Plano DWI Lawyer Blog

The Mayor of Houston announced recently that she was scrapping a program that trained police officers to draw blood.  The Houston Police Department officers were being trained to draw blood so that they could personally take blood samples from DWI suspects. In the most chilling aspect of the news media coverage surrounding the Mayor's decision, the officers were apparently drawing blood from live subjects at a psychiatric unit of TDC.  

Rather than training police officers to draw blood in the unsanitary conditions of a jail, would it not be more safe for all involved to simply have qualified medical personnel draw the blood in a hospital setting that is equipped to address emergencies or unexpected events?  The police are not trained or equipped to address the peculiar medical conditions of the person they have arrested, nor are they capable of dealing, on their own medical emergenices that may arise.

The Texas Transportation Code provision regulating blood draws has two main requirements.  First, the blood must be drawn in a sanitary place, and second it must be drawn by a person who is listed in the satute as qualified or who is a qualified technician.

In my view, having police drawing blood at the police station may violate the Texas Transportation Code.  Further, and even more importantly, that manner of blood draw may be unreasonable as a Fouth Amendment matter.  I look forward to continuing to raise thethe statutory and constitutional issue in appropriate  blood draw cases

According to a press release issued by the Plano Police Department, the Plano Police plan to conduct a so called no refusal weekend over the Memorial Day weekend. The press release is here.

During a no refusal operation, if you are arrested on suspicion of DWI and refuse to submit to a breath or blood test, the police will prepare an affidavit in support of a search warrant application.  The affidavit must recite facts that demonstrate that the police have probable cause to believe that you were DWI and that evidence of alcohol or drugs will be found in your blood.   The police will then present the affidavit to a judge who will review if for probable cause.  In practice, the police rarely appear in person before a judge and swear to the affidavit.  Rather, the typical practice is for them to fax it or recite it over the phone.

Recently, the Fifth Court of Appeals in Dallas sidestepped the question of whether the Texas Code of Criminal Procedure requires that the police swear to the facts contained in the affidavit in the personal presence of the magistrate.

In the case of Swenson v. State of Texas the Court stated that

In a guest column in a local Collin County newspaper, the Frisco Texas police department has announced that it will be seeking blood from Driving While Intoxicated suspects over the upcoming Holidays. There is nothing per se unusual about this, but for the fact that they plan to conduct the blood draw at the Frisco Police station.  The blood would be drawn from the suspect not at a hospita,l where there are facilites and equipment available to deal with an emergency should one arise, but in the confines of the Frisco Police Department.

The Texas Transportation Code section 724.017 requires that the the blood of a DWI suspect be drawn in a "sanitary place."  Is the Frisco Police Department a sanitary place within the meaning of the law?  The broader question, in my mind anway, is why?  Is the need to obtain a blood sample so urgent  that the police can't wait a few minutes to transport the arrested person to a hospital?  Not at all.  In fact, traditionally, blood draws have nearly alwsy been taken at a hospital.  In my view, the convenience of having the blood drawn a the police station is vastly outweighed by the risks associated with sticking a needle into a person about whom the police know next to nothing.  For example, the police will not know anything about the person's medical condition and history, allergies, etc.

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Proving that the Fourth Amendment is not just a myth, the Second Court of Appeals in Fort Worth, Texas issued its opinion on Friday in the case of State of Texas v. Johnston.   

  Johnston was arrested on suspicion of Driving While Intoxicated.  While at the police station her blood was drawn over her objection by two police officers.  Her blood was not drawn at a hospital.  Her blood was not drawn by a nurse.  Her blood was not drawn by someone who had the slightest clue about her medical history or medical issues that may exist.  

Instead her blood was drawn by two policemen at the police station.  The trial court excluded the blood test results as a Fourth Amendment violation.  The Fourth Amendment requires, among other things, that searches be "reasonable."   The Court of Appeals in this case found that the search in this case was not reasonable.  A sensible decision and a victory for the Fourth Amendment.  

I will use this case where appropriate, to seek to exclude the blood test results of my clients in future cases.  Some factors to look for will include, the location of the draw.  Who is performing the draw?  Is that person qualified?   Is the draw conducted pursuant to a stardard operating procedure that is written down?  Does the person performing the draw know anything about my client's medical history or medical conditions. 

Imagine being pulled over in your car by a police officer who suspects that you are driving while intoxicated.  Imagine also that he requests a blood sample and rather than taking you to a hospital where a qualified person will draw your blood, he simply produces a kit and takes the blood himself at the side of the road.

Unimaginable?  Read on.

Under the current state of the law, the Texas Transportation Code prohibits the police from taking blood samples from Driving While Intoxicated suspects themselves. In other words, the police are required to take their suspect to a "sanitary place" and have the blood drawn by someone who is qualified to draw the blood.

I was startled to read recently that Texas has sent some of its law enforcement officers to Idaho to be trained in blood draw techniques. Since this practice is expressly prohibited by Texas law, what is the point?  The point may be a concerted push by law enforcement to change the law to authorize the scenario I described above.  This is the wrong way to go about achieving the goal of reducing the number of intoxicated motorists on the road.    

A new law taking effect tomorrow, September 1, 2009 will make it easier for the police to obtain blood samples from motorists whom they suspect are intoxicated.

Under previous law, except in limited circumstances, if police suspected that you were intoxicated, the law required them to explain their suspcicions in writing to a neutral, detached judge who could consider whether probable cause existed to draw your blood. Senate Bill 328 becomes law tomorrow and it will allow the police to obtain blood in greatly expanded situations.

*  If someone other than the suspect is injured and was transported to a hospital.

*  If the person is arrested for Driving While Intoxicated with a child under fifteen in the car

*  If the suspect has been previously convicted of Driving While Intoxicated two or more times;

or has previously been convicted of DWI with child under fifteen, intoxication assault, or intoxication manslaughter. 

The legistature has consciously decided to dispense with the warrant requirement.  The warrant requirement has been a fundamental feature of our legal system since the beginning. 

In the name of expediency and speed, our law now removes this time honored method of checks and balances between the different branchs of government.  Personally, I look forward to developing creative new challenges in the cases that will arrive with the change in law.

I have learned the Collin County law enforcement, in connection with the District Attorney's Office, is planning to conduct a "no refusal" weekend ove the 4th of July.  This means that the police will be seeking search warrants for the blood of all DWI suspects that refuse to submit voluntarily to breath or blood samples.

Collin County will be operating one as well.
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Posts: 51 | From: McKinney, Texas, USA | Registered: 02-19-01

Motorists in Collin and Dallas Counties, and throughout Texas, will now have fewer protections against having forcible blood draws. A few months ago I blogged about SB 261, a bill that sought to expand the authority of police to obtain a sample of blood from driving while intoxicated suspects.  The changes proposed to the law in that bill have become the law in Texas.

 The police will now have the authority to take blood samples from DWI suspects when there was an accident that required someone other than the DWI suspect to be taken to a hospital or medical clinic. In addition, it authorizes blood draws for people accused of DWI with child - a state jail felony, and people who are suspected of having two prior DWI convictions or a prior felony DWI conviction.

 Bear in mind that this law gives police authority to take the samples without your consent or the approval of a neutral, detached judge through the warrant process. If the police are convinced that their suspect is, in fact, intoxicated, why the legislative push to cut judges out of the process? Why not present the evidence to a judge who can review it? I would anticipate many more blood draw cases. The upshot of all this? There will be many more opportunities for me  to challenge the lawfulness of these warrantless, non consensual blood draws in specific cases on behalf of my clients.

I posted recently about the proposed legislative initiative which would give the green light to Texas Sobriety Checkpoints.   It now appears that even more changes are in the works.  S.B. 261, introduced by Texas State Senator Bob Deuell would amend Texas Transportation Code sec. 724.012 to allow officers to take blood samples from DWI suspects when there was an accident that required someone other than the DWI suspect to be taken to a hospital or medical clinic.  In addition, it would authorize blood draws for people accused of DWI with child - a state jail felony, and people who are suspected of having two prior DWI convictions or a prior felony DWI conviction. 

This proposed legislation strike me as remedy in search of a problem.  In other words, police already obtain blood samples from DWI suspects by requesting a judge to issue a search warrant for blood.  Why then, do we need the statute to change in a way that grants police a power they already have and use?   

According to one witness testifying in the Texas legislature about the bill, obtaining a search warrant takes too long.  Another person might argue that the backers of this bill would like to see police have authority to have blood samples drawn without the necessity of presenting facts to a neutral and detached judge in support of a search warrant.  How much easier will it be for the police to have someone draw your blood based on their subjective opinion that you are intxocated?  If the police are so sure, why not present the facts to a judge and obtain a search warrant?  Why are we in a rush to dispense with one of our fundamental protections against an unreasonable search - a search warrant?