REVERSE and REMAND; and Opinion Filed August 11, 2016.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00919-CR
THE STATE OF TEXAS, Appellant V. SARAH BETH KELLER, Appellee
On Appeal from the County Court at Law No. 6 Collin County, Texas Trial Court Cause No. 006-88201-2013
MEMORANDUM OPINION Before Justices Fillmore, Stoddart, and Schenck Opinion by Justice Schenck In this case, we are asked to decide whether the warrantless drawing of blood from an
unconscious individual arrested for driving while intoxicated (DWI) violates the Fourth
Amendment. This question comes to us in the form of an interlocutory appeal filed by the State
challenging the trial court’s order granting a motion to suppress in favor of appellee Sarah Beth
Keller (“Keller”), who was arrested for DWI and subjected to warrantless blood-specimen
collection while in a medically-induced coma. On appeal, the State challenges the trial court’s
conclusion that the warrantless blood draw was an illegal search in violation of the Fourth
Amendment to the United States Constitution. We conclude that under the totality of the
circumstances the warrantless blood draw of Keller was reasonable and did not violate the Fourth
Amendment. Accordingly, we reverse the trial court’s order suppressing the blood-test results and remand the case to the trial court for further proceedings consistent with this opinion.
Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
I. Facts
On January 12, 2013, at approximately 3:00 p.m., Keller was involved in a collision with
another vehicle at a busy intersection in Frisco. Prior to the collision, a motorist traveling behind
Keller called 911 to report that she was driving erratically. That same motorist recorded her
erratic driving and the collision on his cell phone.
The Frisco police department dispatched Officer Jason Hinkel to investigate the accident.
When he arrived at the scene, paramedics were already attending to Keller and the occupants of
the other vehicle. Thereafter, EMS transported Keller and the occupants of the other vehicle to
various medical facilities for evaluation and treatment.
Officer Hinkel identified and interviewed witnesses, viewed the cell phone recording of
Keller’s extremely erratic driving and the collision, and generally processed the accident scene.
After concluding his investigation at the scene, Officer Hinkel drove to Medical Center of Plano,
where Keller had been transported, and obtained a blood draw from Keller without a warrant.
She was in a medically-induced coma at the time because she was physically combative upon
arrival at the center. Before taking the blood sample, Officer Hinkel read Keller the DIC-24
form advising her that she was under arrest and asking for a blood sample. Because she was
unconscious, Keller did not respond. Keller’s blood sample tested positive for hydrocodone and
negative for alcohol. Keller was subsequently charged with DWI.
II. Motion to Suppress
Prior to trial, Keller moved to suppress the results of her blood sample testing claiming
the warrantless blood draw was an illegal search in violation of the Fourth Amendment. In
–2– response, the State argued the warrantless blood draw was authorized by both implied consent,
pursuant to the provisions of the transportation code, and exigent circumstances.
At the suppression hearing, the State called Officer Hinkel to testify. Officer Hinkel
testified about the investigation and the manpower required to secure the scene, redirect traffic,
and protect the public. He explained that circumstances required at least four police officers to
block the intersection to all vehicle traffic and additional officers to redirect traffic and deal with
citizen inquiries. Due to the severity of the accident, and the fact that three people were
transported to medical facilities in unknown conditions, Officer Hinkel processed the scene as if
a fatality had occurred. He explained this required gathering and photographing evidence,
identifying and interviewing witnesses, and painting the positions of the vehicles. This part of
the investigation took over an hour and a half to complete.
Officer Hinkel also testified that his primary duties with the Frisco police department are
traffic enforcement and injury accident investigation, not DWI investigation. He was dispatched
to the scene, rather than someone from the patrol division, which normally responds to reports of
suspected DWIs, because there was a shortage of patrol officers and they were close to a shift
change.
Officer Hinkel admitted he did not attempt to obtain a blood-draw warrant, he had no
experience obtaining a warrant, and he was not familiar with the judges in the area that sign
search warrants. Officer Hinkel testified that had he wanted to obtain a blood-draw warrant, he
would have had to request the assistance of another officer, and admitted he probably could have
done so, but it would have taken some further time due to the department being short staffed.
Officer Hinkel further testified that his investigation led him to believe Keller was
intoxicated at the time of the accident, but he did not know whether it was due to consumption of
alcohol or use of illegal or prescription drugs. Officer Hinkel found no evidence of alcohol use
–3– at the location of the accident such as open containers, broken drink glass, or alcohol in Keller’s
car. He believed he was authorized to proceed with the warrantless blood draw under the Texas
Transportation Code’s implied and withdrawal-of-consent statutes. TEX. TRANSP. CODE ANN.
§§ 724.001–.019 (West 2011).
In addition to the consent statute, the State argued the search was conducted under
exigent circumstances, including (1) the length of time required to process the scene as the site of
a potential fatality; (2) the police department being short staffed; (3) Officer Hinkel’s lack of
familiarity with the warrant process; and (4) the dissipation of alcohol or drugs.
At the conclusion of the hearing, the trial court granted Keller’s motion to suppress. In
its comprehensive findings-of-fact and conclusions-of-law, the trial court concluded there were
no exigent circumstances and that obtaining Keller’s blood sample while she was in a medically-
induced coma, incapable of providing consent, or pursuant to a valid search warrant, violated her
Fourth Amendment right to be free of an unreasonable search and seizure. This interlocutory
appeal followed.
STANDARD OF REVIEW
This Court reviews a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007).
A trial court’s determination of historical facts is afforded almost total deference when those
facts are supported by the record, but all purely legal questions and all application-of-law-to-
established-facts questions are reviewed de novo. State v. Johnston, 336 S.W.3d 649, 657 (Tex.
Crim. App. 2011). The issue in the instant case falls into this latter category, and thus this
Court’s review is de novo. See Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004)
(stating that a question of whether a specific search or seizure is “reasonable” under the Fourth
Amendment is subject to de novo review).
–4– DISCUSSION
I. The Fourth Amendment Warrant Requirement
Keller challenged her blood draw on Fourth Amendment grounds. The Fourth
Amendment provides,
The 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. The taking of a blood sample by the government is a search that
triggers the protections of the Fourth Amendment. See Schmerber v. California, 384 U.S. 757,
770 (1966). The touchstone of the Fourth Amendment is reasonableness. Riley v. California,
134 S.Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006))
(emphasis added). The Supreme Court has held that, “‘[w]here a search is undertaken by law
enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally
requires the obtaining of a judicial warrant.’” Riley, 134 S.Ct. at 2482 (quoting Vernonia Sch.
Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)); see also Birchfield v. North Dakota, 136 S.Ct.
2160, 2173 (2016).
“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). “A defendant satisfies this burden
by establishing that a search or seizure occurred without a warrant.” Id. Once a defendant
establishes the absence of a warrant, the burden shifts to the State to prove the warrantless search
was reasonable under the totality of the circumstances. Amador, 221 S.W.3d at 672–73. The
State satisfies this burden if it proves an exception to the warrant requirement. See Gutierrez v.
State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). The established warrant-requirement
–5– exceptions are permitted because each is potentially reasonable. Missouri v. McNeely, 133 S.Ct.
1552, 1559 (2013) (citing Michigan v. Tyler, 436 U.S. 499 (1978)). Among those exceptions are
“voluntary consent to search” and “search under exigent circumstances.” McGee v. State, 105
S.W.3d 609, 615 (Tex. Crim. App. 2003).
At the suppression hearing, the State stipulated that the blood draw was obtained without
a search warrant. Therefore, the burden shifted from Keller to the State to prove the existence of
an exception to the warrant requirement.
II. Exceptions to the Warrant Requirement
The State relied upon the implied-consent and withdrawal-of-consent provisions set forth
in the Texas Transportation Code and exigent circumstances to validate the warrantless search.
TEX. TRANSP. CODE ANN. §§ 724.011, 724.014 (West 2011). On appeal, the State argues the trial
court erred in concluding (1) there were no exigent circumstances, and (2) the implied-consent
and withdrawal-of-consent statutes do not dispense with the necessity of obtaining a warrant. In
response, Keller argues no exigent circumstances existed to justify the warrantless search and the
United States Supreme Court’s and the Texas Court of Criminal Appeal’s decisions in Missouri
v. McNeely and State v. Villarreal, respectively, establish the implied consent provisions of the
transportation code do not authorize warrantless blood draws. McNeely, 133 S.Ct. 1552; State v.
Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2015). For the reasons set forth in this opinion, we
conclude exigent circumstances existed in this case. Consequently, we pretermit determining
whether the implied-consent and withdrawal-of-consent statutes allow law enforcement to obtain
a blood sample without a warrant.
The exigency exception to the warrant requirement 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, 133 S.Ct. at 1558 (quoting
–6– Kentucky v. King, 563 U.S. 452 (2011)). Exigency potentially provides for a reasonable, yet
warrantless search “because ‘there is compelling need for official action and no time to secure a
warrant.’” Id. at 1559 (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)). Whether law
enforcement faced an emergency that justifies acting without a warrant calls for a case-by-case
determination based on the totality of circumstances. Id. at 1559. An exigent circumstances
analysis requires an objective evaluation of the facts reasonably available to the officer at the
time of the search, not a hindsight review of what law enforcement ideally should have done in a
particular case after all the facts are known. Cole v. State, No. PD–0077–15, 2016 WL 3018203,
at *4–5 (Tex. Crim. App. May 25, 2016) (citing Brigham City, Utah v. Stuart, 547 U.S. 398, 404
(2006)) (emphasis added). The Supreme Court’s and the Texas Court of Criminal Appeals’
decision in Schmerber and Cole, respectively, are instructive in this case. Schmerber, 384 U.S.
757; Cole, 2016 WL 3018203.
In Schmerber, the United States Supreme Court held that, based on the totality of the
circumstances surrounding the search, a warrantless seizure of a driver’s blood was reasonable.
Schmerber, 384 U.S. at 770–72. In that case, 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. The circumstances surrounding the blood draw in Schmerber that rendered the warrantless
search reasonable were: (1) the officer had probable cause that Schmerber operated a vehicle
while intoxicated; (2) alcohol in the body naturally dissipates after drinking stops; (3) the lack of
time to procure a warrant because of the time taken to transport Schmerber to a hospital and
investigate the accident scene; (4) the 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 test was performed in a reasonable manner. Id. at 768–72.
The Supreme Court granted certiorari in McNeely to resolve a split of authority occurring
–7– in Schmerber’s wake as to whether the body’s natural metabolization of alcohol in the
bloodstream creates a “per se exigency that justifies an exception to the Fourth Amendment’s
warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133
S.Ct. 1556. The court answered the question in the negative and reaffirmed that a proper
exigency analysis considers the totality of the circumstances—the approach it adopted in
Schmerber. Id. at 1559–60, 1563.
In Cole, the Texas Court of Criminal Appeals conducted an exigency analysis and
considered the totality of circumstances to determine whether a warrantless blood draw was
justified. See Cole, 2016 WL 3018203. In that case, Cole ran a red light at a high rate of speed
striking another vehicle causing an explosion from which the other driver died instantly. Id. at
*1. Cole was transported to an area hospital. Id. While Cole was at the hospital, a police officer
directed medical personnel to take a sample of Cole’s blood over his objection and without a
warrant. Id. at *2. Subsequent testing revealed Cole’s blood contained intoxicating levels of
amphetamine and methamphetamine. Id.
In considering the totality of the circumstances, the court of criminal appeals recognized
it took the lead investigating officer three and a half hours to investigate the crash scene and
required the presence of numerous officers to secure the accident scene, direct traffic and keep
the public safe. Id. at *5. And while the court noted that the availability of other officers was
also a relevant consideration in an exigency analysis, it disagreed with the court of appeals’
conclusion that “. . . an exigency finding cannot be made without the record establishing-and by
extension, the State proving-that there was no other officer available to get a warrant in the lead
investigator’s stead.” Id. The court explained that requiring such a showing “...improperly
injects courts into local law enforcement personnel management decisions and public policing
–8– strategy” and that it “further reduces the exigency exception to an exceedingly and
inappropriately small set of facts....” See id.
In addition, the court of criminal appeals recognized that the concern that both medical
intervention performed at the hospital and the natural dissipation of methamphetamine in Cole’s
body would adversely affect the reliability of his blood sample. Id. at 6. The court noted that, in
contrast to alcohol, which dissipates in a gradual and relatively predictable manner, the
elimination rate of a substance such as methamphetamine, the intoxicant at issue, is not so
predictable. Id. Under these circumstances, law enforcement faces the inevitable destruction of
evidence without the ability to know—unlike alcohol’s widely accepted elimination rate—how
much evidence it was losing as time passed. Id. Taking the logistical and practical constraints
posed by a severe accident involving a death and the attendant duties this accident required and
the dissipation of methamphetamine in Cole’s system into consideration, the court of criminal
appeals concluded exigent circumstances justified the warrantless blood draw.
The totality of the circumstances in this case are at least as compelling as those presented
in Schmerber and Cole. Like Schmerber and Cole, this was not a “routine” drunk driving stop.
Keller was involved in a collision at the intersection of two busy highways that resulted in the
transport of three individuals to medical facilities and a protracted investigation involving several
officers. Officer Hinkel observed a contemporaneous cell phone video depicting Keller’s driving
in the minutes before the accident that strongly suggested the involvement of drugs or alcohol.
Both the time required to complete the accident investigation and the lack of available law
enforcement personnel hindered pursuing the warrant process. Moreover, Officer Hinkel, as a
traffic enforcement and injury accident investigator, had no experience obtaining search warrants
and did not know how to secure one. As the court of criminal appeals stated in Cole, the fact that
another officer might have been able to secure a warrant does not establish the lack of an
–9– exigency, but is a relevant consideration in an exigency analysis. Id. at *5. The record in this
case does not establish that there was a readily available officer who could have gotten a warrant
while Officer Hinkel continued his investigation. Thus, we conclude the potential availability of
other officers does not create a lack of exigency in this case.
In addition to the logistical obstacles of securing a warrant and Officer Hinkel’s lack of
experience in obtaining warrants, Officer Hinkel indicated he was concerned about the lapse in
time between the accident and his arrival at the hospital. While Officer Hinkel was familiar with
the metabolism of alcohol in the blood stream, he was not familiar with the dissipation rates of
illegal and prescription drugs, which he thought could be the source of Keller’s intoxication.
The lack of a known elimination rate of a substance law enforcement believes a suspect ingested
or used does not necessarily mean that the body’s natural metabolism of intoxicating substances
is irrelevant to or cuts against the State’s exigency argument. Id. at *6. In fact, as in Cole, it
serves to distinguish this case from McNeely.
The McNeely court relied in significant part on the widely known fact that alcohol
“naturally dissipates over time in a gradual and relatively predictable manner.” McNeely, 133
S.Ct. at 1561. The lack of a known elimination rate is at odds with the undercurrent running
through the McNeely opinion: While time is of the essence, a minimally delayed test when
dealing with an alcohol-related offense does not drain the test of reliability because experts can
work backwards to calculate blood-alcohol content at an earlier time. Id. at 1560–61, 1563. In
this case, alcohol did not appear to be the intoxicant at issue and without knowing what
intoxicant was involved or its elimination rate, law enforcement faced inevitable evidence
destruction without the ability to know—unlike alcohol’s widely accepted elimination rate—how
much evidence it was losing as time passed. Cole, 2016 WL 3018203, at *6. This concern was
further compounded by the fact that medication administered at the hospital could affect any
–10– subsequent blood sample.
Evaluating the totality of the circumstances here, we conclude the warrantless blood draw
was constitutionally permissible under exigency principles. This case is not like McNeely, where
the sole basis for an exigency claim was the natural dissipation of alcohol that occurs in every
drunk-driving case. Like the officers in Schmerber and Cole, law enforcement was confronted
with not only the natural destruction of evidence through natural dissipation of intoxicating
substances, but also with the logistical and practical constraints posed by a potentially fatal
accident and the necessity of securing the site and protecting the public. We therefore conclude
that the warrantless blood draw did not violate the Fourth Amendment and the trial court erred in
concluding a violation occurred.
Accordingly, we sustain the State’s sole issue.
CONCLUSION
We reverse the trial court’s order granting the motion to suppress and remand the case to
the trial court for further proceedings consistent with this opinion. TEX. R. APP. P. 43.3(a).
/David J. Schenck/ DAVID J. SCHENCK JUSTICE
DO NOT PUBLISH TEX. R. APP. P. 47
150919F.U05
–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the County Court at Law No. 6, Collin County, Texas No. 05-15-00919-CR V. Trial Court Cause No. 006-88201-2013. Opinion delivered by Justice Schenck. SARAH BETH KELLER, Appellee Justices Fillmore and Stoddart participating.
Based on the Court’s opinion of this date, the trial court’s order granting Sarah Beth Keller’s Motion to Suppress is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
Judgment entered this 11th day of August, 2016.
–12–