In an intoxicated manslaughter case, the Defendant was read the DIC-24 warning while he was unconscious. Further, the Defendant had been taken straight to the hospital due to the severity of his injuries. Of course the defense wants to suppress the blood draw due to �no warrant, exigent circumstance, reasonable suspicion, or probable cause.� Additionally, the defense argues the State had opportunity and access to procure a search warrant but did not.

I know I can subpoena the medical records. I also plan on arguing that exigent circumstances DID exist and that probable cause existed for arrest.

Are there any other arguments to be made and what other insight may you all have to offer?

[This message was edited by rmpalm11 on 03-02-11 at .]

Well, under 724.014, if he's unconscious then he's deemed to have not withdrawn his implied consent. But why wouldn't it just be a mandatory blood draw under 724.012(b)? Intox manslaughter implies there was a death, after all!

For mandatory or consent, the subject must be under arrest. By being unconscious, he "consented" and the sample would be valid.

Mandatory only kicks in after a refusal and it never went that far.

Regardless, was he under arrest or wasn't he? If he was, I don't see a problem. If he wasn't I see several. The first line of the DIC states "you are under arrest..."

Just because they are taken to the hospital doesn't mean they aren't under arrest. Arrest means custody, not "in jail". We commonly arrest a subject, take them to a hospital, get a sample and release them to file at large after it is obtained.

The above is exactly right. If he was read the DIC24 he was under arrest. The officer only needed PC of DWI to arrest by reading the DIC 24.
If he was arrested (by reading DIC24) and unconscious it is an implied consent draw. No exigent circumsances, no search warrant needed, the defense can sit down and shut up now.

Thanks for the responses and keep 'em coming!

[This message was edited by rmpalm11 on 03-02-11 at .]

Well...

Your officers are contradicting themselves here. Either he was under arrest (as evidenced by the fact that they read the DIC) or he wasn't under arrest, in which case they should never have read the DIC.

If they had PC when they got the sample, then y'all need to have a meeting and get all of your ducks in a row so they can properly articulate their actions on the stand.

If they didn't have PC when they got the sample... I think you may be SOL?

CCP states: Art. 15.22. WHEN A PERSON IS ARRESTED. A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.

Placed into custody or restraint does not have to result in the jail! You can release them in the field, release them to a hospital, release them without charge and file later... plenty of options. The fact that the suspect went to a hospital has no real effect on the case.

I'm sure that aahorn is well meaning, but I have to say I don't agree with his legal expertise. I would recommend prosecutors calling or emailing Mr. Abbott, the guru, as opposed to listening to non-prosecutor legal advice from unknowns on the forum.

I don't have an opinion on the blood draw issue, but let me point out that reliance on art. 15.22 for an arrest definition is extremely unhelpful. First, the definition is circular, as it tends to rely on the officer's subjective intent to arrest the suspect. Second, it's too old (1856) to be helpful -- "restraint" as a definition of arrest would eviscerate Terry stops (how could you possibly frisk a suspect who wasn't being "restrained"?). Third, well, the courts say so. See State v. Sheppard, 271 S.W.3d 281, 290-91 (Tex. Crim. App. 2008).

See: Washburn v. State, 235 S.W.3d 346, 350 (Tex. App.�Texarkana 2007) and Knisley v. State, 81 S.W.3d 478 (Tex. App.�Dallas 2002). He wouldn't have withdrawn his implied consent if: (1) he was arrested and (2) he was unconscious. The question of arrest is settled by the usual constitutional measures (Washburn, pg. 350): "(1) the suspect is physically deprived of his or her freedom of action in any significant way, (2) a law enforcement officer tells the suspect that he or she cannot leave, (3) law enforcement officers create a situation that would lead a reasonable person to believe that his or her freedom of movement has been significantly restricted, and (4) there is probable cause to arrest and law enforcement officers do not tell the suspect that he or she is free to leave."

-L.

A number of courts have held that reading the DIC-24 is prima facie evidence that the defendant is under arrest, absent some kind of understanding that both the officer and the defendant knew that it was not intended as an arrest.

Nottingham v. State, 908 SW2d 585, 588 (Austin 1995)
Bell v. State, 881 SW2d 794, 799-800 (Houston 1st 1994)
Garcia v. State, 07-99-0210, 2000 WL 715925 (Amarillo 2000)

Try checking for "under arrest" and "DIC-24" in Westlaw/Lexis, and you'll turn up a number of hits.

Check out Lester v. State, No. 01-10-00026-CR, 2011 Tex. App. LEXIS 315 (Tex. App.--Houston [1st Dist.] Jan. 13, 2011. In that case the appellant had been in fatality crash and was unconscious when the officer read the DIC-24, asked for the specimen (logged the appellant as "refusing"), and had the nurse draw the blood. The court noted the fact because the officer had PC the appellant was intoxicated and had caused the accident, the blood could be taken without appellant's consent. THey also referred to 724.014's provision about an unconscious driver. Not quite on point, but it might be helpful.

Janette A

GG, just curious on what you don't agree with?

If it's too far off topic, feel free to shoot me an email at aahorn@gmail.com.

I wrote Lester. This wasn't a big issue in Lester (it really was whether or not the draw was done correctly). But I'm happy to send you my brief if it'll be helpful to you.

Remember...the first words in the DIC-24 are, "You are under arrest..." You need to strike the words, "He wasn't officially under arrest" from your vocabulary. If the DIC-24 is read, then he WAS officially under arrest. If he's left at the hospital for treatment, then the officers are UNarresting him by leaving him there. But by going into court and conceding that your officers did not "officially arrest" the Defendant, you're undercutting the very legal authority under which your blood draw is admissible. He WAS arrested. And by laying there unconcoius after the 24 is read, what he's really saying is, "Take my blood!!!" That's precisely what the law of implied consent means.