Blood Draws by Police Officers: Bridging a Supreme Court Gap

In Schmerber v. California, 348 U.S. 757 (1966), the U.S. Supreme Court held that a warrantless blood draw constitutes a search and seizure under the Fourth Amendment. The Court also laid out the two-part test for determining the legality of the search:

1) Whether the police were justified in requiring [the suspect] to submit to a blood test; and
2) Whether the means and procedures employed in taking [the suspect’s] blood respected relevant Fourth Amendment standards of reasonableness.

Schmerber, however, involved a blood draw performed by medical personnel at a hospital according to acceptable medical practice. In holding that the search was reasonable in that case, the Court conspicuously noted:

We are this not presented with the serious questions which would arise if a search involving use of a medical technique, even the most rudimentary sort, were made by other than medical personnel or in other than a medical environment – for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection or pain.

Id. at 771-772 [emphasis added]. 

Well…what if a police officer draws the blood? At the stationhouse?

This happened in State v. Johnston.

A woman was arrested for suspicion of DWI and two Dalworthington Gardens officers drew her blood at the Dalworthington Gardens stationhouse. That the officers had a warrant did not convince the suspect to comply with the request to draw her blood. Ultimately, the officers had to strap her to a table using gauze to keep her still enough to draw her blood.

Although the officer that drew the blood was a prior EMT and had been certified by a local physician to draw blood, the trial court suppressed the blood evidence, finding that the search was unreasonable under Schmerber. Troubled by the fact that the officers did not ask the suspect for a general medical history before conducting the blood draw, the fact that the blood draw was not recorded, the fact that the suspect was restrained, and the fact that the department did not have any clear guidelines for using force during DWI blood draws, the 2nd District Court of Appeals (Fort Worth) agreed that the trial court appropriately suppressed the evidence.

The State appealed, arguing that the Court of Appeals’ interpretation was too narrow. The defendant also appealed, arguing that the Supreme Court intended a per se ban on police officers drawing blood from DWI suspects.

The Texas Court of Criminal Appeals began its analysis by recognizing that the “for the general population, the Supreme Court has determined that a blood test is a reasonable means in which to analyze an individual’s blood alcohol content.” And in this case, because there was no evidence that the suspect suffered from a medical condition that would have made another means of testing preferable, it was not unreasonable (under Schmerber) to draw the suspect’s blood.

The CCA also held that Chapter 724 of the Texas Transportation Code – the chapter that deals with the implied consent law and details who may draw a person’s blood – is inapplicable to a reasonableness determination in this case, because the officers had a warrant. The defendant argued that because a police officer is not listed as a person authorized to draw blood under Chapter 724, the blood draw was unreasonable.  Chapter 724, the CCA concluded, applies only in cases where there is no warrant.

Regarding the test for reasonableness, the CCA concluded that “the reasonableness of the manner in which a DWI suspect’s blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances. In this case, the totality of the circumstances indicate that the search was reasonable.

•  The officer that drew the blood was a licensed EMT. (He had also been certified by a local physician, but the CCA didn’t care about that).
• The Supreme Court (Schmerber) does not require that the draw be done in a hospital or clinic and several other jurisdictions agree.
• The trial court concluded that the officers followed medically accepted procedures for drawing the blood.
• The use of reasonable physical force to obtain a blood sample is permissible.

The CCA held that the blood draw performed at the stationhouse by the police officers was reasonable under the Fourth Amendment and Schmerber.   I would agree (in this case).  I wonder how many police officers (especially ones that deal regularly with DWI) are getting in line to get EMT certified now.

DWI Blood Draws - "The most important decision we make all year."

Here are a couple of recent published decisions from the Courts of Appeals regarding the taking of blood samples for suspicion of DWI.

We'll begin with State v. Robinson – (10th District – Waco), June 16, 2010.

In this case, the Court upheld the trial court’s suppression of blood test results because (arguably) the State did not comply with the requirement under section 724.017(a) of the Texas Transportation Code that “only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse…take a blood specimen at the request or order of a peace officer.” The defendant, who had the initial burden to produce evidence that the statute was violated and that the evidence should be excluded, apparently shifted his burden to the State and the trial court ultimately held that because the State could not produce credible evidence that an actual nurse drew the defendant’s blood, the test results should be excluded.

Chief Justice Gray “strongly dissent[ed],” characterizing this case at the “certainly the most important decision” the Court has made “in a criminal case this year.”  He notes from the outset that "the hearing was before a county judge who would not be expected to be fully in tune with the niceties of a shifting of the burden of proof."

It is clear that the trial court placed the burden of proof to show that the blood draw was performed in compliance with the statute, Texas Transportation Code section 724.017, on the State, failing to prove such the trial court was going to suppress the blood evidence. Specifically, the trial court was focused on the fact that the State had not provided to the court’s satisfaction that the person who drew the blood was qualified as required by the statute.

Highlighting what he sees that the important practical implications of this decision, Chief Justice Gray writes:

If all a defendant has to do is to move to suppress evidence and then the State must go forward to prove the evidence was lawfully obtained, we can expect to see an even greater number of these motions and related appeals. A defendant can essentially file a motion in every case and the State will have to defend the manner in which the evidence was obtained. Thus, the presumption of proper police conduct is destroyed.

I'm with Chief Justice Gray on this one.  A thin record and an illogical burden shift should have made this case a winner for the State.  Discretionary review, perhaps?

Now onto State v. Jordan – (3rd District – Austin), June 17, 2010.

In Jordan the Court held that the affidavit for a search warrant to obtain Appellant’s blood sample for suspicion of DWI was deficient as it failed to allege the specific date and time the officer observed the conduct giving rise to the arrest. The State argued that because the blood was drawn at 4:20 am on June 6, 2008, the same day as the affidavit was signed, then no more than 4 hours and twenty minutes could have elapsed since the time of the observed conduct and the taking of Appellant’s blood. The Court, however, was not persuaded that the alleged offense and the completing of the affidavit occurred on the same day. Suppression of blood results affirmed.

BAC Test Results Admissible without Extrapolation Testimony

In 2004, the Texas Court of Criminal Appeals held, in Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004), that an intoxilyzer test taken approximately 80 minutes after the defendant had been driving, was admissible as it "tended to make it more probable that she was intoxicated at the time she drove under [both the per se and impairment] definition[s] of intoxication."  Id. at 96.  The Court so held despite the fact that the State failed to offer retrograde extrapolation testimony to show what the BAC may have been at the time of driving.  And so it was written: BAC results are admissible without extrapolation evidence.  See also State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005).  (*Obviously, the court must consider other factors, such as, the time the test was taken and whether the defendant's submission to the test was voluntary, before finding a BAC test results relevant and admissible.)

I write about this issue because on 10 Feb 2010, the Court reported a case that piqued my interest. In Kirsch v. State, the Court reaffirmed the above holding.  Read majority opinion HERE.   The case was particularly interesting, because when the trial court admitted the BAC test results it gave the following limiting instruction:

Members of the jury, I'm going to tell you now that the result is off...will be received by the Court for the limited purpose of showing that the individual who was tested had ingested alcohol only at some point before the time of the test.  That is the only purpose that will be offered and the only purpose for which you should receive it at this time in this trial.

On appeal, Appellant argued that the limiting instruction precluded the Court from then submitting jury instructions on the per se definition of intoxication.  The First District Court of Appeals (Houston) held that the jury charge was proper, but the limiting instruction was not and reversed.  See Kirsch v. State, 276 S.W.3d 579, 589 (Tex. App.-Houston [1st Dist.] 2008).  The CCA agreed that the limiting instruction was improper, but nevertheless affirmed the conviction, holding that "the totality of the evidence sufficed to permit the jury to conclude that appellant had an alcohol concentration of 0.08 or more at the time he was driving.   Judge Price dissented.  Read dissent HERE.