Search warrant takes you outside the Transportation Code.

"Outside the Transportation Code" should be the answer but the 3rd Court of Appeals may disagree. State v. Laird 38 S.W.3d 707. The State argued the blood draw by a paramedic was made under exigent circimstances, not under Chapter 724. The Court was OK with exigent circumstances, but kicked the blood draw:

"By the plain language of the statute, only authorized professionals may "take a blood specimen at the request or order of a peace officer under this chapter." Id. Sec. 724.017(a). The State cannot attempt to circumvent the controlling statute by claiming constitutional compliance." 38 S.W.3d 707 at 714.

Maybe you can get the issue to the CCA. Until then our officers will get an RN to do the draw.

[This message was edited by John Greenwood on 07-03-08 at .]

[This message was edited by John Greenwood on 07-03-08 at .]

I think caution is good but under the wording of the transprotation code even if a Court applied it to a search warrant situation (and I still think they won't as it is not a specimen "drawn under this Chapter") you don't need to use a Nurse:

Section 724.017. Blood Specimen

(a) Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place.

(b) The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures. This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.

(c) In this section, "qualified technician" does not include emergency medical services personnel.

With the increase in the useof blood warrants we should have case law to answer this question in the near future.

I would appreciate it if everyone could let me know their warrant stats/results once the weekend is over. Either by email or posted on this site.

Richard:

I'll send you our July 4th info as soon as we have completed revieweing our "over-reaching, arrogant and Orwellian" policies regarding DWI blood warrants....

All of our Memorial Day no refusal info is in - I'll try to get that posted here on Monday.

Shannon - for your media compilation:

http://lubbockonline.com/stories/070308/loc_299160914.shtml

http://everythinglubbock.com/content/fulltext/?cid=8551

Yep, Brazoria County is in on it, and Pearland PD has a DWI Task Force working the entire weekend as well.

Word must be getting out - we had a VERY slow DWI 4th of July in Denton County:

7 DWI arrests

4 blood warrants
1 consensual blood draw
2 breath tests (both above 0.20)

Officers made LOTS of stops, but reported a large percentage of sober designated drivers.

If these No Refusal Weekends give us more scientific evidence for cases, or more designated drivers - it's a win/win in my opinion...

I'm just linking.

http://www.star-telegram.com/804/story/748015.html

If this was a motion to suppress, will the DA appeal this ruling? I hope so.

Janette A

This ruling is limited to qualifications of the Officer/paramedic who did the draw and we ARE APPEALING!

Why can a chemist draw blood? Are they using the British meaning for what we call a pharmacist?

If you are going to have a scientist do it wouldn't you rather a biologist than a chemist? Heck I'd much rather a veterinarian take my blood than a chemist!

I have a needle phobia it makes me sqirm... when I get a shot it often ends up damaging the tissue and then it hurts for weeks. I'd choose the pee test or the breath.

For the sworn affidavit from the officer requesting the search warrant, are most counties using a notary or another officer? It would help if we could rely on Tex Govt Code 602.002(16). Any thoughts on best practice?
-T

Tom: When presented in person to the Judge, we have the Judge swear the officer. When done by fax, we have another peace officer or ADA do it.

With respect to the Tarrant County case, if the blood draw was done pursuant to a warrant, could you argue that the limitation of Sec. 724.017 does not apply because the draw was not being done under the implied consent provision? 724.017 talks about blood draws "under this chapter.". Just thinking out loud....

On the other extreme we wouldn't want to have any old officer use whatever expedient means to extract a sufficient quantity of blood...

Where is the authority for an ADA to act as a notary on a search warrant affidavit?

The only authority that I could find is under CCP art. 2.06, which applies to DA & CA's abilities to swear complainants to their complaints.

I have heard from all of the Tarrant County Police Agencies that participated in our 4th of July No Refusal Weekend and the numbers are as follows:

21 Police agencies participating
Total Arrests for DWI = 98
Total consensual Breath/Blood = 53
Total number of samples obtained by
search warrant after resfusal = 45

Number of arrests overall were down. No known fatalities.

Can you break those numbers down into:

number of felony DWI arrest (refusals/search warrant);

average alcohol concentration of misd. v. felony?

Our experience has shown that there is a much higher refusal rate and breath alcohol concentration for repeat offenders. That would be another reason to support a re-run on HB 1810, extending mandatory breath/blood to include repeat offenders.

I may be able to do so eventually but I don't have those details at this time. I do know that the vast majority of the breath tests showed an average alcohol concentration of around .15. The blood test results are still pending.