Plano DWI Lawyer Blog

To reflect changes made to the Texas Transportation Code effective September 1, 2011, the state Department of Public Safety has amended both the DIC 23 and DIC 24 (as well as the 54).

The DIC 24 is a document that is more commonly known as the statutory warning.  It is a script that Texas police officers are required to read to Driving While Intoxicated suspects prior to requesting a breath or blood sample.  Essentially, is informs the suspect of their statutory rights, and the consequences of refusing to submit to the request for breath or blood.   The new form includes language explaining to the suspect that if he or she refuses to submit, the officer may request that a judge issue a search warrant for the person's blood.

Similarly, the document known as the DIC 23 has also been amended to reflect new legislative changes.  The DIC 23 will no longer need to be sworn to by a notary. 

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. 

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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Today, the United States Supreme Court issued its opinion in the case of Arizona v. Gant, and breathed life back into the Fourth Amendment's protection against unreasonable search and seizures as it relates to automobile searches. 

For almost thirty years, beginning with the United States Supreme Court decision in New York v. Belton, 395 U.S. 454 (1981), the police have been allowed to search your car after they arrest you for any offense under the so called "search incident to arrest" doctrine.  The original justification and rationale for the search incident to arrest rule was that the police must be entitled to secure the scene and recover any weapons that an arrested person might be able to reach in their car.  As years went by however, that original rationale was cast aside and courts justified any search incident to arrest regardless of whether the arrested person could access their car or not.  Courts approved of search incident to arrest searches of a person's car even when that person was in handcuffs in a police cruiser and could clearly not access their own car.  Some courts even approved of search incident to arrest searches of the arrested person's car after the arrested person was removed from the scene and was miles away from their car. 

With today's decision, police will only be entitled to make a search incident to arrest when 1) the arrestee is unsecured and 2) the arrestee is within reaching distance of the the passenger compartment at the time of the search, or 3) when it is reasonable to believe that evidence of the crime of arrest might be found in the vehicle.   Hopefully, the days of police searching a person's car for anything and everything following an arrest are in the past.

I am prepared to litigate the issue of search incident to arrest cases in Collin or Dallas county or statewide in Texas and seek to have evidence excluded from court.  If you have been arrested for a weapons or drug or other cases arising from a police search of your car, please call my office  toll free 866 977 4394.