May-June 2011

Letting defendants have the final word on evidence of intoxication is in its twilight

David C. Newell

Assistant District Attorney in Harris County

In 1966, the United States Supreme Court held that taking blood samples from a defendant at a hospital after he had been arrested for driving while intoxicated (DWI) was reasonable under the Fourth Amendment. More than 525,000 ALR hearings later, prosecutors and police officers reduced reliance on the defendant agreeing to a breath test by developing a system whereby they could seize blood samples pursuant to a search warrant.1 And while the Court of Criminal Appeals later held that the implied consent statutes did not preclude the taking of blood samples pursuant to a search warrant issued under the Fourth Amendment, the question of whether it was appropriate for officers themselves to seize the blood remained open.

    Not anymore. With its decision in Johnston v. State, the Court of Criminal Appeals has essentially vindicated those folks who had been working tirelessly to shift DWI prosecution away from voluntarily given breath tests and towards “no refusal” programs. In Johnston, the Court of Criminal Appeals held that a police officer who was also a seasoned EMS provider did not violate the Fourth Amendment when he forcibly obtained a blood specimen at the police station pursuant to a search warrant. But before we set about transforming all police officers into Edward Cullen,2 there are some aspects of Johnston that deserve some consideration.

No refusal in the DWG

While most jurisdictions in Texas implement a “no refusal” policy only on certain weekends, the relatively small city of Dalworthington Gardens (known by those in Tarrant County as the DWG) just outside of Arlington operates its no refusal program all year.3 In 2005, the Dalworthington Gardens Department of Public Safety became the first police department to train its officers on how to do a blood draw.4 Chief Bill Waybourn reached out to Dr. Del Principe, Medical Director for Dalworthington Gardens Emergency Services Department, and Richard Alpert, Assistant Criminal District Attorney in Tarrant County, to develop a program that would allow police officers to draw blood based upon a search warrant in the event that a DWI suspect refused to provide a blood sample upon request. As Chief Waybourn described it, “We put a lot of forethought into this and a lot of work with the prosecutor’s office to make sure we are doing it right.”5

    The 14-hour certification course developed by Dr. Principe included classroom instruction, homework, with assigned reading materials and graded exams.6 After the officers completed the course, Dr. Principe required them to do a minimum of 50 “sticks” at the emergency room under the supervision of either a blood technician or nurse. Dr. Principe trained the officers to perform venipunctures according to accepted medical practice, and the training was equivalent to that given to the Arlington Memorial Hospital’s blood-draw technicians by Dr. Principe.

    Dr. Principe also developed two blood-draw checklists for officers when drawing a suspect’s blood. While he did not include an itemized inquiry into a suspect’s medical history in this checklist, he did teach officers the necessity of making such an inquiry to determine whether any medical issues might affect venipuncture blood draws. He did not develop a specific policy for instances when a suspect might resist or fight the officers, but he believed that officers unable to safely obtain a sample at the police station they would bring the suspect to the hospital. However, he also felt that forcibly taking blood from a DWI suspect is acceptable.

    The blood-draw room at the police department was also established by Dr. Principe. The room was clean but not as sterile as an operating room because that level of cleanliness was not required. The cement floor could be cleaned easily in the event of a blood spill, and the room contained a nonporous phlebotomy chair and steel table, both of which could be cleaned with commercial sanitizer before each use.

This won’t hurt a bit

Officer Britt Stinson of the Dalworthington Gardens Department of Public Safety pulled Christi Lynn Johnston over for driving with an expired registration sticker. She exhibited signs of intoxication and performed field sobriety tests after which Officer Stinson placed her under arrest. He took Johnston to the police station, conducted a DWI interview as well as a second battery of field sobriety tests on video, and read her the DIC-24 form before asking if she would provide a blood sample. She refused.

    Officer Stinson then got a search warrant for her blood and called Officer Darren Burkhart for assistance in drawing the blood. Officer Burkhart had cleaned the blood-draw room at the start of his shift and had made a practice of cleaning it after each time he used the room to draw a suspect’s blood. When the officers presented Johnston with the warrant and explained what was going to happen, Johnston began to resist by kicking her feet and moving her arms. The officers restrained her feet and left arm with bandage gauze. Officer Stinson held down Johnston’s right arm so Officer Burkhart could draw blood from a vein in Johnston’s right wrist. She became cooperative after being restrained.

    Officer Burkhart drew Johnston’s blood by applying a tourniquet, wiping the area down with Betadine (rather than alcohol for obvious reasons), and injecting a needle attached to a tube holder and tube into Johnston’s vein. There was only a “little bit of bleeding” that came from the puncture site after the draw that Officer Burkhart cleared up by applying pressure to the area. (See? Not so bad after all.) While Officer Burkhart did not do a thorough medical history inquiry before the blood draw, Johnston did not complain about the way the blood had been drawn.

    Both officers had received their certificates indicating they had completed Dr. Principe’s program.7 Moreover, both officers had significant training as EMTs. Officer Stinson was certified as a basic EMT and had done approximately 125 to 130 blood draws. Officer Burkhart was an intermediate EMT. Though he had six years of training as a police officer, he had been an EMT for 16 and was employed as a firefighter and EMT rather than a police officer. He had performed venipunctures thousands of times and Dr. Principe described Officer Burkhart as “exceptional” at performing venipucture with as much training and experience drawing blood as an Arlington Memorial Hospital blood technician.

    The State charged Johnston with DWI. Johnston filed a motion to suppress the blood test results, arguing that a blood draw conducted by a police officer at the police station was unreasonable under the Fourth Amendment. The trial court granted the motion to suppress even though he determined the officers were credible and that they had followed medically accepted procedures in drawing blood. However, the trial court determined that the officers were not qualified to draw the blood and that the blood had not been drawn in a reasonable manner because it was not drawn by medical personnel in a hospital or medical environment.

    The State appealed. The Fort Worth Court of Appeals assumed that Officer Burkhart was qualified to draw blood and held that there was nothing inherently unsafe about the room in which Johnston’s blood was drawn. However, the court of appeals was “troubled” by the failure of the officers to ask for a general medical history before the blood draw. It found the lack of a recording of the blood draw equally troubling as well as the lack of guidelines for the use of force during DWI blood draws. Thus, the court of appeals upheld the trial court’s ruling and held that the blood draw was unreasonable.

Blood draws are ­presumptively reasonable

In reversing both the trial court and the court of appeals, the Court of Criminal Appeals first considered whether taking blood was reasonable. Writing for a six-judge majority, Judge Keasler analyzed the Supreme Court of the United States holding in Schmerber v. California to answer the issue. The Supreme Court noted that the quantity of blood is minimal and for most people the procedure involves virtually no risk, trauma, or pain, even taking into account the existence of specific medical conditions that might create an unjustified risk when determining that the blood draw at issue in Schmerber was reasonable. Consequently, the burden is now on the suspect challenging the blood draw to show that venipucture is not reasonable for him or her individually. However breathtaking an assumption this might sound, it actually appears to be consistent with the well-established principle that there is a rebuttable presumption of proper police conduct under the Fourth Amendment and the defendant bears the initial burden of producing evidence to rebut that presumption.8

    Here, Johnston provided no evidence that she suffered from a medical condition that would have made another means of testing preferable. Thus, the failure of the officers to make a medical inquiry, regardless of whether it violated the protocol set out by Dr. Principe, did not render taking her blood unreasonable in this case. As the court noted, a DWI suspect naturally familiar with her own medical history is in the best position to identify and disclose any peculiar medical condition that could result in risk, trauma, or more than minimal pain from a blood draw. While prosecutors can now probably expect to hear about everything from blood thinners to Chagas disease as a reason for an unwarranted risk in a blood draw, it is incumbent upon the defendant to produce evidence that these situations rendered the decision to take blood unreasonable. And though the court was mindful of the legitimate concerns for the well-being and safety of DWI suspects, the majority remained confident that law enforcement officers would be conscientious in their decision making and the threat of an expensive civil rights suit would provide a strong deterrent against taking unnecessary risks.

    The Court of Criminal Appeals also considered the reasonableness of the methods used by the police in forcibly obtaining Johnston’s blood. The court explained, consistent with its previous opinion in Beeman v. State, that Chapter 724 of the Transportation Code was not controlling authority regarding the reasonableness of how a blood draw is performed under the Fourth Amendment. As Judge Keasler explained, “Whether a blood draw is conducted pursuant to a warrant or not, the assessment of reasonableness is purely a matter of Fourth Amendment law.”9 So while compliance with §724.017 provides one way to establish reasonableness under the Fourth Amendment, it in no way establishes the exclusive means for establishing reasonableness.

More EMT than officer

One encouraging aspect is the acknowledgment that police officers can be qualified to draw a DWI suspect’s blood. Here, Officers Stinson and Burkhart had completed Dr. Principe’s blood-draw certification course prior to taking the appellant’s blood. However, some caution is warranted as the court specifically declined to rely upon certification in the program, as it was not necessary to the court’s opinion. Instead, they relied upon Officer Burkhart’s specific training as an EMT to determine he was qualified to draw Johnston’s blood. So while the court left open the possibility that police officers with less training and experience could also be qualified to draw a DWI suspect’s blood, the question of whether the officer in this case was qualified did not appear to be a particularly hard one to answer. The court did note with apparent favorability cases from Arizona that had also upheld blood draws conducted by police officers even though those officers had less training than Officer Burkhart. So to the extent that an officer has comparable experience and training as an EMT, Johnston will easily support a determination that the officer is qualified to draw a DWI suspect’s blood. Still, it is an open question whether simply adopting a program similar to that developed by Dr. Principe will properly certify an officer to perform a blood draw, though there is reason for optimism.

A clean, well-lighted place

The court also considered the circumstances surrounding the blood draw. While there was some language in Schmerber that implied compulsory blood draws might need to be conducted in a hospital or clinic, the court rejected Johnston’s argument that a blood draw at the jail was not per se unreasonable. Many jurisdictions have upheld blood draws by doctors, nurses, or technicians within the confines of various law enforcement agencies.10 Specifically, the court noted that an appellate court in Arizona had upheld a blood draw at the back of a patrol car by a police officer who had received only a week of phlebotomy training.11 However, the majority resorted to that case only to emphasize that a medical environment would be ideal for drawing blood and that a blood draw in another environment would not be per se unreasonable. Moreover, Judge Johnson wrote a concurring opinion to clarify that she believed that a roadside blood draw would be unreasonable under the Fourth Amendment even as she acknowledged that the blood draw in this case was properly done.12 Based upon the trial court’s findings, the room was in accordance with accepted medical practices and therefore did not invite an unjustified element of personal risk of infection or pain.

    The court also held that the “more troubling circumstances” that had led the court of appeals to uphold the trial court’s granting of the motion to suppress did not render the blood draw unreasonable under Schmerber. For example, the court rejected the idea that the blood draw was unreasonable because Johnston was alone in the privacy of the police station with the arresting officer and the blood draw was not recorded. According to the court, nothing in the record suggested that any of these things subjected Johnston to any additional risk of infection or pain.13

    More importantly, the court had no problem with the lack of a “use-of-force protocol” specific to DWI blood draws. It is not out of the norm, even in a medical setting, to restrain an uncooperative DWI suspect to obtain a sample of blood.14 Moreover, the general policy was to use only the minimum force necessary. On this record, there was nothing to suggest the force used to obtain the sample was excessive or unreasonable.15

    The major concerns raised by the court of appeals appear to mask at least two very emotional issues. It is estimated that at least 10 percent of American adults have a fear of needles, with most severe cases never being documented due to the tendency of the sufferer to simply avoid medical treatment.16 Moreover, the concern about overzealous police conduct is certainly nothing new.17 Consequently, it is not surprising that attacks would be levied against the invasiveness of a procedure that uses a needle performed by someone less neutral than a doctor or nurse.

    However, the court has weighed these concerns in Johnston and held that a blood draw pursuant to a warrant is presumptively reasonable unless a defendant shows a substantial risk of harm or infection. Additionally, an EMT may be qualified to perform a blood draw even if he also happens to be a police officer, and a clean, easily sanitized room with a phlebotomy chair is acceptable for performing a blood draw regardless of whether it is at a jail. Finally, some use of force is permissible to seize blood pursuant to a warrant provided it is consistent with general use-of-force guidelines and acceptable medical practices.

    Not every jurisdiction can carry out a similar program to the one in the DWG, but after the Johnston decision, it appears that dawn may be breaking for jurisdictions’ “no refusal” policies.


1 Study Regarding the Ineffectuality of the Administrative License Revocation System as a Means of Enforcing the Implied Consent Law, Texas Department of Hyperbole (2010).
2 The dreamy main character in the Twilight book series who is, you guessed it, a handsome vampire.
4 judge-throws-out-dalworthington.html.
6 State v. Johnston, 2011 WL 8913234 at *1 (Tex. Crim. App. March 16, 2011).
7 State v. Johnston, 305 S.W.3d 746, 748 (Tex. App.—Fort Worth 2009).
8 See e.g. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005)(noting a defendant’s initial burden to rebut a presumption of proper police conduct when moving to suppress evidence).
9 Johnston, 2011 WL 891324 at *9.
10 Johnston, 2011 WL 891324 at *10.
11 Id.; State v. May, 210 Ariz. 452, 112 P.3d 39, 41-42 (Ariz. Ct. App. 2005).
12 Johnston, 2011 WL 891324 at *12.
13 Johnston, 2011 WL 891324 at *11.
14 Id.
15 By way of contrast, the recent case of Hereford v. State, where police tased a defendant in the groin or upper thigh area to get him to spit the crack out of his mouth provides an example of an unreasonable use of force during a search and seizure. Hereford v. State, 2011 WL 1266550 at *11.
16 Hamilton, James, Needle Phobia: A Neglected Diagnosis, Journal of Family Practice 41 (August 1995); The Texas Department of Hyperbole has not released a study on this subject, but it is likely that the estimates are even higher.
18 See e.g. Wilson v. State, 311 S.W.3d 452, 461 (Tex. Crim. App. 2010)(noting that Texas exclusionary rule is designed to prevent the use of evidence obtained after overzealous police officers violate the law).