The Blood Alcohol Test Case

• Author: Deandra M. Grant/Kimberly Griffin Tucker
• Pages: 241-311

7-241

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; Consent Not Necessary

§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 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

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?

§7:43 Is the Affidavit Sworn to?

§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?

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

§7:53 Reasonableness of Choosing a Blood Test

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

Texas DWI Manual 7-242

§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

V. Blood Testing Methods

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

§7:101 Enzymatic Testing (or “Hospital Blood”)

§7:102 Enzymatic Testing Case Study

§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 Blood Test Result for McNeely Violation

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 Offer 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

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

§7:140 Article: Not Guilty v. Goliath: Conquering Giant BLOOD Tests Using the

Disconnect Defense / By: Mark Ryan Thiessen

7-243 The Blood Alcohol Test Case §7:11

I. Introduction

§7:01 Don’t Lose Sight of the

Forest for the Trees

Trying a DWI case involving a blood test takes

a certain level of knowledge and a great deal of

pre-trial discovery and preparation. However, it is

important not to lose sight of the fact that it is

STILL a DWI case and you need to deal with the

usual issues involving the driving facts, the video,

SFST’s (if any), and all of the other things that go

along with trying DWI cases. The blood test result

is just another piece of evidence. Don’t fall into the

trap of focusing so much on the blood issue that

you forget about the rest of the State’s case.

This chapter will cover methods, strategies and

issues pertaining to DWI cases where blood evi-

dence will be offered at trial.

PRACTICE TIP:

Essential book

Here is another essential book to add to your

library: Phlebotomy Essentials, 5th edition, Ruth

E. McCall and Cathey M. Tankersley, Walters

Kluwer Publishing, 2012. Understanding the

proper way to draw blood is an important part of

your case analysis for purposes of issue spotting.

[§§7:02-7:09 Reserved]

II. Legal Justifications for

Obtaining Blood Evidence

Note regarding the following sections: The consti-

tutionality of the implied consent statute in

Texas is currently undecided. In the wake of

Missouri v McNeely, 569 US _____ (2013)

(see §7:24), numerous Courts of Appeals

decisions have cut both ways. See §7:25. At

the time of this writing, the Court of Criminal

Appeals has not issued a ruling though PDR

has been granted on more than one case. We

will update these sections to reflect the ulti-

mate decision of the CCA in the next edition.

A. Consent

§7:10 Implied Consent

If a person is arrested for an offense arising out

of acts alleged to have been committed while the

person was operating a motor vehicle in a public

place, or a watercraft, while intoxicated, or an

offense under Section 106.041, Alcoholic Beverage

Code (DWI by minor), the person is deemed to

have consented to submit to the taking of one or

more specimens of the person’s breath or blood for

analysis to determine the alcohol concentration or

the presence in the person’s body of a controlled

substance, drug, dangerous drug, or other sub-

stance. [Tex. Transp. Code §724.011(a).]

In general, a person may withdraw implied con-

sent and refuse to submit to a breath or blood test.

[See Tex. Transp. Code §724.013.] However,

implied consent cannot be withdrawn in certain

cases involving injury, death, prior convictions, or

a child in the car. See §§7:20-7:22. Withdrawal of

implied consent and refusal to submit to a test may

lead to driver’s license suspension. See Ch. 3.

Even if a person withdraws implied consent, a

blood draw may be compelled by search warrant.

See §§7:30-§7:45.

§7:11 Officer Must Have

Reasonable Grounds

At the request of a peace officer, one or more

specimens of a person’s breath or blood may be

taken if the person is arrested and the officer has

reasonable grounds to believe the person:

• While intoxicated was operating a motor

vehicle in a public place, or a watercraft; or

• Was in violation of Section 106.041, Alco-

holic Beverage Code.

[Tex. Transp. Code §724.012(a).]

CASE STUDY:

No probable cause for arrest; result sup-

pressed

Dallas attorney John Cook had an interesting fact

situation in a DWI trial which involved an accident

and consent to a blood draw. His client lost control

of his motorcycle when he slid on some sand that

had been placed on the roadway to melt ice. He

ended up in the middle of an intersection with the

motorcycle on top of him. Police arrived but did not

attempt any SFST’s due to the injuries his client had

sustained. His client did admit to drinking some beer

when asked by the officers, who noted they smelled

alcohol. Once in the ER, the DIC 24 form was read

to the client and he gave his consent to a blood draw.

Blood was drawn using a DPS blood kit and then

tested in the DPS forensic lab. The police then left

and never actually took his client into custody. The

DWI charge was filed at a later date.