no concern that [Ruiz] would flee from the hospital.
6. A warrant could have been obtained within 2 to 3 hours.
....
8. McBride performed a criminal history check on [Ruiz] and found four
previous convictions for DWI. Relying on Texas Penal Code
724.012 and 724.014 McBride ordered the blood draw from [Ruiz].
9. [Ruiz] remained in custodial arrest during the time the blood was
drawn.
10. The court finds Officer McBride’s testimony to be credible in all
respects.
Conclusions of Law
1. The court takes judicial notice of all statutes promulgated under [the]
Texas Transportation Code and in effect during all times relevant to
this case.
2. The court finds that it is bound by Missouri v. McNeely, 133 S. Ct.
1552, 1558, 185 L. Ed. 2d 696 (2013).
3. [Ruiz] did not revoke his consent to a blood draw under section
724.011 of the Texas Transportation Code.
4. No exigent circumstances existed in this case.
5. Believing itself to be bound by McNeely, the court granted the motion
to suppress.
6. If exigent circumstances existed the court believes McNeely would
not apply and the motion to suppress would be denied.
This appeal followed.
II. MOTION TO SUPPRESS
By its sole issue, the State contends that the trial court erred by granting Ruiz’s
motion to suppress because he impliedly consented to the blood draw, and even if he did
not consent, there were sufficient exigent circumstances to justify the warrantless blood
4
draw.
A. Applicable Law and Standard of Review
To suppress evidence on an alleged Fourth Amendment violation, the defendant
bears the initial burden of producing evidence that rebuts the presumption of proper police
conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). This initial
burden is satisfied by establishing that a search occurred without a warrant. Id. Once
a defendant makes this showing, the burden of proof shifts to the State where it is required
to establish that the search was conducted pursuant to a warrant or under a reasonable
exception. Id. (citing Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002)).
In reviewing a trial court’s ruling on a motion to suppress, we must view the
evidence in the light most favorable to the trial court’s ruling. Johnson v. State, 414
S.W.3d 184, 192 (Tex. Crim. App. 2013); State v. Garcia-Cantu, 253 S.W.3d 236, 241
(Tex. Crim. App. 2008). When the trial court does not make explicit findings of fact, we
infer the necessary factual findings that support the trial court’s ruling if the record
evidence (viewed in light most favorable to the ruling) supports these implied facts.
Johnson, 414 S.W.3d at 192.
Motions to suppress are reviewed pursuant to a bifurcated standard under which
the trial judge’s determinations of historical facts and mixed questions of law and fact that
rely on credibility are granted almost total deference when supported by the record. But
when mixed questions of law and fact do not depend on the evaluation of credibility and
demeanor, we review the trial judge’s ruling de novo. Id. (citing State v. Kerwick, 393
S.W.3d 270, 273 (Tex. 2013); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997)).
5
B. Discussion
In this case, the State stipulated that Ruiz’s blood was drawn without a warrant.
Therefore, the burden shifted to the State to establish that the search was reasonable.
Whether a warrantless blood test of a drunk-driving suspect is reasonable must be
determined case by case based on the totality of the circumstances. Missouri v.
McNeely, 133 S. Ct. 1552, 1563 (2013).
To meet its burden that the warrantless search in this case was reasonable, the
State asserts that Texas’s implied consent law, see TEX. TRANSP. CODE ANN. §§ 724.011;
724.014 (West, Westlaw through Ch. 46 2015 R.S.), established Ruiz’s consent to the
blood draw; and in the alternative, exigent circumstances existed to justify the taking of
Ruiz’s blood. We will analyze each argument below.
1. Implied Consent
Section 724.011(a) of the transportation code implies consent for an individual who
has been arrested for driving while intoxicated. See id. § 724.011(a); see State v.
Villarreal, No. 13–13–00253–CR, __ S.W.3d __, __, 2014 WL 1257150, at *11 (Tex.
App.—Corpus Christi Jan. 23, 2014) aff’d, No. PD–0306–14, 2014 WL 6734178 at *21
(Tex. Crim. App. Nov. 26, 2014) reh’g granted, (Feb. 25, 2015). This implied consent,
however, may be revoked, absent certain exceptions. See id. § 724.013 (“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.”). Thus, if a drunk-
driving suspect refuses to submit to the taking of a specimen, police are prohibited from
doing so without a warrant. Id. However, if a drunk-driving suspect is “dead,
unconscious, or otherwise incapable of refusal,” implied consent is considered “not to
6
have [been withdrawn] as provided by section 724.011.” See id. § 724.014(a). This
implied-consent law framework, however “does not give officers the ability to forcibly
obtain blood samples from anyone arrested for [driving while intoxicated],” but instead
“gives officers the ability to present an affidavit to a magistrate in every DWI case, just
like every other criminal offense.” See Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim.
App. 2002).
In this case, the State relies upon these implied-consent statutes to establish that
Ruiz effectively consented to the warrantless blood draw, which is a recognized exception
to the warrant requirement. We disagree with the State’s position. The record is
undisputed that Ruiz was unconscious and hospitalized during the course of Sergeant
McBride’s investigation on September 9, 2012. Regardless of this fact, the State
appears to rely upon section 724.014(a) as a key to unlock the recognized consent
exception to the warrant requirement. We do not read the implied consent statutes as
expansively as the State advances on appeal.
When the State seeks to rely upon consent to justify the lawfulness of a search, it
must prove that the consent was, in fact, freely and voluntarily given. Bumper v. North
Carolina, 391 U.S. 543, 546 (1968). Additionally, a person who consents to a search
may also specifically limit or revoke such consent. See Miller v. State, 393 S.W.3d 255,
266 (Tex. Crim. App. 2012); Valtierra v. State, 310 S.W.3d 442, 450 (Tex. Crim. App.
2010). The question of whether a consent was valid is a question of fact that the State
must prove by clear and convincing evidence. Fienen v. State, 390 S.W.3d 328, 333
(Tex. Crim. App. 2012). The fact finder must consider the totality of the circumstances
in determining whether consent was given voluntarily. Id. Thus, the State cannot meet
7
its burden to establish that one consented if such consent was not given freely and
voluntarily. See Bumper, 391 U.S. at 546. Here, the trial court found that Ruiz was
unconscious and did not respond to Sergeant McBride. It is clear that based upon these
facts, Ruiz was unable to give his consent freely and voluntarily, or have the opportunity
to revoke such consent. See id.; see also Florida v. Jimeno, 500 U.S. 248, 252 (1991)
(holding that a suspect may delimit the scope of a search for which he has consented);
Miller v. State, 393 S.W.3d 255, 266 (Tex. Crim. App. 2012) (“[I]t is undisputed that . . .
consent may be limited or revoked.”). Therefore, we decline to hold that sections
724.011(a) and 724.014(a) of the transportation code is the equivalent to voluntary
consent as a recognized exception to the warrant requirement. See Forsyth v. State,
438 S.W.3d 216, 222 (Tex. App.—Eastland 2014, pet. ref’d) (holding that implied consent
under the Transportation Code is not the equivalent to voluntary consent as a recognized
exception to the warrant requirement).
Additionally, the implied consent statutes at issue in this case do not address or
purport to dispense with the Fourth Amendment’s warrant requirements for blood draws.
See Villarreal, 2014 WL 1257150 at *11 (holding the same as it relates to section
724.012(b)(3)(B)). These statutes do not take into account the totality of the
circumstances present in each case, as mandated by McNeely, and only consider certain
facts—that is: (1) was the person arrested for driving while intoxicated; and (2) was
implied consent revoked? As a result, we hold that the implied consent statutes involved
in this case are not recognized exceptions to the warrant requirement under the Fourth
Amendment, and the State’s reliance on these statutes in this case to establish that the
warrantless search was reasonable is constitutionally infirm. See id.; see also Perez v.
8
State, No. 01-12-01001-CR, 2015 WL 1245469, at *9 (Tex. App.—Houston [1st Dist.]
Mar. 17, 2015, pet. filed) (“the warrantless taking of appellant's blood sample pursuant to
the implied consent/mandatory blood draw statutory scheme did not satisfy the
requirements of the Fourth Amendment without a showing that some established
exception to the warrant requirement applied”); State v. Anderson, 445 S.W.3d 895, 912
(Tex. App.—Beaumont 2014, no pet.) (holding that nothing in section 724.011 nor section
724.012 require police to take blood without a warrant); Gentry v. State, No. 12-13-00168-
CR, 2014 WL 4215544, at *4 (Tex. App.—Tyler Aug. 27, 2014, pet. filed) (mem. op., not
designated for publication) (“the implied consent and mandatory blood draw statutory
schemes found in the transportation code are not exceptions to the warrant requirement
under the Fourth Amendment”); Aviles v. State, 443 S.W.3d 291, 294 (Tex. App.—San
Antonio 2014, pet. filed) (holding that the transportation code’s implied consent statutes
were not permissible exceptions to the Fourth Amendment’s warrant requirement);
Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.—Texarkana 2014, pet. granted)
(holding that in the absence of a warrant or exigent circumstances, taking defendant’s
blood pursuant to Section 724.012(b)(3)(B) of the Texas Transportation Code violated his
Fourth Amendment rights); Sutherland v. State, 436 S.W.3d 28, 41 (Tex. App.—Amarillo
2014, pet. filed) (“To the extent that Section 724.012(b)(3)(B) can be read to permit,
nonetheless, a warrantless seizure of a suspect's blood in the absence of such exigent
circumstances or the suspect's consent, it runs afoul of the Fourth Amendment's warrant
requirement.”).
Furthermore, we respectfully disagree with the dissent’s implied consent analysis
in two respects. First, the dissent asserts that we are requiring the State “contrary to the
9
plain language of the statute, to prove that the consent was freely and voluntarily given.”
However, this requirement is not a novel imposition by the majority, but rather one
required by the Fourth Amendment. See Bumper, 391 U.S. at 548 (holding that to rely
on consent to justify the lawfulness of a search, the State must show that consent was
“freely and voluntarily given.”); see also Beeman, 86 S.W.3d at 616 (implied consent law
gives “police officers nothing more than the Constitution already gives them—the ability
to apply for a search warrant, and if the magistrate finds probable cause to issue that
warrant, the ability to effectuate it. This does not give officers the ability to forcibly obtain
blood samples from anyone arrested for DWI). To give the State carte blanche authority,
as advanced by the State and adopted by the dissent, to draw a suspected unconscious
drunk driver’s blood without a warrant evokes more questions than it does answers. For
example, under what authority may the State supply consent for individuals, who have
not yet freely and voluntarily consented? In what other respects and situations, other than
drunk driving investigations, may the State statutorily imply consent to search persons,
houses, papers, and effects without a warrant? Such a position by the State is untenable
and flies in the face of common sense and into the abyss of absurdity. See Griffith v.
State, 116 S.W.3d 782, 785 (Tex. Crim. App. 2003) (“If one reasonable interpretation
yields absurd results while the other interpretation yields no such absurdities, the latter
interpretation is preferred.”).
Second, we do not believe that our holding today renders the entire implied
consent statutory scheme ineffective as the dissent states. The implied consent
statutory scheme is premised on consent. See Villarreal, 2014 WL 1257150 at *9 (citing
TEX. TRANSP. CODE ANN. § 724.011(a); Beeman, 86 S.W.3d at 615)). Further, section
10
724.014 is likewise premised on consent. See TEX. TRANSP. CODE ANN. § 724.014(a) (“A
person who is dead, unconscious, or otherwise incapable of refusal is considered not to
have withdrawn the consent provided by Section 724.011.”) (emphasis added). Based
on the facts of this case and the totality of the circumstances, Ruiz never consented to
trigger the applicable provisions of Chapter 724 of the transportation code.
In summary, we conclude that the State did not meet its burden to establish the
reasonableness of drawing Ruiz’s blood without a warrant pursuant to sections
724.011(a) and 724.014(a) of the transportation code.1 See Ford, 158 S.W.3d at 492.
2. Exigency
In the alternative, the State asserts that exigent circumstances justified the taking
Ruiz’s blood without a warrant.
Exigency is a “well-recognized exception” to the warrant requirement, 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.” Kentucky
v. King, 131 S. Ct. 1849, 1856 (2011) (internal quotation marks and brackets omitted).
Exigent circumstances that have been recognized by the United States Supreme Court
include: entering a home to provide emergency assistance to an occupant; engaging in
a hot pursuit of a fleeing suspect, entering a burning building to put out a fire and
investigate its cause, and preventing the imminent destruction of evidence. See
McNeely, 133 S. Ct. at 1558–559 (internal citations omitted).
1 We do not hold that sections 724.011(a) and 724.014(a) of the transportation code are
unconstitutional. Instead, we hold that these provisions do not create per se exceptions to the Fourth
Amendment’s warrant requirement.
11
To validate a warrantless search based on exigent circumstances, the State must
satisfy a two-step process. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.
2007). First, probable cause must exist to search—that is, reasonable, trustworthy facts
and circumstances within the knowledge of the officer on the scene would lead an officer
of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will
be found.” See id. at 685. Second, an exigent circumstance exists to justify a
warrantless search. See id. To determine whether a law enforcement officer faced an
emergency that justified acting without a warrant, we look to the totality of circumstances.
McNeely, 133 S. Ct. at 1559. Without establishing probable cause and exigent
circumstances, a warrantless search will not stand. Gutierrez, 221 S.W.3d at 685–86.
In this case, we agree with the State that it had probable cause to arrest Ruiz for
driving while intoxicated. The record shows that Ruiz was involved in an accident, in
which he fled the scene. Upon arrival, Sergeant McBride discovered several beer cans
thrown about Ruiz’s vehicle. Furthermore, Ruiz’s unconscious body was found in a field
behind a car wash, and according to Sergeant McBride, Ruiz “couldn’t open his eyes”
and his body emitted a “strong odor of [alcohol].” We conclude that sufficient probable
cause existed to arrest Ruiz for driving while intoxicated. See id. at 685.
Next, the State asserts that several issues prevented Sergeant McBride from
obtaining a search warrant to draw Ruiz’s blood thereby creating exigency. Specifically,
the State argues that Sergeant McBride “was required to not only investigate the scene
of the accident,” but also was required to identify and locate Ruiz, who had fled the scene
of the collision. Sergeant McBride also testified that it would have taken her “three
hours” to obtain a warrant to draw Ruiz’s blood. However, Sergeant McBride opted not
12
to obtain a warrant because only two officers were on duty that night and to take one off
duty to apply for a warrant was not feasible. Furthermore, although Sergeant McBride’s
testified that no procedures were in place by the Gonzales Police Department to obtain
search warrants for blood in driving while intoxicated cases, the crux of her argument for
not obtaining a warrant related more to the amount of time that it would take to obtain the
warrant rather than an inability to apply for a warrant. Additionally, Sergeant McBride
agreed with the State’s prosecutor that it would have been “difficult to find a judge” at
midnight on a Saturday night and that she would have had to drive to the magistrate’s
house to obtain the warrant, while the alcohol in Ruiz’s blood stream dissipated. Finally,
the trial court found that: (1) Ruiz was unconscious throughout Sergeant McBride’s
investigation, (2) physicians admitted Ruiz into the hospital overnight, and (3) Ruiz
presented no risk of flight.
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.
Additionally, the McNeely court noted that technological developments enable police
13
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 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).2
In this case, the State’s exigency argument relates to Sergeant McBride’s timing
concerns of obtaining the warrant. While we recognize that factors such as procedures
in place for obtaining a warrant, or the availability of a magistrate judge, as well as
practical problems of obtaining a warrant within a timeframe that still preserves the
opportunity to obtain reliable evidence may establish exigency to permit a warrantless
search, we must still look to the particular facts and circumstances of each case. See
McNeely, 133 S. Ct. at 1568. Here, the State produced no evidence to show that
destruction of Ruiz’s blood alcohol was imminent, how it was deprived of an opportunity
to obtain reliable evidence within a timeframe, or how a more expeditious process was
not available to locate a magistrate and obtain a warrant from the magistrate through
alternative means such as via telephone rather than physically driving to the magistrate’s
2 The dissent’s reliance on Schmerber to support the conclusion that Sergeant McBride believed
that she was facing the imminent destruction of evidence was sufficient to support an exigent circumstance
to conduct a warrantless blood draw is misplaced because it does not take into account the factors
discussed in McNeely regarding technological developments in the law to obtain a search warrant without
having to physically visit a magistrate. See McNeely v. Missouri, 133 S. Ct. 1552, 1562–563 (2013); see
also Clay v. State, 391 S.W.3d 94, 103–04 (Tex. Crim. App. 2013).
14
home. Therefore, under the totality of the circumstances of this case, we agree with the
trial court and hold that the State did not meet its burden to show that Ruiz’s warrantless
blood draw was justified by exigent circumstances. The State’s sole issue on appeal is
overruled.
III. CONCLUSION
We affirm the trial court’s granting of Ruiz’s motion to suppress.
GINA M. BENAVIDES,
Justice
Dissenting Opinion by
Justice Gregory T. Perkes.
Publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
27th day of August, 2015.
15
APPENDIX B
Dissenting Opinion of Justice Perkes,
August 27, 2015
NUMBER 13-13-00507-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
JOSE RUIZ, Appellee.
On appeal from the 25th District Court
of Gonzales County, Texas.
DISSENTING OPINION
Before Chief Justice Valdez and Justices Benavides, and Perkes
Dissenting Opinion by Justice Perkes
I dissent from the majority’s opinion for two reasons. First, I believe Sergeant
McBride obtained the blood sample with appellee Jose Ruiz’s implied consent. Second,
I believe the totality of the circumstances in this case permit the taking of a blood sample
without the necessity of a warrant.
I. BACKGROUND
Sergeant Bethany McBride, with the Gonzales Police Department, was dispatched
to a two vehicle accident around midnight on September 9, 2012. When Sergeant
McBride arrived at the scene, she observed a tan Lincoln Navigator that had collided with
a tan Pontiac. The driver of the tan Pontiac remained at the scene but the driver of the
Lincoln Navigator had fled. As Sergeant McBride investigated the scene, two witnesses
approached and gave her a description of the Lincoln’s driver and stated that the driver
had run behind a nearby car wash. Sergeant McBride looked in the Lincoln Navigator to
determine the identity of the driver, and located insurance paperwork that belonged to
Ruiz. While inside the vehicle, Sergeant McBride observed several Bud Light cans in
the front seat area. While searching the area where the witnesses said Ruiz had fled,
the police officers located Ruiz in a field behind the car wash. Ruiz was unresponsive
and it took several officers to carry him to the patrol unit. Sergeant McBride noticed a
very strong odor of alcoholic beverages coming from Ruiz and determined that he was
unresponsive due to the amount of alcohol in his system.
Sergeant McBride drove Ruiz to the hospital, where she placed him under arrest
for driving while intoxicated. When Sergeant McBride ran Ruiz’s criminal history, she
learned that Ruiz had four prior convictions for driving while intoxicated. Sergeant
McBride prepared the necessary hospital paperwork to obtain a blood sample, and a
qualified hospital lab technician drew Ruiz’s blood. Ruiz remained unresponsive the
entire time. Ruiz was indicted for DWI—third or more offense, a third-degree felony
enhanced to a habitual felony offender. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2)
2
(West, Westlaw through Ch. 46 2015 R.S.). Following his indictment, Ruiz filed a motion
to suppress the blood evidence.
During the hearing on Ruiz's motion to suppress, Sergeant McBride explained that
she was one of only two officers on duty for the Gonzales Police Department at the time,
and that it would have been impracticable to remove one officer from duty to secure the
warrant. Sergeant McBride testified that there were no procedures in place to obtain a
search warrant for blood draws and that it would have been difficult to locate a judge at
midnight on a Saturday night. Sergeant McBride further testified that if she were able to
get a warrant, it would have taken two or three hours. Sergeant McBride stated that the
circumstances of the investigation—the accident, driver identification, Ruiz’s fleeing and
unresponsiveness—prolonged the case beyond a normal DWI investigation.
The State’s argument at the hearing was twofold. First, it argued that because
Ruiz was incapable of refusing the blood test, he was deemed to have consented under
implied consent. Second, it argued that the circumstances of the investigation and arrest
demonstrated exigency sufficient to dispense of the warrant requirement.
The trial court granted Ruiz’s motion to suppress the blood evidence. In its
comprehensive findings of fact and conclusions of law, the trial court concluded that Ruiz
did not revoke his consent to the blood draw under section 724.011 of the Texas
Transportation Code. The trial court further concluded that it was bound by Missouri v.
McNeely, 133 S. Ct. 1552 (2013) and that no exigent circumstances existed.
II. BLOOD EVIDENCE
By its sole issue, the State asserts that the trial court erred when it granted Ruiz’s
3
motion to suppress. Specifically, the State argues Ruiz was unconscious at the time of
the blood draw and thus incapable of withdrawing his consent to the blood draw under
the Texas Transportation Code. Alternatively, the State argues there were sufficient
exigent circumstances present which justified the warrantless taking of Ruiz’s blood
sample. I agree with both of the State’s arguments.
A. Implied Consent
Warrantless searches may be premised on consent. See TEX. TRANSP. CODE
ANN. §§ 724.011, 724.012(b) (West, Westlaw through Ch. 46 2015 R.S.); Schneckloth v.
Bustamante, 412 U.S. 218, 219 (1973).
The Texas Transportation Code provides that:
(a) 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, or a watercraft, while intoxicated, or an offense under Section
106.041, Alcoholic Beverage Code, the person is deemed to have
consented, subject to this chapter, to submit to the taking of one or more
specimens of the person's breath or blood for analysis to determine the
alcohol concentration or the presence in the person's body of a controlled
substance, drug, dangerous drug, or other substance.
See TEX. TRANSP. CODE ANN. § 724.011(a).1
Additionally, section 724.014 states that:
(a) A person who is dead, unconscious, or otherwise incapable of refusal is
considered not to have withdrawn the consent provided by Section
724.011.
....
(c) If the person is alive but is incapable of refusal, a specimen may be taken
by a person authorized under Section 724.016 or 724.017.2
1
The trial court specifically found that Ruiz was under arrest prior to the taking of the blood sample.
2 These sections involve the procedures for taking a sample and qualifications of the person taking
4
See TEX. TRANSP. CODE ANN. §§ 724.014(a), (c) (West, Westlaw through Ch. 46 2015
R.S.). The presumption of consent is so strong that a person who is dead, unconscious,
or otherwise incapable of refusal is considered not to have withdrawn the consent
provided by Section 724.011. State v. Amaya, 221 S.W.3d 797, 800 (Tex. App.—Fort
Worth 2007, pet. ref’d).
The uncontroverted evidence shows that Ruiz was unconscious throughout the
entire encounter with law enforcement, including the blood draw at the hospital. The
testimony supports the trial court’s finding that Ruiz never affirmatively revoked his
consent under section 724.011. Ruiz was precisely the type of person—a person
incapable of refusal—contemplated by section 724.014. See Miller v. State, 387
S.W.3d 873, 880–81 (Tex. App.—Amarillo 2012, no pet.) (holding that because defendant
was incapacitated, he was considered not to have withdrawn consent provided by section
724.011); Amaya, 221 S.W.3d at 802. This factual scenario is the type of situation where
implied consent makes perfect sense. To hold otherwise would render ineffective the
entire implied consent statutory scheme.
The majority states that it refuses to read the implied consent statute “expansively”,
but then requires the State, contrary to the plain language of the statute, to prove that the
consent was freely and voluntarily given. Such a reading encumbers the State with the
impossible task of obtaining consent freely and voluntarily from an unconscious person.
While the majority correctly states that consent must be freely and voluntarily given, the
cases it relies on are factually distinguishable. See Bumper v. North Carolina, 391 U.S.
the sample. See TEX. TRANSP. CODE ANN. §§ 724.016, 017 (West, Westlaw through Ch. 45 2015 R.S.)
5
543, 546 (1968) (examining consent in the context of police coercion); Miller v. State, 393
S.W.3d 255, 266 (Tex. Crim. App. 2012) (explaining defendant revoked consent for
officers to enter apartment after domestic violence investigation was complete); Valtierra
v. State, 310 S.W.3d 442, 452 (Tex. Crim. App. 2010) (holding that in context of drug
possession case, “[o]nce permitted into a residence, a police officer may take action only
in accordance with the purpose for which he was invited or allowed into the residence.”);
Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012) (holding that trial court did
not abuse its discretion in finding that defendant gave consent for breath sample when
defendant vacillated between granting and withdrawing consent in conversation with
officer); Forsyth v. State, 438 S.W.3d 216, 222 (Tex. App.—Eastland 2014, pet. ref’d)
(holding that circumstances required search warrant to collect blood evidence where
defendant explicitly refused to provide blood sample during DWI investigation).
Ruiz’s blood sample was taken pursuant to implied consent as provided by the
transportation code. See TEX. TRANS. CODE ANN. §§ 724.011, 724.014. Because the
implied consent laws in this instance do not offend the Fourth Amendment, I would
conclude that the blood sample was obtained legally. See Miller, 387 S.W.3d at 880–
81; see also Anderson v. State, No. 03–09–00041–CR, 2010 WL 3370054, at *3 (Tex.
App.—Austin Aug. 26, 2010, pet. ref’d) (mem. op.) (not designated for publication).
B. Exigency
Missouri v. McNeely, relied on by the trial court, answered the narrow question
regarding whether the natural metabolization of alcohol in the bloodstream presents a per
se exigency that justifies an exception to the Fourth Amendment's search warrant
6
requirement for nonconsensual blood testing in drunk-driving cases. See 133 S. Ct.
1552, 1568 (2013). McNeely, however, further recognizes and affirms the totality of
circumstances approach in deciding whether a warrant is required. See id. at 1559
(citing Schmerber v. California, 384 U.S. 757 (1966)). McNeely contemplates situations
where “circumstances will make obtaining a warrant impractical such that the dissipation
of alcohol from the bloodstream will support an exigency justifying a properly conducted
warrantless blood test.” Id. at 1561.
McNeely supports a finding of exigency sufficient to justify the warrantless blood
test in this case. After arriving at the scene of an accident in the middle of the night,
Sergeant McBride was required to not only investigate the scene of the accident but also
required to find Ruiz and identify him as a driver involved in the accident. Additionally,
when Sergeant McBride was finally able to locate Ruiz, he was unconscious and in need
of medical attention. Sergeant McBride testified that no magistrate was on duty, and that
it would have taken time to find one, drive the warrant to their residence to have it signed,
and then return to the hospital to serve the warrant. She estimated that obtaining a
warrant would have taken two or three hours and that it was impractical to remove one of
the only two officers on duty that night in order to prepare a search warrant affidavit.
Under these circumstances, it was reasonable for Sergeant McBride to believe that she
was facing the imminent destruction of evidence. See Schmerber, 384 U.S., at 771
(holding that warrantless search was legal when “there was no time to seek out a
magistrate and secure a warrant”).
Because the blood evidence was taken with implied consent, and, alternatively,
7
under exigent circumstances, I would sustain the State’s issue.
III. CONCLUSION
I would reverse the order of the trial court and remand for further proceedings.
GREGORY T. PERKES
Justice
Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
27th day of August, 2015.
8