Need a little advice:

Defendant arrested for DWI - agrees to blood draw.

LE gets me the name of the nurse who drew the blood but not their address or phone number. I attempt to subpoena the nurse at the hospital but I am informed they no longer work there. I'm given a phone number by the hospital but its no longer in service.

Defendant's blood is positive for 3 different controlled substances (Defense attorney assures me all 3 are prescribed, of course).

How do I address the absence of the blood draw nurse at trial?

Advice on dealing with the synergistic affect of controlled substances at trial? I've designated the forensic scientist at DPS as an expert already. Just looking for ways to sell his credibility to the jury. I think the defendant is going to look very sympathetic.

Have your investigator find the nurse.

Unless the officer personally observed the blood draw.

i've proven up blood draws without the nurse when the officer was present to witness the draw. see 734 S.W.2d 766. it's obviously not ideal.

Subpoena her employee records from the hospital then have your investigator track her down.

Our investigator is unavailable to track her down.

Officer saw the blood draw occur - so I can do it without him. I'm more concerned with addressing the issue/countering defense arguments related to nurse's absence.

Don't admit any testimonial hearsay statements of the nurse and there won't be any confrontation clause violations, and remember that chain of custody only requires you to prove the beginning and end of the chain.

Read Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009) for a cautionary tale on what kind of expert evidence you will need for the synergistic effect.

quote:

Originally posted by ZackWavrusa:
Our investigator is unavailable to track her down.

Officer saw the blood draw occur - so I can do it without him. I'm more concerned with addressing the issue/countering defense arguments related to nurse's absence.

Does anyone see a problem here with asking the officer who will prove up the draw attempt to serve a subpoena for the nurse at the last known address of the hospital? Then you can have your officer testify to these facts: A subpoena was issued, they don't work there, they can't be reached. Again, not ideal, but it puts an affirmative finding in the record that their unavailability isn't due to any malfeasance by the state.

Have you tried contacting the Texas Board of Nursing? They may be able to give you updated work information for your nurse.