Blood Draw Issues in Driving While Intoxicated Arrests Part 2

So if you’re thinking about blood, you’re thinking about humans! There are too many human involvements and I think that a lot of these police departments have certainly gotten better because the assembly lines and the reputation. However, there are a lot of people to come in and in Houston they bring in young officers in task force and they get recycled in and out about every 3 or so years. So there’s that learning curve involved. You’ve got all these humans, getting their hand involved, leaving blood kits in the trunk of police car in the Texas heat. So they’re prune to many errors.

And you think about it and this is not just coming from me, this is coming from the literature and you can be an expert in this stuff all you need is computer and Google. You can find all of these great articles. In fact there’s a venipuncture article, I will refer to it later. And this statement right here is taken right out of there. That most errors happen before the blood is analyzed so that’s the pre-analytical error.
So let’s talk. I’m going to talk a little bit about a couple of Supreme Court cases. How we got here? And I will talk about all the steps from the vein directly to the lab. So let’s get started!

Back in April, the Supreme Court in Missouri vs. McNeely, this is just a huge huge development and I’m sure you will hear a lot more about this tomorrow from Jerry Goldstein. But Missouri vs. McNeely was a case was a plain vanilla DWI. It wasn’t a, a felony, it was no accident! It was a speeding stop and there was no other bad driving! And he gets stopped.

The officer takes him down to the hospital and gets blood without a warrant. After refusal! And the point of all that is he’s just a plain vanilla DWI and the state’s argument was under Schmerber we could take him in there. The exigent circumstances were that if we didn’t get blood the alcohol was going to dissipate and that justified the warrant with search and obtaining the blood.

Unfortunately the Supreme Court held otherwise! The opinion is a must read they really four opinions and a descent but if you look at it the point is it’s going to be determined on a case by case basis and the worst case is, the worst effects are obviously it’s going to probably justify more exigent circumstances. But the point of it is this; we have the statute that has the five mandatory exceptions of blood draws and I think going forward most jurisdictions are going to utilize warrants because of the ease and efficiency which they’ve done this over the course of past 4 or 5 years or since 2002 when Beaming came out!

But you going to have to take a hard look at this and if you have this McNeely challenge. This warrantless blood draw you’re going to need to be prepared to show the ease and efficiency and [inaudible] in the opinion talked about how these police law enforcement jurisdictions have created this kind of stream line effect to speedily acquire warrants and have a process in place to do that so they weren’t hampering law enforcement’s efforts! And that’s why they felt satisfied that there was no exigent circumstances in this particular case but if you look at these five exceptions whether its death, serious bodily injury, two prior convictions, medical transport, or the child passenger the stagier felony DWI.
If you look at those, and you apply McNeely, a lot of these cases that some of the jurisdictions I meant! One says well we’re going to abandon the blood; we’re going to evaluate the case based upon without the blood! And another jurisdiction is proceeding for as if McNealy was never decided! So you’re going to need to be prepared to show, to demonstrate the ease and efficiency and these judges know about it.
You know some of these judges really weren’t comfortable signing search warrants in the first place and the majority of judges that I talked to, while they wouldn’t say this publicly, and they certainly wouldn’t say it on the bench, but they’re not satisfied, they don’t like these blood test cases. They really don’t! They’re time consuming; they’re back logging their dockets while waiting for the blood test results. The trials take too long and they don’t really care for them.
And when they got these federal, federal grants to do these no refusal weekends, they set aside money for the nurses, they set aside money for the magistrates, they set aside money for the over time for the police officers! But they didn’t allocate any funds for the crime labs. That are absolutely bursting at the scenes for all these blood tests cases.
So you look at McNeely you need to use public information at request to acquire the affidavits in support of the search warrants and actually the search warrants. They’re subject to the PIA request and you can get them and be prepared that the state is always going to go forward.
So, I know I’m putting Schmerber after the fact! But Schmerber was a different case like we talked about. It was an accident case, it was a serious case! And bad cases make bad law! And the supreme court in this case authorized warrantless blood draw and I bring this case up and I know this case was decided back in 66 but I want you to, to listen to the rest of this presentation with this in your view finder, and thinking about these things! Because while it may satisfy the fourth in terms of the legality of acquiring it.
The manner in which they carry out blood draw may be unacceptable and may not be reasonable. And there is thief, still in Schmerber there. So they authorized a warrantless blood draw by accepted medical practices by medical professional and medical environment with those circumstances.
I think that’s really important! I know there are a lot of jurisdictions in Houston in Dallas and others that have blood draws within the jails! That’s certainly not the type of sterile environment. I know they have a protocol to clean, they have logs and they show it! But we’re talking about a jail cell. Most of these jurors don’t understand that pewter conditions of a jail cell! But that is not the certainly someplace that’s sterile.
You also look at, the Schmerber about that reasonable in its test! You’re talking about reasonable manner and mean and procedures. We’re going to talk later about the proper scientific method in terms of acquiring blood, in terms of preparing the site, the area which you draw blood, the manner which you draw it and test that you do. And the medical screening questions that should be asked prior to doing a blood draws are generally not done!

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez