Plano DWI Lawyer Blog

On February 17, 2011, the 2nd Court of Appeals in Fort Worth reversed a Driving While Intoxicated conviction.  The case, known as State v. Farmer is a case where the defendant, Mr. Farmer, testified that he took prescribed medications that were set out for him by his wife.  One of the pills was Ambien.  Mr. Farmer testified that because his wife laid out the pills, he had no idea that he was taking Ambien.  In other words, his ingestion of Ambien was an involuntary act.  

 At the close of the case, before the closing arguments are delivered, the trial court instructs the jury on the law that applies in the case to be considered by the jury.  The attorney representing Mr. Farmer properly requested a jury instruction on the issue of whether the ingestion of Ambien was voluntary.  To commit an offense, an act must be voluntary.  The trial Court denied the requested instuction and the jury convicted the defendant. 

On appeal, the Court recognized voluntariness as a defense and reversed the conviction holding that the jury should have been instructed on the voluntary act issue, and given an opportunity to consider Mr. Farmer's testimony as a defense

.  What does this mean for future cases?  It appears that now there will be a recognized defense to DWI cases of voluntariness.  This voluntary act defense should not be confused with involuntary intoxication.  Involuntary intoxication is not a defense.  The voluntariness of an act that leads to intoxication is a legitimate defense issue. 

A blood draw warrant is a search warrant requested by a law enforcement officer and signed by a judge.  It is a search warrant that specifically authorizes the police to have blood drawn from the person of a Driving While Intoxicated suspect.  In almost all cases in which the police seek a search warrant for blood, they do so because a person has refused to submit voluntarily to a request for a blood sample after they have been arrested for Driving While Intoxicated.

When the police seek a search warrant for blood, they must prepare, sign, and swear to an affidavit that seeks to persuade a judicial officer that evidence of the crime of DWI (i.e. alcohol or drugs) will be found in the suspect's blood.  The affidavit is often a pre printed form in which the officer will check the applicable boxes or fill in the blanks.  The officer is then required to present a sworn affidavit to a judge setting forth the facts on which the officer bases his or her request.  The law appears to require that the office appear before the judge and swear to the truth of the matter.    In practice however, the sworn affidavits are sometimes faxed,and the officer is sworn over the phone, not in the judge's presence. This practice may violate the Texas Code of Criminal Procedure, as there is presently no legislative auhortization for faxed search warrant applications as there is in the Federal Rules of Criminal Procedure.  Presumably, if Texas lawmakers wanted faxed search warrants they could pass a law allowing for it.  

The issue of blood draw search warrants being faxed has been raised in Collin.   The Fifth Court of Appeals in Dallas avoided making a decision on the propriety of swearing affiant's over the phone and faxing search warrant affidavits.  In  Swenson v. State  the Court affirmed Mr. Swenson's conviction by finding that, even if having the officer sworn over the phone is unlawful, the search warrant is nevertheless valid under the good faith exception.  In other words, if the officer in good faith relied upon an invalid search warrant, the evidence seized pursuant to the warrant need not be excluded from evidence because the officer relied upon the warrant "in good faith."

The admissibility of blood test results in court may also be challenged in other ways.  For example if the affidavit in support of the search warrant does not establish probable cause. Other potential areas include whether the blood was drawn in a sanitary place, as required by law, or whether the blood was drawn by a qualified person. 

In addition, other factors may bear on whether the seizure of blood is constitutionally reasonable such the location of the draw, the extent to which the person drawing the blood is aware of the particular medical conditions of the suspect, etc.