XVIII. Blood Test
A. MANDATORY BLOOD "REASONABLE BELIEF" STANDARD
1. MET
Gattis v. State, 2004 WL 2358455, No. 14-03-00045-CR, 14-03-00046-CR (Tex.App.—Houston [14 District] October 21, 2004)(not designated for publication).
Where several officers are involved, the sum of the information known to the cooperating officers at the time of arrest is to be considered in determining if there is a reasonable belief that the accident occurred as a result of defendant's intoxication.
Badgett v. State, 42 S.W.3d 136 (Tex.Crim.App. 2001).
Officer's "reasonable belief" that the accident occurred as the result of defendant's intoxication must be based on something more than the mere fact that the accident involved an intoxicated driver. Rather there must be specific and articulable facts that the intoxication caused the accident. That belief may be based upon a number of factors including but not limited to: witness interviews, conclusions drawn from experience, observations made at the accident scene, determinations by reconstruction team. The Court of Criminal Appeals reversed the lower court's holding that specific evidence that "intoxicated" driver was at fault was not required.
Broadnax v. State, 995 S.W.2d 900 (Tex.App.—Austin 1999, no pet.).
In this case there was a high speed wreck in which a passenger in the vehicle was seriously injured. After detecting alcohol on defendant's breath and considering the circumstances of the wreck, the officer determined the defendant was intoxicated, put him in custody, and informed him a mandatory specimen would be taken. Defendant was read the mandatory blood warning and consented to the sample. The significance of the holding is that without FSTs and evidence other than the circumstances of the wreck observable at the scene, the Court held that a mandatory blood specimen could have been taken and that the defendant's consent removed the need of the State to prove that statute applied.
Mitchell v. State, 821 S.W.2d 420 (Tex.App.—Austin 1991, pet. ref'd).
Court held officer had "reasonable belief" based on facts observed and information received from others at the scene of the accident.
2. NOT MET
State v. Mosely, 2011 WL 4506106 (Tex.App.—Austin 2011).
Where officers at the scene of a crash did not perform field sobriety tests on the defendant, did not observe him slur his speech, or have trouble maintaining his balance, or do anything else to suggest that he was physically or mentally impaired, and where both officers testified that they did not form an opinion as to whether defendant was intoxicated, and did not read the DIC-24 to him, there was insufficient basis to arrest defendant and a mandatory blood draw was not proper.
B. ARREST AT THE HOSPITAL
1. RESTRAINT WAS SUFFICIENT
Gattis v. State, Nos. 14-03-00045-CR, 14-03-00046-CR, 2004 WL 2358455 (Tex.App.—Houston [14th Dist.] 2004) (Not designated for publication).
This was an Intoxication Manslaughter case where the defendant was transported to the hospital where an officer requested mandatory blood draw. The defendant attacked the legal basis for the draw claiming the defendant was not under arrest at the hospital and as proof pointed out no charge was filed at the time of the defendant's release from the hospital. The court found that when the officer told the defendant he was under arrest, the defendant was restrained to a hospital bed and that although the restraint was done for medical purposes, it still constituted a restriction of movement sufficient to be perceived as an arrest.
2. LATER RELEASE DID NOT NEGATE
Williams v. State, 05-03-00787-CR, 2004 WL 434622 (Tex.App.—Dallas 2004, pet. ref'd.) (not designated for publication).
Gattis v. State, Nos. 14-03-00045-CR, 14-03-00046-CR, 2004 WL 2358455 (Tex.App.—Houston [14th Dist.] 2004) (Not designated for publication).
The fact that the officers, after obtaining the blood sample and learning appellant would not be released immediately from the hospital, decided not to stay with appellant and released him from their custody does not affect the conclusion that appellant was under arrest at the time the officers requested the sample.
C. STATUTORY REQUIREMENTS FOR DRAWING MANDATORY BLOOD DO NOT APPLY
1. WHEN DEFENDANT CONSENTS
Doty v. State, No. 03-03-00668-CR, 2005 WL 1240697 (Tex.App.—Austin May 26, 2005)(mem.op., not designated for publicaiton), pet. dism'd, improvidently granted, No. PD-1159-05, 2007 WL 841112 (Tex.Crim.App.2007)(not designated for publication).
Ramos v. State, 124 S.W.3d 326 (Tex.App.—Fort Worth 2003, pet. ref'd).
Bennett v. State, 723 S.W.2d 359 (Tex.App.—Fort Worth 1987, no pet.).
Defendant's consent to blood-alcohol test relieved police officers of obligation to comply with prerequisites for compelling blood sample.
2. WHEN DEFENDANT IS NOT UNDER ARREST
Skinner v. State, 2006 WL 1420388 (Tex.App.—Tyler 2006) (not designated for publication).
Blumenstetter v. State, 135 S.W.3d 234 (Tex.App.—Texarkana 2004, no pet.).
Ramos v. State, 124 S.W.3d 326 (Tex.App.—Fort Worth 2003, pet. ref'd).
Knisley v. State, 81 S.W.3d 478 (Tex.App.—Dallas 2002, pet. ref'd.).
Nottingham v. State, 908 S.W.2d 585 (Tex.App.—Austin 1995, no pet.).
Burhalter v. State, 642 S.W.2d 231 (Tex.Crim.App. 1982).
Aliff v. State, 627 S.W.2d 166 (Tex.Crim.App. 1982).
Where suspect was not under arrest, officer requesting blood sample be drawn from semi-conscious/unconscious defendant justified by exigent circumstances.
3. CONSENT NOT INVOLUNTARY OR COERCED
Combest v. State, 953 S.W.2d 453 (Tex.App.—Austin 1997). On remand 981 S.W.2d 958 (Tex.App.—Austin 1998). Same holding.
Reading DIC-24 when defendant is not under arrest will not per-se make subsequent consent to give blood sample involuntary.
Strickland v. State, 2007 WL 2592440 (Tex.App.—Texarkana 200
This case involved an investigation of an alcohol-related crash that would ultimately be charged as Intoxication Assault. The issue challenged was the validity of the defendant's consent to a blood sample that he purportedly gave to the officer while at the hospital. The officer had told the defendant at the time he asked for his consent that if he refused his consent, he would obtain the blood sample as a mandatory blood specimen. The defendant was not under arrest at the time this statement was made. In upholding the consent, the Court distinguishes this case from those where an officer has created and communicated a fiction in order to coerce the consent for a search. Rather it points out that the officer was instead warning the defendant about the reality of the situation. The defendant was subject to immediate arrest based on the information which was in the officer's possession at the time that representation was made and was, in fact, arrested immediately thereafter and without reference to the eventual results of the blood test.
4. READING DIC-24 AS EVIDENCE OF ARREST
Washburn v. State, 235 S.W.3d 346 (Tex.App.—Texarkana 2007).
Bell v. State, 881 S.W.2d 794 (Tex.App.—Houston [14th Dist.] 1994).
Nottingham v. State, 908 S.W.2d 585 (Tex.App.—Austin 1995, no pet.).
Where police officer read the DIC-24 to a suspect prior to asking for a mandatory blood specimen. The reading of that form constitutes some evidence that the suspect was under arrest.
D. PROCEDURE FOR TAKING BLOOD SAMPLE
1. OFFICERS MAY USE FORCE TO TAKE BLOOD
Burns v. State, 807 S.W.2d 878 (Tex.App.—Corpus Christi 1991, pet. ref'd).
No due process violation in involuntary manslaughter case where two police officers held down a defendant for hospital technician to extract a blood specimen.
2. SAMPLE FROM UNCONSCIOUS DEFENDANT
Pesina v. State, 676 S.W.2d 122 (Tex.Crim.App.1984).
Blood test evidence collected at request of police officer in DWI case not suppressible where suspect was unconscious and there were exigent circumstances.
3. USE OF ALCOHOL SWAB BEFORE BLOOD DRAW
Kennemur v. State, 280 S.W.3d 305 (Tex.App.—Amarillo 2008, reh. overruled, pet.ref'd).
Kaufman v. State, 632 S.W.2d 685 (Tex.App.—Eastland 1982, pet. ref'd).
Use of alcohol solution to cleanse skin before test merely affects the weight of test and not its admissibility.
4. WHAT CONSTITUTES A "QUALIFIED TECHNICIAN"
(a) "PHLEBOTOMIST" MAY BE A "QUALIFIED TECHNICIAN"
State v. Bingham, 921 S.W.2d 494 (Tex.App.—Waco 1996 pet. ref'd).
Common sense interpretation of term "qualified technician" as used in statute permitting only physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse to draw blood specimen for purpose of determining alcohol concentration or presence of controlled substance upon request or order of police officer, must include phlebotomist whom hospital or other medical facility has determined to be qualified in technical job of venesection or phlebotomy, i.e., drawing of blood.
(b) "PHLEBOTOMIST" QUALIFICATION MUST STILL BE SHOWN
Torres v. State, 109 S.W.3d 602 (Tex.App.—Fort Worth 2003, no pet.
Because a phlebotomist is not one of the occupations listed in the Statute, the qualifications must be proven. Though she had no formal training, the witness had been a phlebotomist for the last 24 years. She was certified through NPA. She drew blood every day and had done so thousands and thousands of times in her career.
Cavazos v. State, 969 S.W.2d 454 (Tex.App.—Corpus Christi 1998, no pet.).
Circumstantial evidence that blood was drawn by a phlebotomist was held insufficient to support that he was qualified. In this case no one testified regarding the qualifications of the person drawing the blood, and no evidence established that the blood was drawn by someone the hospital had determined to be qualified for that task. (Note: the gist of this holding was that this was a problem that could have been cured by an additional witness who was aware of this person's qualifications.)
(c) RESTRICTIONS ON WHO MAY DRAW BLOOD ONLY APPLY IF SUSPECT IS UNDER ARREST
Blackwell v. State, No. 03-03-00337-CR, 2005 WL 548245, (Tex.App.—Austin 2005) (not designated for publication).
Restrictions that say that only "a physician, qualified technician (other than an emergency medical technician), chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer" do not apply when the suspect is not under arrest and the draw is not done at the request of a peace officer.
5. EMS PERSONNEL MAY NOT DRAW MANDATORY BLOOD
State v. Laird, 38 S.W.3d 707 (Tex.App.—Austin 2000, pet. ref'd).
Defendant was taken to hospital for mandatory blood draw but when he refused to consent to the taking of the sample, which was properly requested under 724.012(b) of the Transportation Code, the hospital staff refused to take the sample on advice of their risk manager. Officer then took defendant to a nearby fire station where a paramedic who was an "emergency medical services technician," drew the blood sample. The blood was suppressed because §24.017(c) of the Transportation Code excludes "emergency medical services personnel" from the list of people qualified to draw blood under that statute. The State argued that the Court could and should properly infer that the legislature intended to exclude emergency medical services personnel from drawing blood only when they are responding to an emergency situation. This and other arguments were rejected in favor of following unambiguous wording of the statute.
E. HOSPITAL RECORDS
1. ARE NOT PRIVILEGED
State v. Liendo, 980 S.W.2d 809 (Tex.App.—San Antonio 1998, no pet.).
State v. Hardy, 963 S.W.2d 516 (Tex.Crim.App. 1997).
Knapp v. State, 942 S.W.2d 176 (Tex.App.—Beaumont 1997, pet. ref'd).
Clark v. State, 933 S.W.2d 332 (Tex.App.—Corpus Christi 1996, no pet.).
Corpus v. State, 931 S.W.2d 30 (Tex.App.—Austin 1996), pet. dism'd, 962 S.W.2d 590 (Tex.Crim.App. 1998).
State v. Hurd, 865 S.W.2d 605 (Tex.App.—Fort Worth 1993, no pet.).
Thurman v. State, 861 S.W.2d 96 (Tex.App.—Houston [1st Dist] 1993 no pet.).
Blunt v. State, 724 S.W.2d 79 (Tex.Crim.App. 1987).
See also Tex.R.Crim.Evid.509 = no physician/patient privilege
Court held that defendant has no right to privacy in hospital blood test records and the State could use said records that were obtained by grand jury subpoena.
2. OBTAINING RECORDS BY SUBPOENA
Tapp v. State, 108 S.W.3d 459 (Tex.App.—Houston [14th Dist.] 2003, pet. ref'd)
Garcia v. State, 95 S.W.3d 522 (Tex.App.—Houston [1st Dist.] 2002, no pet.).
Knapp v. State, 942 S.W.2d 176 (Tex.App.—Beaumont 1997).
As there is no constitutional or statutory reasonable expectation of privacy in hospital records of blood test results, a suspect has no standing to complain of defects in the GJ subpoena process.
Dickerson v. State, 965 S.W.2d 30 (Tex.App.—Houston [1st Dist] Feb. 19, 1998), 986 S.W.2d 618 (Tex.Crim.App.1999).
Thurman v. State, 861 S.W.2d 96 (Tex.App.—Houston [1st Dist] 1993, no pet.).
Proper to use grand jury subpoena to obtain medical records.
3. RELEASE OF DEFENDANT'S HOSPITAL RECORDS IN RESPONSE TO A GJ SUBPOENA DOES NOT VIOLATE HIPAA
Murray v. State, 245 S.W.3d 37 (Tex.App —Austin 2007).
Health Insurance Portability and Accountability Act (HIPAA) and privacy rule promulgated pursuant to HIPAA did not overrule or preempt holding in State v. Hardy that a defendant did not have an expectation of privacy in blood-alcohol test results obtained solely for medical purposes after an accident. An entity covered by HIPAA regulations is expressly authorized to disclose health information that is otherwise protected under HIPAA without a patient's consent in numerous situations, including for law enforcement purposes pursuant to a grand jury subpoena.
Jacques v. State, 2006 WL 3511408 (Tex.App.—Texarkana Dec 07, 2006) (not designated for publication).
A hospital's release of medical records to law enforcement is permitted under limited circumstances under HIPAA. 45 C.F.R.§ 164.512 (2006). HIPAA specifically authorizes a hospital to release a patient's medical records in response to a grand jury subpoena. 45 C.F.R. §164.512(f)(1)(ii)(B).
4. NO HIPAA VIOLATION IN HOSPITAL PERSONNEL TELLING POLICE BLOOD-ALCOHOL CONTENT WITHOUT SUBPOENA
Kirsch v. State, 276 S.W.3d 579 (Tex.App.-Houston [ 1st Dist.] 2008) aff'd 306 S.W.3d 738 (Tex.Crim.App. 2010).
The defendant had been brought into the hospital for treatment after being involved in a motor vehicle collision. The attending physician ordered a blood draw and analysis for medical purposes which showed defendant to be intoxicated. Without a request from law enforcement and without defendant's consent, hospital personnel informed Houston deputies about the results of the blood -alcohol test. The defendant tried to suppress the evidence as a violation of HIPPA. The Court of Appeals points out that under HIPPA, a covered health care provider who provides emergency health care in response to a medical emergency may disclose protected health care information to a law enforcement official if such disclosure appears necessary to alert law enforcement to the "commission and nature of a crime." In affirming the denial of the motion to suppress, the Court held that the defendant's blood-alcohol content in this case suggested he had committed the offense of DWI. The Court cites Kennemur v. State, 2008 WL 1991730 (Tex.App.—Amarillo 2008) in support of this holding.
F. CHAIN OF CUSTODY REQUIREMENTS
1. BLOOD TESTED IS SAME AS BLOOD DRAWN
Lynch v. State, 687 S.W.2d 76 (Tex.App.—Amarillo 1985, pet. ref'd).
Can't rely solely on medical records to prove blood test result. State must further show: (1) a proper chain; and (2) that blood tested was same as blood drawn from defendant. In the absence of such evidence, medical records are inadmissible.
2. NOT NECESSARY THAT PERSON WHO DREW BLOOD TESTIFY
Yeary v. State, 734 S.W.2d 766 (Tex.App.—Fort Worth 1987, no pet.).
It is sufficient if officer testifies she witnessed the blood drawn by the nurse and any objections to failure to call nurse to testify go to weight and not admissibility of evidence.
3. GAPS IN CHAIN GO TO "WEIGHT" NOT ADMISSIBILITY
Patel v. State, 2009 WL 1425219 (Tex.App.—Fort Worth 2009).
Penley v. State, 2 S.W.3d 534 (Tex.App.—Texarkana 1999, pet. ref'd).
Burns v. State, 807 S.W.2d 878 (Tex.App.—Corpus Christi 1991, pet. ref'd).
Gallegos v. State, 776 S.W.2d 312 (Tex.App.—Houston [1st Dist.] 1989, no pet.).
Where the State shows the beginning and the end of the chain of custody, any gaps in the chain go to the weight of the evidence and not to its admissibility.
4. NOT NECESSARY TO SHOW WHO DREW THE BLOOD
Hennessey v. State, 2010 WL 4925016 (Tex.App.—Fort Worth 2010).
Admission of hospital blood test results in defendant's trial without calling person who drew blood did not violate HIPPA or the defendant's confrontation rights under Crawford. In this case the primary emergency room nurse, the lab technician who tested the blood and the senior forensic chemist for ME's office all testified about standard trauma patient care including that they all have blood drawn in the same way.
Blackwell v. State, No. 03-03-00337-CR, 2005 WL 548245, (Tex.App.—Austin 2005) (not designated for publication).
Hospital records with blood test results were admitted with Business Records Affidavit. The defense contested their admission because the person who drew the blood could not be identified and did not testify. The State called the surgeon who treated the Defendant but he could not identify who drew the blood. He said that although he did not conduct or observe the blood draw, he and other doctors routinely relied on such procedures and records in treating patients. There was not evidence that an unauthorized or unqualified person drew the blood or that it was done in an improper manner. The results were therefore held to be admissible.
5. NOT NECESSARY TO SHOW WHO DREW OR TESTED THE BLOOD!
Durrett v. State, 36 S.W.3d 205 (Tex.App.—Houston (14th Dist.) 2001, no pet.).
Medical records were offered to show defendant's blood was drawn and tested. Testimony failed to show who actually drew the blood and there was contradictory testimony about whether the State had shown who actually tested the blood. There was testimony about the precautions taken by the hospital to ensure blood samples are properly drawn, labeled and tested. The Court held that the testimony was adequate to link the blood result in the records to the defendant and that the beginning and end of chain were adequately proven. That witness could not recall who took the sample and who tested it goes to the weight not the admissibility of the evidence.
6. PROVING HOSPITAL BLOOD RESULTS WITH BUSINESS RECORDS AFFIDAVIT
Desilets v. State, 2010 WL 3910588 (Tex.App.—Beaumont 2010) (Not designated for publication.
This was a case where the State offered the hospital records without calling the person who took the blood specimen. The defense argued that violated their right to confront the witness. The Court held that blood results from blood drawn for medical purposes that are separate from the criminal prosecution are not "testimonial" because they are not made for the purpose of establishing a fact in a criminal prosecution; therefore, defendant's confrontation rights were not implicated.
G. SANITARY PLACE REQUIREMENT
Adams v. State, 808 S.W. 2d 250, (Tex.App.—Houston [1st Dist.] 1991, no pet.).
Defendant contends that an inspection a month before the blood was drawn at the hospital does not show the sanitary condition when blood was drawn. The statute does not require such evidence. It requires that a "periodic" inspection be done, not an inspection on the date blood was drawn. Even without the nurse's affidavit, the trial judge could have concluded that St. Joseph's Hospital was a "sanitary place," thus satisfying the first part of the statutory predicate.
H. HOSPITAL-DRAWN SERUM-BLOOD TEST
Wooten v. State, 267 S.W.3d 289 (Tex.App.—Houston [14 Dist.] 2008).
This case involved an objection to the admissibility of a medical blood draw result. There was a Kelly hearing and the case provides a good discussion of the witnesses called and the nature of their testimony. The Court upheld the judge's decision to admit the results into evidence. The Court found it was within the zone of reasonable disagreement for the Trial Court to conclude the State met the three Kelly factors by clear and convincing evidence regarding the Dade Dimension RXL. Accordingly, the Trial Court did not abuse its discretion in allowing appellant's Dimension RXL blood alcohol results or the expert witness testimony regarding appellant's blood test results to be presented to the jury.
Bigon v. State, 252 S.W.3d 360 (Tex.Crim.App.2008).
Defendant objected to the state expert's testimony concerning the conversion of appellant's serum-alcohol level to a blood-alcohol level and retrograde extrapolation on the basis that said testimony was not reliable. The Court of Appeals held both were admissible. The Court of Criminal Appeals held that it was not an abuse of discretion to allow said testimony.
Reidweg v. State, 981 S.W.2d 399 (Tex.App.—San Antonio 1998, pdr. ref'd).
Objection to admitting evidence of serum-blood test as opposed to whole blood test overruled as evidence showed that test instrument was standardized such that serum-blood test result would be the same as if whole blood were tested.
I. HOSPITAL DRAWN SAMPLE = NOT AN ASSAULT
Hailey v. State, 87 S.W.3d 118 (Tex.Crim.App. 2002) cert. denied, 538 U.S. 1060 (2003).
Defendant arrested for DWI. The evidence at the time of arrest showed that defendant was: 1) Bounding off guardrail; 2) Crossing into oncoming traffic; 3) PBT administered at the scene showed an alcohol concentration of .337. Officer, fearing there may be Alcohol Poisoning transported defendant to the hospital. Defendant was read the DIC-24 and refused to give a sample. Hospital drew a medical sample that showed a .454. Court of Appeals held that blood was illegally taken and that the taking of the blood sample constituted an assault on the defendant by the hospital personnel. The problem was that no witness was called from the hospital to say why the blood was taken. The Court of Criminal Appeals held that it was improper for the Court of Appeals to reverse the case based on a theory not presented to the trial court (that being the hospital assault issue) and so reversed the Court of Appeals decision affirming the trial court's finding that the blood sample was admissible.
Spebar v. State, 121 S.W.3d 61 (Tex.App.—San Antonio, September 3, 2003, no pet.).
Another case where the blood sample was drawn by hospital personnel after the defendant refused to give the police a sample. As in the case above, the defendant claims the evidence was inadmissible because it was obtained when the hospital illegally assaulted. Him. This claim was rejected by the Trial Court. The defendant cites the Court of Appeals opinion in the Hailey case. The Court first distinguishes Hailey by pointing out that the trial judge in its ruling stated that this was not a case of law enforcement taking a blood sample but rather blood taken as part of the defendant's medical treatment. The Court further rejects the defendant's argument that the hospital personnel were agents of the State.
J. ACQUIESCENCE TO HOSPITAL BLOOD DRAW = CONSENT
State v. Kelly, 204 S.W.3d 808 (Tex.Crim.App., 2006).
In response to the objection to the admissibility of a medical blood draw where the defendant objected she never "consented" to the draw, the court held that an express or implied finding of "mere acquiescence" to the blood draw also constitutes a finding of consent to the blood draw.
K. SEARCH WARRANT FOR BLOOD IN DWI CASE
1. IS PROPER
Beeman v. State, 86 S.W.3d 613, (Tex.Crim.App. 2002). See also Dye v. State, 2003 WL 361289 (Tex.App.—El Paso 2003, no pet.)(Not designated for publication).
This case involved a rear end collision without injuries that resulted in the suspect's arrest for DWI. After the suspect refused to give a breath sample, the officer got a search warrant that authorized a blood sample be drawn and said sample was taken over the suspect's objection. The issue on appeal is whether the implied consent law prohibits drawing a suspect's blood under a search warrant. The Court of Criminal Appeals holds that it does not, pointing out that to interpret the statute in that way would afford DWI suspects more protection than other criminal suspects.
2. SEARCH WARRANT AFFIDAVIT FAILED TO NOTE DATE/TIME OF STOP
a. NOT FATAL
State v. Dugas, 296 S.W.3d 112 (Tex.App.—Houston [14th Dist.] 2009, pdr ref'd).
In this case the blood search warrant affidavit was challenged because it failed to include the time the alleged offense occurred. Argument raised = no basis upon which the magistrate could have determined whether the defendant's blood contained evidence of a crime. Trial Court suppressed the blood. In reversing Trial Court, the Court of Appeals pointed out that though time is not noted, it is undisputed that offense and issuance of warrant occurred the same day as warrant was signed at 6:03 a.m., leaving the maximum potential time elapsed between traffic stop and warrant as 6 hours and 3 minutes. Nor was it unreasonable for magistrate to have assumed, based on facts in affidavit, that there would be some evidence of intoxication in the defendant's blood when warrant was signed. "The issue is not whether there are other facts that could have or even should have been included in that affidavit; instead, we focus on the combined logical force of facts that are in the affidavit." Cites Rodriguez v. State, 232 S.W.3d 55 (Tex.Crim.App. 2007).
State v. Jordan, 2011 WL 2555708 (Tex.Crim.App., June 29, 2011).
The defense argued that the affidavit did not state the date and time when facts of offense are alleged to have occurred so was insufficient to give magistrate PC to believe blood would constitute evidence of guilt at time warrant issued. Trial Court agreed and suppressed blood. State argued that because warrant was issued at 3:54 a.m. on June 6th, the maximum amount of time that could have elapsed between stop and issuance of warrant was 3 hours and fifty-four minutes. State cited State v. Dugas. Court of Appeals rejected that it was undisputed that offense and issuance of warrant were in the same day. Though statement in affidavit by officer was, "I have good reason to believe that heretofore, on or about the 6th day of June 2008... did then and there commit the offense of DWI," the Court finds this to just be a statement of the officer's "belief" and not a statement of "fact" which distinguishes this case from Dugas as it holds affidavit did not state the offense date. Trial judge suppression is affirmed. This holding was reversed by the Court of Criminal Appeals which upheld the warrant. In its holding the Court states that the four corners of a warrant affidavit have to be considered to determine probable cause, rejecting the approach of the lower Court which seemed to be testing the introductory statement and the description of facts separately. It held that the magistrate could infer that observations of defendant's conduct occurred on the date specified in the introductory statement and find that this was the date of offense. Magistrate had substantial basis to determine evidence of intoxication would be found in defendant's blood. Evidence of any amount of alcohol or other controlled substance could be probative of intoxication as it is evidence that suspect introduced substance into his body.
b. FATAL
Crider v. State, 2011 WL 5554806 (Tex.Crim.App. 2011).
Affidavit in support of search warrant to draw blood from defendant, who had been arrested for DWI, was insufficient to establish probable cause that evidence of intoxication would be found in defendant's blood at the time the search warrant was issued. Affidavit did not state the time that the officer conducted traffic stop of defendant's vehicle, and nothing in the four corners of the affidavit suggested what time gap existed between defendant's last moment of driving and the moment the magistrate signed the warrant; such that there could have been a 25-hour gap between the time the officer first stopped defendant and the time he obtained the warrant.
3. SEARCH WARRANT AFFIDAVIT LISTED THE WRONG YEAR NOT FATAL
Schornick v. State, 2010 WL 4570047 (Tex.App.—Fort Worth 2010).
This involved a warrant where the officer erroneously listed the stop occurred on January 21, 2008, rather than January 31, 2009. At the hearing officer testified that it was a clerical error. Trial Court denied MTS. Trial Court holding was affirmed.
4. SEARCH WARRANT AFFIDAVIT HAVING MULTIPLE CLERICAL ERRORS NOT FATAL
Salzido v. State, 2011 WL 1796431 (Tex.App.—Amarillo 2011, pet. ref'd).
Defense attacked warrant because an erroneous date, June 7, 2008, was listed in warrant's first word paragraph and the name "Hoover" appeared once where the name Salzido should have been. He further pointed out the warrant affidavit stated the defendant was asked to perform standard field sobriety test drills (plural), when only one standard field sobriety test drill was performed (HGN). Trial Court denied the motion. In upholding the warrant, the Court referred to the errors in the date and name as clerical errors based on the officer's failure to change names in the template he used. The explanation, that the defendant was initially asked to perform drills and that some were not later offered due to back issue, adequately explained why that mistake was not a problem. Even without the FST, there was sufficient other evidence to support the PC.
5. SEARCH WARRANT AFFIDAVIT FAILED TO SET OUT THE BASIS FOR THE TRAFFIC STOP NOT FATAL
Hughes v. State, 334 S.W.3d 379 (Tex.App.—Amarillo 2011, reh. overruled).
Defendant attacks the affidavit for failing to state the specific articulable facts to authorize the stop of the defendant. It also failed to state how the blood draw would constitute evidence of DWI, and complained about slash marks that are not explained in the part describing FST's. Language asserts that officer swore to affidavit before the magistrate when in fact it was sworn to in front of an officer at station who was notary so the affidavit constitutes perjury. No exigent circumstances warranted the intrusion of blood draw. In rejecting that argument, the Court explains that the failure to detail facts regarding the basis for the stop is not fatal to magistrate's overall PC determination because the issue is not reasonable suspicion to detain but rather PC to authorize a search. In rejecting the blood use argument, the Court finds that the magistrate is allowed to make a reasonable inference that blood would be analyzed for presence of alcohol for use in prosecution of DWI. Slash marks are merely "I"s that indicate officer observed those matters. As to the issue of who it was sworn to, this is judged to be extra wording that does not impact the legality of the warrant. The Court further finds that no exigent circumstances are required to authorize a warrant based on PC for a blood draw.
6. SEARCH WARRANT AFFIDAVIT WAS NOT SIGNED BY AFFIANT = NOT FATAL
Smith v. State, 207 S.W.3d 787 (Tex.Crim.App. 2006).
Affiant swore before magistrate and then failed to sign the affidavit. The magistrate did not notice the omission and signed the SW. Court of Appeals held failure to sign affidavit does not invalidate warrant. Court of Criminal Appeals agreed holding that the "purpose of the affiant's signature...memorializes the fact that the affiant took the oath; it is not an oath itself." Dicta in the opinion references that some federal an state courts now permit telephonic warrants "and one can foresee the day in which search warrants might be obtained via email or a recorded video conference with a magistrate located many miles away. In state as large as Texas, such innovations should not be foreclosed by the requirement of a signed affidavit in officer's oath which can be memorialized by other equally satisfying means. We leave those potential future changes to the legislature." The Court further notes that forgetfulness or carelessness in formalities of affidavit may affect credibility of the officer.
7. SIGNATURE ON WARRANT NOT LEGIBLE IS NOT FATAL
Nguyen v. State, 2010 WL 2518250 (Tex.App.—Houston [14 Dist.] 2010, no pet.).
In attacking the blood search warrant, the defendant argued that because the signature on the warrant affidavit was illegible, the warrant was defective. The Court rejected this argument pointing out it is the act of swearing and not the signature that is essential. Additionally, another officer testified that he and the magistrate did recognize the signature.
8. SEARCH WARRANT AFFIDAVIT CONTAINING MULTIPLE ABBREVIATIONS THAT WERE NOT EXPLAINED = NOT FATAL
Hogan v. State, 329 S.W.3d 90 (Tex.App.—Fort Worth 2010).
Attacked the warrant affidavit on the basis that it contained "conclusory and nonsensical statements." It described driving path of "IMP" without saying what IMP is or that defendant was driving IMP. It contains terms HGN, WAT and OLS without defining those acronyms or explaining significance of number of clues. Does not state officer is qualified to conduct FST's or that he has experience in DWI cases. Trial Court denied MTS. In rejecting these arguments, the Court found that there was sufficient evidence to tie defendant to IMP. The description of the clues on the FST's and other facts were sufficient to show PC. Although it could have been more complete about officer's experience in DWI cases, such information is not required to make affidavit adequate. Cites Swearingen v. State, 143 S.W.3d 808 (Tex.Crim.App. 2004). When reviewing a magistrate's decision to issue a warrant, we apply a highly deferential standard in keeping with constitutional preference for a warrant. "Even in close cases, we give great deference to a magistrate's determination of PC to encourage police officers to use the warrant process rather than making a warrantless search and later attempting to justify their actions by invoking some exception to the warrant requirement."
9. THE RELIABILITY OF THE FST'S DESCRIBED IN THE SEARCH WARRANT AFFIDAVIT ARE ATTACKED = NOT FATAL
Foley v. State, 327 S.W.3d 907 (Tex.App.)—Corpus Christi-Edinburg 2010).
In attacking the affidavit, the defendant contends that the FST's mentioned were not credible source of information regarding his intoxication because of his age being over 65. Court of Appeal's response is to assume that the FST's described were not good indicators for this defendant, but found that there were enough other independent indicators of intoxication to sustain the warrant.
10. FAXED WARRANT WHERE OATH WAS ADMINISTERED BY MAGISTRATE TO AFFIANT OVER THE PHONE
a. NOT FATAL
Swenson v. State, 2010 WL 924124 (Tex.App.— Dallas 2010).
This involved a faxed warrant and the issue was that the officer swore to the oath over the phone and then faxed the warrant. At the hearing the officer testified he was never told that procedure was incorrect. The Trial Court denied the motion finding that the warrant was properly sworn to and the "good faith" exception applied. The Court does not address the issue of whether an officer's telephonic oath is sufficient as it finds the "good faith exception" applies.
b. FATAL
Aylor v. State, 2011 WL 1659887 (Tex.App.— Tyler 2011, pet. ref'd) (Not designated for publication).
This case also involved a faxed warrant and a telephonic oath. Trial Court held warrant valid. Pointing to the dicta in Smith case, the Court of Appeals concluded that affiant must be physically present in front of magistrate or officer authorized to administer oaths. The Court notes that in this case, unlike the Swenson case cited above, the good faith exception was not argued by the State. Trial Court is reversed and warrant held to be invalid.
11. THE JURISDICTION OF THE STATUTORY COUNTY COURT IS ATTACKED AND FOUND TO BE LIMITED
Sanchez v. State, 2011 WL 1936064 (Tex.App.— Houston [1st Dist] 2011).
Houston police arrested suspect in Harris County and sought a warrant from Judge of County Court at Law of Montgomery County. Kingwood is in Harris and Montgomery County. The arrest was in Harris. It was during a "No Refusal" weekend in Montgomery a few miles away so the cop drove 5 miles to MOCO rather than 22 miles to Houston. The issue presented was whether the judge of a statutory county court, acting as a magistrate, may sign a search warrant to be executed in a county other than the one in which he serves? The Court first pointed out that jurisdiction of JP's is limited to county, and the jurisdiction of District Judge is statewide. It then held that County Courts at Law do not have statewide authority because gov't code does not expressly grant them that jurisdiction, so the Court held that legislature limited a statutory county court judge's authority to acting within the county of the court. For this reason the warrant was invalid.
12. SEARCH WARRANT AFFIDAVIT ATTACKED FOR HAVING INSUFFICIENT FACTS TO SUPPORT PC AND FOR FAILING TO NOTE DATE/TIME OF STOP
a. NOT FATAL
Wheat v. State, 2011 WL 1259642 (Tex.App.— Houston [14th Dist.] 2011).
Defendant challenges sufficiency of affidavit to establish PC through MTS warrant. Denied by Trial Court. Police received a call from citizen that described defendant running red light and then parking along side of the road. When police responded to call, they found vehicle running and defendant asleep behind the wheel. Deficiency argued were (1) no time reference, (2) no witness saw defendant operating, (3) nothing to show when defendant consumed alcohol, and (4) no indication if vehicle was parked in right of way. Court rejected those arguments pointing out there were sufficient details from which approximate time could be inferred. The defendant was still "operating" vehicle when the officer arrived. No need to show when alcohol was consumed and irrelevant if vehicle was in right of way.
b. FATAL
Farhart v. State, 337 S.W.3d 302 (Tex.App.—Fort Worth 2011, pdr ref'd).
In this case the affidavit was attacked for not containing sufficient basis for concluding PC. Affidavit stated the following:
1) Defendant was driving 30 mph in a 40 mph zone at 12:50 a.m.
2) He was weaving from side to side.
3) He continued in left lane for half mile.
4) Turned on rt turn signal and then turned left into parking lot.
5) Upon stopping him, officer saw two pill bottles in center console.
6) Defendant refused FST's.
7) Officer believed he had committed DWI based on the erratic driving, pills in console and personal observations.In reversing the case, the Court pointed to the fact that there was no mention in affidavit of what those personal observations were (i.e. odor of alcohol, bloodshot eyes, and slurred speech). That contrary to what is stated in the findings of fact, the record shows only that pill bottles and not pills were observed and no mention of type of pills or that type would point to intoxication. It rejects the Trial Court's interpretation of the testimony that he drove in the left lane meant he was driving into oncoming traffic as the Court does not understand why officer would not have immediately turned on lights and pulled him over. The Court finds the other driving behavior may be enough to justify reasonable suspicion for stop but not PC.
13. FAILURE TO SPECIFY WHAT POLICE INTEND TO DO WITH BLOOD SAMPLE = NOT FATAL
State v. Webre, 347 S.W. 3d 381 (Tex.App.— Austin 2011).
Police officer's affidavit was not insufficient to support probable cause for draw of defendant's blood for evidence that she had committed offense of driving while intoxicated simply because affidavit did not detail what police intended to do with sample after it was taken; magistrate simply needed to determine there was probable cause that evidence of the offense would be found in defendant's blood, and magistrate could have reasonably inferred that sample sought would be tested for presence of alcohol or other intoxicants.
14. JURISDICTION OF MUNICIPAL POLICE DEPARTMENT AS REGARDS EXECUTION OF WARRANT IS COUNTY WIDE
Meadows v. State, 2011 WL 5535243 (Tex.App.—Texarkana 2011).
Police officer employed by home-rule municipality had jurisdiction to execute search warrant for sample of defendant's blood outside municipality, but within county in which municipality was located, as municipality's powers were derived from state constitution rather than from statute, and warrant was executable by any "peace officer" with jurisdiction throughout county.
L. DIC-24 NEED NOT BE READ BEFORE MANDATORY BLOOD DRAW
Enriquez v. State, 56 S.W.3d 596 (Tex.App.— Corpus Christi 2001, pet. ref'd).
Motorist was not entitled to statutory warnings (DIC-24) before officer requested that motorist submit to blood test when officer had statutory grounds for compelling a blood test. The Court went on to say that a requirement that appellant be admonished as the statute requires would be surplus.
M. ONLY ONE SAMPLE MAY BE DRAWN UNDER MANDATORY BLOOD LAW
State v. Neesley,196 S.W.3d 356 (Tex.App..—Houston [1st Dist.] 2006, pdr granted).
Reversed State v. Neesley, 239 S.W.3d 780 (Tex.Crim.App. 2007).
This is an intoxication manslaughter case in which the police subsequent to arrest had a mandatory blood specimen drawn by a nurse after the defendant refused to give a sample. The proximity of the first blood draw to an intravenous saline line caused the first sample to be diluted so that another sample was drawn at the officer's request about an hour later. The defendant attacks the legal authority for the second blood draw and the motion to suppress those results was granted by the trial court. The State raised four reasons why the results of the second blood draw should be admitted. Those were that (1) probable cause and exigent circumstances authorized the second drawing of appellee's blood without a warrant and without additional statutory compliance; (2) the implied consent statute is not applicable because defendant's blood was drawn primarily for treatment purposes; (3) section 724.012(b) of the Transportation Code (implied consent statute) allows for the taking of multiple specimens to obtain a "usable" specimen; and (4) the second drawing of blood was a continuation of the initial blood sample, precluding the need for additional authorization for the second blood sample. The Court's response was that the State waived its first two issues for review, that section 724.012(b) allows for the taking of a single specimen, the continuation-search theory is not applicable. The Court distinguished the cases that the State presented as supporting the taking of multiple samples as being based upon section 724.012(a) as opposed to section 724.012(b).
The Court of Criminal Appeals reversed holding that "specimen" is to be construed to mean a "usable" specimen — in essence adopting State's argument number three listed above.
It further held that under the section cited above only one usable specimen could be drawn.
N. WHEN DEFENDANT CONSENTS, 724.012 OF TRANSPORTATION CODE DOES NOT APPLY
Subirias v. State, 278 S.W.3d 406 (Tex.App.-San Antonio 2009, pdr ref'd.).
This case involves a defendant who was involved in a wreck that resulted in two deaths and two SBI's. A total of three blood draws were done; he was arrested after the second blood draw but before the third. He challenged the first blood draw as being pre-arrest, and the second blood draw as being in violation of Transportation Code Section 724.012(b) allowing only a single blood draw. The evidence showed he consented to both blood draws and the Court held that when one consents, 724.012 does not apply. He further objected to the first and second blood draws as being in violation of Rule 403 of the Texas Rules of Evidence and that was rejected after applying the six factors that go to that issue. The attack on the reliability of the retrograde extrapolation was also rejected based on the facts of this case. In his final point, he argued that the medical blood draw should have been suppressed because it was not taken by a person qualified to do so under Transportation Code 724.017 while conceding that medical blood draws are not required to meet the standards set forth in section 724.107, but argued they should still be applicable to ensure reliability of said draws. This issue was not properly preserved for review.
O. OFFICER BLOOD DRAW PROCEDURE "NOT UNREASONABLE" UNDER THE 4TH AMENDMENT AND NON-MEDICAL ENVIRONMENT IS UPHELD
State v. Johnston, 2011 WL 891324 (Tex.Crim. App., March 16, 2011). Cert. denied Oct.3, 2011
Defendant was arrested by Dalworthington Gardens Police Dept. for DWI and a search warrant for blood was obtained. Suspect resisted blood draw and was restrained. Result = .19. At MTS hearing the Trial court found that the blood draw was done by recognized medical procedures, force used was reasonable, but officer who did the draw was not qualified under 724.017 of Transportation Code and the seizure of defendant's blood violated the 4th Amendment's reasonableness requirement by not being taken by medical personnel in a hospital or medical environment. Court of Appeals confirmed that Transportation Code does not apply, held it was not a problem that blood was not drawn in medical environment, and made no finding that officer was not qualified. Under 4th Amendment found the means used were not "reasonable." In so holding the Court mentions no medical history taken, no video recording, no written guidelines for use of force. Court of Criminal Appeals reversed holding that being a police officer does not disqualify an otherwise qualified person from performing a blood draw after stating that the officer in this case was demonstrated by the record to be qualified to do so. It further stated that while a medical environment is ideal for such draws, that does not mean that other settings are unreasonable under the 4th Amendment and the setting in this case was proper.
P. PROPER TO BRING OUT IN QUESTIONING DEFENDANT'S FAILURE TO ASK TO RETEST BLOOD
Schmidt v. State, 2010 WL 4354027 (Tex.App.—Beaumont 2010).
Prosecutor's eliciting testimony from State's chemist that the defense had not requested access to the blood sample to perform its own testing was not improper nor was it an attempt to shift the burden of proof. The Court pointed out that generally, the State can comment on a defendant's failure to present evidence in his favor and even comment on the absence of evidence from the defense so long as said comment refers to evidence other than a defendant's own testimony. They further held this question was a proper response to the defense questioning of the witness about how the sample was preserved.
