By Clinton Morgan
Assistant District Attorney in Harris County
If you handle DWIs, you’ve probably had a defense lawyer explain that the Court of Criminal Appeals’s recent case of Martinez v. State[1] is an important, far-reaching, pro-defense case.
At first glance, Martinez could seem as much. I’m going to suggest, though, that the holding is so specific and the facts so peculiar that the actual effects will not be much. Unless a case involves a warrantless seizure of blood from a hospital and then a warrantless test of the blood, Martinez is probably off-point.
The facts
Mr. Martinez was involved in a wreck and transported to the hospital. He was not entirely coherent when he arrived, but as he came to, he became uncooperative with medical staff. A nurse drew blood, but when asked to provide a urine sample, Martinez said he could not afford any tests, including a blood test. He removed an IV and various monitors and left the hospital.
A DPS trooper arrived at the hospital around the time Martinez left but was unable to make contact with him. Hospital staff told the trooper they had Martinez’s blood. The trooper obtained a grand jury subpoena for the blood, and then it was tested in a government lab. The opinions don’t say what the test result was, but they probably weren’t good for Martinez, who was indicted for intoxication assault.
Martinez moved to suppress the results. The trial court granted the motion, holding that while the seizure of the blood using a grand jury subpoena was lawful, testing the blood required a search warrant. The State appealed.
The appeal
The appeal revolved around three cases: Comeaux,[2] Hardy,[3] and Huse.[4] Comeaux, decided in 1991, was factually similar to Martinez: Comeaux was taken to the hospital after a wreck, and police obtained a sample of blood the hospital had drawn for medical purposes and tested it in a government lab, all without a warrant. A plurality of the Court of Criminal Appeals held that an individual who gives blood for medical testing retains a reasonable expectation that the blood will not be given to law enforcement; thus, government testing of the blood is a search requiring a warrant.
In Hardy, a 1997 case, the hospital took and tested the defendant’s blood for medical purposes, and police obtained a grand jury subpoena for “alcohol or drug information” from his records. The Court of Criminal Appeals recognized that there were three stages of the blood test that “could potentially” implicate an expectation of privacy:
1) the physical intrusion of the needle;
2) the testing of the blood; and
3) viewing the results.
The court held that because a private party had performed Stages 1 and 2, only Stage 3 was implicated in that case. Because there was no socially recognized expectation of privacy in the results of a blood-alcohol test, obtaining the results of the test did not require a warrant.
In Huse, a 2016 case, the Court of Criminal Appeals revisited Hardy in light of HIPAA, the federal medical privacy law. Huse held that while HIPAA shows that there might be a legitimate expectation of privacy for medical records generally, HIPAA did not undermine (and in many ways supported) Hardy’s holding that there was no legitimate expectation of privacy for alcohol and drug test results.
On direct appeal in Martinez, the State argued that, under Hardy and Huse, there was no warrant required for the police to test Martinez’s blood. The Thirteenth Court disagreed, holding that Hardy and Huse applied only to test results, but under Comeaux, when a hospital drew the blood but did not test it, police needed a warrant to test the blood.[5]
The holding
On discretionary review, Judge Walker, writing for five other judges, saw the case as offering the opportunity to affirm or reject the plurality opinion in Comeaux.[6] The Court adopted Comeaux’s holding. Three judges—Presiding Judge Keller and Judges Yeary and Newell—concurred without opinion.
Under the privacy theory of what constitutes a search, a search is a government action that violates a “reasonable expectation of privacy.” There are two parts to determining whether an individual had a reasonable expectation of privacy: Did the individual, subjectively, have an actual expectation of privacy? And is that expect- ation one that, objectively, society is prepared to recognize as reasonable?
The State argued that Martinez could not have had an actual expectation of privacy because he abandoned his blood at the hospital when he left. The court rejected this notion on a couple of grounds. First, under the extremely peculiar facts of this case, the trial court found that Martinez did not voluntarily give the hospital his blood.[7] Second, based on Comeaux, the Court seems to have held that there is a general presumption that giving blood to a hospital does not create a presumption that the individual consents to the hospital giving it away to others “for a purpose other than that for which it was given.”[8]
The Court turned to whether Martinez’s expectation of privacy was reasonable. The first issue was the third party doctrine. Under the third party doctrine, when someone voluntarily reveals private information to another, he loses any privacy interest he has in that information if the third party turns it over to police. The Court held the third party doctrine did not apply to this case because of the “distinct lack of voluntariness” on Martinez’s part: He was taken to the hospital by ambulance after a wreck, and he was uncooperative with the blood draw itself.
The second part of whether an expectation of privacy was reasonable was determining whether blood contained “private facts.” For this part the Court relied on Birchfield v. North Dakota,[9] where the United States Supreme Court held it was permissible to perform warrantless breath tests on DWI suspects, but blood tests required a warrant. The Supreme Court had reasoned that breath tests “are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath,” but a blood sample can be preserved and “it is possible to extract information beyond a simple BAC reading.”[10]
After analyzing several other Supreme Court cases, the Court held the amount of information that can be derived from blood means that conducting a blood test is a search that requires a warrant. This will prevail even if a hospital drew the blood: “There is an expectation of privacy in blood that is drawn for medical purposes.” The trial court, therefore, was correct to suppress the results obtained from a test of hospital-drawn blood conducted without a warrant.
What’s a prosecutor to make of this?
Martinez seems like a pro-defense holding, but, given modern Texas practice and the peculiar facts of this case, it’s a holding that will not affect many cases.
First, Hardy and Huse remain good law. If a hospital conducts a blood draw for medical purposes and conducts drug and alcohol tests for medical purposes, police can obtain those test results without a warrant.
Second, if a suspect consents to a blood sample, no warrant would be needed to test it because the suspect cannot possibly have a subjective expectation of privacy in blood he freely gave to police as part of a DWI investigation.
Third, if police obtain a blood-draw warrant, there should be no need for a second warrant. That is because, unlike in a medical situation, when blood is drawn pursuant to a warrant there is no remaining expectation of privacy in the blood.
Martinez’s effect will be limited to cases in which:
1) there is a medical blood draw but no medical test; and
2) there is no probable cause to obtain a warrant.
Even in that small subset of cases, police may still obtain the blood with a grand jury subpoena[11] and conduct additional investigation that may provide probable cause.
Endnotes
[1] ___ S.W.3d ___, No. PD-0878-17, 2019 WL 1271173 (Tex. Crim. App. March 20, 2019).
[2] State v. Comeaux, 818 S.W.2d 46 (Tex. Crim. App. 1991).
[3] State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997).
[4] State v. Huse, 491 S.W.3d 833 (Tex. Crim. App. 2016).
[5] State v. Martinez, 534 S.W.3d 97 (Tex. App.—Corpus Christi 2017).
[6] Martinez, 2019 WL 1271173, at *5.
[7] The Court focuses on Martinez’s statement to the nurse that he could not afford tests as constituting an affirmative statement that he opposed any testing on his blood. Id. at *6. That seems like a questionable inference to me. There are any number of things I can’t afford but which I wouldn’t oppose if someone did them at no cost to me. In his brief, though, Martinez characterized the testimony as showing that the IV he removed from his arm was being used to take blood. If true, that is compelling evidence he opposed the hospital taking his blood.
[8] Ibid. (discussing United States v. Jacobsen, 466 U.S. 109 (1984)).
[9] ___ U.S. ___, 136 S.Ct. 2160 (2016).
[10] Id. at 2177-78.
[11] Martinez never questions that the police seizure of the blood was lawful.