Plano DWI Lawyer Blog

wadaslawoffice.com

During the last decade, the U.S. Supreme Court has focused a great deal of attention on what is known as the "Confrontation Clause" of the Sixth Amendment to the U.S. Constitution.The Confrontation Clause provides that persons accused of crimes have the right "to be confronted with the witnesses against" them.  

 The recent case of  Bullcoming v. New Mexico  is the latest example of the Court's interestthe Court held that Mr. Bullcoming's Confrontation Clause rights were violated when he was denied the opportunity to confront and cross examine the analyst who actually test the alcohol concentration of the blood in his case.  In Bullcoming, the prosecution called a different lab analyst to testify than the one that actually analyzed Bullcoming's blood sample.  The Court held that this testimony was not proper as Mr. Bullcoming was not able to confron the witness who actually analyzed his blood.  Rather, he was able only to questions a surrogate analyst testifying to what another analyst did to reach his or her conclusion as the alcohol concentration.

This decision may impact Collin County Driving While Intoxicated cases because it will likely require the State to arrange for the anaylist that actually performed the blood test to appear in court to testify and be subject to cross examination before the results of a blood test will be admissible against an accused person

Generally, if a person who has been arrested for Driving While Intoxicated in Texas refuses to submit to a request for breath or blood made by a police officer, the officer must seek a search warrant from a judge authorizing him or her to draw the blood over the person's objection.
In order for the Judge to consider the search warrant request, the officer must prepare an affidavit describing the facts that the officer believes will establish probable cause that evidenced of a crime (DWI) will be found in the person's blood. This affidavit must be sworn to in the presence of a neutral and detached  judge. Often, police officers seek to satisfy the requirement that they swear to the truth of the matter in the affidavit by calling the judge and swearing to it over the phone.
Texas Code of Criminal Procedure 18.01 appears to require the personal presence of the affiant in front of the judge. The Fifth Court of Appeals in Dallas, Texas avoided directly addressing the question in the case of Swenson v. State.  I have written previously about the Swenson court's decision, here.   

The Twelfth Court of Appeals in Tyler, Texas however has directly addressed the question of whether Section 18.01 of the Texas Code of Criminal Procedure requires an officer to personally appear and swear to the truth of the information in the affidavit in the case of Taylor v. State.

The Taylor court held that the Code does require that the "affiant must be physically present in front of the magisttrate or officer authorized to administer oaths when swearing to the facts in his affidavit."

Thus, at least in the Twelfth, telphonic swearing of the oath does not comply with the Texas Code of Criminal Procedure.  How will this affect Driving While Intoxicated cases in Collin County or Dallas County?  Well, lawyers must continue to file Motions to Suppress the blood test results when the blood was obtained by a search warrant when the facts were sworn to over the phone.  We now have a Court of Appeals case specifically identifying the process as not in compliance with the Code of Criminal Procedure.  The issue, in my view, is eventually headed to the Court of Criminal Appeals.

Approximately eighteen months ago I wrote here about the decision of the Fort Worth Court of Appeals to uphold a trial judge's ruling that the method by which a Driving While Intoxicated Suspect's blood was drawn at a police station was constitutionally unreasonable.  Because the Court ruled that the manner of the blood draw violated the Fourth Amendnment to the U.S. Constitution's requirement of reasonableness, the Court agreed with the lower Court decision to exclude the results of the blood test from evidence. 

The State sought appeal to the Texas Court of Criminal Appeals and recently the Texas Court of Criminal Appeals reversed the Fort Worth Court of Appeals.   The case is known as State v. Johnson, and in Johnson the Court held that the blood draw was constitutionally reasonable, and appeared to go so far as to indicate that it will presume the constitutional reasonableness of venipuncture blood draws in the future. 

What does this mean for the future of DWI enforcement in practical terms?  I would anticipate that many police agencies will develop programs to draw blood at the station and may arrange to have officers themselves trained to draw blood, as opposed to medical professionals.  I read the Johnson case to "green light" these programs.

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. 

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.

,   

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.
--------------------------------------------------------------------------------
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?