COURT OF APPEALS REVERSES TEXAS DWI CONVICTION BASED ON FLAWED BLOOD SEARCH WARRANT
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.
