No nurse should be no problem

By Nathan Alsbrooks
Assistant District Attorney in Montgomery County

The ideal Driving While Intoxicated (DWI) case follows a systematic formula from roadside to conviction: A law enforcement officer conducts an unassailable investigation that reveals multiple signs of intoxication. Later, a nurse draws the defendant’s blood in a sanitary place, and a forensic scientist tests the specimen to determine its alcohol concentration. A prosecutor will rely on all three of these participants to testify at trial.

            This path to success sounds simple, but criminal prosecution isn’t always so straightforward. Prosecutors may face the task of trying a DWI without testimony from the blood draw nurse, and talented defense attorneys are eager to exploit a nurse’s unavailability to confound judges and confuse juries. They will use the nurse’s absence to attack the admissibility and reliability of forensic blood testing. But with careful preparation and cogent presentation on the State’s part, the law concerning nurse unavailability is highly conducive to successful prosecutions.

The law of the draw

When §724.017 of the Texas Transportation Code applies (that is, that a blood draw is performed on the defendant under implied consent or exigent circumstances, but arguably not with a search warrant), the State must prove the statutory requirements that the draw was done by qualified personnel in a sanitary place. Meeting this statutory burden is possible without testimony from the blood draw nurse. Instead of the nurse, a law enforcement officer, for example, may testify to his familiarity with the blood draw procedures developed through training and experience, and he may testify that those procedures were followed during the blood draw. The officer may also testify to the rapport he’s developed with hospital staff, which may have led to his direct personal knowledge of a nurse’s credentials or a hospital’s policies.

            One helpful document is the Blood Withdrawal Procedure Form (it’s below and downloadable as a PDF), created by my office years ago. It is essentially a step-by-step checklist detailing appropriate procedures that an officer and nurse would sign once the draw was complete to attest to all procedures being followed. Ideally, the form would be used by all law enforcement officers in the course of their investigation, as well as by prosecutors to tailor their direct examination of peace officers.

            Additionally, a supervisor from the medical facility may testify concerning a nurse’s credentials. Supervisors may describe specific policies that exist at a medical facility establishing that blood draws must be performed by qualified personnel and that the place is sanitary within the meaning of the statute.

            In Adkins v. State,[1] the court addressed an officer’s capacity to testify regarding a sanitary blood draw site. The court affirmed that a reasonable environment does not necessarily mean a medical one; rather, the environment must be “a safe place in which to draw blood.” The proper inquiry for a court to consider is whether the environment invited an “unjustified risk of infection or pain.” In other words, establishing that an environment is reasonable does not require any direct medical knowledge or training. Police officers (and a nurse’s supervisor, for that matter) are fully capable of establishing reasonableness of the environment without a blood draw nurse’s testimony.

Defense arguments

Regardless of whether §724.017 applies, the defense maintains an arsenal of arguments related to nurse unavailability that prosecutors must be prepared to answer. The defense may argue, for instance, that:
            1) the blood’s chain of custody is illegitimate or incomplete,
            2) the person who drew the blood was unqualified,
            3) the Sixth Amendment’s Confrontation Clause has been violated when the blood draw nurse does not testify,
            4) Kelly’s third prong (that the scientific technique at issue was properly applied on the occasion in question) isn’t satisfied without testimony from a blood draw nurse because the State cannot prove the draw was performed correctly,[2]
            5) even though the Court of Criminal Appeals has ruled that §724.017 does not apply when a blood draw is performed pursuant to a signed warrant, the defense may nonetheless argue that a blood draw was unreasonable under the Fourth Amendment, and
            6) blood analysis is unreliable absent testimony from the nurse who drew the defendant’s blood.

            I’ll address each of these arguments in turn.

Chain of custody

The most straightforward legal issue implicated by the absence of a blood draw nurse is chain of custody. In Yeary v. State,[3] the court found that the State adequately proved a complete chain of custody because an officer observed the nurse draw the blood sample before placing it in a vial. The same vial was later analyzed by a forensic scientist who testified at trial that he analyzed the defendant’s blood after removing the unbroken seal. The key to satisfactorily addressing chain of custody is that a prosecutor must link the blood with the defendant. A law enforcement officer likely marked, packaged, and sent the collected blood to a laboratory, and he likely observed this same blood being physically collected from the defendant’s body. (Again, this is where the Blood Draw Procedure Form is handy—it attests to several links in the chain of custody.) An officer can testify to all of these things at trial.

A nurse’s qualifications

A supervisor may be the surest lynchpin to prove an absent nurse’s qualifications to a jury. Specific knowledge of every supervisor will vary, but it is likely they’ll be able to answer an assortment of basic questions. Why was this nurse assigned to draw blood? What training and experience has the nurse undergone to prepare for this task?  How long has this nurse drawn blood on behalf of your medical facility?

            Absent a supervisor, a peace officer can provide some testimony about a nurse’s qualifications, too. On the front lines of protecting the public from intoxicated drivers, though, officers often interact with nurses they’ve never encountered before. An officer may be able to testify only to circumstantial factors that indicate a nurse’s qualifications. In Adkins, the court implicitly noted a potential stumbling block for the State by highlighting that the defendant made no timely objection to an officer testifying regarding the nurse’s qualifications—an officer, after all, may lack personal knowledge about the licensure or professional standing of someone carrying out the blood draw. Moreover, testimony concerning these subjects from the officer may be hearsay.

            To meet this challenge, start with a few basic questions of the law enforcement officer. The goal should be to elicit personal knowledge from the officer based upon reasonable deductions he made at the blood draw. “Have you seen this nurse draw blood on previous occasions? Did you articulate the need for a blood draw professional upon entering the medical facility? What type of uniform was the healthcare professional wearing when she interacted with you?  Was her job title or professional standing present on the uniform itself or on an accompanying name tag?”    

Kelly’s third prong

Adkins further argued that testimony from the nurse who drew his blood was essential under the third prong of Kelly, but the court rejected this argument because the testifying analyst was able to discern the quality of the blood sample when he tested it. The analyst testified that there were no clots in the sample and that no analytical exceptions to the standard operating procedures were noted in his report. The court found that this testimony from a qualified forensic scientist supported the third prong of Kelly, that the scientific technique at issue was properly applied on the occasion in question.

            The Adkins decision has not kept defendants from arguing that Kelly’s third prong is unsatisfied when a nurse does not testify. Kelly’s practical purpose is to prevent junk science from infiltrating the criminal justice system, and the scientific practices and principles underlying blood analysis have been universally accepted as reliable in Texas. In Adkins, the court looked strictly to the scientific process initiated and orchestrated by the blood test analyst when applying Kelly—it did not include the blood draw process itself within the scope of its Kelly inquiry. Executing a blood draw is certainly a vocational practice, but it is not reliant upon the same scientific theory and methodology that underlies forensic alcohol testing. In other words, the Kelly standard, as it pertains to the admissibility of a blood test result, does not extend back in time to the blood draw itself. The forensic analyst who tested the blood must testify that the blood was in satisfactory condition when it was tested. That subject matter alone is sufficient to satisfy the third prong of Kelly.

Confrontation

Adkins argued that admitting his blood test result without the nurse’s testimony violated his right to confrontation under the Sixth Amendment, and the court rejected this argument as well. Because the analyst could determine the quality of the sample and because the analyst testified, the court found the defendant’s Sixth Amendment right to confrontation was not violated.[4] Forensic reports regarding blood alcohol analysis are considered testimonial, and the analysts who performed the tests are witnesses for purposes of the Sixth Amendment. However, nurses do not aid in the analysis of blood, nor do they provide work product that is relied upon by analysts.

            In State v. Guzman,[5] the appellate court addressed another blood draw conducted pursuant to a warrant and found that the trial court erred when it granted a defendant’s motion to suppress the blood test result on grounds that the nurse who drew the blood did not testify (she was deceased by the time of trial). The State instead called the nurse’s supervisor to testify concerning her qualifications to satisfy the Sixth Amendment.

            The defendant’s argument in Guzman hinged on two assertions: first, that his Sixth Amendment right to confrontation was violated, and second, that cross-examination of the blood draw nurse was necessary to ensure that “proper procedures” were followed. The court held that with respect to blood tests, the expert responsible for establishing foundational reliability in any particular case is the analyst who tests the blood sample, not the nurse who drew it.

            In Alford v. State,[6] the court found no violation of the defendant’s Sixth Amendment right to confront witnesses when a blood draw nurse did not testify. A supervisor testified that the nurse who drew Alford’s blood was a trained phlebotomist with the knowledge and ability to properly collect blood samples, but the supervisor acknowledged he could only assume that the nurse followed proper procedures in drawing Alford’s blood because he was not present when the blood was taken. The court asserted that under the Sixth Amendment, neither the supervisor nor the nurse’s testimony was necessary, so long as they played no role in the scientific analysis of the defendant’s blood. In Alford, there was no analysis of reasonableness of the search itself under the Fourth Amendment, nor was there statutory analysis under §724.017.

An unreasonable search

Notwithstanding §724.017’s applicability, the defense may argue that a blood draw was unreasonable under the Fourth Amendment. When the defense argues that a blood draw constituted an unreasonable search, the State must show medical reasonableness of the blood draw. When Adkins contested his blood draw procedure as an unreasonable search under the Fourth Amendment, the court noted that a warrant-based search is presumptively reasonable—it is the defendant’s burden to prove that a search is unreasonable. In assessing reasonableness, the court first determines whether the police had a legal justification to conduct the search. In Adkins, this legal justification was never contested. The court then addressed whether the search warrant’s method of execution was reasonable, and the court looked to the qualifications of the person who drew the blood and the environment where it was drawn. The defendant argued that the nurse was not qualified to draw blood but did not object at trial when an officer testified that she was a registered nurse. Additionally, the court noted that defense counsel repeatedly referred to the person drawing blood as a “nurse” during his questioning of the arresting officer. This misstep on the defense’s part was a tacit recognition of the nurse’s qualifications.

            In summary, arguments pertinent to reasonableness under the Fourth Amendment will closely mirror those arguments related to §724.017.

Blood analysis is unreliable

The defense will also utilize a nurse’s unavailability to persuade the jury against relying on forensic blood analysis. This tactic is often achieved by grandstanding to make a routine blood draw appear to be a complicated medical operation. It is important for prosecutors to address nurse unavailability to mitigate these arguments in voir dire. Discuss the blood draw process with jurors, always emphasizing the straightforwardness and simplicity of a blood draw. Most jurors have been through one—blood draws are hardly surgery. Contrast the blood draw’s simplicity to more complicated procedures. Analogize medical analysis inside a laboratory to forensic blood alcohol testing. Bring attention to the fact that medical analysis is tailored to particular medical issues and does not hinge on who drew the blood subjected to analysis.

            Bottom line: Be prepared to elicit testimony from your forensic scientist that the blood sample was in satisfactory condition at the time it was tested.

Conclusion

In summary, two of the most common arguments used to contest admissibility of blood results in the absence of a blood draw nurse are completely baseless. The courts have held there is no violation of the Sixth Amendment right to confrontation when a nurse does not testify and that the Kelly standard does not apply to the blood draw procedure itself.

            When §724.017 is not applicable, a nurse’s unavailability may spur defendants to argue that a blood draw was an unreasonable search under the Fourth Amendment. When courts consider the reasonableness of a blood draw under the Fourth Amendment, qualification of the person who drew blood is one point of inquiry. It is certainly advisable to secure the testimony of a nurse’s supervisor to address the qualification question, but testimony from a law enforcement officer may suffice, though proceeding on the basis of law enforcement officer testimony alone may prove a more perilous course given the officer may lack direct personal knowledge. The law concerning nurse unavailability remains highly conducive to successful prosecutions. Do not allow a nurse’s unavailability to become the stumbling block that derails your case. i

Endnotes

[1]  418 S.W.3d 856 (Tex. App.—Houston [14th Dist.] 2013, pet ref’d).

[2]  See Kelly v. State, 824 S.W.2d 568 (1992).

[3]  734 S.W.2d 766 (Tex. App.—Fort Worth 1987, no pet.).

[4]  Hall v. State, No. 02-13-00597-CR (Tex. App.—Fort Worth 2015, no pet.); Russell v. State, No. 14-15-00036-CR (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d), cert. denied, 137 S.Ct. 835 (2017).

[5]  439 S.W.3d 482 (Tex. App.—San Antonio 2014, no pet).

[6]  No. 02-16-0030-CR (Tex. App.—Fort Worth 2017, pet ref’d).