The Prosecutor, September-October 2009, Volume 39, No. 5

New objections and laws concerning blood draws

2009

While innocence projects and half the defense bar laud blood evidence and the certainty they bring to DWI cases, the other half decry blood search warrants and the certainty they bring to DWI cases. Blood evidence is just as hard to fight in an intoxication case as DNA evidence in sexual assaults. This does not mean that such cases are not strenuously defended; blood samples just change the arena from a jury trial to the suppression hearing.

Statewide, blood search warrants lead to fewer jury trials in DWI cases. (As TDCAA’s Shannon Edmonds so pithily observed about blood draws in TDCAA’s ongoing Legislative Updates, “If it bleeds, it pleads.”) Not surprisingly, however, novel and complicated defense objections to blood search warrants are proliferating. Meanwhile, thanks to the outstanding efforts of John Bradley (DA in Williamson County), Shannon Edmonds, and a host of other prosecutors who fought the good fight in Austin during the 81st Legislative Session, a wonderful improvement in the law concerning blood draws in the most serious DWI and related cases is now in effect. These changes to the mandatory blood draw provisions of Chapter 724 of the Texas Transportation Code will allow warrantless, mandatory blood draws in felony DWI and DWI-related offenses, effective September 1. Because the new law will virtually remove the need for blood search warrants in felony cases, let’s take a thorough look at the changes.

New laws

Early in the session, House Bill 747 by Representative Dan Gattis of Georgetown and Senate Bill 261 by Senator Bob Deuell of Greenville (and numerous co-sponsors) began the trip through the legislative process. While neither bill survived, Rep. Gattis added both bills’ language to Senate Bill 328 by Senator John Carona of Dallas, which eventually passed.

Before September 1, 2009, an officer was required to take a blood sample without a warrant if: 1) he arrested an individual for an offense under Chapter 49 of the Penal Code (DWI and DWI-related offenses), 2) the suspect refused an implied consent sample, 3) the officer reasonably believed that a collision occurred because of impaired operation of the vehicle, and 4) the officer reasonably believed the collision caused a person other than the driver to die or suffer serious bodily injury. These requirements demanded an officer’s quick and efficient evidence collection at a chaotic crime scene, often in the middle of the night and in the middle of an intersection. If the officer could not satisfy all these requirements, the defendant had the final say about whether the State would have the most essential piece of evidence about who was responsible for the death or serious injury of a citizen:  The defendant could refuse to submit a breath sample, and the officer could not compel a blood draw. The old law’s limitations were a strong factor in pushing for blood search warrants, which provided officers and prosecutors a way to let a magistrate—rather than the suspect—decide whether to procure this evidence.

As of September 1, 2009,  Chapter 724 of the Texas Transportation Code requires an officer to draw blood without a warrant if:
•    the subject, arrested for an offense under Penal Code Chapter 49, refuses to provide a breath sample and a person other than the suspect “has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment”;
•    the suspect is arrested for DWI with a child passenger under Penal Code §49.045;
•    the officer credibly believes that the suspect can be charged with felony DWI due to two prior Chapter 49 DWI offenses or one prior intoxication manslaughter; or
•    the officer credibly believes that the suspect committed DWI and was previously convicted of intoxication assault or DWI with a child passenger. (This offense would be enhanced to a Class A misdemeanor.)

When making a DWI arrest, the officer must request a breath or blood sample. If he has a reasonable belief that any of the above additional circumstances exist, then a blood sample must be drawn. It’s that simple. The officer has no discretion to call an early end to the shift, nor does he need a search warrant for blood. Needless to say, this information is important to teach local peace officers soon.

 

Calming “concerns”

The initial media coverage of this new law was full of “concerned” criminal defense lawyers and civil rights experts “wondering about its constitutionality.” Real lawyers need not worry: The U.S. Supreme Court1 and Court of Criminal Appeals2 have both found that DWI cases present very clear exigent circumstances allowing warrantless draws, and the implied consent statutes impose limitations, not constitutional prohibitions, on officers drawing blood. The so-called “concerns” are political and economic, not legal, academic, or practical.

Senate Bill 328 also amended §724.017 of the Transportation Code and created a solidified immunity for a person, business, or entity that assists officers in drawing blood under the old and new mandatory draw procedures. It also clarified that assistance with blood search warrants enjoys the same immunity, not only from civil liability but also from “any licensing or accrediting agency and body,” because the statute prohibits juries from considering that the extraction was involuntary in determining negligence. The legislature declared caregivers immune in every possible way, so if hospitals now claim fears of liability as a reason not to comply with their legal obligations to draw blood, they do not have a leg to stand on. The hospitals’ issue is one of money and a false sense of being above the law, not any legitimate concern about lawsuits or discipline.

The bill also expanded the pool of judges who can sign blood warrants for offenses under Penal Code Chapter 49 (DWI). The new controlling provision is Article 18.02(j) of the Code of Criminal Procedure, which permits “any magistrate that is an attorney licensed by the state” to issue an evidentiary search warrant for blood in a DWI case. This addition should be very helpful to many jurisdictions. Just be aware that the inclusion of subsection (j) did nothing at all to change subsection (i) of the same statute; that’s the provision which very small jurisdictions without courts of record rely on to use any magistrate (whether or not she is an attorney) to sign all evidentiary search warrants. The new changes are purely expansive, not restrictive.

New objections

Here are some common objections to blood samples and how to counter them.
Using a search warrant to obtain blood violates the Constitution. Really? The Fourth Amendment prohibits unreasonable searches, yes, but drawing blood with search warrants in DWI cases has survived both federal3 and state4 constitutional challenges.


Using a search warrant to obtain blood is prohibited by the Transportation Code or is preempted by the code’s implied consent statutes. Beeman v. State directly addressed both of these issues.5 Use of search warrants under Chapter 18 of the Code of Criminal Procedure is not limited to felonies and is not precluded by the implied consent6 or mandatory blood draw7 provisions of the Transportation Code. Some-times the objection will be made under §724.013 of the Transporta-tion Code, which says a specimen may not be taken if the subject refuses except under the mandatory provisions. The Court of Criminal Appeals established in Beeman that that section does not control the general provisions governing search warrants under the Code of Criminal Procedure. That provision does impose nonconstitutional bars to evidence that could be taken without a warrant under Schmerber v. California.8 Make copies of this case and carry them to any trial involving a blood search warrant.
The place the blood was drawn was not sanitary or not certified as a sanitary place. Language requiring certification of a place as sanitary was removed from the Transportation Code more than a decade ago. If defense counsel objects, claiming the location must be certified, make sure defense counsel’s law library has been updated in the last 10 years.

If a blood draw was made pursuant to the Transportation Code, the place the blood was drawn must be a “sanitary place.”9 This is a fact issue, and prosecutors must introduce evidence of the fact. No specific agency or institution is responsible for determination of whether a place was sanitary, so general testimony about the space should suffice.10 If blood was drawn after issuance of a search warrant, this requirement does not apply.11 In search warrant cases, the predicate is reduced to whether the blood was drawn in a medically acceptable fashion.


The person who drew the blood was not qualified. The State must prove the qualifications of the person drawing blood, but again, there is no state-required certification. For non-search warrant cases, the Transportation Code lists several qualified professionals and then gives authority to “qualified technicians.”12 A phlebotomist is a technician trained to draw blood. If the hospital or other medical facility determines phlebotomists on staff to be qualified, then they are “qualified technicians.”13 But the qualifications of people drawing blood must be established if they are unlicensed yet qualified.14 Again, with warrants, this specific provision does not control, but prosecutors should always establish the qualifications of the person drawing blood to verify that the evidence was obtained in a medically acceptable fashion.


An alcohol-based swab was used during the blood draw, thus skewing the test results. This certainly sounds right, but it is not. Alcohol swabs use isopropyl alcohol, not ethyl alcohol (you may know it as the stuff in beer). It is a better idea to use a nonalcohol-based swab and an even better idea to preserve it as evidence. If you have a blunder in this regard, talk to your chemist. Introduce expert testimony, not unsworn defense “folk wisdom.”


The person drawing blood must identify the defendant. Silly objection. Again, this would be ideal and is exactly what the blood draw affidavit was created to accomplish,15 but as long as the officer can identify where the sample came from, then you have a witness. With the blood draw affidavit, the officer and technician should be able to testify to proper draw procedures, and the officer should identify the subject and the technician as those people related to the sample.

Too much time passed between the blood draw and when the defendant was driving. This issue is no different in search warrants than in mandatory blood draws and breath testing. A four-and-a-half-hour delay has been found not to render the sample too remote.16 Additionally, establish the reasons for delay; in particular, emphasize the defendant’s refusal. Don’t let this objection become a back-door argument that somehow the State is required to prove retrograde extrapolation. Breath and blood evidence is relevant and admissible without extrapolation;17 this objection goes to weight, not admissibility.

The affidavit is insufficient to establish probable cause. Well, no two ways about it: Officers must articulate their probable cause that the defendant committed DWI in the affidavit. First, make sure officers write affidavits alleging only DWI, not higher-level offenses for which they may have arrested the defendant. The warrant should allege only the minimal offense necessary to obtain the warrant. The elements—called the four corners—are simple but essential: 1) operated, 2) a motor vehicle, 3) in a public place, and 4) while intoxicated. Second, “probable cause” is less than “beyond a reasonable doubt”—don’t increase the standard unnecessarily. Third, the defendant’s refusal to provide a breath sample is evidence (and therefore probable cause) of the defendant’s intoxication.18 Last, if the affidavits are light on detail, they will continue to be that way if you do not train officers to do them right. Use bad affidavits as a training opportunity.

The affidavit contains conclusory statements. It is not a problem if an affidavit contains some conclusory statements, so long as the affiant provided sufficient detail so the magistrate may independently determine whether probable cause exists. If there is little detail, then the warrant should be suppressed.19 The affidavit should contain the source of each bit of information; while some of it may be hearsay, the source of the hearsay must be identified. The officer’s experience and training should be detailed; if the affiant is not the investigating officer, then the affidavit must identify the investigating officer.20 While blood search warrants must be done quickly, they must be done sufficiently, and officers must be trained to provide this kind of detail. There is perhaps no better resource than TDCAA’s Warrants Manual For Arrest, Search & Seizure by Tom Bridges and Ted Wilson. That publication has numerous examples, including examples of DWI blood warrants, and is for sale at www.tdcaa.com/publications.

The warrant or probable cause affidavit does not include a time reference and is stale. Staleness of the warrant is covered by statute. The warrant must be executed “without delay.”21 The officer must testify as to the reasonable steps he took to execute the warrant promptly, which may simply be an end-run extrapolation objection (if so, see the comments above). The law provides for “three whole days” to execute a warrant.22 If the officer waited a day, you have a problem with evidence, not the search. Additionally, the warrant must have the “date and hour of its issuance,”23 but the defendant should have to show harm to obtain suppression without it.

The affidavit to establish probable cause that the defendant’s blood contains evidence of his intoxication really needs to state the time of the officer’s observations and investigation. Because the magistrate needs to make an independent determination of probable cause, the four corners of the affidavit must set out the time of these observations or the magistrate can’t find the blood still has relevant evidence. This exact objection failed to pass muster with Fourteenth Court of Appeals in Houston.24 Still, make sure the warrant and affidavit forms have a clear location where the time of observation, investigation, and arrest is prominently set out. The warrant should have a place for the magistrate to date and time her signing the warrant. The fact that the magistrate put the time the warrant was signed in the warrant likely saved the day in the Houston case.25

The motion to suppress the blood results was granted. What now? Don’t panic. You still have a refusal case, the same kind we have been trying for years. Just be sure to correct the problems with the stop, affidavit, or warrant with the officers, or I guarantee you will lose more search warrants in the future. Blood search warrants mean that many officers are performing a new and difficult investigative task—provide them with resources and training to do it properly.

Brand new defense

In the category of “no good deed goes unpunished,” the innovative use of search warrants to obtain valuable blood evidence in DWI has created some unpleasant side effects. In refusal cases, the defense often attacks police investigators and the State’s case by arguing that a blood search warrant could and should have been obtained. This argument is voiced as strongly and assuredly as the same attorneys voiced their constitutional “concerns” about the same investigative technique in the media moments before. And while ironic and seemingly unfair, the argument can be pretty effective. Prosecutors trying cases where blood warrants were not secured should address this argument well before their own rebuttal argument. The only effective counter must be set up on voir dire, in opening, and most importantly, during direct examination of the officer. Having the officer explain which local or individual circumstances made obtaining the search warrant impossible, or at least difficult, takes much of the sting out of this defense argument. If the real reason is lazy judges, officers, or hospitals, admitting such testimony could smart a bit, but in the long run, that pain might be a good thing.

Secondly, through the rebuttal close, redirect the jury to the real source of the lack of chemical evidence, which is the defendant’s refusal—a refusal to provide evidence after this defendant was carefully and fully warned that this very jury can and should consider evidence against him. In this instance, though it greatly pains me to admit it, the defense may have a point. DWI is an offense well worth the effort of enforcing, prosecuting, and obtaining the best evidence to prove; the more than a thousand Texans a year who die in alcohol-related crashes26 would probably agree.

New voir dire

Many members of the public are not fans of the blood search warrant or the mandatory blood draw. Some of the concern at trial will be the public clamor raised in the press by DWI defense attorneys misleading the public and deliberately ignoring caselaw. Due to the “experts” who are “worried” about constitutionality, it’s certain that members of the jury panel will be too. Whether their opinions stem from the position that DWIs are too zealously investigated and prosecuted or the idea that a simple and common medical procedure is too invasive, many members of the public are very emphatic about their opinions. A seated juror with these strongly held positions is a nightmare for the prosecution. In cases where the State will introduce blood, and frankly, even in cases where we may not, this issue must be broached during jury selection. Don’t be afraid to “poison the well”—trust me, it is already toxic, but don’t fall into verbal brawls with these folks. They have the right to their opinions and prosecutors should respect those opinions; not knowing those opinions, I must stress, is the greatest risk. Jurors with a prejudice against the laws the State will rely on in court have no business on the panel. Instead of arguing, go to those jurors who understand the need for evidence and the importance of DWI enforcement and prosecution. Let them make the points the State will repeat on close.

Defending the law and the truth

Prosecutors stand for the law and the truth. This may sound a little Pollyannaish, but that’s what the call “to see that justice is done”27 requires: law and the truth. Those who defend impaired drivers and those opposed to the laws against impaired driving and their enforcement have been loud and insistent in opposition to officers obtaining the best evidence in DWI cases. They had great success using the same methods to attack breath testing and preaching a doctrine of obstruction and refusal to the guilty and innocent alike. If prosecutors do not speak up for the law and for the truth, no one will. At the local Rotary Club lunch, on radio, on TV, and in our conversations with the public, we need to be heard. There are several points every discussion of mandatory and search warrant blood draws should include:
1) empirical scientific evidence is beneficial to determine both guilt and innocence;
2) DWI is an offense that deserves effective investigation and prosecution;
3) harsh penalties for DWI have little deterrent effect if effective prosecution is not possible;
4) search warrants and mandatory draws are not necessary if suspects comply with the law (a law they received full written notice of when they obtained a driver’s license); and
5) a personal freedom and right often overlooked is the one possessed by every driver to use our highways without drunk drivers’ needless and selfishly created risk to their lives and property. While opponents of the law and of the truth decry “vampire cops,” we must stress the benefit of evidence, knowledge, reason, and public safety, both in the courtroom and elsewhere.

Conclusions

Despite a vocal opposition, blood evidence helps the DWI prosecutor achieve her only goal in trial: getting to the truth. Blood evidence uncovers the truth of the DWI charge legally and quickly by helping convict the guilty and release the innocent. Despite the opportunity blood evidence provides the defense to perform independent analysis of the most important evidence in a DWI case, defense counsel rarely makes such a request. Blood search warrant results continue to almost unerringly support arrest decisions and provide shockingly high BAC readings—counter to the biblical axiom, we now know the truth and the truth is not setting many free.

Endnotes

1 Schmerber v. California, 384 U.S. 757 (1966).
2 Burhalter v. State, 642 S.W.2d 231 (Tex. Crim. App. 1982).
3 Schmerber v. California, 384 U.S. 757 (1966).
4 Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002).
5 Ibid.
6 Tex. Trans. Code §724.011.
7 Tex. Trans. Code §724.012.
8 384 U.S. 757 (1966).
9 Tex. Trans. Code §724.017(a).
10 Before the removal of the certification requirement, this issue was addressed by Adams v. State, 808 S.W.2d 250 (Tex. App.—Houston [1st] 1991, no pet.). In Adams, periodic inspection was found to be sufficient without testimony an individualized inspection was made. Do note that the statute has changed since this case was returned.
11 Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002).
12 Tex. Trans. Code §724.017(a). It lists the following: a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse.
13 State v. Bingham, 921 S.W.2d 494 (Tex. App. —Waco 1996, pet ref’d).
14 Cavazos v. State, 969 S.W.2d 454 (Tex. App. —Corpus Christi 1998, no pet.). The qualification may be based on experience or training. See Torres v. State, 109 S.W.3d 602 (Tex. App.—Fort Worth 2003, no pet.).
15 Need a blood draw affidavit? See page 62 of TDCAA’s DWI Investigation & Prosecution publication by Richard Alpert.
16 Douthitt v. State, 127 S.W.3d 327 (Tex. App. —Austin 2004, no pet.).
17 Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004), on remand, 169 S.W.3d 269.
18 Mody v. State, 2 S.W.3d 652 (Tex. App.—Houston [14th Dist.] 1999, pet ref’d).
19 Jones v. State, 833 S.W.2d 118 (Tex. Crim. App. 1992).
20 Illinois v. Gates, 462 U.S. 213 (1983).
21 Tex. Code Crim. Proc. Art. 18.06.
22 Tex. Code Crim. Proc. Art. 18.07(a)(2).
23 Tex. Code Crim. Proc. Art. 18.07(b).
24 State v. Dugan, No. 14 08-00905-CR (Tex. App—Houston [14th Dist.] 2009).
25 Ibid.
26 National Highway Traffic Safety Administration.
27 Tex. Code Crim. Proc. Art. 2.01.