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Criminal Law
March-April 2008

Blood search warrant program successful with juries too

Jeff Swain

Assistant District Attorney in Parker County

Parker County prosecutors get a guilty verdict on what might have been another case of a multiple-DWI offender who refused to provide a breath sample.

We’ve all been there: A jury deliberates and returns with an unexpected verdict.

That was the position that Assistant District Attorney Robert DuBoise and I were in after the “not guilty” verdict in the jury trial of Michael Watkins, convicted three times previously of DWI, in September 2005. The police-car videotape introduced during his trial showed him falling over backwards during field sobriety testing, but the defense contended that Watkins suffered from knee and leg problems, causing his legs to buckle. Jurors told us after the trial that they thought they saw something on the pavement that may have tripped the defendant.

And, of course, Watkins refused to provide a breath sample for testing.

After Watkins’ acquittal, we decided that we needed to do something to prevent another intoxicated driver from going free. Feedback from the jury was that they just weren’t completely sure that Watkins was guilty and that what they really wanted was a BAC score to be certain of his intoxication.

With the rate of breath-test refusals on felony DWIs higher than ever and the number of total-refusal cases on the rise, this situation seemed ripe for repetition. We had heard of other counties that had set up a blood search warrant program and decided that was exactly what we needed in our county.

Starting the program

After the 2002 Court of Criminal Appeals opinion in Beeman v. State,1 which approved the use of a search warrant to draw a blood sample in a DWI case even over a defendant’s refusal, we knew that a program of this kind was legally permissible. The bigger question was how to coordinate it between our office and all of the other necessary county agencies.

We first approached our district and county court-at-law judges, one at a time, to see if they would be willing to participate. We felt that we needed to get all of them on board so that the workload and corresponding loss of sleep—inevitable when calling judges to sign a search warrant in the middle of the night—could be spread out. We purchased a fax machine for each judge’s house to receive the search warrant affidavits and proposed warrants. In an effort to keep the number of requested warrants at a manageable level, we decided to focus on the worst offenders, those looking at felony DWI charges. Each of our four judges was willing to participate, and a rotating schedule was set up with a primary and back-up judge for each month.

The next hurdle was to get the cooperation of the staff at our county hospital who would draw the blood for us. I was concerned that a billing question would be raised, and I had prepared our elected DA, Donald Schnebly, to be ready to pay on a fee-for-service basis, with accompanying requests for restitution from the defendant at the conclusion of each case. After a meeting with the head of laboratory personnel, however, the hospital told us that its staff would be glad to assist us as a free service to the community.

I made clear in our discussions with the hospital that, if any arrestee required restraint or resisted the blood sample, police officers would be responsible for securing him so that the nurse or phlebotomist could safely draw the blood. This eased several concerns that hospital authorities had.

The last step was obtaining the participation of law enforcement. It was the easiest step because when we met with the department head at every county agency, officers were enthusiastic about the program. We went over the necessary procedures and provided them with the check box affidavit form that we had created to speed up the warrant process. Finally, the forms were put in the Intoxilyzer room at the jail, along with the judges’ fax numbers and our contact information in case there were any questions.

The program was launched in time for the 2005 holiday season.

The cases

After the program was launched, we were interested to find that most of the felony drunk drivers were significantly more intoxicated than they appeared. In fact, nearly all of the blood tests revealed BAC results exceeding 0.16, twice the legal limit, with many coming in at 0.20 or higher. While these readings were consistent with what we had been telling jurors for years about the masking effect of a long-term drinking problem, it was still rewarding to see our belief scientifically confirmed.

When the first cases under the search warrant program came to court, they were met with suppression hearings. After the judges upheld the blood draws in a couple of cases, the defense bar seemed to concede the issue, and we have not been confronted with one since.

Quite a while went by without any defendant going to trial on a felony DWI case with a blood test result ready for admission. Most of them simply pled guilty and accepted prison sentences through plea agreements. But that recently changed with defendant Terry Wayne Patterson.

Patterson’s DWI case

Around 7:30 p.m. on February 16, 2007, 36-year-old Terry Patterson was driving his mother’s van down a country road in Parker County on the way to his girlfriend’s house when his tire blew out. It was his bad luck that, when the tire went, he was passing an oncoming car and a piece of the tire hit the other car, damaging the passenger side. The other driver turned around and followed Patterson to a nearby convenience store to exchange information. When she noticed that Patterson was acting strangely, smelled of alcohol, and was slurring his speech, she called 911.

Trooper Colby Langford responded to the call and found Patterson walking around near the store. Langford noticed that his speech was slurred, his eyes were bloodshot and glassy, and his balance was poor. Patterson exhibited all six clues on the HGN test, but he refused to perform the walk-and-turn and one-leg stand, claiming various injuries from bull riding. When Trooper Langford tried to administer a preliminary breath test, Patterson faked blowing twice, then spit out the mouthpiece before finally giving a sample that showed a 0.26 BAC, more than three times the legal limit. Patterson was then arrested.

The videotape on Langford’s patrol car beautifully captured the PBT performance and a variety of Patterson’s other antics on the way to jail. At varying points, Patterson tried out some defenses:


“Not my car.” “That ain’t my vehicle. It ain’t in my name. I stole it,” and “My momma will come say she left the van at the gas station. ”


“Not worth your time.”
Patterson:  “I’m telling you, I’ve gotta pee.”
Trooper:   “Are you peeing?”
Patterson: “I’m trying to.”


“Bigger fish to fry.” In response to Trooper Langford’s disinterest in Patterson’s efforts to tell him all that he knew about Parker County’s criminals and, presumably, could be an informant, Patterson said, “You’re a scaredy scaredy.”

At the jail, Patterson yelled at Trooper Langford throughout the reading of the DIC-24, claiming he couldn’t prove that Patterson was driving. Then he refused to provide a breath sample.

The program at work

After Patterson refused to submit to breath testing, Langford completed the search warrant affidavit, faxed it from the jail to 415th District Judge Graham Quisenberry at his home, and received back a signed search warrant. He then woke Patterson, who had since passed out in a holding cell, and took him to the hospital, which is about five minutes from the jail.

On the way, Patterson could be seen on the in-car camera spitting at the camera and telling Langford that he was crazy if he thought he was going to allow him to take a blood sample. After a four-officer show of force, however, Patterson changed his mind and the phlebotomist withdrew the sample without any difficulty. Testing later showed his BAC to be 0.22, well over the legal limit.

Trial

At trial, with the issue of intoxication put to rest with the blood test and the driving issue handled via civilian witness testimony, the defense had to try a different approach.

Patterson testified that, in two gulps, he had consumed a pint of Kentucky Deluxe whiskey after he pulled into the convenience store but before he approached the other car’s occupants. He said that he had not consumed anything at all before he pulled into the store’s parking lot. Therefore, he was not intoxicated when he was driving, he claimed.

On cross-examination, Patterson was confronted with the fact that the defense he was asserting at trial was completely different than the defenses he repeated ad nauseum on the video (that we could not prove that he was driving and that he was not drunk). He also had no good explanation for his admission on video to drinking beer and Coke but not a word about the whiskey.

We really didn’t have the right facts to extrapolate the BAC to the time of driving, so Assistant District Attorney Abby Placke and I asked the jury to consider that, for Patterson’s story to be true, he would have had to consume the whiskey and become instantly drunk. That’s because from the time of the wreck until the police arrived, only about five minutes had elapsed, and he was clearly drunk on the video. Also, during that time, he interacted with two civilian witnesses, both of whom testified that they thought he was intoxicated. In the end, as so many prosecutors have throughout the years, we asked the jury to use their common sense.

The jury deliberated about two hours before finding Patterson guilty.

In the punishment phase, we introduced judgments showing that Patterson had two misdemeanor DWI convictions, a penitentiary trip for a felony DWI and an attempted injury to a child, and five assault convictions. District Judge Don Chrestman assessed his punishment at 12 years in prison.

Two years of success

Our DWI search warrant blood-draw program has been up and running for two years now. The judges are still willing participants, with the fax machines still in their homes. Despite nearly monthly subpoenas for trials that end up pleading out, the nurses and phlebotomists at the hospital have remained on-board.

One of our greatest concerns—the defendant who fights to avoid the blood draw—has not materialized on a significant level. While a good number of arrestees say they will not let the blood draw occur, a show of force by a few officers standing nearby has stopped all but two from actually resisting the process. In those two exceptional situations, the officers teamed up, some holding the defendant to a chair and others holding his arm to the arm of the chair with towels. Blood was withdrawn from the arrestees’ arms at that point without further incident.

The only issue that we have had is with training newly hired police officers about the program and explaining to which cases it applies. As new officers start with departments in our county, they have so much to learn that sometimes our program is overlooked. Nowadays, when we see a case come in without a blood or breath test, we follow up with the officer to make sure that the next time, we will have the evidence that our jurors love to see.

In conclusion, we have seen the quality of our felony DWI cases increase significantly with this program, resulting in more guilty pleas and stiffer sentences. I would strongly encourage all of my fellow prosecutors to consider creating a similar program in their counties. D

Endnote

1 86 S.W.3d 613 (Tex. Crim. App. 2002).