July-August 2013

All is not lost after McNeely

W. Clay Abbott

TDCAA DWI Resource Prosecutor in Austin

First of all I would like to thank all the folks that made TDCAA’s statewide discussion of Missouri v. McNeely1 a big success. We had attendees from as far north as Lubbock, as far east as Tyler, as far south as Galveston, and as far west as El Paso. More than 180 prosecutors and police gathered, shared, learned, and commiserated about an opinion that, as U.S. Supreme Court Chief Justice John Roberts accurately noted, would be very confusing. He wrote, “A police officer reading this court’s opinion would have no idea—no idea—what the Fourth Amendment requires of him once he decides to obtain a blood sample from a drunk driving suspect.” But we at TDCAA tried to help.
    Special thanks is also due to the Comal County Criminal District Attorney’s Office, which played host to our one-day training in New Braunfels. Special thanks to elected district attorney Jennifer Tharp, who proved that there is such a thing as a free lunch (she treated us to barbecue at our midday break and cold drinks throughout the day) and assistant CDA Mel Koehler, who coordinated all the logistics. We’re so grateful for your generosity!
    From the meeting, two things that had not been mentioned in my earlier missive on McNeely emerged. First, we must defend our mandatory blood-draw law2 arguing not only “exigent circumstances” but also consent under our implied consent laws. We refer to these statutes as a mandatory blood-draw law, while in fact what they actually create is “irrevocable consent” in certain limited circumstances. That’s how we should refer to them.
    Secondly, we began to compile a treasure trove of resources from across the state to help offices that are dealing with this difficult opinion. They can be found under the attachment heading of the DWI Resources page at www.tdcaa.com. McNeely items are found with that header, followed by the county that produced them and a word or two describing the content. This is just a start so nobody has to reinvent the wheel—take a look at the website first. If you come up with things you would be willing to share, send them to me at [email protected].

Calling all medical ­personnel!
A never-before-attempted three-day training, called Forensic Blood Draws: Faculty Development for Medical Professionals, is designed for medical personnel who draw blood for law enforcement in impaired driving or DWI cases. Around here, we’re affectionately calling it Train The Trainer for Medical Pros.
    During the last 10 years there has been an explosion in how much blood evidence is gathered in Texas DWI cases. And while TDCAA has conducted numerous courses for prosecutors and peace officers on this topic, there has been an absence of communication and training to the medical personnel who procure this important evidence and then must often testify in court. You may have noticed this in trying to get them to court and in having them testify. If public speaking is America’s No. 1 fear, testifying in court is its No. 1 terror.
    Our solution (or the start of one) is simple. We will train medical professionals on how to train themselves on the issues they face in assisting us. (It is not for forensic chemists working in laboratories who testify to testing results as experts in courts.) This free, three-day program will be held at the Baylor Law School August 12–14, just for medical professionals on forensic blood draws. This “train the trainer”-style program will allow attendees to learn the law, procedures, rules, and science they need to quell their fears, but more importantly will provide them the instruction, materials, and skills to return to their own offices and peers and provide them with the same information.
    The format will include lecture, discussion, demonstration, and hands-on practice. It will also include education in adult learning principals to use in peer-to-peer training. The final day will allow all participants to be questioned on the stand by experienced prosecutors; that testimony will be videotaped and a copy sent home with the attendees, who can use it in their own teaching.
    But we need your help getting the information to our target audience in your jurisdiction. Up to 30 medical professionals will be accepted to the program based on answers to an application, regional representation across the state, and recommendation by prosecutors in the applicant’s area. TDCAA will pay for attendees’ hotel rooms, and the course and materials are free. Only travel and meals will not be covered. Most importantly, prompt application is required; all applications must be received by July 12.
    The flyer and application are now online at www.tdcaa.com in the TDCAA News section on the first page. Go download the brochure and send it to the folks who train your local medical witnesses. As with TDCAA training for prosecutors, investigators, key personnel, and victim assistance coordinators, we believe that training by your peers is the most effective. Help us help you by making sure the right folks learn about this opportunity and can attend.

DWI regional training for 2014
Finally, in late September (just after our Annual Criminal & Civil Law Update in Galveston), I will be planning regional DWI training for next year. The plan is to present information on everything new: legislation, caselaw (obviously McNeely qualifies), technology, and prosecution and investigation techniques. We will also use this training to discuss Brady issues with both police and prosecutors.
    If that sounds like something you could use locally, catch me at the Annual—I plan on carrying applications for these local seminars with me so I can hand them out as people approach me. Or watch our website, www.tdcaa.com, right after the Annual for information on how to apply for local free DWI training.
    I hope to see you where you live in 2014!


1 Missouri v. McNeely, 133 S. Ct. 832 (2013).
2 Tex. Trans. Code, art. 724.012.