We have just completed our second Trial Court level MTS blood evidence hearing. This was a blood draw from last year�s 4th of July No Refusal Weekend. The trained technician who drew the blood was a Dalworthington Gardens Officer/EMT. The Defendant consented to the blood draw which placed it squarely under Section 724.017(a) of the Transportation Code. The issue was whether the DWG Officer was a "qualified technician" authorized to draw blood under that section. Trial Court Judge found that the DWG blood-draw protocol that the officer followed was consistent with accepted medical practices, that the officer trained through the DWG program was a "qualified technician," that the procedures used by the police department were reasonable and, therefore, the judge denied the MTS.

I may be incorrect, but wasn't there an earlier case where the trial judge (not sure if same one) went against y'all and granted a MTS on the same issue? I remember thinking you were going to appeal, but never heard what happened. Would love to have a favorable appellate decision as well.

The case you refer to is currently in the briefing phase of the appellate process and we are optimistic about it's outcome. This new case has broader implications as it is a consent case that does fall under the Transportation Code whereas our argument in the first case was that the Transportation Code does not apply as it is a search warrant case.

Any update on the status of the appeal?

The defense just asked for another extension . . . so probably another 30 days until their brief is filed, then argument won't happen until the fall.

Since that hearing we have been successful on two hearings in different misdemeanor Courts on DWG blood draws but so far those successes are not being appealed.

The court of appeals held that the unrecorded compelled draw of Christi Lynn Johnston's blood by a police officer, who was also a seasoned EMS provider, in the police station's blood-draw room while Johnston was restrained violated the Fourth Amendment's reasonable manner requirement. (1) Under the facts here, which demonstrate that the test chosen was reasonable and that it was performed in a reasonable manner, we disagree. We reverse the court of appeals's judgment and remand this case to the trial court.

Details.

Johnston is a great case for us, no doubt, but it leaves a lot on the table to be answered.

We currently have an intox manslaughter pending where the guy consented to a blood draw, which was done at the jail by an LVN. The defense attorney's big point was that the jail was not sanitary, citing the numerous factors in Johnston.

After the suppression hearing, the judge wanted written briefs.

I think Johnston is very clear that the exacting protocols used by Dalworthington Gardens does not create a per se list of requirements to be sanitary. I am not at all worried about that.

However, I think the preliminary issue of consent (undergirded by implied consent in the statute) is dispositive. After all, Johnston refused and had to be restrained to draw her blood. My guy consented. My argument is that he verbally consented, so this was a "consent draw" and not a "mandatory draw." Therefore, I argued, the provisions in the mandatory draw statute (which include the "sanitary" provision) do not apply. Furthermore, the consent constituted a waiver of any defects in the blood draw procedure.

Thoughts? Comments?

Our judge has not ruled yet, and I anticipate he will take the easy road and just hold that the environment was sanitary. However, I am already trying to anticipate this on appeal and raising this issue to gain more clarity from the appellate courts.

[This message was edited by RL on 02-17-12 at .]

The key is the record. Does the LVN say the area was sanitary? She should. A swab makes it sanitary. The key is the testimony, make sure and ask all the questions.

CA,

Our record is fine. The LVN testified that the area was sanitary and we beat that dead horse. I am not at all worried about a finding of it not being sanitary.

The point I am trying to make is that the "sanitary place" language only comes into play when the blood draw is done mandatorily. My argument is that, where a defendant gives consent, that blood draw is based on consent--not on whatever backup statute you have, which is the mandatory blood draw statute in this case.

I think Johnston would read much differently--and much shorter--if the defendant had not refused. I think consent is a waiver of many defects. Then the only question becomes whether any unsanitary factors could affect the reliability of the results, which I think is going to be a losing argument for the defense just about every time.

What do you think?

Johnston involved a blood search warrant, so it is not directly on point with your express-consent case. Transportation Section 724.017(a) applies. St v. Robinson, 333 SW3d 776 (TCA 2011) applied this section to a consent-obtained blood specimen. The language of 724.017 refers to specimens taken at an officer's �request or order. The DIC warning says, I am now requesting a specimen, so I really don't see any way to contend that 724.017(a) fails to apply to an express-consent sample. The last section of 724.017(a) says: The blood specimen must be taken in a sanitary place. So consent/mandatory cases must include proof that the sample was obtained in a sanitary place.

Are you possibly contending that 724.017(a) doesn't apply to express consent, but only implied-consent takings? Even so, I still think the plain language of the provision would prevent such a tactic.

And even if 724.017(a) did not apply (which I believe it does), you would still have to comply with Fourth Amendment objective reasonableness. St v. Johnston, 336 SW3d 649, 661-62 (TCA 2011).

You should have no problem since you have good evidence of the sanitary condition per your post. Johnston's record included myriad references to all of the draw-related procedures occurring pursuant to recognized (or accepted) medical practices. You might want to have that in your record, too, where applicable.

Hope that helps!

[This message was edited by TDohoney on 02-22-12 at .]