State v. Sanders (535 S.W.3d 891, 2017)

OPINION

BILL MEIER, JUSTICE

I. Introduction

The State appeals from the trial court's order granting appellee Terri Sanders’s motion to suppress. The State contends that the trial court erred by concluding that exigent circumstances did not exist at the time the arresting officer in this case ordered a warrantless blood draw of Sanders’s blood and that thus the trial court erred by granting the suppression motion. Because we conclude that under the totality of the circumstances the State failed to carry . its burden that exigent circumstances existed at the time the arresting officer ordered Sanders’s blood be drawn, we will affirm.

II. Background

Sanders was travelling on the wrong side of the road on the night of October 23, 2015, when she struck another vehicle head-on. The collision resulted in the deaths of two individuals and serious injury to another. The State charged Sanders with two counts of intoxication manslaughter and one count of intoxication assault. Later, Sanders filed a motion to suppress the results of a warrantless and involuntary blood draw that occurred after she was transported to the hospital from the accident scene.

State Trooper Rachel Russell testified at the suppression hearing. According to Russell, around 11:45 p.m. on October 23, 2015, she received a dispatch regarding a two-vehicle, head-on collision. Russell said that as she was en route, she learned that the accident involved fatalities. By Russell’s account, it took her approximately twenty minutes to arrive at the scene of the accident — specifically, she averred that she arrived at 12:07 a.m. on October 24, 2015.

Russell recalled that when she arrived, a great number of emergency responders were already at the scene of the accident, She said that she thought “everybody else in the county was there before [she] was.” Russell detailed that “[t]he fire departments, the first responders, two deputies, the game warden, [and] multiple emergency vehicles [were] parked everywhere” when she arrived. In the video from her dashcam, which was admitted at the suppression hearing, Russell can be heard stating, “Of course, every Tom, Dick, and Harry [inaudible] got to be here” as her patrol vehicle approached the accident scene. By Russell’s recollection, the accident scene was under control when she arrived and some of the officers and emergency personnel on scene were not doing “a whole lot at that time.”

Russell said that her responsibility was to investigate the accident. Russell averred that shortly after her arrival, she made contact with Sanders. Russell said that Sanders had “a little bit of blood on her face” but that Sanders reported that “she felt okay.” Russell averred that she later learned that Sanders had suffered broken bones in the accident. Russell said that upon contacting Sanders, she detected an odor of an alcoholic beverage .coming from Sanders and that she had slurred speech and red, bloodshot eyes.

According to, Russell, State Trooper Brandon Neff also arrived on scene shortly after she did. Russell said that she instructed Neff to perform field sobriety tests on Sanders and “if need be, to get a specimen from her.” Russell said that after assigning Neff to determine Sanders’s level of intoxication, she. turned her focus to gathering more information about the accident and the fatalities involved. By Russell’s account, Sanders was transported from the scene in an ambulance around 12:30 a.m., and Russell said Neff followed the ambulance to the hospital. Russell averred that it would have taken the ambulance “[f]ive minutes” to reach the hospital from the accident scene, but she also said that her notes showed that Sanders arrived at the hospital at 1:00 a.m.

Russell averred that while she. was investigating, a justice of the. peace arrived on the scene. By Russell’s account, this happened after Sanders had been taken away. Russell said that she did not discuss drawing Sanders’s blood with the judge and that the judge was there to pronounce the death of the two decedents. She said that the judge pronounced the two deceased at 12:40 a.m. Regarding why she did not seek a warrant for Sanders’s blood, Russell averred that she did not have the time ñor the opportunity to seek obtaining a search warrant because she was investigating the scene. Furthermore,' Russell averred that the decision to seek a warrant would have been “Trooper Neffs decision.”

. Russell said that Deputy Lee Phariss and the game warden, who were on the scene, were assisting her in “painting the scene” and filling out “a major crash packet.” But in all, Russell averred that seven peace officers, including herself, were at the scene of the accident — one of them was Phariss. And even though Russell averred that no one accompanied Neff to the hospital, Russell can be heard on the video from Neffs dashcam stating that'she was “sending Lee up there” to the hospital with Néff in case Sanders’s boyfriend “g[a]ve [Neff] any problems.” Russell also said that there were fourteen firefighters at the accident scene. Video from Russell’s dashcam shows that the entire scene had been cleared and that most of the emergency personnel who had responded, as well as their emergency vehicles, .had left the scene within two hours of Russell’s arrival.

.Trooper Neff testified at the hearing as well. Neff‘averred that-because Russell was the lead investigating officer at the time he arrived on the scene, he was there to assist Russell. Neff said that his assistance revolved around speaking with Sanders and that he did not have any accident scene duties. By Neffs account, Sanders appeared confused and did not “have much recollection of the crash.” Neff said that even though he had already been advised by Russell to perform field sobriety tests on Sanders, he too suspected she was intoxicated through his own observations because he could smell an odor of an alcoholic beverage emitting from Sanders. He also averred that Sanders had “glassy, blood-shot eyes” and slurred- speech. Sanders also told Neff that she had consumed alcoholic beverages earlier in the day.

Neff said that he asked Sanders whether she was injured, that Sanders replied she was not, and that Sanders had refused medical attention. Neff also said that he did not detect any injuries to Sanders and that he did not know until later that she had suffered a broken ankle.

According to Neff, Sanders was not steady on her feet and leaned on multiple vehicles as he asked her to walk over to a patrol vehicle, where he intended to initiate field sobriety tests. Neff said that Sanders was “very compliant” and that after he explained to her the tests and then began to conduct the horizontal gaze nystagmus test, Sanders’s boyfriend “stopped [Neff] and told [him] that he wanted her to be reevaluated again by the medics.” Neff said that he believed that Sanders’s boyfriend stopped the tests to prevent them from being conductéd and not out of a concern for Sanders’s well-being.

Video submitted from Neffs dashcam shows that medical personnel took several minutes from that time to strap Sanders to a stretcher and then lift her onto a gurney and into an ambulance. Also from the video, while medical personnel attended to Sanders, a conversation can be seen and heard between Neff and Russell. In that conversation, Russell can be heard telling Neff that she would be sending “Lee” with him to the hospital in case Sanders’s boyfriend gave Neff any “problems.” And Neff can be heard stating, “But we’re going to take her blood anyway, so it doesn’t matter.”

Neff said that it only took five minutes for the ambulance to transport Sanders to the nearby hospital and that he followed the ambulance in his patrol vehicle. Neff said that upon arriving, because he believed that the boyfriend was attempting to. interfere with his investigation, he spoke with Sanders’s boyfriend outside the hospital. Neff said that the boyfriend became “very compliant at that time and said that he would let [Neff] do [his] job.” Neff initially testified that he believed he arrived at the hospital around 12:30 a.m.

Neff said that he escorted Sanders to the examination room, read. Sanders the standard.blood draw warnings, and asked her for a consensual blood sample but that Sanders refused. Neff averred that at this time, medical personnel began to “put up the pole and [bring in] fluid bags” and that he became concerned about obtaining' a blood sample because Sanders had begun to complain about pain. Neff said that he did not. know the nature of what medical personnel were about to perform but said that he felt like he needed to obtain a blood sample prior to what they were doing because he felt that whatever they were about to do would result in a “lower or less accurate” blood sample and so he ordered that one be drawn. Neffs authorization ordering hospital personnel to draw Sanders’s blood, which was admitted before the trial court; indicates that the blood draw was ordered at 1:24 a.m. on October 24, 2015.

Neff said that it was his understanding that the justice of the peace who was at the accident scene arrived on the scene after he had left. He also said that he had search warrant forms on his person in the examination room. But Neff said that he did not have time to fill -out- the forms prior to .medical personnel pushing him “out of the way.” Neff averred that there was no one else available to assist him with Sanders and,.that he felt that he was acting under exigent circumstances. Neff further averred that because there had been a fatality in the accident, he believed that he did not need a warrant to draw Sanders’s blood.-- Neffs authorization ordering the blood • draw indicates that the order ' to draw blood was predicated on an “[accident with death, serious bodily injury, or hospital treatment for bodily injury.”

On cross-examination, Neff agreed that according to a nurse’s notes, he arrived at the hospital at 1:05 a.m. and that he had time to. conduct the .horizontal gaze nystag-mus test prior to reading. Sanders the warnings and ordering the blood draw. Neff also acknowledged that he had stated at the scene of the accident, prior to leaving for the hospital, that he intended to draw Sanders’s blood, and he also agreed that he had taken no steps toward, securing a warrant at any time.

The trial court granted Sanders’s suppression motion and later entered findings of fact and conclusions of law. In its findings, the trial court found that Neff had arrived at the accident scene shortly after 12:07 a.m. and that Sanders was transported to the hospital, arriving “at about 1:00 a.m.” The trial court also found that, even though Neff had testified that his training had made him concerned that the injection of saline and the use of alcohol wipes in drawing blood would interfere with an accurate analysis of blood alcohol content, no testimony was offered about the nature of the fluids that Neff believed were about to be injected prior to him ordering the blood draw. The trial court further found that despite Neff having warrant forms in his possession, he did not attempt to begin to obtain a warrant, locate a magistrate, nor contact another officer to assist him in obtaining a warrant.

In its conclusions of law, the trial court concluded that Neff had probable cause to obtain Sanders’s blood because of her apparent cause of a fatal vehicle collision and because she exhibited signs that she had consumed alcohol prior to the accident. The trial court also concluded that a magistrate was “approximately five minutes away from the hospital to which [Sanders] was taken for approximately 45 minutes before [her] blood was drawn.” The trial court further concluded that the State had produced no evidence as to the nature of the medical treatment Sanders was about to receive prior to the blood draw and how it would result in destruction of evidence. And the trial court ultimately concluded that the State had failed to carry its burden that Neffs warrantless order to draw Sanders’s blood was done under exigent circumstances. This interlocutory appeal followed.

III. Discussion

In its sole point — including a series of points and subpoints — the State makes one overall argument on appeal: That given the totality of the circumstances, including “the degradation of alcohol evidence!,] ... the severity of the accident, the lack of additional officer availability, the unknown location of the magistrate, and the imminent unknown medical intervention by hospital staff, [Neff] believed the blood test’s efficacy would be significantly undermined” by medical intervention and thus constituted exigent circumstances supporting Neffs decision to order a warrantless blood draw.

Sanders counters with the argument that the record establishes that Neff did not attempt to obtain a warrant, based on his mistaken belief that a warrantless blood draw was authorized by statute, and that the record establishes that additional officers were available to obtain a warrant that was readily available. Thus, the trial court did not err by concluding that no exigent circumstances existed and granting her suppression motion.

A. Standard of Review

In reviewing the trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court’s determination of historical facts that depend on credibility, while we conduct a de novo review of the trial court’s application of the law to those facts. Id. In a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). This is so because it is the trial court that observes firsthand the demeanor and appearance of a witness, as opposed to an appellate court, which can only read an impersonal record. Id. Thus, with regard to those facts that the trial court explicitly found, we defer to those explicit findings so long as they are supported by the record. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005). With regard to remaining facts not explicitly found by the trial court, we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact supporting its ruling so long as those findings are supported by the record. Ross, 32 S.W.3d at 855; see also Tran v. State, No. 01-11-00141-CR, 2012 WL 3133925, at *3 (Tex. App. — Houston [1st Dist.] Aug. 2, 2012, pet. ref'd) (applying light-most-favorable standard to record and assuming implicit findings to support suppression ruling even though trial court entered explicit findings of facts) (mem. op., not designated for publication). We must sustain the trial court’s ruling if it is correct under any theory of law applicable to the case. Ross, 32 S.W.3d at 855-56.

B. The Fourth Amendment and Bodily Intrusions

The Fourth Amendment provides that “[tjhe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. Const, amend. TV. A warrant-less search of a person is reasonable only if it falls within a recognized exception. State v. Villarreal, 475 S.W.3d 784, 796 (Tex. Crim. App. 2014), cert. denied, — U.S. -, 136 S.Ct. 2544, 195 L.Ed.2d 869 (2016). Bodily intrusions implicate an individual’s “most personal and deep-rooted expectations of privacy,” and therefore they are considered searches that fall under the Fourth Amendment’s warrant requirement. Missouri v. McNeely, 569 U.S. 141, 148, 133 S.Ct. 1552, 1558, 185 L.Ed.2d 696 (2013) (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985)). There are several exceptions to the warrant' requirement, but the instant case involves only one — a war-rantless search performed to prevent imminent evidence destruction, or the so-called “exigency exception.” See Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 2004, 36 L.Ed.2d 900 (1973); see also Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 1856-57, 179 L.Ed.2d 865 (2011).

C. Exigency and Warrantless Blood Draws

The exigency exception operates “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.” McNeely, 569 U.S. at 148—49, 133 S.Ct. at 1558 (quoting King, 563 U.S. at 460, 131 S.Ct. at 1856). Exigency potentially provides for a reasonable, yet warrant-less search “because ‘there is compelling need for official action and no time to secure a warrant.’ ” McNeely, 569 U.S. at 149, 133 S.Ct. at 1559 (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978)). Whether law enforcement faced an emergency that justified acting without a warrant calls for a case-by-case determination based on the totality of the circumstances. McNeely, 569 U.S. at 149, 133 S.Ct. at 1559. “[A] war-rantless search must be ‘strictly circumscribed by the exigencies which justify, its initiation.’ ” Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978) (quoting Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889 (1968)). An exigency analysis requires an objective evaluation of the facts reasonably available to the officer at the time of the search. Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 1948, 164 L.Ed.2d 650 (2006).

“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, 569 U.S. at 153, 133 S.Ct. at 1561. The body’s natural metabolism of intoxicating substances is distinguishable from the potential destruction of easily disposable evidence when the police knock on the door. Cf. King, 563 U.S. at 459-60, 131 S.Ct. at 1856 (recognizing the warrant requirement exception to prevent the imminent destruction of evidence when law enforcement, after knocking on a suspect’s door, believed drugs were being destroyed).

D. Schmerber, McNeely, Cole, and Weems

In Texas, exigent-circumstances cases involving a warrantless blood draw are controlled by both the United States Supreme Court’s precedent from Schmerber v. California and Missouri v. McNeely as well as the Texas Court of Criminal Appeals’s decisions in Cole v. State and Weems v. State. Schmerber v. California, 384 U.S. 757, 770-72, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908 (1966); McNeely, 569 U.S. at 149-50, 133 S.Ct. at 1559; Cole v. State, 490 S.W.3d 918, 923 & n.24 (Tex. Crim. App. 2016); Weems v. State, 493 S.W,3d 574, 578 (Tex. Crim. App. 2016). In a case like this, a discussion of these cases is warranted.

1. Schmerber v. California

In Schmerber, the Supreme Court held that based on the circumstances surrounding the search, a warrantless seizure of a driver’s blood was reasonable. 384 U.S. at 770-72, 86 S.Ct. at 1835-36. Schmerber and his companion were injured and taken to a hospital after Schmerber’s car skidded, crossed the road, and struck a tree. Id. at 758 n.2, 86’ S.Ct. at 1829 n.2. While Schmerber was at the hospital, a' police officer directed a physician to take a sample of his blood. Id. at 758, 86 S.Ct. at 1829. Later testing indicated that Schmerber was intoxicated at the time he lost control of his car. Id. at 759, 86 S.Ct. at 1829. Although a bodily intrusion calls for the same individual protections that the warrant requirement provides for the search of a home and the seizure of one’s papers, the Schmerber Court reasoned that the seizing 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. at 770, 86 S.Ct. at 1835-36 (internal quotations omitted).

Adopting a totality-of-circumstances approach, the Schmerber Court held that the circumstances surrounding the blood draw rendered the warrantless search reasonable because (1) the officer had probable cause that Schmerber operated a , vehicle while intoxicated; (2) alcohol in the body naturally dissipates after drinking stops; (3) there was a lack of time to procure a warrant because of the time it took to transport Schmerber to a hospital and investigate the accident scene; (4) there are highly effective means of determining whether an individual "is intoxicated; (5) venipuncture is a common procedure and usually “involves virtually no risk, trauma, or pain”; and (6) the venipuncture' was performed in a reasonable maimer. Id. at 768-72, 86 S.Ct. at 1834-36.

2. Missouri v. McNeely

Nearly fifty years after its 1966 Schmer-ber decision, in 2013, the Supreme Court held in McNeely that, the natural, dissipation of alcohol in the bloodstream does not create a per se exigency justifying an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing. 569 U.S. at 165, 133 S.Ct, at 1568. The McNeely Court held firm to the warrant requirement by stating that “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. at 152, 133 S.Ct. at 1561. Yet the Court still recognized the gravity of the body’s natural metabolic process and the attendant evidence destruction over time. As the McNeely Court stated, “It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.” Id. at 165, 133 S.Ct. at 1568. With this balance in mind, the McNeely Court, adhering to a totality-of-the-circumstances analysis, rejected a per se rule while also acknowledging that certain circumstances may permit a warrantless search of a suspect’s blood. Id. Admittedly, the narrow issue before the McNeely Court prohibited it from providing an exhaustive analysis. of when ¿xigency in intoxication-related offenses may be found. Id. But the McNeely Court did provide insight on the issue by identifying a. few relevant circumstances that may establish exigency in this context. In addition to the body’s metabolization, relevant circumstances include “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.” Id. at 164, 133 S.Ct. at 1568.

3. Cole v. State and Weems v. State

Following McNeely, in 2016 the court of criminal appeals handed down two decisions on the same day that- bookend the question of when exigent circumstances ah low for a warrantless blood draw and when they do not. Cole, 490 S.W.3d at 921; Weems, 493 S.W.3d at 578.

Practical constraints posed by a severe accident and the attendant duties that demand that officers are not free to investigate probable cause and pursue a warrant can justify a warrantless blood draw. Cole, 490 S.W.3d at 927. In Cole, Cole’s large pickup truck,, which was traveling at 110 miles per hour through a busy downtown intersection, struck another pickup, causing an explosion. Id. at 919-20. This collision engulfed the other pickup in flames and killed the other driver. Id. Police arrived to a calamitous scene with multiple fires and continued explosions, requiring numerous officers to keep people away from the scene for their safety. The danger required extensive manpower to block off several major intersections around the area. Id. Complicating things further, the collision occurred at the same time as a shift change, when some officers were leaving their evening shifts and others arriving for their late-night shifts — cleanup of the accident took nearly eight hours. Cole was transported to the hospital, where the transporting officer ordered hospital staff to draw Cole’s blood. Id. at 921.

Prior to trial, Cole moved to'suppress the results of the blood draw. Id. At the suppression hearing, the investigating officer testified that he could not afford to assign an officer away from the scene to obtain a warrant without neglecting an essential duty to secure the scene safely, that the process of obtaining a warrant would have taken an hour, to an hour-and-a-half, and that it was not feasible to wait until the accident investigation was entirely completed before securing a warrant. Id.

The Cole court reasoned that the most significant obstacle to officers obtaining a warrant was the amount of time it took for the investigating officer to investigate the scene. Id. at 925, The Cole court further reasoned that the time required to complete the accident investigation, the inability of investigators to focus on and form probable cause, and the lack of available law enforcement personnel further, hindered pursuing a warrant. Id. Notably, and although the Cole court rejected a blanket rule requiring the State to demonstrate that no other officer was available to obtain a warrant in every case, it noted that “the availability of other officers is a relevant consideration in an exigency analysis.” Id. at 926. The Cole court held that under the totality of the circumstances, “law enforcement reasonably believed that obtaining a warrant ... would have significantly undermined the efficacy of searching Cole’s blood.” Id. at 927. Thus, the Cole court held “that exigent circumstances justified Cole’s warrantless blood draw.” Id. at 927.

In contrast to a case like Cole, the State fails to meet its burden to establish that exigent circumstances existed at the time of a warrantless blood draw whenever the record indicates that probable cause was present at the time of the di'aw, that an officer who was not preoccupied in investigating an accident was available to pursue a warrant, and when the record is devoid of what procedures and how much time procuring a warrant would have required. Weems, 493 S.W.3d at 580-82. In Weems, Weems was involved in a one-car accident wherein his car had veered off the road, flipped over, and hit a utility pole. Id. at 575. A nearby witness saw Weems crawl out of the vehicle, heard him admit he was drunk, and then saw him flee the scene. Id. The responding officer found Weems hiding under a nearby parked car nearly forty minutes after the accident. Id. at 575-76, 581.

At the suppression hearing, the arresting officer testified that when he took custody of Weems, Weems had bloodshot eyes, slurred speech, a bloodied face, an inability to stand, and a strong smell of alcohol on his breath. Id. at 576. Believing Weems had sustained injuries in the accident, the officer did not conduct field sobriety tests. Id. Nonetheless, based upon his observations, the officer arrested Weems on suspicion of driving while intoxicated. Id. Weems refused to give a breath or blood sample, and emergency personnel treated Weems at the arrest location and then transported him to the hospital for further treatment. Id. The arresting officer followed the ambulance to the hospital, which took only a couple of minutes. Id. While there, the officer filled out a form for the hospital to draw Weems’s blood. Id. Because the hospital was busy that evening, Weems’s blood was not drawn until about two hours after he was arrested. Id.

In arriving at its holding that exigent circumstances did not exist, the Weems court noted that the record was devoid of any evidence reflecting “what procedures, if any, existed for obtaining a warrant when an arrestee is taken to the hospital or whether [the arresting officer] could have reasonably obtained a warrant, and if so, how long that process would have taken.” Id. at 581. The Weems court further noted that even though the record did not definitively establish that a magistrate was available at the time Weems’s blood was drawn, the arresting officer’s testimony suggested that a magistrate was normally available. Id. at 581-82.

The Weems court reasoned that because transporting Weems to a nearby hospital did not “necessarily make obtaining a warrant impractical [n]or unduly delay the taking of Weems’s blood to the extent that natural dissipation would significantly undermine a blood test’s efficacy,” and because other officers were available to investigate the scene of the accident and escort Weems to the hospital, the record “militate[d] against a finding that practical problems prevented the State from obtaining a warrant within a time frame that preserved the opportunity to obtain reliable evidence.” Id. at 582. Despite Weems having contributed to the delay in obtaining evidence of his blood alcohol content by secreting himself away for forty minutes, the Weems court held that the State-had failed to meet its burden to establish that exigent circumstances existed. Id.

4. Neff Should Have Procured a Warrant

The State argues that this case is similar to Cole and that this court should overrule the trial court. See - Cole, 490 S.W.3d at 921. But unlike- in Cole, where the investigating officer testified that he could not afford to assign an officer away from the scene, here not only did Russell — the investigating officer — declare that there were numerous officers and emergency personnel available, she specifically testified that some of the officers were not doing “a whole lot” when she arrived. This position is buttressed by her testimony that nearly everyone in the county was there when she arrived and by her declaration heard on the video from her dashcam as she arrived on the scene that “[o]f course, every Tom, Dick, and Harry [inaudible] got to be here.” Furthermore, Russell can be heard stating to Neff that she would send “Lee” with him to the hospital to assist him with Sanders and her boyfriend, and Russell testified that Deputy Lee Phariss was at the accident scene. Neffs response to this was that it.didn’t matter that Lee was available because he would be obtaining a blood sample anyway. The reasonable inference from this evidence is that an officer was available to assist Neff in procuring a warrant but that Neff declined the officer’s assistance because he believed, as he testified, that he could obtain a blood sample without a warrant because the collision had involved fatalities. The availability • of an officer to assist Neff is significant. As the Cole court made clear, “the availability of other officers is a relevant consideration in an exigency analysis.” Id. at 926. Here Russell was the lead investigator, Neff was assigned in her stead to investigate Sanders’s intoxication, and he was offered- the assistance of another officer. It is relevant that other officers were available to assist Neff, and this record — and the reásonable inferences from" the record — show -that Neff had more than enough assistance to seek a warrant but that he simply chose not to do so. See id.

Also unlike in Cole, where the Cole court reasoned that the investigators were un-abie to focus on forming probable cause given their involvement in securing the accident scene, here Russell informed Neff upon his arrival that she believed Sanders was intoxicated,. and Neff testified that Sanders, who had been involved in a collision that she had caused resulting in fatalities, exhibited slurred speech, red and bloodshot eyes, imbalance in her walking, and a smell of an alcoholic beverage. And Sanders had admitted to having imbibed alcoholic drinks earlier in the day.

.Furthermore, unlike in Cole, where there was testimony that the process of obtaining a warrant would have taken up to an hour-and-a-half after the completion of the investigation, here .there is no evidence of what time, constraints or what procedures would have been involved had Neff sought to obtain a warrant. But the evidence fully supports that a magistrate was at the scene of the accident, five minutes away, at the time when Neff was at the hospital with Sanders more than an hour after Neff had first encountered her.

Far from there being evidence in this record that would have led Neff to believe that seeking a warrant would have “significantly undermined the efficacy of searching” Sanders’s blood, the evidence — and the reasonable inferences from that evidence — show that Neff simply did not seek a warrant because he believed he did not need to. See id. at 927. Therefore, the State’s reliance on Cole is misplaced.

We agree with Sanders that this ease is more akin to Weems, 493 S.W.3d at 576. Like in Weems, where the arresting officer immediately observed that Weems had bloodshot eyes, slurred speech, an inability to stand, and a strong smell of alcohol on his breath, here both Russell and Neff observed collectively and immediately that Sanders possessed slurred speech, red and bloodshot eyes, imbalance in her walking, and an odor of alcohol, and' she had admitted to 'having imbibed alcoholic drinks earlier in the day. Both officers also knew that Sanders had been involved in an accident that resulted in multiple fatalities. Also like in Weems, where the transport of Weems to the hospital did not involve a significant amount of time, here transporting Sanders to the hospital took only five minutes.

And most significantly, like in Weems where the record was devoid of any evidence reflecting “what procedures, if any, existed for obtaining a warrant when an arrestee is taken to the hospital or whether [the arresting officer] could have reasonably obtained'a warrant, and if so, how long that process would have taken,” here the record is devoid of any evidence of what procedures were in place and how long it would have taken Neff, “Lee”, or another officer to procure a warrant. Id. at 581. What is evidently clear from this record is that Neff had warrant affidavits on his person and that there was a magistrate five minutes from Neff at the time he arrived at the hospital. A reasonable inference from the evidence is that during the more than one hour fifteen minutes between the time Neff arrived on the scene and observed Sanders exhibiting signs of intoxication and the time Neff signed the order to draw Sanders’s blood, Neff never even attempted to undertake one step toward procuring a warrant.

.The State argues that. Sanders’s boyfriend contributed to Neffs inability, to obtain a warrant by. stopping Neff from completing field sobriety tests and asking that Sanders, who it was later determined had a broken ankle, be examined, by medical personnel. Even assuming that this was a slight interference complicating Neffs investigation, it is again like Weems, wherein Weems’s forty minutes of secreting himself away was a factor counting in favor of the officer’s decision not to seek a warrant, but it was a factor that the Weems court nonetheless calculated as insufficient to militate against a finding that practical problems prevented the State from obtaining a warrant. See id. at 582.

We conclude, as the Weems court did, that the totality of the circumstances found on this record militates against a finding that practical problems prevented Neff from obtaining a warrant within a time-frame that preserved the opportunity to obtain reliable evidence of Sanders’s blood alcohol content. We overrule the. State’s sole point. .

IV. Conclusion

Having overruled the State’s sole point, we affirm the trial court’s order granting Sanders’s motion to suppress.

KERRY FITZGERALD filed a dissenting opinion,

KERRY FITZGERALD,

JUSTICE, dissenting.

PROCEDURAL HISTORY

Terri Donnell Sanders was indicted in Montague County, Texas, on two charges of Intoxication Manslaughter and on one charge of Intoxication Assault. The trial court granted Sanders’s motion to suppress and filed Findings ’of Fact and Conclusions of Law. Thb State appealed.

We review a trial court’s ruling on a motion to suppress for an abuse of discretion. We will review the appellate record 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. We will sustain the trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. We afford a trial court’s ruling almost total deference as to historical facts but review the trial court’s application of the law to the facts de novo. In this ease, we review de novo the trial court’s application of the law of search and seizure to the facts.

The State, relying on Cole, argued the warrantless blood draw was justified by exigent circumstances, that is, the imminent destruction of evidence. It argued the medical intervention at the hospital caused Trooper Brandon Neff to believe the blood test’s efficacy would be significantly undermined.

Sanders, relying on Weems, responded that law enforcement knew that a mandatory blood draw would be required before leaving the accident scene for the hospital and complained that Trooper Neff did nothing to obtain a warrant,

The majority concludes that because Trooper Rachel Russell told Trooper Neff at the scené she believed Sanders was intoxicated, because both officers detected signs of intoxication, and because Sanders said she had consumed alcohol earlier, Trooper Neff had a duty to obtain a warrant at the «cene but failed to do so. In holding the State did not prove exigent circumstances, the majority emphasizes the availability of other officers to obtain a warrant, the personal mistaken belief of the officer that no warrant was required, and the lack of evidence about the warrant process and access to a magistrate at the crash scene. However, the majority does not address the emergency medical intervention as exigent circumstances. Because I conclude the blood draw was justified by exigent circumstances, I respectfully dissent.

ANALYSIS

In order to validate a warrantless search based on exigent circumstances, the State must establish probable cause and an exigency. We should, therefore, accurately examine the relevant facts as to both probable cause and exigent circumstances and properly apply the law.

PROBABLE CAUSE

PACTS

First, as to probable cause, our review should be limited to only those critical facts relevant to probable cause. And we should ask whether, viewing the totality of the facts from the standpoint of an objectively reasonable police officer, Trooper Neffs knowledge amounted to sufficient probable cause at the time of the search.

The record shows that starting at about 12:07 a.m., Trooper Russell, the lead investigator, arrived at the crash scene on a two-lane road and initially met with Sanders, who had driven her eastbound vehicle in the westbound lane, resulting in a head-on collision. Sanders was found sitting in her boyfriend’s pickup. Minutes later, Trooper Russell told Trooper Neff about signs she had observed (odor of alcohol, bloodshot eyes, slurred speech, and Sanders’s statement she had consumed alcohol earlier) and instructed him to “to perform field sobriety on her and if need be, to get a specimen from her.” The record shows, however, that Trooper Russell did not convey to Trooper Neff any opinion Sanders was intoxicated. Trooper Russell left the probable cause determination strictly up to Trooper Neff.

Trooper Neff met with Sanders and observed similar signs of intoxication, as well as unsteady balance when she walked. He interviewed her about what had happened and where she was going, requested she get out of her boyfriend’s pickup truck and walk to the squad car, qualified her as to her capacity to be field tested, inquired about her health (she insisted several times she was fine), and explained in detail all three field sobriety tests. But when Trooper Neff actually raised his hand to begin the HGN test, Sanders’s boyfriend interrupted the test and asked that paramedics reexamine her. Sanders decided to be taken by ambulance to the hospital. These exchanges occurred continuously from approximately 12:07 a.m. until about 12:55 a.m.

Trooper Neff followed the ambulance to the hospital, which was approximately five minutes away, out of concern Sanders would flee because of what she had done and so that he could continue the HGN test. He completed the HGN test in the emergency room.

Based upon the signs of intoxication observed at the scene and Sanders’s “mannerisms” and poor performance on the HGN test at the hospital, Trooper Neff testified he had enough facts to believe Sanders was intoxicated and did not have her mental or physical capabilities to operate a vehicle. He read her rights to her, asked for a blood sample, and she refused.

ANALYSIS OF PROBABLE CAUSE

Probable cause necessitates a review of all the events which occurred leading up to the search, that is, the sum total of the layers of information, not just individual layers of information or selected portions of the evidence. A proper probable ccmse analysis involves the following factors:

• Whether the reasonably trustworthy facts and circumstances within the officer’s knowledge at the scene and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable prudence and caution to believe an offense has been or is being committed or the instrumentality of a crime or evidence of a crime will be found;

• A review of the totality of all the circumstances (all of the events which occurred leading up to the arrest or search; the sum total of layers of information, not just individual layers); and

• Viewed from the standpoint of an objectively reasonable police officer at the scene at the moment of the arrest or search considering the officer’s training, knowledge, and experience. ■

Thus, the circumstances must be viewed from the standpoint of Trooper Neff, an objectively reasonable police officer whose training, knowledge, and experience spanned almost eighteen years. And the circumstances must be viewed at the moment of the -search at the hospital. The record shows that only at the time of the search at the hospital did Trooper Neff determine he had reasonably trustworthy facts to warrant him to believe Sanders was driving while intoxicated.

Based on these facts, the State established probable cause following the administering of the HGN test at the hospital. Only after probable cause was established did the officer have a duty to obtain a warrant.

What is troubling is that the majority reviewed' the initial signs of intoxication observed by the officers and holds Trooper Neff had a duty to obtain a warrant immediately ' after arrival at the crash scene. The majority then abruptly turns its attention to discussing' its reasons why the State had failed to establish an exigency. The complete absence of any mention of probable cause is a serious flaw in the majority’s analysis; it skipped a critical step. What justification exists for the failure to discuss probable cause, a factor critical to evaluating Trooper Neffs conduct at the crash scene, a factor critical to supporting a warrant, and a factor critical to triggering any duty to obtain a warrant? Even Sanders did not challenge that the officer found probable cause after completing the HGN test at the hospital.

As a general rule, a probable cause review encompasses an examination by the court of the totality of the circumstances at the time of the search from the vantage point of the officer. A probable cause review does not anticipate that a court will retroactively isolate selected facts developed during the preliminary stages of an investigation, when the officers are still in the midst of conducting a probable cause investigation and have not made such an assessment. If a court finds no probable cause after this accelerated evaluation, that finding would result in. the exclusion of evidence. If a court finds probable cause, at least impliedly as in this case, that finding would result, not in the per se exclusion of evidence, but in prematurely creating a duty , of the officer to obtain a warrant, failing which the evidence would be subject to exclusion (the result reached by the majority in this case).1 believe the majority’s analysis intrudes upon the law enforcement investigative function by substituting the majority’s judgment for that of the officers, with the result that it prematurely triggers the officers’ “duty” to obtain a warrant. The majority’s holding sets a precedent that will encourage other defendants to claim the officer did not find probable'cause early enough in the investigative stage and which will ultimately require the exclusion of evidence because the court second-guesses the timing of the probable cause determination. In addition, the majority introduces a high degree of uncertainty into criminal investigations, as officers, concerned that the courts may again second-guess the timing of their probable cause determinations, may shortcut investigations to their prejudice.

An objective review of the facts and a proper application of the law concerning probable cause -show Trooper Neff conducted a legitimate investigation of Sanders at the crash scene and at the hospital which ultimately resulted in the officer’s probable cause determination. Only after his investigation was complete did Trooper Neff believe he had sufficient facts to establish probable cause and a duty to seek a warrant. Trooper Neff followed standard procedure in observing and verifying. This court should follow the traditional practice of applying the law of probable cause and hold that Trooper Neff properly determined he had probable cause after completion of the sobriety testing at the hospital and that only then did he have a duty to obtain a warrant, rather than interfering with the police investigative functions, second-guessing standard police practices, and adversely affecting future criminal prosecutions.

EXIGENT CIRCUMSTANCES

FACTS

Next, as to exigent circumstances, the record shows the following relevant facts. A 911 call advised police of a two-car collision on Highway 82. Trooper Russell, lead investigator, immediately proceeded to the location, arriving about 12:07 a.m., and saw that the first responders, comprised of firemen, emergency medical personnel, volunteers, and peace officers, were not doing “a whole lot” other than gathering information and controlling traffic; no one was conducting an accident investigation, as that was her job.

Trooper Russell immediately took charge and assigned the peace officers specific assignments during the investigation: Trooper Russell was in charge of the entire crime scene and very briefly interviewed Sanders; then Trooper Neff was assigned to deal with Sanders; Deputy Lee Phariss was to paint the crime scene; Sergeant David Hanks and also other officers were in charge of controlling traffic east and west; Game Warden Chase McAninch was to fill out a major crash packet; Sergeant James Taylor, who arrived later, was to take photos at the crime scene; and Trooper Charles Hardin, from two counties away, was assigned to contact the families of the decedents.

The remainder of the responders were not investigators capable of getting a warrant or blood samples. Within subsequent weeks, Trooper Russell obtained the names of seven paramedics and fourteen firefighters who attended to various medical needs or attended to the damaged vehicles; none were peace officers or DWI investigators.

Trooper Russell was advised Sanders had declined medical treatment by paramedics. Trooper Russell visited briefly with Sanders and delegated to Trooper Neff full responsibility to interview Sanders and obtain a blood sample if appropriate, and she proceeded to manage the crash scene investigation, gather information, and hand out specific assignments to the seven officers present. According to Trooper Russell, the justice of the peace arrived after Sanders had been transported by ambulance to the hospital. The judge pronounced the two occupants of the second vehicle deceased at 12:40 a.m. Trooper Russell did not discuss drawing Sanders’s blood with the judge.

■With respect to a search warrant, Trooper Russell testified she did not have the time nor the opportunity to obtain one because of her investigative responsibilities, that she left the decision as to a search warrant up to Trooper Neff, that the other officers were engaged with their assignments, and. that no other officer went with Trooper Neff to the hospital. Trooper Russell did not believe Sanders was present when the judge arrived.

Trooper Neff described in detail his law enforcement background, his contact with and conversations with Sanders, his observations about the signs of intoxication observed, his explanations regarding the field sobriety tests, and Sanders’s decision to go to the hospital when he began the first test. Trooper Neff believed Glint Mahan, Sanders’s boyfriend, was trying to frustrate testing for alcohol. Trooper Neff stated the ambulance left the scene before the justice of the peace arrived. Trooper Neff followed the ambulance to the hospital and immediately advised Mahan not to further interfere; Mahan complied. Sanders was wheeled on a gurney into an examination room in the emergency area, and Trooper Neff accompanied her. The room was a scene of crowded activity. Trooper Neff immediately administered the HGN test, read her the DIC 24 form reciting her rights and options for several minutes, and asked for her consent for a blood test. She refused. He also filled out and signed the THP 51, the mandatory blood specimen form authorizing the blood draw.

From the moment of his entry into the emergency room, Trooper Neff described it as a “beehive” of activity. He testified that at this time, medical personnel were running around doing things and that they began to “put up the pole and [bring in] fluid bags” and lay out needles, wipes, and blood kits on the counter. He became concerned about obtaining a blood sample because Sanders had begun to complain about pain. The officer said that he thought the medical .personnel were about to take immediate action to start administering substances to help Sanders and that he needed to obtain a blood sample prior to what they-were doing because otherwise the blood test would be a “lower or less accurate” sample. Trooper Neff testified as to his education, training, and experience as a blood test operator and stated he believed the saline solution in the IV, the alcohol wipe, and the body’s metabolism would alter Sanders’s blood chemistry and affect the blood alcohol concentration and thus the outcome of the blood test. Under all the circumstances, Trooper Neff did not believe he had time to secure a search warrant at the hospital and believed he was acting under exigent circumstances. He, therefore, requested a blood draw. According to the THP 51, entered at trial without objection, blood was drawn at 1:24 a.m.

Trooper Neff stated he had search warrant forms with him but did not have time to fill them out prior to medical personnel pushing him “out of the way.” There was no one else available to assist him. Trooper Neff said he was aware of rulings in appellate cases requiring a warrant for a blood draw. He also said he believed that the law permitted a warrantless blood draw when a person died in an accident.

Trooper Neff testified that he did not get a warrant before the blood draw at the hospital for the following reasons: (1) the dissipation of alcohol in Sanders’s bloodstream; (2) exigent circumstances, as emergency medical treatment was about to begin, which would adversely affect the blood draw, leaving him no time to get a warrant; and (3) the law allowed him to get a warrant or do a warrantless blood draw when someone had died in the accident. The trial court granted Sanders’s motion to suppress and entered findings of fact and conclusions of law. The trial court concluded as a matter of law the state did not prove exigent circumstances.

ANALYSIS OF EXIGENT CIRCUMSTANCES

To satisfy the exigent-circumstances exception, an exigency that requires immediate ■ action must exist. One Category of exigent circumstances that justifies' a war-rantless intrusion by police officers is preventing the destruction of evidence or contraband. A proper exigency analysis involves the following factors:

• Objective evaluation of facts available to a reasonable officer at . the scene, not the 20/20 vision of appellate hindsight;

• Whether the described exigency (destruction of evidence in this case) ■ required prompt and decisive official police action and allowed for no time to secure a warrant;

• Persuasive circumstances of an exi- . gency include natural dissipation of alcohol (although not a per se exigency in every case), procedures in place for obtaining a warrant, availability of a magistrate judge, and practical problems of obtaining a warrant within the time frame that still preserves an opportunity to obtain reliable evidence;

• Whether, under all the facts reasonably available to the officer at the time of the search, it was objectively reasonable for an officer to conclude that, faced with an emergency, taking the time necessary to. obtain a warrant before drawing a blood sample would significantly undermine the efficacy of a blood alcohol test; . and

• The focus of exigent circumstances analysis in this context is not on the delay attendant to an investigation but on the delay necessary to obtain a warrant.

The record shows that Sanders’s request to be transported to the hospital precipitated the emergency medical treatment upon her arrival. The officer’s probable cause determination following the HGN test in the emergency room coincided with the efforts of the medical staff to administer medical treatment to Sanders. According to Trooper Neff, there was literally no time to.do anything as the staff ushered him out of the emergency, room. Based on his education, training, and experience, and believing that the various treatments Sanders would receive would adversely affect and corrupt the blood sample, Trooper Neff asked a nurse to draw a blood sample. The State established sufficient evidence to prove an exigency justifying a warrantless blood draw.

The majority faults Trooper Neff for failing to use available resources to help him secure a warrant despite having an hour and fifteen minutes to do so,-and the majority ultimately finds the real reason he did not get a warrant was because he did not believe he needed a warrant in this case. At the- outset, I believe this criticism is moot because Trooper Neff had no duty to obtain a warrant prior to his determination of -probable cause at the hospital. I will nevertheless address the court’s criticisms.

I have serious reservations about the degree of importance which the court attributes to the “availability of' other officers” factor. An analysis of this factor must first recognize the admonition of the court in Cole that the appellate courts should not yield to the temptation of “pronouncing] what law enforcement ideally should have done in a particular case after all the facts are known .... [because] hindsight distorts a proper exigency analysis’s focus....”

The majority initially states numerous other officers were- available to obtain a warrant. It describes how, unlike in .the Cole case, where numerous officers were knee, deep in investigative work and could not be spared from the crash scene, in this case Trooper Russell declared numerous officers and emergency personnel were available, had time on their hands, and were not doing much of anything. But the record shows otherwise; it shows that all officers had ongoing assignments at the crash scene unless reassigned, and it therefore demonstrates this is not a realistic description of the crash scene.

The majority seems to confuse the activity of the investigators at the arrival stage and the execution stage. At the very beginning, the various responders were awaiting leadership and direction of the investigation. This is commonly described as the arrival stage in all substantial undertakings. When Trooper Russell arrived, she took charge as lead investigator, immediately organized the investigation, advised the investigators of their respective assignments, and oversaw the entire scene while they undertook their responsibilities. This is commonly described as the execution stage of the process. Trooper Russell testified as to the specific individual assignments of each of her designated DWI investigators at the scene and elsewhere. Once the investigation got underway, any suggestion that there was a crowd of available officers just standing around, that the scene was a three-ring circus with multiple first responders and investigators acting without much direction or supervision over the course of an hour and fifteen minutes, or that plenty of officers were simply biding their time and could be easily sent to the hospital is contradicted by the record.

The majority stresses that the Weems decision held the totality of circumstances militated against finding practical problems prevented the officer from obtaining a warrant and likens the situation to Sanders. This majority misconstrues Weems. The court of criminal appeals specifically emphasized that “[o]n this particular record,” it was the continued presence of a second named officer at the hospital with Weems for two hours that militated against such a finding. In other words, Weems did not turn on the general availability of officers, on hypothetically available officers, or on an available escorting officer but rather on the actual presence of a second assisting officer for several hours at the hospital. The court of criminal appeals also emphasized that “[ajnother ojficer[’s] presence or the ‘hypothetically available officer’ that, in theory, could have• secured a warrant in the arresting officer’s stead will certainly not render all warrantless blood dratvs a Fourth Amendment violation, nor do we suggest it is a circumstance that the State must disprove in every case to justify a warrantless search under an exigency theory,”

The majority refers to one particular sentence in Cole — “the availability of other officers is a relevant consideration in an exigency analysis” — to underscore the importance of the “availability of other officers,” but a statement like this one cannot be lifted out of the record and examined in a vacuum. Once again, the theme of the Cole decision focused on the need to encourage deference to law enforcement decisions in the field and to discourage micromanagement by the judiciary. In this context, a comment suggesting that a “relevant consideration” is the availability of officers is not particularly remarkable.

The Cole case involved a horrific crash scene and numerous officers, all of whom, according to the lead investigator, were important to the investigation and dealing with the crisis. At the court of criminal appeals, a dissent filed by Judge Johnson in which Judge Yeary concurred emphasized that two of the officers were actually available if called to secure a warrant. Ultimately, the court of criminal appeals stated that courts should not interfere with “local law-enforcement personnel management decisions and public policing strategy.” While the court of appeals had adopted a timeline, an hour-by-hour demonstration of how the officers could have secured a warrant if they had acted immediately, the court of criminal appeals, in contrast, emphasized that such an analytical approach impermissibly viewed law enforcement action through the lens of hindsight and that such temptations should be avoided because the approach overlooks practical problems and considerations which make obtaini