XVII. Blood Test | Texas District & County Attorneys Association

A. CONSENT NOT INVOLUNTARY OR COERCED

Combest v. State, 953 S.W.2d 453 (Tex.App.-Austin 1997). On remand 981 S.W.2d 958 (Tex.App.-Austin 1998). Same holding.

Reading DIC-24 when defendant is not under arrest will not per-se make subsequent consent to give blood sample involuntary.

Strickland v. State, No. 06-06-00238-CR, 2007 WL 2592440 (Tex.App.-Texarkana 2007).

This case involved an investigation of an alcohol-related crash that would ultimately be charged as Intoxication Assault. The issue challenged was the validity of the defendant’s consent to a blood sample that he purportedly gave to the officer while at the hospital. The officer had told the defendant at the time he asked for his consent that if he refused his consent, he would obtain the blood sample as a mandatory blood specimen. The defendant was not under arrest at the time this statement was made. In upholding the consent, the Court distinguishes this case from those where an officer has created and communicated a fiction in order to coerce the consent for a search. Rather it points out that the officer was instead warning the defendant about the reality of the situation. The defendant was subject to immediate arrest based on the information which was in the officer’s possession at the time that representation was made and was, in fact, arrested immediately thereafter and without reference to the eventual results of the blood test.

B. PROCEDURE FOR TAKING BLOOD SAMPLE

OFFICERS MAY USE FORCE TO TAKE BLOOD
- Burns v. State, 807 S.W.2d 878 (Tex.App.-Corpus Christi 1991, pet. ref’d).
  - No due process violation in involuntary manslaughter case where two police officers held down a defendant for hospital technician to extract a blood specimen.
SAMPLE FROM UNCONSCIOUS DEFENDANT
- Pesina v. State, 676 S.W.2d 122 (Tex.Crim.App.1984).
  - Blood test evidence collected at request of police officer in DWI case not suppressible where suspect was unconscious and there were exigent circumstances.
USE OF ALCOHOL SWAB BEFORE BLOOD DRAW
- Kennemur v. State, 280 S.W.3d 305 (Tex.App.-Amarillo 2008, pet.ref’d).
- Kaufman v. State, 632 S.W.2d 685 (Tex.App.-Eastland 1982, pet. ref’d).
  - Use of alcohol solution to cleanse skin before test merely affects the weight of test and not its admissibility.
WHAT CONSTITUTES A “QUALIFIED TECHNICIAN”
1. “PHLEBOTOMIST” MAY BE A “QUALIFIED TECHNICIAN”
  - Brown v. State, No. 12-15-00205-CR, 2016 WL 4538609 (Tex. App. Tyler 2016)
    - Record showed the hospital Phlebotomist was qualified to do blood draw.
  - State v. Bingham, 921 S.W.2d 494 (Tex.App.-Waco 1996 pet. ref’d).
    - Common-sense interpretation of term “qualified technician” as used in statute permitting only physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse to draw blood specimen for purpose of determining alcohol concentration or presence of controlled substance upon request or order of police officer, must include phlebotomist whom hospital or other medical facility has determined to be qualified in technical job of venesection or phlebotomy, i.e., drawing of blood.
2. “PHLEBOTOMIST” QUALIFICATION MUST STILL BE SHOWN
  - Torres v. State, 109 S.W.3d 602 (Tex.App.-Fort Worth 2003, no pet.).
    - Because a phlebotomist is not one of the occupations listed in the Statute, the qualifications must be proven. Though she had no formal training, the witness had been a phlebotomist for the last 24 years. She was certified through NPA. She drew blood every day and had done so thousands and thousands of times in her career.
  - Cavazos v. State, 969 S.W.2d 454 (Tex.App.-Corpus Christi 1998, no pet.).
    - Circumstantial evidence that blood was drawn by a phlebotomist was held insufficient to support that he was qualified. In this case no one testified regarding the qualifications of the person drawing the blood, and no evidence established that the blood was drawn by someone the hospital had determined to be qualified for that task. (Note: the gist of this holding was that this was a problem that could have been cured by an additional witness who was aware of this person’s qualifications.)
3. RESTRICTIONS ON WHO MAY DRAW BLOOD ONLY APPLY IF SUSPECT IS UNDER ARREST
  - Blackwell v. State, No. 03-03-00337-CR, 2005 WL 548245, (Tex.App.-Austin 2005, no pet.) (not designated for publication).
    - Restrictions that say that only “a physician, qualified technician (other than an emergency medical technician), chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer” do not apply when the suspect is not under arrest and the draw is not done at the request of a peace officer.
4. MEDICAL TECHNOLOGIST/TECHNICIAN IS A QUALIFIED TECHNICIAN
  - Medina v. State, No. 05-13-00496-CR, 2014 WL 1410559 (Tex.App.-Dallas 2014, no pet.).
    - An emergency room technician drew a blood sample from a DWI suspect pursuant to a search warrant and Defense argued the technician was not qualified under 724.017 of the Transportation Code. The Court held that the Transportation Code does not govern who can draw blood when a search warrant is used as the draw is not pursuant to the Transportation Code. (Same hold as in State v. Johnston, 336 S.W.3d 649 (Tex.Crim.App. 2011). The Court went on to say that even had the code applied, this technician was clearly qualified.
  - Edwards v. State, No. 11-11-00135-CR, 2013 WL 6178582 (Tex.App.-Eastland 2013).
    - Defendant argued that the medical technologist who drew his blood was not a “qualified technician” because he had no certification to draw blood and had not drawn blood at request of law enforcement before. Medical technologist’s testimony that he earned a Bachelor of Science degree in medical technology where he was trained to draw blood, had worked for hospital for seventeen years and his duties included both drawing and testing blood, and that he was unaware of any certification offered by the State of Texas and explained that he learned through on-the-job training was sufficient evidence that he was so qualified.
STATE NEED NOT PROVE “RECOGNIZED MEDICAL PROCEDURE”
- Arismendi v. State, No. 13-16-00140-CR, 2016 WL 5234601 (Tex. App. – Corpus Christi-Edinburg, 2016)
  - Defendant argued that in order to prove intoxication by blood alcohol concentration the State must show the blood test results came from a blood draw performed in accordance with proper procedure. A checklist was used but only one of the ten items on checklist were checked while witness says all were done. Defense received a charge to jury that had that language but on appeal argues State failed to prove that this was the case. The Court points out there is no statute or case law to support that State must prove that blood was drawn in accordance with recognizable medical procedures.
VARIATIONS FROM STANDARD BLOOD DRAW DON’T RENDER INADMISSIBLE
- Siddiq v. State, No. 02-15-00095-CR, 2016 WL 4539613 (Tex. App. – Fort Worth 2016)
  - Medical technician admitted she did not follow her own training or every accepted medical practice in drawing blood sample. Namely: Blood was drawn while Defendant was in a bed and not a chair, arm was not straight but at an angle which increases risk of rupturing cells, up and down motion was used to cleanse draw site instead of concentric circles. After area was sanitized area of draw was tapped with finger in an unsterilized glove, tourniquet left on for longer than one minute, sample was not fully inverted after taking it, a disposable tourniquet was reused. Even though witness said the techniques would not be considered acceptable medical practice at his hospital but could not say any of the lapses impacted the alcohol concentration. Under totality of circumstances draw was performed in reasonable manner.

C. HOSPITAL RECORDS

ARE NOT PRIVILEGED
- Baker v. State, No. 07-14-00161-CR, 2015 WL 1518956 (Tex.App. – Amarillo 2015)
- State v. Jewell, No. 10-11-00166-CR, 2013 WL 387800 (Tex.App.-Waco 2013, no pet.).
- Owens v. State, No. 417 S.W.3d 115 (Tex.App.-Houston [1st Dist] 2013, no pet.).
- State v. Liendo, 980 S.W.2d 809 (Tex.App.-San Antonio 1998, no pet.).
- State v. Hardy, 963 S.W.2d 516 (Tex.Crim.App. 1997).
- Knapp v. State, 942 S.W.2d 176 (Tex.App.-Beaumont 1997, pet. ref’d).
- Clark v. State, 933 S.W.2d 332 (Tex.App.-Corpus Christi 1996, no pet.).
- Corpus v. State, 931 S.W.2d 30 (Tex.App.-Austin 1996), pet. dism’d, 962 S.W.2d 590 (Tex.Crim.App. 1998).
- State v. Hurd, 865 S.W.2d 605 (Tex.App.-Fort Worth 1993, no pet.).
- Thurman v. State, 861 S.W.2d 96 (Tex.App.-Houston [1^st Dist.] 1993 no pet.)
- Blunt v. State, 724 S.W.2d 79 (Tex.Crim.App. 1987).
- See Also: Tex.R.Crim.Evid.509 = no physician/patient privilege
  - Court held that defendant has no right to privacy in hospital blood test records and the State could use said records that were obtained by grand jury subpoena.
OBTAINING RECORDS BY SUBPOENA
- State v. Huse, No. PD-0433-14, 2016 WL 1449627 (Tex.Crim.App. 2016)
  - This case concerned hospital records pbtained by GJ subpoena. The trial court granted a MTS regarding the records based on its finding that the State failed to establish an actual GJ investigation existed, calling it an illegitimate exercise of authority. The Courts of Appeals reversed the trial Court’s ruling and the Court of Criminal Appeals affirmed reiterating previous holding that HIPPA does not impact the State’s ability to obtain the records, that the GJ subpoena was properly issued, and that there is no problem with the State giving the hospital the option of releasing records directly to the prosecutor as opposed to bringing them before the GJ.
- Rodriguez v. State, 469 S.W.3d 626 (Tex.App.-Houston [1^st Dist] 2015
- Tapp v. State, 108 S.W.3d 459 (Tex.App.-Houston [14^th Dist.] 2003, pet. ref’d).
- Garcia v. State, 95 S.W.3d 522 (Tex.App.-Houston [1^st Dist.] 2002, no pet.).
- Knapp v. State, 942 S.W.2d 176 (Tex.App.-Beaumont 1997).
  - As there is no constitutional or statutory reasonable expectation of privacy in hospital records of blood test results, a suspect has no standing to complain of defects in the GJ subpoena process.
- Dickerson v. State, 965 S.W.2d 30 (Tex.App.-Houston [1^st Dist.] Feb.19, 1998), 986 S.W.2d 618 (Tex.Crim.App.1999).
- Thurman v. State, 861 S.W.2d 96 (Tex.App.-Houston [1^st Dist.] 1993, no pet.).
  - Proper to use grand jury subpoena to obtain medical records
RELEASE OF DEFENDANT’S HOSPITAL RECORDS IN RESPONSE TO A GJ SUBPOENA DOES NOT VIOLATE HIPAA
- Murray v. State, 245 S.W.3d 37 (Tex.App -Austin 2007, pet. ref’d).
  - Health Insurance Portability and Accountability Act (HIPAA) and privacy rule promulgated pursuant to HIPAA did not overrule or preempt holding in State v. Hardy that a defendant did not have an expectation of privacy in blood-alcohol test results obtained solely for medical purposes after an accident. An entity covered by HIPAA regulations is expressly authorized to disclose health information that is otherwise protected under HIPAA without a patient’s consent in numerous situations, including for law enforcement purposes pursuant to a grand jury subpoena.
- Jacques v. State, No. 06-05-00244-CR, 2006 WL 3511408 (Tex.App.-Texarkana 2006) (not designated for publication).
  - A hospital’s release of medical records to law enforcement is permitted under limited circumstances under HIPAA. 45 C.F.R. § 164.512 (2006). HIPAA specifically authorizes a hospital to release a patient’s medical records in response to a grand jury subpoena. 45 C.F.R. §164. 512(f) (1) (ii) (B).
NO HIPAA VIOLATION IN HOSPITAL PERSONNEL TELLING POLICE BLOOD-ALCOHOL CONTENT WITHOUT SUBPOENA
- Kirsch v. State, 276 S.W.3d 579 (Tex.App.-Houston [1st Dist.] 2008) aff’d 306 S.W.3d 738 (Tex.Crim.App. 2010).
  - The defendant had been brought into the hospital for treatment after being involved in a motor vehicle collision. The attending physician ordered a blood draw and analysis for medical purposes which showed defendant to be intoxicated. Without a request from law enforcement and without defendant’s consent, hospital personnel informed Houston deputies about the results of the blood -alcohol test. The defendant tried to suppress the evidence as a violation of HIPAA. The Court of Appeals points out that under HIPAA, a covered health care provider who provides emergency health care in response to a medical emergency may disclose protected health care information to a law enforcement official if such disclosure appears necessary to alert law enforcement to the “commission and nature of a crime.” In affirming the denial of the motion to suppress, the Court held that the defendant’s blood-alcohol content in this case suggested he had committed the offense of DWI.
BLOOD SAMPLES DRAWN AT HOSPITAL OBTAINED BY GJ SUBPOENA
- Martinez v. State, No. 07-15-00353-CR, 2016 WL 1572275 (Tex.App.-Amarillo 2016, pet ref’d)
  - This case involves a charge of Felony Murder where Defendant was transported to hospital after being involved in a fatal driving accident. Ten blood vials were drawn as part of Defendant’s medical treatment at hospital. A GJ subpoena was used by police to obtain samples which were later tested at forensic lab, MTS filed. The Defense argument that HIPPA was violated about having an expectation of privacy in the samples was denied and the fact that the State was the tester of the blood draw samples does not reinstate an expectation of privacy.
CHAIN OF CUSTODY REQUIREMENTS/PROVING RESULTS
1. BLOOD TESTED IS SAME AS BLOOD DRAWN
  - Lynch v. State, 687 S.W.2d 76 (Tex.App.-Amarillo 1985, pet. ref’d).
    - Can’t rely solely on medical records to prove blood test result. State must further show:
      1. a proper chain; and
      2. that blood tested was same as blood drawn from defendant. In the absence of such evidence, medical records are inadmissible.
2. NOT NECESSARY THAT PERSON WHO DREW BLOOD TESTIFY
  - Alford v. State, No. 02-16-00030-CR, 2017 Tex.App. LEXIS 720, 2017 WL 370939 (Tex. App. – Fort Worth 2017)
    - This case involved a blood draw where the phlebotomist who drew the blood at the Denton Regional Medical Center did not testify. Instead, his supervisor testified that he was a trained phlebotomist who had the knowledge and ability to properly collect The supervisor further testified that he could only assume that the phlebotomist followed the proper procedures in drawing the defendant’s blood. The blood was then sent to DPS and was tested by a forensic scientist. That forensic scientist testified at trial as to the results. The defense objected based on the Confrontation Clause. This court and several others have held that while blood test results are testimonial, if the person who drew the blood neither played any part in its analysis nor contributed to the report documenting the results, the Confrontation Clause does not require that person to testify before the results may be admitted into evidence.
  - Russell v. State, No. 14-15-00036-CR, 2016 WL 1402943 (Tex.App.-Houston (14^th Dist) 2016)
    - The State attempted to offer blood analysis evidence through chemist after calling officer who witnessed collection of sample without calling nurse who drew the blood. The defense argued that they should have the right to confront the nurse who drew the blood. Referring to the holding in State v. Guzman, the Court held that the inability of the defense to cross examine the nurse did not violate his right to confrontation as that right is satisfied by his ability to cross examine the analyst.
  - Adkins v. State, 418 S.W.3d 856 (Tex.App.Houston (14^th Dist.) 2013, pet ref’d)
    - Confrontation Clause did not require state to present nurse who drew Defendant’s blood for cross-examination at Defendant’s trial for driving while intoxicated prior to admission of blood test results. Despite Defendant’s contention that nurse’s testimony was necessary to establish quality of blood sample; analyst who tested Defendant’s blood and signed report presented at trial certifying that Defendant’s blood alcohol content was above legal limit testified at trial and was subjected to cross-examination, and analyst was able to discern quality of blood sample without any reliance on any statement by nurse.
  - Hall v. State, No. 02-13-00597-CR, 2015 WL 4380765 (Tex.App. Fort Worth, 2015)
    - This was a DWI case where blood was drawn at hospital pursuant to search warrant. The officer testified to observing blood draw and everything was done according to standard procedure. The Court held that the inability to cross examine the person who drew the blood did not violate confrontation rights as would be the case if the missing witness was involved in the analysis of the blood sample.
  - State v. Guzman, 439 S.W.3d 482 (Tex.App.-San Antonio 2014, no pet)
    - State tried to admit blood test result without calling the nurse who drew the blood and trial court granted MTS but Court of Appeals reversed. In so doing the Court held that Bullcoming case does not extend to a person who only performs a blood draw and has no other involvement in the analysis or testing of the blood sample.
  - Yeary v. State, 734 S.W.2d 766 (Tex.App.-Fort Worth 1987, no pet.).
    - It is sufficient if officer testifies she witnessed the blood drawn by the nurse and any objections to failure to call nurse to testify go to weight and not admissibility of evidence.
  - Villarreal v. State, No. 04-15-00290-CR, 2016 WL 4376630 (Tex. App. – San Antonio 2016.
    - Nurse who drew Defendant’s blood was deceased at time of trial so Officer testified that he observed nurse draw the blood and rotate and label and seal them in envelope. Defense argued that a proper chain of custody could not be established without the nurse was rejected by the Court .
3. GAPS IN CHAIN GO TO “WEIGHT” NOT ADMISSIBILITY
  - Patel v. State, No. 2-08-032-CR, 2009 WL 1425219 (Tex.App.-Fort Worth 2009, no pet.) (not designated for publication).
  - Penley v. State, 2 S.W.3d 534 (Tex.App.-Texarkana 1999, pet. ref’d)
  - Burns v. State, 807 S.W.2d 878 (Tex.App.-Corpus Christi 1991, pet. ref’d).
  - Gallegos v. State, 776 S.W.2d 312 (Tex.App.-Houston [1^st Dist.] 1989, no pet.).
    - Where the State shows the beginning and the end of the chain of custody, any gaps in the chain go to the weight of the evidence and not to its admissibility.
4. NOT NECESSARY TO SHOW WHO DREW OR TESTED THE BLOOD!
  - Durrett v. State, 36 S.W.3d 205 (Tex.App.-Houston [14st Dist.] 2001, no pet.).
    - Medical records were offered to show defendant’s blood was drawn and tested. Testimony failed to show who actually drew the blood and there was contradictory testimony about whether the State had shown who actually tested the blood. There was testimony about the precautions taken by the hospital to ensure blood samples are properly drawn, labeled and tested. The Court held that the testimony was adequate to link the blood result in the records to the defendant and that the beginning and end of chain were adequately proven. That witness could not recall who took the sample and who tested it goes to the weight not the admissibility of the evidence.
5. PROVING HOSPITAL BLOOD RESULTS WITH BUSINESS RECORDS AFFIDAVIT
  - Ex Parte Hernandez, No. 11-17-00004-CR, 2017 Tex.App. LEXIS 4325, 2017 WL 1957549 (Tex.App. – Eastland 2017)
    1. The defendant claimed that his counsel was ineffective because he failed to object to the admission of the blood serum test results contained in the defendant’s medical records. He claims that their admission violated his constitution right of confrontation. The blood was drawn by medical personnel for medical purposes and the hospital’s lab performed the analysis. The results were contained in the hospital’s records and accompanied by a business records affidavit. The person who testified about the results was not the person who actually performed the lab test, but was the manager of the lab at the hospital. The trial court concluded that the blood was drawn for medical diagnosis and treatment and that the lab report was a business record, as such was non-testimonal in nature and did not violate the defendant’s right to confront the witnesses against him. The Court of Appeals agreed with the trial court and pointed to Melendez-Diaz and Sanders v State.
  - Sanders v. State, No. 05-12-01186-CR, 2014 WL 1627320 (Tex.App.-Dallas 2014, pet. ref’d).
  - Desilets v. State, 2010 WL 3910588 (Tex.App.-Beaumont 2010, no pet.) (not designated for publication), Habeas corpus granted by Ex parte Desilets, 2012 WL 333809, (Tex.Crim.App. 2012, reh. denied).
    - This was a case where the State offered the hospital records without calling the person who took the blood specimen. The defense argued that violated their right to confront the witness. The Court held that blood results from blood drawn for medical purposes that are separate from the criminal prosecution are not “testimonial” because they are not made for the purpose of establishing a fact in a criminal prosecution; therefore, defendant’s confrontation rights were not implicated.
  - Goodman v. State, 302 S.W.3d 462 (Tex.App.-Texarkana 2010, pet. ref’d).
    - This was a case where the State offered the hospital records without calling the person in the lab who tested the blood. Court held that defendant’s hospital blood test results showing his excessive blood-alcohol level were non-testimonial, and thus their admission without testimony of person who actually did the testing did not violate Confrontation Clause in defendant’s prosecution for third offense of driving while intoxicated.
6. BLOOD TEST OFFERED WITHOUT TESTIMONY OF ANALYST SAME PROPERLY ADMITTED:
  - Talamantes v. State, No. 08-14-00142-CR, 2015 WL 6951288 (Tex.App.-El Paso 2015)
    - At trial the State did not call the DPS analyst who actually tested the blood sample as he was no longer employed by lab. Instead they called another analyst who technically reviewed and verified the result by reviewing the raw data. The trial judge kept actual report out but allowed Tech Review analyst to testify to result based upon her review of underlying data. In upholding the admission of the result the Court of Appeals held this did not violate the Defendant’s right to confront witness as she was not a mere “conduit” of the non-testifying analysts opinion about the BAC but rather did an independent review and analysis of the raw data generated during the testing.

D. SANITARY PLACE REQUIREMENT

Zalman v. State, No. 13-13-00471-CR, 2015 WL 512914 (Tex.App.-Corpus Christi 2015, pet ref’d).

Presence of insects in room where blood was drawn did not render it unsanitary where one insect that came into contact with Defendant did not crawl down arm used to draw blood and was gone by time of draw and where evidence showed actual draw procedure was reasonable and proper. Schmerber does not require an ideal environment, only a safe one.

Battles v. State, No. 05-13-00106-CR, 2014 WL 5475394 (Tex.App.-Dallas 2014, no pet.)

This was a DWI trial where the Defense challenged the admissibility of the blood evidence on the basis that it was not drawn in a “sanitary” place. In support they called a witness who was the former DWI program coordinator at the police department, and he testified that he had told supervisors at the PD that he did not believe the rooms where the blood was drawn, which were intoxilyzer rooms, were “sanitary places” and had suggested they do the draws in nurses’ stations instead. The State called the nurse who did the draw who had no problem with drawing blood in the room and pointed out the area of the arm the blood was drawn from was the area that needed to be sterile and added the room used by the PD was in his opinion much cleaner than the hospital ER room. The Court pointed to the evidence of the appearance of the room at time of draw which showed that it was a tidy room with no visible foreign substances. Based on the totality of the circumstances, the Court concluded the blood draw room was safe and did not invite an unjustified element of personal risk, infection or pain and so concluded that the manner in which the blood draw was done was not unreasonable.

Adams v. State, 808 S.W.2d 250, (Tex.App.-Houston [1^st Dist.] 1991, no pet.).

Defendant contends that an inspection a month before the blood was drawn at the hospital does not show the sanitary condition when blood was drawn. The statute does not require such evidence. It requires that a “periodic” inspection be done, not an inspection on the date blood was drawn. Even without the nurse’s affidavit, the trial judge could have concluded that St. Joseph’s Hospital was a “sanitary place”, thus satisfying the first part of the statutory predicate.

HOSPITAL DRAWN SERUM-BLOOD TEST

Navarro v. State, No. 14-13-00706-CR, 2015 WL 4103565 (Tex.App.-Houston (14^th Dist.) 2015)

The State argument that the definition of intoxication does not distinguish between whole blood and plasma was erroneous. The Court makes clear that the .08 definition must be shown in whole blood terms. It goes on to say that should have been made clear in jury instructions but that is questionable as it would involve charging on language not in the statute. The big issue was the State trying to say it didn’t matter which is clearly wrong.

Wooten v. State, 267 S.W.3d 289 (Tex.App.-Houston [14^th Dist.] 2008).

This case involved an objection to the admissibility of a medical blood draw result. There was a Kelly hearing and the case provides a good discussion of the witnesses called and the nature of their testimony. The Court upheld the judge’s decision to admit the results into evidence. The Court found it was within the zone of reasonable disagreement for the Trial Court to conclude the State met the three Kelly factors by clear and convincing evidence regarding the Dade Dimension RXL. Accordingly, the Trial Court did not abuse its discretion in allowing appellant’s Dimension RXL blood alcohol results or the expert witness testimony regarding appellant’s blood test results to be presented to the jury.

Bigon v. State, 252 S.W.3d 360 (Tex.Crim.App.2008).

Defendant objected to the state expert’s testimony concerning the conversion of appellant’s serum alcohol level to a blood-alcohol level and retrograde extrapolation on the basis that said testimony was not reliable. The Court of Appeals held both were admissible. The Court of Criminal Appeals held that it was not an abuse of discretion to allow said testimony.

Reidweg v. State, 981 S.W.2d 399 (Tex.App.-San Antonio 1998, pet. ref’d).

Objection to admitting evidence of serum-blood test as opposed to whole blood test overruled as evidence showed that test instrument was standardized such that serum-blood test result would be the same as if whole blood were tested.

E. NEW DPS POLICY ON HOSPITAL SERUM INTERPRETATION

The DPS Crime Lab has a new policy for handling requests for hospital serum alcohol result interpretation. To help keep our blood alcohol chemists and toxicologists on the bench and working on the backlog, the DPS Breath Alcohol Laboratory Technical Supervisors will now handle hospital serum alcohol result interpretation. All of the requests should be routed through Mack Cowan, Scientific Director LES/Crime Lab/Breath Alcohol Laboratory, Texas Department of Public Safety, 5805 N. Lamar, Austin, TX 78752, (512)424-5202 and he will be able to assign the request to the most appropriate Technical Supervisor.

F. HOSPITAL DRAWN SAMPLE

NOT AN ASSAULT
- Hailey v. State, 87 S.W.3d 118 (Tex.Crim.App. 2002) cert. denied, 538 U.S. 1060 (2003).
  - Defendant arrested for DWI. The evidence at the time of arrest showed that defendant was:
    1. Bouncing off guardrail;
    2. Crossing into oncoming traffic;
    3. PBT administered at the scene showed an alcohol concentration of .337.
  - Officer, fearing there may be alcohol poisoning transported defendant to the hospital. Defendant was read the DIC-24 and refused to give a sample. Hospital drew a medical sample that showed a .454. Court of Appeals held that blood was illegally taken and that the taking of the blood sample constituted an assault on the defendant by the hospital personnel. The problem was that no witness was called from the hospital to say why the blood was taken. The Court of Criminal Appeals held that it was improper for the Court of Appeals to reverse the case based on a theory not presented to the trial court (that being the hospital assault issue) and so reversed the Court of Appeals decision affirming the trial court’s finding that the blood sample was admissible.
- Spebar v. State, 121 S.W.3d 61 (Tex.App.-San Antonio, September 3, 2003, no pet.).
  - Another case where the blood sample was drawn by hospital personnel after the defendant refused to give the police a sample. As in the case above, the defendant claims the evidence was inadmissible because it was obtained when the hospital illegally assaulted him. This claim was rejected by the Trial Court. The defendant cites the Court of Appeals opinion in the Hailey case. The Court first distinguishes Hailey by pointing out that the trial judge in its ruling stated that this was not a case of law enforcement taking a blood sample but rather blood taken as part of the defendant’s medical treatment. The Court further rejects the defendant’s argument that the hospital personnel were agents of the State.
HOSPITAL STAFF NOT AGENTS OF STATE
- State v. Spencer, No. 05-13-01210-CR, 2014 WL 2810475 (Tex.App.-Dallas 2014).
  - Defendant was involved in one vehicle accident and officers at the scene suspected he was intoxicated and later at the hospital where he was taken for treatment, they asked him to provide a blood sample and Defendant refused. Hospital personnel drew a sample for medical purposes which revealed Defendant was intoxicated. Defendant did not consent to the hospital draw but did sign a form consenting to treatment. The Trial Court found that the hospital personnel, while acting appropriately, were acting as agents of the State when they drew the blood and suppressed the result. The Court of Appeals reverses that ruling finding there is nothing in the record to support that the reason the hospital personnel drew blood was to gain evidence to support criminal prosecution.

G. CONSENT TO BLOOD DRAW

ACQUIESCENCE TO HOSPITAL BLOOD DRAW = CONSENT
- State v. Kelly, 204 S.W.3d 808 (Tex.Crim.App. 2006).
  - In response to the objection to the admissibility of a medical blood draw where the defendant objected she never “consented” to the draw, the court held that an express or implied finding of “mere acquiescence” to the blood draw also constitutes a finding of consent to the blood draw.
DEFENDANTS ORAL CONSENT TO DR’S REQUEST SUFFICIENT:
- Donjuan v. State, 461 S.W.3d 611 (Tex.App.–Houston (14^th Dist) 2015, reh.denied)
  - Defendant was transported to hospital for a mandatory specimen after a failure to obtain breath sample. The Doctor at hospital who did blood draw was instructed by police to take the mandatory draw but before doing so he asked the Defendant if he could draw his blood and the Defendant said he could. Defendant argued his consent was merely his acquiescence to Officers claim of authority to compel blood specimen but this argument was rejected as it was only the Doctor who asked for consent. This consent made the holding in Villareal inapplicable.

J. SEARCH WARRANT FOR BLOOD IN DWI CASE

IS PROPER
- Beeman v. State, 86 S.W.3d 613, (Tex.Crim.App. 2002). See also: Dye v. State, No. 08-02- 00018-CR, 2003 WL 361289 (Tex.App.-EI Paso 2003, no pet.) (not designated for publication).
  - This case involved a rear end collision without injuries that resulted in the suspect’s arrest for DWI. After the suspect refused to give a breath sample, the officer got a search warrant that authorized a blood sample be drawn and said sample was taken over the suspect’s objection. The issue on appeal is whether the implied consent law prohibits drawing a suspect’s blood under a search warrant. The Court of Criminal Appeals holds that it does not; pointing out that to interpret the statute in that way would afford DWI suspects more protection than other criminal suspects.
SEARCH WARRANT AFFIDAVIT FAILED TO NOTE DATE/TIME OF STOP
1. NOT FATAL
  - Dempsey v. State, No. 14-14-00634-CR, 2015 WL 7258751 (Tex.App.-Houston (14^th Dist.) 2015). pdr ref’d
    - This involved a search warrant attack where the warrant on its face said it was signed before the PC affidavit was executed. In upholding the trial judges ruling upholding the warrant the Court of Appeals pointed out the time issue has no impact as there is no requirement that a warrant show what time it was signed so the problematic time notation is surplus age. Even if they considered time notation it is outweighed by fact magistrate indicated his PC was based on already executed affidavit and it is a reasonable inference that a four minute difference between time warrant was signed and affidavit was executed was likely due to an inaccurate clock.
  - State v. Welborn, No. 02-14-00464-CR, 2015 WL 4599379 (Tex.App.-Fort Worth 2015)
    - This is a blood search warrant case where the Affidavit listed two different dates for the stop. In the first paragraph it said offense occurred on September 2, 2013 and in paragraph 5 it stated the stop occurred on September 1, 2013 and then at the end he swore to affidavit on September 2, 2013. While he found the affiant credible and found the mistake as a clerical error the Judge granted the motion based on the Crider opinion. In reversing that ruling the Court distinguishes Crider as having no date as opposed to discrepancy in dates and held that the trial judge should have found that clerical error did not invalidate the warrant.
  - Zalman v. State, No. 13-13-00471-CR, 2015 WL 512914 (Tex.App.-Corpus Christi 2015)
    - Failure to note time of stop in warrant was not fatal when it stated offense was committed on Sept 13, 2009 and it was issued at 3:09 a.m. the morning of the thirteenth gave Magistrate sufficient basis to infer that details observed also occurred that same date.
  - Ashcraft v. State, No. 03-12-00660-CR, 2013 WL 4516193 (Tex.App.-Austin 2013).
    - Failure to set out the time at which the Defendant was operating a motor vehicle in the affidavit was not fatal where affidavit did state officer made contact with Defendant on May 14 at 11:05 p.m. and was sworn on May 15 which indicates it was sworn to sometime after midnight as it was issued at 12:28 a.m. on the fifteenth. Since less than two hours elapsed between the time of “contact” with the Defendant and the time warrant was issued and the description of the signs of intoxication observed at the time of said contact, the magistrate had a substantial basis for determining that evidence of intoxication would likely be found in the Defendant’s blood within two hours of stop.
  - State v. Dugas, 296 S.W.3d 112 (Tex.App.-Houston (14^th Dist.)2009, pet.ref’d).
    - In this case the blood search warrant affidavit was challenged because it failed to include the time the alleged offense occurred. Argument raised = no basis upon which the magistrate could have determined whether the defendant’s blood contained evidence of a crime. Trial Court suppressed the blood. In reversing Trial Court, the Court of Appeals pointed out that though time is not noted, it is undisputed that offense and issuance of warrant occurred the same day as warrant was signed at 6:03 a.m., leaving the maximum potential time elapsed between traffic stop and warrant as six hours and three minutes. Nor was it unreasonable for magistrate to have assumed, based on facts in affidavit, that there would be some evidence of intoxication in the defendant’s blood when warrant was signed. “The issue is not whether there are other facts that could have or even should have been included in that affidavit; instead, we focus on the combined logical force of facts that are in the affidavit”. Cites Rodriguez v. State, 232 S.W.3d 55 (Tex.Crim.App. 2007).
  - State v. Jordan, 342 S.W.3d 565 (Tex.Crim.App. 2011).
    - The defense argued that the affidavit did not state the date and time when facts of offense are alleged to have occurred so was insufficient to give magistrate PC to believe blood would constitute evidence of guilt at time warrant issued. Trial Court agreed and suppressed blood. State argued that because warrant was issued at 3:54 a.m. on June 6, the maximum amount of time that could have elapsed between stop and issuance of warrant was 3 hours and fifty-four minutes. State cited State v. Dugas. Court of Appeals rejected that it was undisputed that offense and issuance of warrant were in the same day. Though statement in affidavit by officer was, “I have good reason to believe that heretofore, on or about the sixth day of June 2008 […] did then and there commit offense of DWI,” the Court finds this to just be a statement of the officer’s “belief” and not a statement of “fact” which distinguishes this case from Dugas as it holds affidavit did not state the offense date. Trial judge suppression is affirmed. This holding was reversed by the Court of Criminal Appeals which upheld the warrant. In its holding the Court states that the four corners of a warrant affidavit have to be considered to determine probable cause, rejecting the approach of the lower court which seemed to be testing the introductory statement and the description of facts separately. It held that the magistrate could infer that observations of defendant’s conduct occurred on the date specified in the introductory statement and find that this was the date of offense. Magistrate had substantial basis to determine evidence of intoxication would be found in defendant’s blood. Evidence of any amount of alcohol or other controlled substance could be probative of intoxication as it is evidence that suspect introduced substance into his body.
2. FATAL
  - Crider v. State, 352 S.W.3d 704 (Tex.Crim.App. 2011).
    - Affidavit in support of search warrant to draw blood from defendant, who had been arrested for DWI, was insufficient to establish probable cause that evidence of intoxication would be found in defendant’s blood at the time the search warrant was issued. Affidavit did not state the time that the officer conducted traffic stop of defendant’s vehicle, and nothing in the four corners of the affidavit suggested what time gap existed between defendant’s last moment of driving and the moment the magistrate signed the warrant; such that there could have been a 25-hour gap between the time the officer first stopped defendant and the time he obtained the warrant.
SEARCH WARRANT AFFIDAVIT LISTED THE WRONG YEAR NOT FATAL
- Schornick v. State, No. 02-10-00183-CR, 2010 WL 4570047 (Tex.App.-Fort Worth 2010, no pet.).
  - This involved a warrant where the officer erroneously listed the stop occurred on January 21, 2008, rather than January 31, 2009. At the hearing officer testified that it was a clerical error. Trial Court denied MTS. Trial Court holding was affirmed.
SEARCH WARRANT AFFIDAVIT HAVING MULTIPLE CLERICAL ERRORS NOT FATAL
- Welder v. State, No. 04-12-00706-CR, 2013 WL 4683156 (Tex.App.-San Antonio 2013, no pet.).
  - This case concerns a computer program generated warrant that inserted boiler plate language into the body of the warrant that could objectively be argued was untrue. Specifically it stated the Affiant Officer personally saw the offense committed when he got there only after the stop. In response the Court points out that the affidavit body correctly states the name of the officer who did see the Defendant operating his vehicle and that the affidavit when read as a whole reflected the collective observations of all officers involved in the investigation.
- Salzido v. State, 2011 WL 1796431 (Tex.App.-Amarillo 2011, pet. ref’d).
  - Defense attacked warrant because an erroneous date, June 7, 2008, was listed in warrant’s first word paragraph and the name “Hoover” appeared once where the name Salzido should have been. He further pointed out the warrant affidavit stated the defendant was asked to perform standard field sobriety test drills (plural), when only one standard field sobriety test drill was performed (HGN). Trial Court denied the motion. In upholding the warrant, the Court referred to the errors in the date and name as clerical errors based on the officer’s failure to change names in the template he used. The explanation, that the defendant was initially asked to perform drills and that some were not later offered due to back issue, adequately explained why that mistake was not a problem. Even without the FST, there was sufficient other evidence to support the PC.
  - See also: Munoz v. State, No. 02-12-00513-CR, 2013 WL 4017622 (Tex.App. -Fort Worth 2013, no pet.).
SEARCH WARRANT AFFIDAVIT FAILED TO SET OUT THE BASIS FOR THE TRAFFIC STOP NOT FATAL
- Hughes v. State, 334 S.W.3d 379 (Tex.App.- Amarillo 2011, no pet.).
  - Defendant attacks the affidavit for failing to state the specific articulable facts to authorize the stop of the defendant. It also failed to state how the blood draw would constitute evidence of DWI, and complained about slash marks that are not explained in the part describing FST’s. Language asserts that officer swore to affidavit before the magistrate when in fact it was sworn to in front of an officer at station who was notary so the affidavit constitutes perjury. No exigent circumstances warranted the intrusion of blood draw. In rejecting that argument, the Court explains that the failure to detail facts regarding the basis for the stop is not fatal to magistrate’s overall PC determination because the issue is not reasonable suspicion to detain but rather PC to authorize a search. In rejecting the blood use argument, the Court finds that the magistrate is allowed to make a reasonable inference that blood would be analyzed for presence of alcohol for use in prosecution of DWI. Slash marks are merely “/”s that indicate officer observed those matters. As to the issue of who it was sworn to, this is judged to be extra wording that does not impact the legality of the warrant. The Court further finds that no exigent circumstances are required to authorize a warrant based on PC for a blood draw.
SEARCH WARRANT AFFIDAVIT WAS NOT SIGNED BY AFFIANT = NOT FATAL
- Smith v. State, 207 S.W.3d 787 (Tex.Crim.App. 2006).
  - Affiant swore before magistrate and then failed to sign the affidavit. The magistrate did not notice the omission and signed the SW Court of Appeals held failure to sign affidavit does not invalidate warrant. Court of Criminal Appeals agreed holding that the “purpose of the affiant’s signature […] memorializes the fact that the affiant took the oath; it is not an oath itself”. Dicta in the opinion references that some federal and state courts now permit telephonic warrants “and one can foresee the day in which search warrants might be obtained via email or a recorded video conference with a magistrate located many miles away. In state as large as Texas, such innovations should not be foreclosed by the requirement of a signed affidavit in officer’s oath which can be memorialized by other equally satisfying means. We leave those potential future changes to the legislature.” The Court further notes that forgetfulness or carelessness in formalities of affidavit may affect credibility of the officer.
SIGNATURE ON WARRANT NOT LEGIBLE IS NOT FATAL
- Nguyen v. State, No. 14-09-00995-CR, 2010 WL 2518250 (Tex.App.-Houston [14 Dist.] 2010, no pet.).
  - In attacking the blood search warrant, the defendant argued that because the signature on the warrant affidavit was illegible, the warrant was defective. The Court rejected this argument pointing out it is the act of swearing and not the signature that is essential. Additionally, another officer testified that he and the magistrate did recognize the signature.
SEARCH WARRANT AFFIDAVIT CONTAINING MULTIPLE ABBREVIATIONS THAT WERE NOT EXPLAINED = NOT FATAL
- Hogan v. State, 329 S.W.3d 90 (Tex.App.-Fort Worth 2010, no pet.).
  - Attacked the warrant affidavit on the basis that it contained “conclusory and nonsensical statements.” It described driving path of “IMP” without saying what IMP is or that defendant was driving IMP. It contains terms HGN, WAT and OLS without defining those acronyms or explaining significance of number of clues. Does not state officer is qualified to conduct FST’s or that he has experience in DWI cases. Trial Court denied MTS. In rejecting these arguments, the Court found that there was sufficient evidence to tie defendant to IMP. The description of the clues on the FST’s and other facts were sufficient to show PC. Although it could have been more complete about officer’s experience in DWI cases, such information is not required to make affidavit adequate. Cites Swearingen v. State, 143 S.W.3d 808 (Tex.Crim.App. 2004). When reviewing a magistrate’s decision to issue a warrant, we apply a highly deferential standard in keeping with constitutional preference for a warrant. “Even in close cases, we give great deference to a magistrate’s determination of PC to encourage police officers to use the warrant process rather than making a warrantless search and later attempting to justify their actions by invoking some exception to the warrant requirement.”
THE RELIABILITY OF THE FST’S DESCRIBED IN THE SEARCH WARRANT AFFIDAVIT ARE ATTACKED = NOT FATAL
- Foley v. State, 327 S.W.3d 907 (Tex.App.-Corpus Christi-Edinburg 2010, pet. ref’d).
  - In attacking the affidavit, the defendant contends that the FST’s mentioned were not credible source of information regarding his intoxication because of his age being over 65. Court of Appeal’s response is to assume that the FST’s described were not good indicators for this defendant, but found that there were enough other independent indicators of intoxication to sustain the warrant.
FAXED WARRANT WHERE OATH WAS ADMINISTERED BY MAGISTRATE TO AFFIANT OVER THE PHONE
- Clay v. State, 391 S.W.3d 94 (Tex.Crim.App. 2013).
  - This case involves the legality of an officer swearing to the truth of a search warrant affidavit over the phone with a magistrate. In holding that the oath under these facts was valid, the Court put great weight on the fact that the magistrate testified he recognized the officer’s voice. The purpose of a sworn affidavit has two important functions. The first of these is to impress upon the swearing individual an appropriate sense of obligation to tell the truth. The second is that the sum total of information conveyed to magistrate in support of PC is memorialized (done by affidavit being in writing in this case). The Court finds no compelling reason to construe the terms “sworn affidavit” contemplated by article 18.01(b) to require that oath always be in corporeal presence of magistrate so long as solemnizing function exists similar to that when affiant is in presence of magistrate.
- Franklin v. State, No 14-11-00961-CR, 2012 WL 3861970 (Tex.App.-Houston [14^th Dist.] 2013,no pet.)
  - This case involved a telephonic oath swearing to affidavit. The Court upholds this under the “Good Faith Exception” which was argued in this case (distinguishing it from Aylor v. State).
THE JURISDICTION OF THE STATUTORY COUNTY COURT IS ATTACKED AND FOUND TO BE LIMITED
- Sanchez v. State, 365 S.W.3d 681 (Tex.Crim.App. 2012).
  - Houston police arrested suspect in Harris County and sought a warrant from Judge of County Court at Law of Montgomery County. Kingwood is in Harris and Montgomery County. The arrest was in Harris. It was during a “No Refusal” weekend in Montgomery a few miles away so the cop drove 5 miles to MOCO rather than 22 miles to Houston. The issue presented was whether the judge of a statutory county court, acting as a magistrate, may sign a search warrant to be executed in a county other than the one in which he serves? The Court first pointed out that jurisdiction of JP’s is limited to county, and the jurisdiction of District Judge is statewide. It then held that County Courts at Law do not have statewide authority because government code does not expressly grant them that jurisdiction, so the Court held that legislature limited a statutory county court judge’s authority to acting within the county of the court. For this reason the warrant was invalid. Decision affirmed by Court of Criminal Appeals.
SEARCH WARRANT AFFIDAVIT ATTACKED FOR HAVING INSUFFICIENT FACTS TO SUPPORT PC AND FOR FAILING TO NOTE DATE/TIME OF STOP.
1. NOT FATAL
  - Rentrop v. State, No. 09-14-00060-CR. 2015 WL 993477 (Tex.App.-Beaumont 2015)
    - The search warrant affidavit failed to list month events sworn to were observed. Citing to reasoning in of Court of Criminal Appeals in Jordan the Court found this omission to not be fatal us as under totality of circumstances and giving due deference to all reasonable inferences that can be drawn from the rest of the facts in affidavit made it signature including fact that the affidavit oath listed the month as did the judges signature line and the fact that there was less than a three hour interval between time of stop and signing warrant.
  - Wheat v. State, No. 14-10-00029-CR, 2011 WL 1259642 (Tex.App. –Houston (14^th Dist.) 2011, pdr ref’d).
    - Defendant challenges sufficiency of affidavit to establish PC through MTS warrant. Denied by Trial Court. Police received a call from citizen that described defendant running red light and then parking along side of the road. When police responded to call, they found vehicle running and defendant asleep behind the wheel. Deficiency argued were:
      1. no time reference,
      2. no witness saw defendant operating,
      3. nothing to show when defendant consumed alcohol, and
      4. no indication if vehicle was parked in right of way.
    - Court rejected those arguments pointing out there were sufficient details from which approximate time could be inferred. The defendant was still “operating” vehicle when the officer arrived. No need to show when alcohol was consumed and irrelevant if vehicle was in right of way.
2. FATAL
  - Farhat v. State, 337 S.W.3d 302 (Tex.App.-Fort Worth 2011, pet. ref’d).
    - In this case the affidavit was attacked for not containing sufficient basis for concluding PC. Affidavit stated the following:
      1. Defendant was driving 30 mph in a 40 mph zone at 12:50 a.m.
      2. He was weaving from side to side.
      3. He continued in left Jane for half mile.
      4. Turned on right turn signal and then turned left into parking lot.
      5. Upon stopping him, officer saw two pill bottles in center console.
      6. Defendant refused FST’s.
      7. Officer believed he had committed DWI based on the erratic driving, pills in console and personal observations.
    - In reversing the case, the Court pointed to the fact that there was no mention in affidavit of what those personal observations were (i.e., odor of alcohol, bloodshot eyes, and slurred speech). That contrary to what is stated in the findings of fact, the record shows only that pill bottles and not pills were observed and no mention of type of pills or that type would point to intoxication. It rejects the Trial Court’s interpretation of the testimony that he drove in the left lane meant he was driving into oncoming traffic as the Court does not understand why officer would not have immediately turned on lights and pulled him over. The Court finds the other driving behavior may be enough to justify reasonable suspicion for stop but not PC.
FAILURE TO SPECIFY WHAT POLICE INTEND TO DO WITH BLOOD SAMPLE = NOT FATAL
- State v. Webre, 347 S.W.3d 381 (Tex.App. – Austin 2011, no pet.).
  - Police officer’s affidavit was not insufficient to support probable cause for draw of defendant’s blood for evidence that she had committed offense of driving while intoxicated simply because affidavit did not detail what police intended to do with sample after it was taken; magistrate simply needed to determine there was probable cause that evidence of the offense would be found in defendant’s blood, and magistrate could have reasonably inferred that sample sought would be tested for presence of alcohol or other intoxicants.
JURISDICTION OF MUNICIPAL POLICE DEPARTMENT AS REGARDS EXECUTION OF WARRANT IS COUNTY WIDE
- Meadows v. State, 356 S.W.3d 33 (Tex.App.-Texarkana 2011, no pet.).
  - Police officer employed by home-rule municipality had jurisdiction to execute search warrant for sample of defendant’s blood outside municipality, but within county in which municipality was located, as municipality’s powers were derived from state constitution rather than from statute, and warrant was executable by any “peace officer” with jurisdiction throughout county.
SEARCH WARRANT NOT RELATING DETAILS ABOUT CREDIBILITY OF AFFIANT NOT FATAL
- Hughey v. State, No. 02-11-00175-CR, 2012 WL 858596 (Tex.App.-Fort Worth 2012, pdr ref’d) (not designated for publication).
  - This case involves a search warrant for blood where the defendant contended that the warrant did not provide a reasonable basis for the magistrate to determine PC and that there were matters in the affidavit that were not true. The State conceded that the affidavit did not include information about the credibility of the witness to the bad driving or the fact that he was an off-duty police officer and does not specify that only Rivera and not the officer witnessed the bad driving and redacted by agreement some oral statements referred to in the affidavit. The Court found that none of what was referred to as inaccurate statements was intentional and that even if all the driving facts were redacted, the affidavit still supported the magistrates finding of PC.
AFFIANT MISSTATEMENTS IN WARRANT AFFIDAVIT MAY OR MAY NOT INVALIDATE AND MAY LEAD TO SUPPRESSION
1. MAY
  - State v. Lollar, No. 11-10-00158-CR, 2012 WL 3264428 (Tex.App. – Eastland 2012, no pet.) (not designated for publication).
    - The case involves a Defendant who was in an accident and was arrested for DWI and the officer got a search warrant to obtain a blood sample. At a motion to suppress hearing, the officer admitted a number of items that he had put in the affidavit were not true and this resulted in the Trial Court suppressing the blood evidence and issuing a finding that the officer was not credible. Not surprisingly, this decision was affirmed by the Court of Appeals. In its ruling the Court points out that form affidavits, like that used in this case, can be a valuable tool for law enforcement when time is of the essence, but if abused, they have the potential to infringe on Fourth Amendment rights
2. MAY NOT
  - Pullen v. State, No. 01-13-00259-CR, 2014 WL 4219483 (Tex.App.-Houston [1^st Dist.] 2014, pdr ref’d).
    - The Defendant challenged the search warrant on the basis of what he called false statements contained therein. Officer admitted at trial that she had mistakenly said in her affidavit that she had offered “some” field sobriety tests to Defendant when in fact she had only administered the HGN test at the scene as it was another officer at the scene who administered the other tests at lntox room. The Court found that Trial Court could have found that these were simple mistakes and weren’t intentional or reckless and that the remaining information in the four corners of the warrant supported probably cause.
MAY THE JUDGE WHO SIGNED WARRANT PRESIDE OVER MTS HEARING ON THAT SAME WARRANT? – YES
- Diaz v. State, 380 S.W.3d 309 (Tex.App. – Fort Worth 2012, pdr ref’d).
  - In this case the Defendant filed a motion to suppress the blood search warrant in his DWI case and the trial judge who signed the warrant was the same judge who presided over the hearing. The Defendant’s motion was denied and on appeal he argues that he received ineffective assistance of counsel because defense counsel did not pursue a motion to recuse the trial judge or otherwise complain or object that the same Judge who had signed the blood warrant also presided over the suppression hearing and the trial. In affirming his conviction, the Court of Appeals found that the mere fact that the same Judge signed a Defendant’s search or arrest warrant and then presided in subsequent criminal proceedings does not establish bias pointing out that Judges are often called on to reconsider matters they have previously ruled on. Generally, a Judge is not required to be recused based solely on his prior rulings, remarks, or actions.
QUALIFIED PERSON NOT NAMED IN WARRANT MAY DRAW BLOOD
- Walters v. State, No. 02-11-00474-CR, 2013 WL 1149306 (Tex.App. – Fort Worth 2013, no pet.).
  - The issue concerns the fact that an LVN did the blood draw pursuant to a warrant that excluded LVN’s from the list of qualified persons who could do the draw. In rejecting that argument, the Court points out that in blood draw cases when the State has obtained a warrant, it is not fatal that the State might draw “in a manner other than that directed by the magistrate”. It also found that there was sufficient evidence that the LVN was qualified to do the blood draw.
SEARCH WARRANT OATH NOT ADMINISTERED
- Ashcraft v. State, No. 03-12-00660-CR, 2013 WL 4516193 (Tex.App. – Austin 2013).
  - Fact that officer qualified to administer oath to affiant did not actually verbalize the recitation of an oath was not fatal where on the face of the affidavit it begins with statements, “after being duly sworn” and concludes with language “sworn and subscribed”. This is sufficient because it supports that if the affidavit were proven to be false, it would subject affiant to charges of perjury.
AFFIDAVIT NEED NOT SPELL OUT HOW BLOOD WILL BE EVIDENCE
- Kriss v. State, No. 05-12-00420-CR, 2013 WL 6050980 (Tex.App. – Dallas 2013, pdr ref’d).
- Hughes v. State, 334 S.W.3d 379 (Tex.App. – Amarillo 2011, no pet.).
- Rodriguez v. State, 232 S.W.3d 55 (Tex.Crim.App. 2007).
  - A blood warrant affidavit in a DWI case that states that blood will be evidence of a crime does not need to state how blood draw would constitute evidence of driving while intoxicated because magistrate can draw logical inferences from affidavit’s facts. It is not a great leap of faith or unknown intuitiveness to realize that magistrate knows that blood is being requested to analyze it for presence of blood alcohol.
BLOOD NEED NOT BE DRAWN AT LOCATION SPECIFIED IN SEARCH WARRANT
- Harrell-MacNeil v. State, No. 07-15-00009-CR, 2016 WL 4492559 (Tex. App. – Amarillo 2016)
- Bailey v. State, No. 03-13-00566-CR, 2014 WL 3893069 (Tex.App.-Austin 2014, no pet.)
  - Body of search warrant said blood would be taken at the county jail when in fact it was drawn at a local hospital. In holding that this was not a basis for suppressing the blood evidence, the Court pointed out there is no authority that blood obtained by warrant may only be drawn at location specified in the warrant.
THE NAMED AFFIANT NEED NOT BE THE ONE WHO SIGNS AFFIDAVIT
- Patterson v. State, No. 08-12-00289-CR, 2014 WL 5502453 (Tex.App.-EI Paso 2014, no pet).
  - The warrant affidavit was drafted by one officer while the LEADRS program which was under another officer’s name inserted that other officer’s name as affiant into the beginning of warrant. The affidavit was actually signed by the first officer. In short the affiant name listed and the affiant signature are two different people. The Court holds this error does not invalidate the warrant.
DIRECT EVIDENCE OF DRIVING NOT NEEDED TO SUPPORT PC IN SEARCH WARRANT
- State v. Castro, No. 07-13-00146-CR, 2014 WL 4808738 (Tex.App.-Amarillo 2014, no pet).
  - In this case an officer approached a Defendant to assist him in changing a tire. Defendant was outside vehicle at the time retrieving a spare. This contact led to DWI investigation and to arrest for DWI. The search warrant erroneously stated that FST’s had been done and that Defendant refused to do them along with other details of the investigation. The Defendant sought to suppress the SW on the basis of the mistakes in the affidavit stated above and with the argument that there was insufficient evidence to prove he had been operating the vehicle. The Trial Court granted the motion. In reversing the Trial Court and upholding the warrant, the Court of Appeals found that the officer’s warrant did have sufficient detail to support PC even with the mistakes and that the Trial Court’s belief that there needed to be “direct” evidence of driving before PC could exist was erroneous. There was sufficient evidence based on Defendant’s presence at the scene to support the interest he was driving.
MAGISTRATES WHO SIGNED IS NOT AN ATTORNEY:
- Zalman v. State, No. 13-13-00471-CR, 2015 WL 512914 (Tex.App.-Corpus Christi 2015)
- Barrios v. State, 452 S.W.3d 835 (Tex.App.-Amarillo 2014, pet ref’d.)
  - Fact that judge who signed warrant was not a licensed attorney permitted by CCP 18.02 (10) and that is not limited by language in 8.01 (j) which lists that all “attorneys” may sign blood search warrants. The Court reconciles what Defendant calls a contradiction and upholds the draw.
REVIEW OF WARRANT AFFIDAVIT SHOULD NOT BE HYPER TECHNICAL
- State v. Crawford, 463 S.W.3d 923 (Tex.App- Fort Worth 2015).
  - A motion to suppress on blood search warrant was held and trial granted MTS PC did not support concluding SW. In reversing the trial court the Court of Appeals cautioned against reviewing supporting affidavit hyper technically and said magistrate finding was be deferred to as long as there is a substantial basis for his finding PC. In reversing the trial court’s finding the Court of Appeals focused on the following: The fact that the trial court focused on the fact that the affidavit said Defendant had admitted he had been “drinking” and was bothered by the failure to clarify if drinking referred to water, mile, lemonade, etc., or alcohol, statement that he failed field sobriety tests was found lacking because specific tests were not named and how they were failed. Trial Court further focused on the fact that the Defendant was not described as having unsteady balance or needing support. In total, 13 of the 24 findings of fact focused not on what was in the warrant affidavit but on what was missing. The court points out that merely because conflicting inferences could be drawn from the affidavit does not justify a reviewing court’s conclusion that the magistrate did not have substantial basis upon which to find PC. In this case the Court finds the four corners of warrant affidavit support PC.
ADMISSIBILITY OF SEARCH WARRANT AND AFFIDAVIT
- Saldinger v. State, No. 14-14-00402-CR, 2015 WL 4594053 (Tex.App.-Houston (14^th Dist) 2015)
  - Search Warrant and Affidavit were admitted into evidence in jury trial over Defendant’s objection. State concedes the documents are hearsay but argues that an exception exists that makes them admissible when Defendant makes probable cause an issue before the jury. While agreeing that the exception is correct the Court held it was not raised in this case by the argument made by defense that police mistakenly believed the Defendant was intoxicated. Court further held their admission was harmless.
SEARCH WARRANT AFFIDAVIT DID NOT NAME WITNESS
- Gonzales v. State, No. 04-14-00649-CR, 2015 WL 6876822 (Tex. App.-San Antonio 2015)
  - Search warrant was not invalid based on fact that officer referred to a witness as “W1” and did not name witness. Not naming witness does not make that witness more or less credible and citizen informants are presumed to speak with the voice of honesty and accuracy. It was also not invalid for the Affiant to fail to note that he did not talk to the witness but rather was relaying what another officer told him. This was not shown to be an omission made with reckless disregard for the truth and it was not material.
ELECTRONIC WARRANT
- State v. Hyo Yu, No. 05-16-00518-CR, 2017 Tex. App. LEXIS 2843, 2017 WL 1192798 (Tex.App. – Dallas 2017)
  - This case involved a motion to suppress a blood search warrant that was electronically signed by a magistrate. The officer admitted that he had never met the magistrate and did not have personal knowledge that the magistrate who received and signed the warrant was the magistrate actually named in the warrant. The trial court held that that warrant was invalid on that issue. The Court of Appeals held that the defendant failed to meet his burden to prove the search warrant was invalid based only on surmise and speculation that someone other than the magistrate named may have signed off on the warrant.
SEARCH WARRANT NEEDED TO TEST BLOOD SAMPLE TAKEN BY HOSPITAL
- State v. Martinez, No. 13-15-00592-CR, 2017 Tex. App. LEXIS 6491, 2017 WL 2979791( Tex. App. Edinburg 2017)
  - This was an intoxication manslaughter case where the defendant was transported to the hospital for treatment. When he arrived the medical personnel drew his blood, however, the defendant told hospital staff that he did not want them to perform any tests on his blood. The defendant left the hospital without receiving any further medical treatment. The next day a grand jury subpoena was served on the hospital for the blood taken by the hospital and his medical records. The defendant’s blood sample was then forwarded to the crime lab for testing. The trial court suppressed the results of the blood analysis holding that the seizure of the blood from the hospital and subsequent search of the blood by the lab constituted a search and seizure under the Fourth Amendment. The court held that the initial seizure of the blood from the hospital with a grand jury subpoena was valid. However, the search of the blood without a warrant violated the defendant’s Fourth Amendment rights. The found that there were no exigent circumstances due to the fact that the blood was no longer subject to metabolization and it was not subject to destruction.

K. WHEN DEFENDANT CONSENTS, 724.012 OF TRANSPORTATION CODE DOES NOT APPLY

Subirias v. State, 278 S.W.3d 406 (Tex.App.-San Antonio 2009, pet. ref’d.).

This case involves a defendant who was involved in a wreck that resulted in two deaths and two SBl’s. A total of three blood draws were done; he was arrested after the second blood draw but before the third. He challenged the first blood draw as being pre-arrest, and the second blood draw as being in violation of Transportation Code Section 724.012(b) allowing only a single blood draw. The evidence showed he consented to both blood draws and the Court held that when one consents, 724.012 does not apply. He further objected to the first and second blood draws as being in violation of Rule 403 of the Texas Rules of Evidence and that was rejected after applying the six factors that go to that issue. The attack on the reliability of the retrograde extrapolation was also rejected based on the facts of this case. In his final point, he argued that the medical blood draw should have been suppressed because it was not taken by a person qualified to do so under Transportation Code 724.017 while conceding that medical blood draws are not required to meet the standards set forth in section 724.107, but argued they should still be applicable to ensure reliability of said draws. This issue was not properly preserved for review.

L. OFFICER BLOOD DRAW PROCEDURE “NOT UNREASONABLE” UNDER THE 4TH AMENDMENT AND NON-MEDICAL ENVIRONMENT IS UPHELD

State v. Johnston, 336 S.W.3d 649, (Tex.Crim.App., March 16, 2011). Cert. denied Oct.3, 2011

Defendant was arrested by Dalworthington Gardens Police Dept. for DWI and a search warrant for blood was obtained. Suspect resisted blood draw and was restrained. Result = .19. At MTS hearing the Trial court found that the blood draw was done by recognized medical procedures, force used was reasonable, but officer who did the draw was not qualified under 724.017 of Transportation Code and the seizure of defendant’s blood violated the Fourth Amendment’s reasonableness requirement by not being taken by medical personnel in a hospital or medical environment. Court of Appeals confirmed that Transportation Code does not apply, held it was not a problem that blood was not drawn in medical environment, and made no finding that officer was not qualified. Under Fourth Amendment found the means used were not “reasonable”. In so holding the Court mentions no medical history taken, no video recording, no written guidelines for use of force. Court of Criminal Appeals reversed holding that being a police officer does not disqualify an otherwise qualified person from performing a blood draw after stating that the officer in this case was demonstrated by the record to be qualified to do so. It further stated that while a medical environment is ideal for such draws that does not mean that other settings are unreasonable under the Fourth Amendment and the setting in this case was proper.

M. PROPER TO BRING OUT IN QUESTIONING DEFENDANT’S FAILURE TO ASKTO RETEST BLOOD SAMPLE

Schmidt v. State, No. 09-09-00149-CR, 2010 WL 4354027 (Tex.App.-Beaumont 2010).

Prosecutor’s eliciting testimony from State’s chemist that the defense had not requested access to the blood sample to perform its own testing was not improper nor was it an attempt to shift the burden of proof. The Court pointed out that generally, the State can comment on a defendant’s failure to present evidence in his favor and even comment on the absence of evidence from the defense so long as said comment refers to evidence other than a defendant’s own testimony. They further held this question was a proper response to the defense questioning of the witness about how the sample was preserved.

N. TESTIMONY ABOUT DRUG INGESTION AND ITS EFFECTS

IMPROPERLY ADMITTED
- Delane v. State, 369 S.W.3d 412 (Tex.App.-Houston [1st Dist.] 2012, pdr ref’d).
  - Officer who was not certified DRE was not qualified to give testimony regarding the effect defendant’s prescription medication would have on his driving. The error of allowing said testimony called for reversal. The Court cited Layton and relied upon it without distinguishing the fact that this case, unlike Layton, alleged intoxication without specification of limitation where part of the reasoning behind the reversal in Layton was that it just alleged alcohol.
- Layton v. State, 280 S.W.3d 235 (Tex.Crim.App. 2009, reh.denied).
  - The defendant objected to the admission of the portion of the DWI video where he admitted taking Valium and Xanax as irrelevant. (It should be noted that the definition of intoxication listed in the information in this case alleged only “alcohol” intoxication). In reversing the case, the Court of Criminal Appeals held that without expert testimony to provide the foundation required to admit scientific evidence, the testimony regarding Appellant’s use of prescription medications was not shown to be relevant to the issue of his intoxication.
PROPERLY ADMITTED
- Guiterrez v. State, No. 04-16-00218-CR, 2017 Tex.App. LEXIS 848, 2017 WL 429584 (Tex. App. – San Antonio 2017)
  - This is a DWI case involving a one-car crash. The defendant admitted to drinking and taking a “couple of doses” of Benadryl a “couple of hours ago”. At trial, the court allowed the prosecution to read the warning label from a box of Benadryl. On appeal, the defendant argued that the State was required to produce expert testimony to establish the reliability and relevancy of Benadryl when proving intoxication for a DWI offense. The defendant relies on Layton v. State. In Layton, the defendant was charged with intoxication by introduction of alcohol. Here, the defendant was charged with intoxication by not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of these substances, or any other substance into the body. The court distinguished this case from Layton and held that no expert testimony was required to read the label or in determining the side effects listed on the label. The court further held, that a lay juror was in a position to determine whether Benadryl taken a couple of hours before arrest would have any effect on the defendant’s intoxication.
- Armstrong v. State, No. 05-10-01214-CR, 2012 WL 864778 (Tex.App.-Dallas 2012, no pet.) (not designated for publication).
  - This case involved a DWI defendant who blew 0’s and admitted to taking half a Xanax, the presence of which was confirmed by a blood test. An officer and a chemist testified about the effects of said drug on driving. In upholding the admissibility of said testimony and distinguishing Delane and Layton, the Court focused on the following: The officer in this case was a DRE and the chemist demonstrated an understanding of the drug ingested and the effect it would have on the defendant. There was evidence of the dosage and about the drug’s half-life. This DWI case, unlike Layton, did not involve a charge limited to intoxication by alcohol.

O. DEFENSE MOTION TO DISCOVER LAB RECORDS

OVERLY BROAD
- In Re William Lee Hon, No. 09-16-00301-CR, 2016 WL 6110797 (Tex. App. – Beaumont 2016)
  - This case involved a District Attorney seeking mandamus relief from a discovery order signed by a judge. Part of that order required the production of “all proficiency testing results for any person involved in the sample preparation, analysis, or administrative or technical review in the case”. This was not limited to time when the Defendant’s sample was obtained. The Court also ordered the “testimonial evaluation forms of each laboratory employee involved in the testing process”. The order also granted the Defense the opportunity to “inspect, diagram, and photograph the areas under the control of the laboratory containing the equipment used to test the sample”. The Court concluded that the Defendant had failed to articulate the materiality of the discovery sought in the above three instances and as to those sections mandamus was granted.
- In Re Tharp, No. 03-12-00400-CV, 2012 WL 3238812 (Tex.App.-Austin 2012) (not designated for publication).
  - In this case the Defendant filed a motion for discovery that was granted that sought “all records, documents, testing data, and chain of custody records in Agency Case Number STZPD-201- 39005.” The State argued the granting of this discovery award constituted an abuse of discretion. In its holding for the State in this case, the Court found that the Trial Court’s order, to the extent that it requires production of “all records, [and] documents” in this case, exceeds both the scope of the Defendant’s request, and, more importantly, the range of items which the State may be compelled to produce under Article 39.14.
NOT OVERLY BROAD
- In Re Tharp, No. 03-12-00400-CV, 2012 WL 3238812 (Tex.App.-Austin 2012) (not designated for publication).
  - In this case the Defendant filed a motion for discovery seeking thirty items from the DPS Crime Laboratory in Austin related to the lab’s testing of his blood sample and following two hearings, the Trial Court granted most of Nickerson’s requests, ordering the production of twenty specific documents. The State asserts that the Court’s order is an abuse of discretion because it violates Article 39.14 of the CCP by requiring the disclosure of the State’s work product and that the Defendant did not establish good cause or the materiality of the evidence to his defense. In ruling against the State, the Court points at that only a blanket work-product assertion was made and nothing was provided in the briefing as to why any specific item is not discoverable, nor did she provide any specific explanation or argument in the hearings before the Trial Court.

P. TESTIMONY ABOUT TRACE AMOUNT OF DRUGS IN BLOOD SAMPLEADMISSIBLE

Bekendam v. State, No. PD-0452-13, 2014 WL 4627275 (Tex.Crim.App. 2014).

The Trial Court’s decision to allow an expert, a forensic scientist with the State crime laboratory, to testify that a trace amount of cocaine was present in Defendant’s blood at the time of the blood draw and that cocaine would have been in her bloodstream at the time she was operating her vehicle when it collided with the other vehicle was not an abuse of discretion.

Q. GAS CHROMATOGRAPH

KELLY TEST
- Drumgoole v. State, No. 01-13-00931-CR, 2015 WL 4497978 (Tex.App.-Houston (1^st Dist) 2015).
  - As related to the Kelly test and blood alcohol testing the court held that: because the validity of the technique of head-space gas chromatography for blood tests has been well established by numerous, previous Kelly hearings and appellate reviews we are not required to repeat the review on appeal. As to conflicting testimony on whether technique was properly applied the Court held it was within trial courts discretion to rule in favor of the State.
DATA DESTROYED
- Welder v. State, No. 04-12-00706-CR, 2013 WL 4683156 (Tex.App.-San Antonio 2013, no pet.).
  - The crime lab that tested the blood sample destroyed the raw data created by the gas chromatograph. The Defense argued that the results should have been suppressed as this constituted destruction of potentially exculpatory evidence and denied his expert access to the data which she said she needed. The Court focused on the fact that even if it assumed that the deleted raw data was exculpatory and that confrontation rights were prejudiced, since Defense could not establish the destruction was in bad faith, the Trial Court did not err in admitting the blood test results and the related expert testimony.

R. IF STATE IS NOT OFFERING BLOOD EVIDENCE FACT OF BLOOD DRAW PROPERLY EXCLUDED:

Castillo v. State, No’s. 04-14-00207-CR & 04-15-00208, 2016 WL 416091 (Tex.App.-San Antonio 2016, no pet)

Even though a blood sample was properly drawn and the test result showed a level over the legal limit. The State objected to the Defense eliciting any testimony about the officer obtaining a search warrant and obtaining a blood sample because the State was not going to offer the results but would rather rely on proof that Defendant had lost the normal use of his mental or physical faculties. Trial judge sustained the objection and excluded said testimony. Court of Appeals upheld the ruling saying it was reasonable, in the absence of any intent on the part of the defense to call witness to offer the blood result itself, for the trial court to determine that evidence of a blood draw was irrelevant and would confuse the jury.

**S. MISSOURI V. MCNEELY IMPACT ON MANDATORY BLOOD LAW**

What follows are summaries of some but not all cases that address the impact of Missouri v. McNeely on our mandatory blood statute

CASES HOLDING BLOOD DRAWN WAS UNLAWFUL
- I start with a list of McNeely related opinions handed down since my last update that have ruled that blood drawn should be excluded. While we await the Court of Criminal Appeals new opinion after rehearing on Villareal I have decided not to take the time to summarize each of them.
  - State v. Arredondo, No.13-13-00589-CR, 2015 WL 5895072 (Tex.App.–Corpus Christi-Edinburg, 2015)
  - State v. Pimentel, No. 08-13-00081-CR, 2015 WL 3878079 (Tex.App.– El Paso 2015)State v. Rodriguez, No. 13-13-00335-CR, 2015 WL 3799353 (Tex.App,-Corpus Christi-Edinburg 2015)
  - State v. Clendon, No. 13-13-00357-CR, 2015 WL 4116695 (Tex.App.-Corpus Christi-Edinburg 2015)
  - State v. Tercero, 467 S.W.3d 1 (Tex.App.-Houston (1^st Dist) 2015, pdr ref’d)
  - Howard v. State, No. 01-14-00112-CR, 2015 WL 4497431 (Tex.App.-Houston (1^st Dist) 2015)
  - Garcia v. State, No. 01-14-00389-CR, 2015 WL 4554289 (Tex.App.-San Antonio 2015)
  - State v. Esher, No. 05-14-00694-CR, 2015 WL 4527715 (Tex.App.-Dallas 2015)
  - State v. Munoz, No. 08-13-00164-CR, 2015 WL 4719559 (Tex.App.-El Paso 2015)
  - Moore v. State, No. 11-13-00347-CR, 2015 WL 5192175 (Tex.App.-Eastland 2015)
  - Greer v. State, No. 01-14-00033-CR, 2015 WL 6366737 (Tex.App.-Houston (1^st Dist) 2015)
  - Richards v. State, No. 05-14-00075-CR, 2015 WL 2400757 (Tex.App.–Dallas 2015, pdr granted)
  - Burcie v. State, No. 08-13-00212-CR, 2015 WL 2342876 (Tex.App.–El Paso 2015)
  - State v. Martinez, No. 13-14-00117-CR, 2015 WL 1957087 (Tex.App.–Corpus Christi 2015)
  - Huff v. State, 467 S.W.3d 11 (Tex.App.- San Antonio 2015, pdr filed)
  - Perez v. State, 464 S.W.3d 34 (Tex.App.–Houston (1 Dist) 2015, pdr ref’d)
  - Lewis v. State, No. 02-13-00416-CR, 2015 WL 1119966 (Tex.App.–Fort Worth 2015, pdr ref’d)
  - Bowyer v. State, No. 02-13-00315-CR, 2015 WL 1120332 (Tex.App.–Fort Worth 2015, pet ref’d)
  - Chidyausiku v. State, 457 S.W.3d 627 (Tex.App.–Fort Worth 2015, pet ref’d.)
  - Evans v. State, No. 14-13-00642-CR, 2015 WL 545702 (Tex.App.-Houston (14^th Dist.) 2015)
  - Bowman v. State, No. 05-13-01349-CR, 2015 WL 557205 (Tex.App.-Dallas 2015)
  - State v. Garcia, 457 S.W.3d 546 (Tex.App.- San Antonio 2015, pdr ref’d)
  - State v. Sandlin, No. 05-14-00072-CR, 2015 WL 294660 (Tex.App.-Dallas 2015)
  - Burks v. State, 454 S.W.3d 705 (Tex.App.–Fort Worth 2015, pet ref’d)
  - Lloyd v. State, 12. S.W.3d 544 (Tex.App.–Dallas 2014)
  - Cole v. State, 454 S.W.3d 89 (Tex.App.– Texarkana 2014)
  - Flores v. State, No. 04-13-00754-CR, 2014 WL 7183481 (Tex.App.–San Antonio 2014, pdr filed.)
  - State v. Villarreal, 475 S.W.3d 784 (Tex.Crim.App. 2014) (petition for cert. filed, 84 USLW 3484, Feb. 19, 2016).
- A fractured 5:4 court issued a per curiam opinion dismissing last February’s decision to grant rehearing as improvident. The one-paragraph decision is joined by three separate concurring opinions and two dissenting opinions. Overall, the Court of Criminal Appeals left standing last year’s decision that was adverse to the State in a felony DWI with a compelled blood draw per Section 724.012 of the Transportation Code. Judge Newell’s concurring opinion reads this ruling as narrowly applying to felony DWIs. Regardless of his statement, prudence requires that warrants be obtained for all compelled blood draws under Section 724.012. So the original opinion is left standing and it’s summary can be found below:In this Nueces County state appeal, the Court held that the warrantless, non-consensual felony DWI blood draw violated the Fourth Amendment. The Court of Criminal Appeals in this five to four decision agreed with the lower Courts though it did not address the constitutionality of the statue and held it was error for the Court of Appeals to do so. The five vote majority rejected the State’s arguments, finding as follows:
  - Implied consent does not fit into any existing exception to the warrant preference, nor does it constitute its own exception.
  - The consent exception does not include implied consent in the form of a prior waiver. Further, consent (specifically, implied consent) becomes involuntary when it cannot be withdrawn. The Court distinguished other contexts where voluntary consent includes a valid prior waiver of rights (regulatory waivers, waivers by parolees and probationers, school-related waivers).
  - The special-needs exception does not apply where the immediate objective is to generate evidence for law enforcement purposes.
  - The search-incident-to-arrest exception only applies to searches which are substantially contemporaneous.
  - A blood draw is a search, not merely a seizure.
  - A generalized balancing-of-interests test under the Fourth Amendment is not a substitute for consideration of the well-known Fourth Amendment exceptions to the warrant preferences. Also, even applying such a test, the Court would conclude that a DWI suspect’s privacy interest outweighs the State’s interest in preventing drunk driving through warrantless searches.Also this case did not present a facial constitutional challenge to the mandatory-draw statute. Nor did this case involve any arguments pertaining to the invocation of the exclusionary rule based upon the lack of a violation at the time of the seizure.
- Gore v. State, No. 01-13-00608, 2014 WL 5896311 (Tex.App.-Houston [1st Dist] 2014).
  - This was a mandatory draw after a DWI with child arrest case. Court rejects argument that the privilege of driving comes with a waiver of Fourth Amendment rights under certain circumstances. Rejects implied consent not being able to be withdrawn makes draw voluntary. Rejects that statute is unconstitutional. Rejects argument that the 25 minutes it took to find someone to get the kids in the car was a sufficient exigency. Holds warrantless blood draw violated the Fourth Amendment.
- Leal v. State, 452 S.W.3d 14 (Tex.App.-Houston [14^th Dist.] 2014, pet ref’d).
  - This was a mandatory draw after a felony DWI arrest. In holding the draw was illegal, the Court found insufficient exigent circumstances, rejected argument that a person with two prior convictions for DWI has, pursuant to statute, irrevocably consented to blood draw, invocation of implied consent law does not equal valid consent, and rejects that Justice Sotomayor’s dicta supports the Texas mandatory draw law.
- Martinez v. State, No. 04-13-00764-CR, 2014 WL 5837162 (Tex.App.-San Antonio 2014, pdr filed).
  - This was a DWI with child arrest where blood was drawn under the mandatory blood draw statute. For the reasons the Court of Appeals expressed in its holdings in the Weems and Aviles cases, it holds in this case that section 724.012(b) (2) is not a valid exception to the Fourth Amendment warrant requirement, and results of a non-consensual blood draw obtained without a warrant may not be admitted based solely on the statute or on the officer’s “good faith” reliance on the statute.
- State v. Anderson, 445 S.W.3d 895 (Tex.App.-Beaumont 2014).
  - Trial Court suppressed blood under McNeely. The State argued exigent circumstances existed and the draw was allowed under 724.012 and that the Good Faith exception applied. In upholding Trial Court, the Court of Appeals finds no exigencies to justify draw, finds that mandatory draw does not dispense with need for police to obtain a search warrant, rejects the State’s reference in McNeely to language that talks about various State’s implied consent statutes as supporting validity of our statute and finds that Good Faith rule in Texas is the one that applies after a warrant has been issued. So Statute is not unconstitutional but officers were mistaken in their belief that the mandatory statute dispenses with need to obtain a warrant.
- Aviles v. State, No. 04-11-00877-CR, 2014 WL 3843756 (Tex.App.-San Antonio 2014).
  - Without holding our mandatory blood Jaw unconstitutional, the Court holds that the law does not create an exception to the Fourth Amendment requirement to obtain a warrant.
- Smith v. State, No. 13-11-00694-CR, 2014 WL 5901759 (Tex.App.-Corpus Christi 2014, pdr granted).
  - This new opinion replaced that which was previously withdrawn which has supported mandatory blood draw. In this new opinion, the Court rejects that implied consent is a valid Fourth Amendment exception, rejects that there are sufficient exigent circumstances, rejects the automobile exception and search incident to arrest as valid justifications for warrantless draw, rejects special needs exception applies, and finds that implied consent statute as applied to this Defendant was unconstitutional.
- State v. Ballard, No. 11-13-00224-CR, 2014 WL 3865815 (Tex.App.-Eastland 2014, pdr filed).
  - In upholding the suppression of the mandatory blood draw, the Court finds that implied consent is not a recognized exception to the Fourth Amendment warrant requirement and the State cannot rely on the statute alone to justify a warrantless blood draw.
- Forsythe v. State, 438 S.W.3d 216 (Tex.App. – Eastland 2014).
  - In upholding the suppression of the mandatory blood draw, the Court finds that implied consent is not a recognized exception to the Fourth Amendment warrant requirement and the State cannot rely on the statute alone to justify a warrantless blood draw. Good Faith exception does not apply.
- Fitzgerald v. State, No. 04-13-00662, 2014 WL 3747270 (Tex.App.-San Antonio 2014).
  - Implied consent and mandatory blood is not a recognized exception to the Fourth Amendment warrant requirement and Good Faith exception does not apply.
- Gentry v. State, No. 12-13-00168-CR, 2014 WL 4215544 (Tex.App.-Tyler 2014, pdr ref’d).
  - Implied consent and mandatory blood is not a recognized exception to the Fourth Amendment warrant requirement and Good Faith exception does not apply.
- McNeil v. State, 443 S.W.3d 295 (Tex.App.-San Antonio 2014, pet filed).
  - Implied consent and the mandatory blood is not a recognized exception to the Fourth Amendment warrant requirement. The Court further rejects that the law draw was permitted under the automobile exception, special needs exception, search incident to arrest exception and the good faith exception.
- McGruder v. State, No. 10-13-00109-CR, 2014 WL 3973089 (Tex.App.-Waco 2014, pdr granted). 2016 WL 4045049 2016 opinion on remand
  - This is a McNeely case where the Defense’s objection to the blood draw was that the mandatory blood draw provisions are unconstitutional. The Court of Appeals finds that the statute is not unconstitutional and affirms the conviction. On Remand Court found that issue not preserved by timely objection.
- Perez v. State, 464 S.W.3d 34 (Tex.App.-Houston [1Dist.] 2015, pdr. ref’d).
  - Warrantless taking of Defendant’s blood sample following his arrest for DWI did not violate Defendant’s Fourth Amendment rights by requiring him to submit to a warrantless blood test without his consent, as Defendant’s consent to the taking of a blood sample was implied pursuant to provision of implied consent law requiring the State to obtain a blood or breath sample from an individual arrested for DWI if the arresting officer has reliable information that the individual has two or more previous DWI convictions. It should be noted that the Court found that the Defendant failed to timely raise issues regarding constitutionality of the implied consent statute under McNeely.
- State v. Baker, No. 12-12-00092-CR, 2013 WL 5657649 (Tex.App.-Tyler 2013, pet. dism’d) 2014 WL 6421849 (Tex.Crim.App. 2014).
  - This case involved a BWI case with injury where the game wardens concede they did not comply with the requirements of Chapter 724. The Trial Court found there were sufficient exigent circumstances to support the draw over the refusal of the Defendant. The Court in reviewing this holding points out the only exigency raised was rapid dissipation of alcohol content in the blood and therefore upholds the suppression of the sample.
- Sutherland v. State, 436 S.W.3d 28 (Tex.App. – Amarillo 2014, pet. filed).
  - Felony DWI arrest—mandatory blood draw—no exigent circumstances. Court refers to Aviles case being remanded (makes assumptions about what that means) and cites Villarreal in ultimately holding that mandatory blood draw section of 724.012 is unconstitutional.
- Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 (Tex.App.-Texarkana 2014, pet. granted).
  - Felony DWI arrest – mandatory blood draw – no exigent circumstances. Court refers to Aviles remand by the Supreme Court and cites Villarreal and Sutherland in holding the mandatory blood draw section of 724.012 is unconstitutional.
- Reeder v. State, 428 S.W.3d 924 (Tex.App.-Texarkana 2014, pdr granted).
  - This was a Felony DWI arrest where a mandatory blood sample was drawn pursuant to 724.012. In holding the statute unconstitutional, the Court focused on the fact that the decision in Aviles upholding the constitutionality of the statue was vacated by the U.S. Supreme Court and remanded for further consideration in light of McNeely and also referenced holdings in Sutherland and Villarreal.
- Weems v. State, No. 04-13-00366-CR, 2014 WL 667607 (Tex.App.-San Antonio 2014).
  - Felony DWI arrest—mandatory blood draw. Court rejects that exigent circumstances are present and the Good Faith exception argument and refers to Aviles remand by the U.S. Supreme Court and cites Villarreal and Sutherland in holding the mandatory blood draw section of 724.012 is unconstitutional.
MCNEELY VIOLATION – HARMLESS
- Garcia v. State, No. 01-14-00002-CR, 2015 WL 5042143 (Tex.App.-San Antonio 2015)
  - This case involved a Defendant who was airlifted to hospital after a fatal DWI crash. At hospital trooper found him to be unconscious and did a mandatory draw (why he did not rely on unconscious draw portion of implied consent law is unclear). In addition to the police requested draw there was a hospital sample taken that also showed intoxication. The Court held the sample was illegally obtained but found error was harmless as the jury had the hospital draw result to consider.
- Nora v. State, No. 03-13-00228-CR, 2015 WL 1216125 (Tex.App.- Austin 2015)
  - In finding the mandatory blood draw evidence was cumulative the Court focused on the fact that a hospital sample was offered into evidence and the strength of the other evidence of intoxication presented at trial.
- Noriega v. State, No. 04-13-00744-CR, 2015 WL 7339735 (Tex.App – San Antonio 2014)
  - Defendant pled guilty Felony Murder trial with Mandatory blood draw. On appeal he argued the illegal blood draw contributed to his punishment verdict. Court focused on the strength of the considerable independent evidence of intoxication including the presence of a hospital drawn sample result in finding that alleged erroneous admission of warrantless draw did not contribute to punishment.
MCNEELY CLAIMS CAN BE WAIVED IF NOT RAISED PRIOR TO PLEA
- Douds v. State, 472 S.W.3d 670 (Tex.Crim.App.2015)
  - This was a mandatory blood draw where the evidence was held to be illegally drawn by Court of Appeals. The Court of Criminal Appeals reverses as the issue was not preserved on appeal. Apparently the argument made by defense was that the mandatory blood draw requirements were not met as opposed to arguing that the mandatory laws don’t dispense with need for search warrant.
- Sneed v. State, No. 10-13-00372-CR, 2014 WL 4792655 (Tex.App. – Waco, 2014, no pet) (not designated for publication)
  - McNeely claims are not preserved for appellate review if no motion to suppress the involuntary and warrantless blood draw was filed and ruled on in the trial court.
- Ex parte Westfall, No. 02-15-00052-CR, 2015 WL 2345597 (Tex. App, – Fort Worth 2015)
  - Defendant had plead guilty prior to McNeely opinion coming down and through Writ of Habeas tried to have that pleas overturned arguing that had she known the blood tests were inadmissible under McNeely she never would have pled guilty. Her claim was denied to trial court level on the grounds it was not raised before her plea. Court of appeals rejected her argument finding she had abandoned her complaint when she moved to dismiss a prior appeal.
POST MCNEELY CASE WHERE EXIGENT CIRCUMSTANCES JUSTIFIED BLOOD DRAW:
- Ex Parte Hernandez, No. 11-17-00004-CR, 2017 Tex.App. LEXIS 4325, 2017 WL 1957549 (Tex. App. – Eastland 2017)
  - This case was tried before McNeely was decided. It involved a motorcycle crash where the passenger was dead and the driver was unconscious and was being airlifted to another hospital for treatment. The court held that regardless of McNeely, exigent circumstances existed to take the defendant’s blood without a warrant.
- State v. Garcia, No. 08-15-00264-CR, 2017 Tex. App. LEXIS 1635, 2017 WL 728367 (Tex. App. – El Paso 2017)
  - This is a State’s appeal. The case involves a car accident that resulted in the death of three people. The Court found that there were exigent circumstances based on the fact that the defendant had to be transported to the hospital and if they waited to get a warrant the defendant’s BAC would likely be diluted due to the introduction of saline and other possible medication. The court compared this case to Cole v. State and distinguished it from Weems v. State.
  - **This is a good opinion to look at to determine what is and is not considered exigent circumstances.*** Keep an eye on this case. PDR was granted. Oral argument to be scheduled.
- Dennison v. State, No. 09-15-00525-CR, 2017 Tex. App. LEXIS , 2017 WL 218911 (Tex. App. – Beaumont 2017)
  - The Court found that exigent circumstance existed based on the DPS Trooper being solely responsible for the accident investigation, that there was only one Judge that she could call to get a warrant, that Judge was out of town and unavailable to sign the warrant, and there were no procedures in place for obtaining a warrant any other way.
- Garza v. State, No. 14-15-00902-CR, 2016 Tex. App. LEXIS 13009, 2016 WL 7177710 (Tex. App. – Houston 2016)
  - The Court found that exigent circumstances existed in this case due to the fact that this was a single car accident, open wine bottles were found in and around the car, and she was unconscious at the scene. When the defendant arrived at the hospital she was conscious belligerent, combative, and able to talk. The defendant smelled of a strong odor of alcohol and she admitted to drinking “a lot”. The defendant was moved to a trauma room for treatment where she was sedated, intubated and receiving a blood transfusion. The officer believed he could not wait 90 minutes to two hours to get a warrant for her blood because he thought evidence of her BAC was being “lost by the minute”. Cole had been reversed and the Court made it clear that “Reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight.” The Court held that the circumstance surrounding the taking of the defendant’s blood sample demonstrated that obtaining a warrant was impractical.
- Cosino v. State, No. 10-14-00221-CR, 2016 WL 6134461 (Tex. App. – Waco 2016)
  - This was a warrantless blood draw in which the State laid out the following factors in support of its argument that exigent circumstances existed: It was a collision here the trooper at the scene was the sole trooper on duty in the County at the time of the collision, he was solely responsible for the cleanup of the crash and investigation thereof, the other two troopers that assisted were the sole troopers on duty in their respective counties, the trooper arrived at the scene an hour after collision and after Defendant was already transported to hospital, the entire highway was blocked off and it was raining when trooper arrived and clearing and opening up highway was time consuming and had to be done before he left to see the Defendant, the Defendant’s refusal to give sample and draw of blood happened two-and-a-half hours after crash, obtaining a warrant would have taken an additional hour to an hour and a half. Court held that sufficient exigent circumstances existed to support the warrantless draw. The second argument asked Court to hold that 724.102 of the Texas Transportation Code was unconstitutional and that request was overruled.
- Texas v. Robinson, No. 03-15-00153-CR, 2016 WL 6068251 (Tex. App. – Austin 2016)
  - This was a warrantless blood draw in which the District Court suppressed the blood after the State laid out the following factors in support of its argument that exigent circumstances existed: Trooper was dispatched to crash scene, three officers were at scene, Defendant was transported to hospital for treatment, Trooper was at scene for two-and-a-half to three hours, a different trooper was dispatched to hospital where got a warrantless blood sample, a judge was on call for signing warrants, the trooper who worked the scene was the only officer who could have obtained a warrant, there were no other troopers available at the time of his investigation to investigate the cause of the crash at the scene, it takes 30–90 minutes to obtain a warrant by fax. Citing the Cole opinion the Court found the District Court erred and found there were sufficient exigent circumstances to justify the draw.
- Texas v. Keller, No. 05-15-00919-CR, 2016 WL 4261068 (Tex. App. – Dallas 2016)
  - Does warrantless blood draw from unconscious individual arrested for DWI violate Fourth Amendment and were exigent circumstances present? The court does not address the unconscious draw consent issue but does find exigent circumstances, namely: The collision occurred on a busy highway, three individuals were transported to hospitals, investigation at scene was protracted, the time it took to complete scene investigation and lack of available law enforcement hindered ability to obtain warrant, plus issue of metabolism of alcohol.
- Balkissoon v. State, No. 03-13-00382-CR, 2016 WL 1576240 (Tex.App.-Austin 2016, pdr filed)
  - This was a mandatory blood draw case arising out of a felony DWI arrest. Officer admitted on stand he could have gotten a warrant but didn’t feel he needed to based on the as yet unchallenged mandatory blood law. Even so he described the length process of completing paperwork, finding a prosecutor to email paperwork to for the warrant, then he has to drive to judges house to get warrant reviewed and signed. Then he has to go back to jail to pick up Defendant and take him to hospital where he waits for someone to draw blood. He estimated the process will take as long as four hours. It further would have been prolonged in this case due to Defendant’s failure to cooperate in process of having his vehicle released and as Defendant would not say what he wanted done he had to wait for tow truck. He added to all this that he was aware that over time the alcohol level was diminishing and that no assist officer was available to help with process. There was also testimony from magistrate who explained there was no 24 hour magistrate available. The trial court ruled he was basing the denial of the motion on the fact that officer acted on good faith reliance of the mandatory draw statue. Courts of Appeals upheld the denial saying the judge could have found sufficient exigent circumstances out of details listed above.
- Schneider v. State, No. 03-14-00189-CR, 2016WL 1423591 (Tex.App.-Auston 2016)
  - This was a Felony DWI case where the Defendant drove into a car and kept going and got home before police officer arrived. A mandatory draw was done based on fact it was a Felony DWI arrest. The investigation was delayed because Defendant was holed up in his bathroom with a gun, there was evidence that a domestic violence situation was going on between Defendant and his roommate. There was no after-hours magistrate who could issue warrant; prosecutor testified it was the DA’s office policy not to get a search warrant when mandatory draw law applied. If an officer had called her, she would have told him he did not need a warrant, officer further testified it could take as much as an hour and a half to get a warrant and one time he had not been able to reach a magistrate when he needed one. In finding exigent circumstances the judge found that it took over three hours to get this blood draw even without a warrant. All these factors led the Court of Appeals to uphold the denial of the motion on the basis if sufficient exigent circumstances.
- Garcia v. State, No. 14-14-00387-CR, 2015 WL 2250895 (Tex.App. – Houston (14^th Dist.) 2015)
  - Intoxication Manslaughter & Felony DWI case where Mandatory blood draw was done, at Trial Court level “exigent circumstances” were found to justify the warrantless draw. In affirming the conviction the Court of Appeals found the following exigent circumstances supported that ruling:
    1. Defendant could not perform FST’s at scene because he was receiving medical treatment;
    2. Trooper had to take the time to investigate the traffic fatality at scene;
    3. Defendant’s transfer to hospital was delayed because of Life Flight;
    4. Trooper did not develop PC until he spoke to Defendant at hospital;
    5. Alcohol from Defendant’s blood stream was dissipating;
    6. There was no on call judge to issue warrant at the time; and
    7. Defendant was receiving emergency treatment including the possible use of pain medications.
UNCONSCIOUS DRAW REQUIRED SEARCH WARRANT
- State v. Ruiz, No. 13-13-00507-CR, 2015 WL 5626252 (Tex.App.-Corpus Christi-Edinburg, 2015, pdr granted)
  - This involves the arrest of a habitual drunk driver from whom a blood sample was drawn while he was unconscious (724.014 Transportation Code). The Court of Appeals held a warrant should have been obtained. This is the first Texas case where a Court of Appeals has held that unconscious draws are covered by line of cases following McNeely which had up to this point addressed cases where warrantless sample was drawn over the objection of the suspect. The Dissent provides a good discussion of why this holding is incorrect.

T. ISSUES SURROUNDING BLOOD TESTING DID NOT RENDER RESULTUNRELIABLE

Jannah v. State, No. 01-14-00250-CR, 2015 WL 1544619 (Tex.App.-Houston (1^st Dist) 2015) (not deisngated for publication)

Defendant objected to blood evidence being admitted and pointed to three pieces of evidence that show result was not reliable:

Presence of small blood clots which may have been caused by improper vial inverting;
The fact that the blood clots were not eliminated by homogenizing the blood sample after clots were seen;
The fact that a pipette used had failed an external test a month after blood was tested. The Court finds that the trial courts could reasonably have found that these matters did not render blood draw analysis unreliable.

U. PRESENCE OF TFMPP “MOLLY” IN BLOOD

Ashby v. State, No. 01-15-00182-CR, 2017 Tex. App. LEXIS 4663, 2017 WL 2255609 (Tex. App. – Houston 2017)

The defense challenged the admissibility of testimony regarding the presense of TFMPP “Molly” in the defendant’s blood. The defense asserted that it should not be admissible without the State showing the time of ingestion, quantification of the drug, and the affects the drug has on a person’s body. There was a Kelly hearing. The lab expert stated they did not quantify the level and that even if they had it would not have impacted his decision as there is no good data on how different levels speak to impairment or time of ingestion. The defense expert said no opinion could be drawn on the effect of the drug on the Defendant without quantification. The Court upheld the admissibility of the experts testimony even if by itself was sufficient to prove loss of normal use of his mental or physical faculties, it was some evidence that the defendant consumed the drug although the failure to quantify may lessen the probative value of the evidence but it does not render it inadmissible.