We have been charging restitution on DWI blood draws since before I started working in the prosecutor's office in 2019. It is $60 for EMS to come do the draw and $50 for DPS lab fees. Recently, I have received push back (a very heated confrontation in my office most recently). It is this defense lawyers position that this is not permitted. I cannot find any authority that says such. Are other offices doing this? Is there any guidance about this issue that I can refer to? Thanks.
You can for the DPS lab fees for sure as a condition of probation.
CCP 42A.301(b)(18) says conditions of community supervision may include conditions requiring the defendant to reimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense.
The EMS fee is less clear. They're not a law enforcement agency, and neither is the county (whom I'm assuming is the one who is picking up the tab).
It must also be remembered that ordering recoupment or restitution may also require the court to consider the financial circumstances of the defendant. See Gibson, 428 S.W.3d at 113-17 (Johnson, J. concurring).
There may be a further concern represented by such cases as U.S. v. Vaughn, 636 F.2d 921 and People v. Gaines, 856 856 N.W.2d 222, i.e. that this type of loss suffered by the government was not caused by the offense for which conviction is being had. It has been said that restitution may be ordered only for the loss directly stemming from the crime and not for the costs to the government in prosecuting the offender. As Vaughn states: ""Of course, investigation and prosecution was a proper course for the government to undertake and to press to a successful conclusion; but that course was a step removed from the defendant's misconduct." Lastly, it has been observed that "governmental agency expenses are not typically eligible for recovery under the restitution statute absent an express legislative provision authorizing them, unless the underlying criminal statute encompasses the agency as a primary victim." People v. Rogers, 410 P.3d 544, 546 (Colo. App. 2014)
CCP 42A.301(b)(18) is directly on point for LE agencies, including the TxDPS lab fee for analysis, storage, or disposal. I've always taken care to recite the plea term as reimbursement, and not restitution, since restitution is a term of art that, like Martin Peterson said, wouldn't cover your situation, and would make it subject to the somewhat idiosyncratic 42.037. That it's not considered restitution flies in the face of how TxDPS itself refers to it ("restitution accounting") on their affidavits accompanying their lab reports.
For questions re: whether EMS is a law enforcement agency or not, and thus, whether reimbursement to them is pursuant to (b)(18), it would depend on which entity actually pays for the EMS blood draw. you could maybe instead argue that assessing the reimbursement fee would be pursuant to the catch-all provision of 42A.301(a) -- "the judge may impose any reasonable condition that is not duplicative of another condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitation, or reform the defendant." It could be a stretch, but that provision may be broad enough to make room for some lawyering.
Take note, though, that your argument's got to focus on more than just for the good of the community (e.g. in the Amarillo court's reasoning in Keith v. State, 916 S.W.2d 602, which held that a payment to a charitable fund was impermissible as a condition of community supervision).
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