The Prosecutor, September-October 2014

Drawing blood on every suspected DWI

All law-enforcement agencies in Burnet County participate in the Blood Alcohol Taskforce (BAT); in just a year of existence, BAT has proved a great success in obtaining both blood and justice.

It’s a running joke in Burnet County that the prosecutors are vampires: When it comes to DWI, we want blood, we want it fast, and we want it all the time. To get all that blood, we formed the Burnet County Blood Alcohol Taskforce (BAT) in 2013. Now, with a year of seeking search warrants for blood on every suspected intoxicated driving case, we reflect on what worked, what didn’t, and how prosecutors in other counties might adopt a similar program.
    BAT is an organization comprised of law enforcement agencies collaborating with the prosecution and county government to oversee a county-wide blood draw program. Beginning in 2006, it became clear that blood evidence was the future of DWI prosecution. Through a long evolution, BAT is Burnet County’s response to problems accessing this vital evidence in DWI cases.
    The Marble Falls Police Department, through the leadership of Sergeant Barry Greer, was the first agency in Burnet County to do blood draws on DWIs 24 hours a day, seven days a week, 365 days a year. Unfortunately, the only place to have the sample taken was at a local hospital, and there were challenges with that procedure. The hospital required that a physician medically clear the defendant before a blood draw could occur. This clearance could take upwards of several hours, with the defendant sitting in the hospital (and sobering up) before the blood sample was ever taken. Additionally, hospitals charged agencies for both the blood draw and “treatment” of the defendant, which was prohibitively expensive for our meager budgets.
    In response, officers began taking defendants to hospitals in neighboring counties where draws were free and treatment was not required. But this work-around was not without its problems. First, drawing blood in another jurisdiction raises issues for suppression. Second, it is at least a 30-minute drive, which results in an increased cost (in both fuel and overtime) for the agencies. And third, there was an increased risk to the safety of both the officers and the defendants travelling this distance on Hill Country roads.
    Although the blood draws were problematic for the officers, having blood results was a game changer in the courtroom. You may have heard the mantra, “If it bleeds, it pleads,” and that was our experience in Burnet County. With the success of the program in Marble Falls, we wanted to expand the blood draw program to all agencies in Burnet County. To accomplish this goal, it was necessary to make blood draws easier and more efficient for the officers. A number of alternatives were considered: employing a nurse in the jail at all times, managing a list of on-call phlebotomists, or training officers as phlebotomists. But each of these approaches had major drawbacks. A local Texas Parks and Wildlife Department captain, Kevin Davis, enlightened us regarding a private company1 that provides phlebotomists on a contractual basis. A contract was negotiated with this company to provide an on-call phlebotomist to conduct blood draws at the Burnet County Jail when requested by law enforcement.
    The key to the success of BAT is consistency: Every agency in the county participates through identical contracts with the same blood-draw provider. Each draw follows the same procedures, for the same cost, using the same forms, reviewed by the same judges. Consistency is key!

So, how did we do it?
In addition to consistency, centralized management of the contracts, program, and funding also plays an important part in the success of the program.
    Burnet County has an individual contract with the company that sets the terms of the relationship including costs, service provision expectations, and eligible participating agencies. Secondary to that contract, each participating law-enforcement agency also has a contract with the phlebotomist provider that refers to and mirrors the terms of the parent contract held by the county. As part of the contract, the provider is responsible for carrying insurance on all employees, tracking qualifications and continuing education credits, and maintaining an on-call list to have staff available to respond when needed. The phlebotomists agree to be available to testify as needed for an agreed hourly rate.  The agency contract must be approved by the agency governing the participating law enforcement agency prior to participation in the program.
    Centralized management is also evident in the governing structure of the program. A board of directors consisting of representatives from participating law enforcement agencies is responsible for making policy and procedure decisions for the program. These representatives are selected by the participating agencies pursuant to the bylaws of the organization. The board is responsible for determining the cost to agencies for participation in the program, negotiations and recommendations regarding contractual issues, and setting policy and procedures for the program including where the draw is conducted and the procedures followed.
    Most importantly, the costs are managed through a centralized fund. The Burnet County Commissioner’s Court provided $15,000 in seed money to jumpstart the blood draw fund. This, combined with a contribution from an anonymous donor, provided sufficient capital to fund one year of blood draws at no cost to the agencies, allowing them to try the new process without risk.
Each participating agency has a Memorandum of Understanding with the county and with BAT that outlines expectations regarding payment for blood draws and the collection and disbursement of restitution. Both the agency contract and Memorandum of Understanding must be approved by the agency governing the participating law enforcement agency prior to participation in the program.
    Pursuant to the Memorandum of Understanding, all costs for the blood draws are paid, according to the contracts, out of the central blood draw fund, and all restitution by defendants is paid back into the central blood draw fund. Having all restitution paid to one place and all invoices paid from the same place simplifies the process in the courtroom. Collecting restitution is easy because we always know what it costs and where the money should be sent. The county is billed for each draw, and the fund pays the invoice. The county auditor manages these invoices and the fund.
    The company expects payment of invoices within approximately 30 days of the draw. As we all know, very few cases reach disposition within 30 days of arrest, so the capital provided by the seed money allows invoices to be paid in a timely manner and the fund to be replenished by restitution collected at disposition. To keep the working capital necessary in the fund, prosecutors attempt to collect restitution prior to allowing the defendant to enter any plea agreement (restitution for both the blood draw and testing at DPS is collected at the time of the plea). Restitution for the blood draw includes the cost of the contracted phlebotomist, the DPS test kit, and administrative costs for the management of the program. Some amount of replenishment is necessary from outside sources to compensate for cases that are dismissed, cases that are resolved without financial input from the defendant, or those where disposition is not possible. Restitution may not be collected when a defendant refuses to pay, is deported, is sent to prison, or dies prior to collection. The goal is a program wholly funded through restitution. In the meantime, we continue to accept private donations to the fund.

From the roadside stop
Regardless of which department makes the arrest for DWI, the procedure that follows is the same. The officer contacts dispatch and requests a phlebotomist be called to the jail at the same time he requests “the next in-rotation vehicle removal device” (also known as a tow truck). This timing allows officers and phlebotomists to often arrive at the jail at the same time, eliminating wait for either party. Dispatch then calls the company, which is responsible for notifying the on-call phlebotomist. By contract, the phlebotomist must arrive within 45 minutes of contact. Meanwhile, the officer uses either the computer provided in the jail or his own laptop to access the standardized search warrant forms. He completes the search warrant, calls a local judge, and makes arrangements to fax or email the warrant to the judge. After the judge has signed the warrant, it is returned to the officer.
    The phlebotomist is responsible for cleaning the area, completing the inventory and blood draw logs, taking the sample using the next numerically ordered kit, and completing the Affidavit of Person Who Drew Blood. The officer is responsible for observing the procedure, checking the accuracy of all documentation, securing the sample and corresponding documentation, and forwarding the sample to the lab. After the draw is completed, the defendant is booked into the jail.

What parts of the process worked?
Standardized search warrants. All officers use a search warrant template maintained by the BAT Board and provided on the computer in the jail as well as in electronic format to all officers. One of the major benefits of a standardized form is that both judges and prosecutors are accustomed to the review of any arguments pertaining to this particular form. Additionally, any changes or updates necessary due to issues raised at suppression or trial are easily incorporated and disseminated to all departments. It also avoids arguing the same issues repeatedly—once an issue has been ruled upon, the form is updated and the issue is considered resolved by both judges and prosecutors (although not always by defense counsel).
Blood kit tracking. All blood kits ordered are matched to three different tracking systems and then matched to incoming invoices from the company. To track the blood kits, we use a quadruple sticker system. One numbered sticker goes on each blood kit when it is placed in the supply closet. The second numbered sticker is placed on the blood draw log with case identifying information. The third numbered sticker goes on the blood vial itself. Finally, the fourth numbered sticker is placed on the phlebotomist’s paperwork for the company. As the auditor receives invoices, she matches each invoice to a specific jailing record in the county database and to the blood kit inventory and the blood draw log before making payment. This process allows the auditor to confirm that a blood draw occurred before making payment. It also assists with proving chain of custody.
Blood kit ordering. There can be a lengthy delay in receipt of blood kits once we order them from DPS. For this reason, it is necessary to order a three-month supply, which we keep away from the jail each time the jail inventory is replenished. This allows the program administrator the ability to monitor the need to reorder and avoids running out of kits at an inopportune time (for example, New Year’s Eve).
Blood results. We all know that the backlog at DPS results in long waits for blood results. One trick to speed this process is to put the prosecutor’s email address on the lab submission form. Then, results will be sent directly to the prosecutor’s office, eliminating the wait for law enforcement to forward them. Additionally, the lab prefers that drug results are requested only when drugs are suspected. However, if the request is made within 30 days after alcohol testing, they will retest for drugs. Finally, if a case is disposed of prior to testing, the lab appreciates being notified. Any tests that can be removed from the queue speeds up the process for everyone.
The toxicologist as an expert witness. Not only can the toxicologist testify regarding the blood results, but she can also testify as to the effects of that level of alcohol in the bloodstream on the human body. Toxicologists are very impressive witnesses due to their extensive experience and education.

What didn’t work?
Fundraising. Fundraising efforts for the central blood-draw fund have not been nearly as successful as desired. Although the goal is a self-sufficient fund, currently supplemental funding remains necessary. Members of the BAT Board continue to monitor the financial position of the program.
Single vial kits. One defense attorney filed a Motion to Retest Blood evidence. With only one vial of blood, the same vial was retested, resulting in a slightly different BAC. As a result, the plea offer was reduced.2 We now use double vial kits.
Inability to test for certain drugs. The DPS lab will not test for cannabis and cannot test for any of the synthetic cannabinoids. It also cannot test for a number of other common drugs. Without the defendant’s admission that he used a drug, the lab’s inability to test the blood for the drug’s presence generally leads to significant issues proving the case.
Receipt of lab results on drug testing. The length of time needed to test for drugs delays the disposition of cases. The only state-funded lab that tests for drugs is the Central DPS Lab in Austin, and it is not prepared for the influx of blood testing that no-refusal programs generate. It has been suggested that private labs may be an alternative solution if funding is available.
Storage and disposal of blood evidence. Local law enforcement agencies seem challenged by the procedures for storage and disposal of what is, in effect, medically hazardous materials.

How has BAT worked so far?
See the chart below for some statistics over the last year.

DWI Statistics in Burnet County, 2013–14

Misdemeanor DWIs    168
Blood draws    120
    Consensual    44
    Nonconsensual    673
Breath tests    33
Average BAC    .17
Highest BAC    .393
BAC below .08    4
Drugs suspected  but not tested    2

    The average time from the stop to the blood draw was 2 hours 14 minutes, and the average time between the roadside stop and the Breathalyzer test is 1 hour 20 minutes. The average time from an officer’s request for a phlebotomist to the blood draw is 1 hour 9 minutes, which is very close to the contractual requirement that the phlebotomist arrive within one hour of the request. Knowing when to expect the phlebotomist helps officers time their requests so that no time is wasted waiting on the phlebotomist. Although blood draws take longer than breath tests, the delay seems to be the result of longer on-scene time. We are finding that the time from the request for the phlebotomist to actual blood draw is similar to the time from request to breath result. And blood-draw cases would otherwise be refusals, meaning that the suspects are less cooperative and the cases more complicated all around, leading to longer times on the roadside.   
    There were 19 felony DWI blood draws and 1 blood draw in a murder case. Of the 20 felony draws, three were consensual; nine were involuntary, mandatory, non-warrant blood draws; and eight were the result of search warrants. They have results back on 14 of the cases, and the average blood result is .18. There are no results for DWI below .08, and the highest is .27.
    We have filed complaints on 111 (of 120) defendants, and 13 have entered a plea.3 Those cases are just now reaching the arraignment setting, so we don’t yet have good statistics about suppression hearings and jury trials. However, anecdotally, we have observed that many of these cases plead more quickly than their Breathalyzer or refusal counterparts. Additionally, many of them may go to suppression, but very few go to trial. And so far, we have been 100-percent successful at suppression hearings. So the lesson is that the success rate is higher, but it takes longer to get there.
    The Burnet County Blood Draw Program is far from perfect. As you can see, there are a number of challenges yet to be conquered, but it has been a positive force for prosecution of DWI cases. The program allows for consistent procedures for law enforcement, which makes the prosecution straightforward and uniform from case to case. Having a centralized program, including invoicing, simplifies the restitution process and will lead to a self-sufficient blood draw program. The numbers speak for themselves—blood draw evidence demonstrates that officers are accurate in their suspicions that drivers are intoxicated. With expert witnesses available to testify not only to the blood results but also the effects that alcohol has on the defendant’s system, more intoxicated drivers will be held accountable. Hopefully that results in fewer intoxicated drivers on our roadways!
    And that makes us perfectly content to be called vampires.

Endnotes

1 We’re happy to share the company’s name and more details to anyone who’d like to contact us.
2 Using the Head Gas Chromotography process, a portion of the head gas is removed in the first test, resulting in a lower percentage of alcohol in the head gas on the second test. That is the non-scientist understanding of this process. If you want to know more about this issue, the scientists at the DPS lab were extremely informative.
3 The remaining nine are still in the intake process. We may be waiting on blood results or other documentation.