The Blood Alcohol Test Case

• Author: Deandra M. Grant/Kimberly Griffin Tucker
• Pages: 353-518

THE BLOOD

ALCOHOL TEST CASE

7-1

CHAPTER 7

THE BLOOD ALCOHOL TEST CASE

I. INTRODUCTION

§7:01 Don’t Lose Sight of the Forest for the Trees

II. LEGAL JUSTIFICATIONS FOR OBTAINING BLOOD EVIDENCE

A. Consent

§7:10 Implied Consent

§7:11 Off‌icer Must Have Reasonable Grounds

§7:12 What Constitutes Actual Consent

§7:13 When Person Is Incapable of Withdrawing Consent

§7:14 Subpoena of Hospital Records

B. By Law Without a Warrant; Now Requires Exigency

§7:20 Fatal or Serious Accident

§7:21 Driving While Intoxicated with a Child Passenger

§7:22 Previous DWI Convictions or Community Supervision

§7:23 The Specimen

§7:24 Missouri v. McNeely: Are Warrantless Blood Draws History?

§7:25 Texas and U.S. Supreme Court Cases Post-McNeely

C. By Search Warrant

1. Governing Law

§7:30 Search Warrant Use for Blood Upheld

§7:31 Prerequisites for Issuance of Search Warrant

§7:32 Requirements for Valid Warrant

§7:33 Requirements for Aff‌idavit in Support of Warrant

§7:34 Stale Warrants

2. Reviewing the Search Warrant and Aff‌idavit for Defects

§7:40 Obtain Through Discovery

§7:41 Is the Warrant Aff‌idavit Signed by the Off‌icer?

§7:42 Who Issued the Warrant and Can You Read the Signature?

§7:43 Is the Aff‌idavit Sworn to and Was an Oath Administered?

§7:44 Is a Faxed Aff‌idavit, With or Without a Telephone Call, Suff‌icient in Texas?

§7:45 Does the Sworn Aff‌idavit Recite Enough Facts for Probable Cause?

§7:46 One Search or Two?

III. THE BLOOD DRAWCONSTITUTIONAL AND STATUTORY REQUIREMENTS

A. Fourth Amendment Reasonableness Standard

§7:50 Schmerber v. California

§7:51 State v. Johnston

§7:52 Two-Part Reasonableness Analysis

THE BLOOD

ALCOHOL TEST CASE

Texas DWI Manual 7-2

§7:53 Reasonableness of Choosing a Blood Test

§7:54 Reasonableness of Manner of Performing Test: Applicability of Transportation Code

§7:55 Qualif‌ication of Person Drawing Blood

§7:56 Reasonableness of Location of Blood Draw

B. Transportation Code §724.017 and Warrantless Blood Draws

§7:70 Section 724.017 Requirements

§7:71 Who Is a “Qualif‌ied Technician?”

§7:72 Sanitary Place

C. Burden of Proof When Challenging Blood Draw Procedure

§7:80 At Motion to Suppress

§7:81 At Trial

§7:82 Practice Tip: When Blood Is Drawn Pursuant to the Implied Consent Statute

§7:83 Practice Tip: When Blood Is Drawn Pursuant to a Warrant

IV. BLOOD DRAW PROCEDURES

§7:90 Blood Specimen Collection Kit

§7:91 Steps in Drawing Blood

§7:92 Assembling the Blood Kit

§7:93 Right to Additional Analysis

§7:94 BD Blood Tube Recall

V. BLOOD TESTING METHODS

§7:100 Headspace Gas Chromatography with Flame Ionization Detector (GC-FID)

§7:101 Enzymatic Serum Ethanol Analysis (or “Hospital Blood”)

§7:102 Enzymatic Testing Case Studies with Hearing Transcript to Exclude ETOH Result

§7:103 Checklist: Blood Testing Errors

VI. FORMS: PRETRIAL MOTIONS AND DISCOVERY

§7:110 Obtaining Information Concerning Test Results

7-1 Discovery Motion for District Attorney’s Off‌ice

7-2 Order on Motion for Discovery from District Attorney’s Off‌ice

7-3 Language for Subpoena Duces Tecum Request—Forensic Lab

7-4 Reserved

7-5 Subpoena Duces Tecum for Hospital Lab: Items to Request

7-6 Motion to Inspect Scene of Blood Draw

7-7 Order on Motion to View Scene of Blood Draw

7-8 Motion for Independent Analysis of Blood Sample

7-9 Order on Motion for Independent Analysis of Blood Sample

7-10 Motion to Suppress Blood Test Result: Arrest Without Probable Cause; Blood Test

Unreasonable or in Violation of Transportation Code

7-11 Order on Motion to Suppress Blood Test Result: Arrest Without Probable Cause; Blood

Test Unreasonable or in Violation of Transportation Code

7-12 Motion to Suppress: Lack of Probable Cause in Warrant Aff‌idavit

7-13 Motion to Suppress Blood Test Result: Blood Taken Without Warrant in Violation of

Missouri v. McNeeley

7-14 Order on Motion to Suppress BAC OR Breath Test Result Obtained Without Consent or

Warrant in Violation of McNeeley and Villarreal

7-15 Objection to Chain of Custody Aff‌idavit

VII. CONFRONTATION ISSUES

§7:120 Confrontation Clause Requires Testimony of Technician to Introduce Lab Report

§7:121 Tex. Code Crim. Proc. Art. 38.41 Permits State to Of fer Certif‌icate of Analysis

§7:122 Requirements for Valid Certif‌icate of Analysis

§7:123 Statutory Form: Certif‌icate of Analysis

§7:124 File Objection to Keep Out Certif‌icate

THE BLOOD

ALCOHOL TEST CASE

7-3 The Blood Alcohol Test Case

VIII. SAMPLE CROSS EXAMINATION QUESTIONS FOR THE STATE’S WITNESSES

§7:130 Arresting Off‌icer

§7:131 Nurse/Phlebotomist

§7:132 Lab Tech Who Tested Blood (Gas Chromatography)

IX. THE DISCONNECT DEFENSE

A. Article

§7:140 Not Guilty v. Goliath: Conquering Giant BLOOD Tests Using the Disconnect Defense/

By: Mark Ryan Thiessen

B. Disconnect Defense: Trial Transcript

§7:150 Defense Cross Examination of State’s Blood Expert

§7:151 Direct Examination of Defense Toxicologist

§7:152 DA’s Cross Examination of Defense Toxicology Expert

§7:153 Re-Direct and Re-Cross Examination of Defense Toxicology

§7:154 Closing Argument

X. TEAM INNOCENT VOIR DIRE

A. Using the Theme

§7:160 Team Innocent

B. Voir Dire Transcripts

§7:170 Sample Voir Dire Transcript #1

§7:171 Sample Voir Dire Transcript #2