By Jay Johannes
District Attorney in Colorado County, and
Brandy Robinson
First Assistant District Attorney in Austin County
It is a familiar but unfortunate scenario: Local law enforcement officers have just responded to and investigated the scene of a multiple-fatality crash in your county. The officers determined that the driver who caused the crash was likely intoxicated. They would normally do a search warrant for a local blood draw, but there’s a problem: The driver, now a prime suspect in an intoxication manslaughter case, was life-flighted to a larger hospital system in another jurisdiction.
How can you help?
When it comes to necessary evils in our profession, hospital records and blood samples obtained from search warrants are the true devil’s backbone of many an intoxication assault or manslaughter case. For prosecutors not familiar with the process, particularly rural prosecutors who must deal with hospitals outside of their jurisdictions, the path to this vital evidence often seems needlessly convoluted. However, you can use a few road-markers to guide the way.
The destination
It might be wise for an early step in the process to be calling the prosecutor office in the hospital’s jurisdiction. Not only is it courteous to give local prosecutors a heads-up that you’re seeking information in their county, but they could also offer help and advice. They might be able to open doors and make introductions that would be difficult to do on your own.
The ultimate goal of hospital search warrants is to obtain evidence related to a suspect’s blood-drug and blood-alcohol levels in intoxication cases. To make our best possible case, we should seek two main types of information:
1) patient records
2) physical evidence
Patient records help us in three ways. First, they often provide us with the hospital’s own analysis of the suspect’s blood or drug intoxication levels, because virtually all patients undergo a blood draw and blood testing upon admission to a hospital. Second, they contain the names of those who drew the blood and performed the testing—potential witnesses for a future trial. Finally, the records may contain useful statements or admissions that the suspect made to medical personnel. These statements, made for the purposes of medical diagnosis, may come into evidence under an exception to the hearsay rule.[1]
Physical evidence often helps us distinguish between a crime and a tragic accident. In a best-case scenario, law enforcement seeks a search warrant early enough to obtain physical evidence as well. Hospitals typically save the blood that staff has drawn from a patient for a short time. A residual blood evidentiary search warrant can give officers authority to retrieve the suspect’s actual sample before the hospital destroys it. Then, the sample may be transported to a DPS crime lab for testing.
Why bother with DPS testing if you already have a blood intoxication result from hospital records? Anyone who has ever needed to track down and subpoena hospital witnesses to prove up a hospital blood draw at trial likely already knows the answer to that. Many times, it can be extremely difficult to determine from hospital records the name of the person who performed a blood draw or testing. Even if you find the staff members involved, their ability to testify to their processes and the standards used by different hospitals varies widely.
In contrast, Department of Public Safety labs use the same standardized processes for testing across the state. Furthermore, DPS lab personnel are often human performance toxicologists and receive extensive training on how to testify properly to their results in court. We also have a much better chance of locating them when trial time comes around. If officers can secure the blood from the hospital, it is always worthwhile to try.
The road to success
Grand jury subpoena. The first step we can take to assist officers is to prepare a grand jury subpoena for the suspect’s patient records from the hospital. This document may be directed to the hospital’s risk management department and should set out the patient’s name, date of birth, and suspected date(s) of treatment.
HIPAA preservation letter. The next step is to prepare and send a HIPAA preservation letter. This letter from your office also should be directed to the hospital’s risk management department along with the patient’s name, date of birth, and suspected date(s) of treatment.
The HIPAA preservation letter should make two main requests. First, it should include a request for the hospital to preserve evidence, which consists of blood drawn from the named patient, along with access to protected health information regarding the same patient. Next, it should request permission for the hospital to make oral disclosures to the investigating law enforcement officer of information related to the treatment of the patient.
The letter to the hospital should state that you are familiar with the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and with the regulations providing guidance in the application of that statute. The letter should state that your office has carefully considered the predicate requirements of 45 CFR §164.512 (f)(l)(ii)(C)(l)-(3) and represents that:
1) the information and preservation of the blood evidence is relevant and material to a legitimate law enforcement inquiry;
2) the request is specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information is sought; and
3) de-identified information could not reasonably be used in its stead.
You should also include the investigating officer’s name in the letter so that the officer can fax or email any necessary paperwork to the hospital. (Send a copy of the letter to the officer so that he can relay the information to the hospital.) Ultimately, this will allow the hospital to orally give the officer the initial information that he needs.
Armed with the HIPAA preservation letter, the investigating officer should call the hospital and ask for the legal or “risk management” department as soon as possible to obtain the following information:
• alias name given to the patient (example: “Alpha3427, female”);
• Medical Records Number (MRN) of the patient;
• verification that the hospital laboratory does possess residual blood vials from the patient;
• the identity of the person who drew the blood; and
• instructions and directions on where the officer should go to obtain the blood when he comes to execute the evidentiary search warrant to obtain the blood.
The investigating officer should speak with either hospital legal staff or to a lab supervisor and instruct them not to destroy the blood because a court order is in the works. He should coordinate with the hospital legal department to make sure that the letter is faxed or emailed to the lab members directly in charge of the blood sample.
Once you and the investigating officer have ensured that the hospital will preserve the blood and have obtained the necessary patient information, it is time to move to the most important step of the process: preparing the search warrant.
Preparing the evidentiary search warrant. Counties across the state differ regarding the level to which district or county attorneys assist with search warrant preparation. In some rural counties, it may be common for the investigating officer to come up to the DA’s office with his probable cause in hand. Some counties have the officer submit his probable cause via fax or email so the prosecutors can assist with preparation of the warrant. Once prosecutors have reviewed the probable cause from the officer, they can discuss any questions with the officer regarding additional information that may be necessary. Then, drafting begins. Samples of these three documents (grand jury subpoena, HIPAA preservation letter, and evidentiary search warrant) are below.
A few potential speed bumps
Keep an eye out for the following challenges any time you assist an officer with obtaining a warrant seeking blood from another county.
1. Identifying the officer. When it comes to drafting search warrants, remember that experience counts. One area that officers commonly forget to discuss in search warrant affidavits is their level of training and experience. When a search warrant relies on an officer’s training and experience in forming an opinion, it is important to identify exactly what that training and experience level is. You may learn this by questioning the officer directly or by having a DA investigator search TLO for the officer’s licensing information to learn how many years he has worked in law enforcement.
2. Identifying the suspect. Identifying a patient—our suspect—sometimes becomes tricky when dealing with the medical establishment. Although we heavily depend on patients’ names in the criminal justice field, hospitals typically rely on the medical records number, or MRN, in their internal record-keeping. For this reason, it is extremely important to identify the patient in the search warrant by not just his or her proper name and date of birth, but also by the hospital’s alias for the patient—if you can obtain it—and the suspect’s MRN.
From a factual perspective, identifying the suspect also means “wheeling the driver.” One of the most common mistakes we see in search warrant applications on intoxication manslaughters and assaults is a failure to adequately describe the facts that led an officer to place that suspect behind the wheel at the time of the crash. Make sure the search warrant sets out specific, articulable facts that place the driver behind the wheel, such as: witness statements, suspect statements, physical evidence such as seatbelt bruising or airbag powder, and any information that nails down the length of time between the crash and the time that officers first arrived on scene.
3. Identifying the judge. Once the search warrant application is drafted, it is time to find the judge. Sometimes, that can be easier than it sounds. Locating the appropriate judge to sign the search warrant may be simple when the suspect’s blood has been drawn and stored in your own county. Smaller counties often know their local judges’ names and numbers by heart. Larger counties will contact their internal intake division to locate the on-call magistrate.
However, this process becomes significantly more complicated when the suspect has been transferred out of county for medical treatment and you are seeking blood from another jurisdiction. If the suspect has been transported out of county for medical treatment, you should assist the officer in locating a district judge (or other appropriate magistrate under Code of Criminal Procedure Art. 18.01) within that jurisdiction to sign the warrant. The intake divisions of many prosecutor offices in larger counties keep a running list of the magistrates currently on duty.
For smaller counties that routinely rely on hospital trauma centers from neighboring large counties, it is a good idea to identify and keep a list of the contact information for the DA intake division of your neighboring large jurisdiction(s) well in advance. Then, when a warrant needs to be signed, you or the officer can call the DA intake staff and ask which district judge is on duty for warrants at the date and time you expect the officer to arrive in the jurisdiction.
If your officer is seeking to have the warrant signed outside of normal business hours, there may be magistrates available to sign warrants during those times. Remember that in almost all counties in Texas, the judge signing the evidentiary search warrant must be a licensed attorney.[2]
Once you have identified the appropriate judge, his or her location, and his or her contact information, notify the officer. Many judges will now handle warrants through email, fax, and phone. Remind the officer that if he is swearing out his application in front of another officer before faxing or emailing the application to a judge, that other officer must sign the application as well. Some officers who are used to swearing in front of a judge directly may forget that step when preparing to send a warrant application by fax or email.
Also, when the officer presents the warrant to the judge, remind the officer to get the judge’s name printed on the search warrant along with the judge’s signature.[3]
Reaching the destination
Finally, the evidence is at hand! The officer can now execute the search warrant by seizing the blood from the hospital’s lab. When the officer is retrieving evidence pursuant to the warrant, he should also request a sworn business records affidavit. Some hospitals have begun having lab personnel issue a sworn business records affidavit for the blood without the officer requesting one.
Some labs may try to provide the officer with the suspect’s urine samples as well as the blood. Because DPS will be testing only the blood, the officer may want to politely inform the lab staff that the officer only needs the suspect’s blood tubes and not the urine sample. This way, DPS will not have to use valuable storage space on a sample that will go untested.
Ask the officer to take a photo of the labels on the blood tubes before he packages them. The names, initials, dates, and identifying information should be clearly legible. Let the officer know that this information helps prosecutors confirm different identifying information with witnesses and is a helpful practice to shore up the chain of custody.
Remember, the officer should refrigerate the blood tubes up to the time he transports them to the DPS Crime Lab and maintain a clear chain of custody along the way. Remind him to forward you a copy of the DPS Lab Submission Form he submitted so that your office maintains a copy in the file.
If the officer executed the warrant and completed the return outside your local jurisdiction, you may offer to assist the officer in sending the completed return to the appropriate district clerk’s office. You can call the clerk’s office and ask how they prefer to receive the return. Many accept it via certified mail; you should also request a return receipt.
If the district clerk’s office requires the documents to be sent in person, then identify the location and inform the officer about any steps he may need to take regarding the documents. For example, in Harris County, there is an in-person drop-off in a lock box located in the lobby of the Harris County Criminal Justice Center. A file stamping machine is stationed on the box, and the officer should file and date-stamp the documents before dropping them into the box.
If your office is assisting the investigating officer by sending the documents to the clerk’s office on his behalf via certified mail, then your office can make copies of the documents for your file before mailing them to the other jurisdiction. You can also include a self-addressed stamped envelope and a written request for the clerk’s office to provide you with certified copies of the documents once filed.
However, if the officer is personally dropping the documents off at the clerk’s office, ask the officer to make a copy of the documents himself for your office’s files before making the drop-off, if possible. Once he has dropped them off, your office will need to contact the clerk’s office directly to obtain a certified copy for your file.
Conclusion
Coordinating with medical professionals and your local law enforcement to execute these warrants can be a trying process. However, familiarizing yourself with the people, places, and processes ahead of time can set both you and your officers on the road to a successful prosecution.
Endnotes
[1] Tex. R. Evid. 803(4).
[2] Tex. Code Crim. Proc. Art. 18.01(h)(i).
[3] See State v. Arrellano, 600 S.W.3d 53, 55-57 (Tex. Crim. App. 2020); TDCAA’s May 8, 2020 Case Summaries Commentary at www.tdcaa.com/case-summaries/may-8-2020.