In a DWI case where there is a blood sample, is the person who collected the sample essential to the chain of custody?
The phlebotomist who drew the blood in my case has moved out of state. I beleive the officer can testify that he observed the blood being collected and that a betadine swab was used, the vial was then rotated, etc.....and given directly to the officer who mailed it to DPS. I also have an affidavit from the phlebotomist that was signed at the time the blood was collected that might be admissible as a business record. It is signed each time a blood search warrant is issued and kept by the police department in its regular course of business. I'm not sure the best way to prove the qualifications of the phlebotomist without her being available, which I suppose is necessary.
Any thoughts?

I think you can cut the phlebotomist out of the loop since the officer can testify about how the sample was taken. If you feel that you need the phlebotomist's qualifications into evidence, I am certain that the facility at which he/she works would be able to testify in that regard. However, keep in mind, the qualifications that are necessary under the law applicable to a mandatory sample case do not apply to blood seized under a search warrant or a consent situation.

You might have problems using her affidavit as a business record; see Cole v. State, 839 SW2d 798 (1990).

In an attempt to avoid these problems, prosecutors succeeded in passing CCP Art. 38.42, "Chain of Custody Affidavit," which might serve your purposes. If the existing affidavit "substantially complies" with Art. 38.42, you're good to go (assuming you comply w/ the other provisions of that statute). If not, there is nothing preventing the witness from filling one out after the fact; if you can track her down, ask her to fill one out and return it to you (she could even use a copy of her previous affidavit to refresh her memory).

Was your phlebotomist a law enforcement employee or civilian? If civilian, Cole should not be a problem vis a vis the affidavit. The 38.42 statute is good stuff, though.

[This message was edited by John Rolater on 02-15-06 at .]

The tech who drew the sample was a civlian, although employed by the county hospital.
Thanks for all your input.....I now have 2 other cases that have this same issue!

A county employee is not the same as law enforcement, and should not fall under Cole. See Caw v. State, 851 S.W.2d 322 (Tex. App.--El Paso), pet. ref'd, 864 S.W.2d 546 (Tex. Crim. App. 1993)(Dallas County crime lab personell not law enforcement); Durham v. State, 956 S.W.2d 62, 63-65 (Tex. App.--Tyler 1997, pet. ref'd)(county crime lab toxicologists and chemists not law enforcment, Rule 803(6) does not bar use of reports). If your phlebotomist was a nurse in your county jail, the outcome might be different.

There are two cases that speak to proving up a blood draw when the witness who drew the blood is unavailable. They are Beck v. State, 651 S.W.2d 287 (Tex. App. - Houston [1st Dist.] 1983, no pet, and Durrett v. State, 36 S.W.3d 205 (Tex. App. - Houston 914th Dist) 2001, no pet. The use of the blood withdrawal checklist is a good way to ensure that the officer can testify to the procedure used to draw the blood.

Thanks again for all the help.....the "checklist" is included in the affidavit and the officer observed the blood draw.