Texas defense lawyers challenge blood testing in DWI cases

Attorneys have had limited success but expect more as cases spill into courts.

By Tony Plohetski
AMERICAN-STATESMAN STAFF
Sunday, April 05, 2009

When a client who had been arrested on a drunken driving charge showed up at his office in January 2006, Fort Worth attorney Avery McDaniel started considering ways to chip away at the case against her, including discounting blood evidence that showed she was too drunkto drive.

He put together what he thought would be a persuasive argument: that state law does not allow police officers, who had drawn the blood of Christie Lynn Johnston, to collect such samples.

A Tarrant County judge ruled in his favor.

As more Texas law enforcement agencies, including the Austin Police Department, join a statewide trend in collecting blood from drunken driving suspects as a way to bolster criminal cases, McDaniel and defense attorneys are developing new strategies aimed at raising doubts among judges and juries about the accuracy and legality of such results.

Even though the attempts have been successful in only a handful of Texas cases, lawyers say their efforts could help undermine what police have described as a key tool in the battle against drunken driving.

The attorneys are becoming amateur scientists and chemists, learning in detail about how blood should be drawn and stored and why such issues can alter results.

They say the knowledge will help them attack the evidence in court andpossibly get it thrown out.

“It really gives us more ammunition when you get down to it,” said Bobby Mims, a Longview defense attorney who is preparing for drunken driving cases with blood evidence. “If these lawyers will get in there and learn this stuff, on the right case, we can make the blood irrelevant.”

Before Texas officers can extract the blood of drunken driving suspects, they must pull them over, which requires justificationsuch as seeing a car swerve between lanes or fail to stop at a stop sign. If officers think the driver is intoxicated, state law says that to get a search warrant for blood,they must present their reasons to a judge.

Any misstep in that series of events can provide material for a defense, lawyers said. For instance, they have explored issues such as whether officers had cause to arrest a suspect and whether officers gave judges accurate information to obtain search warrants.

Attorneys are also reaching into the histories of phlebotomists and others who drew the blood, including their qualifications and experience, hoping to show that they were not trained to collect police evidence.

In some cases, defense attorneys have put forth what prosecutorsconsidered far-fetched arguments.

Clay Abbott, a lawyer with the Texas District and County Attorneys Association who monitors DWI cases statewide, said he is familiar with one in which a defense attorney tried to convince a judge — unsuccessfully — that the size of a needle used to draw a suspect’s blood was too wide, negatively influencing the results.

In another case, Abbott said, a defense attorney suggested that officials stored a suspect’s blood in an expired vile. That argument was also overruled, he said.

“They are never short of being imaginative,” Abbott said. “You pay the attorney, and your expectation, I guess, is that they will find a way to attack the evidence.”

Lino Graglia, a University of Texas law professor who specializes in constitutional law, said that in theory, it should not be easy for defense attorneys to get blood evidence dismissed. He said he is not surprised that they are trying, however.

“It seems to me the law ought to be simplified and clarified to remove those possible objections,” he said.

Tests draw opposition

Several Texas prosecutors and defense attorneys who handle drunken driving cases said they do not know of any organization that tracks the number of cases involving blood evidence and how often those cases result in a conviction. Abbott said he also doesn’t have specific numbers.

Statewide, prosecutors and defense attorneys said they know of only a handful of instances, including the Tarrant County case involving Johnston, in which defense attorneys got blood alcohol results deemed inadmissible.

However, Abbott said he is aware of hundreds of unsuccessful attempts by defense lawyers statewide.

Another notable case, the lawyers said, involved a Johnson County judge who this year ruled that results of a blood alcohol test on state District Judge Elizabeth Berry could not be used in her trial.

According to published reports, Berry’s lawyer argued that the facts cited by the officer who arrested her were not sufficient for a search warrant that was used to obtain her blood three hours after her arrest.

The case is pending.

The practice of using blood evidence in drunken driving cases has grown in popularity among law enforcement agencies statewide during the past couple of years, particularly when suspects refuse to take a breath test.

The tests have sparked controversy. Civil libertarians say that the blood draws are an unnecessary invasion and that officers should be able to build successful cases without that evidence. Police officials have said the tests help create convincing cases and in some instances have proved that a drunken driving suspect was not intoxicated.

The practice has withstood court challenges.

Last week, the group Texans for Accountable Government sponsored a forum at Austin City Hall to oppose the procedures.

Last year, Austin police began conducting “no refusal” operations on some holidays, including New Year’s Eve and Mardi Gras, during which officers traditionallyarrest a higher number of drunken driving suspects. During certain hours, officers obtain search warrants for suspects who decline to take breath tests.

Austin police have obtained the blood of 75 people through search warrants as part of the operations.

They have said that virtually all of the suspects’blood alcohol levels were higher than the legal limit to drive in Texas.

Austin police can seek blood evidence from motorists suspected of driving drunk during any traffic stop.

Police Chief Art Acevedo has said that he wants a group of officers to receive training soon on how to draw the blood, a processnow done by a contracted phlebotomist.

Travis County prosecutors and Austin defense attorneys said they are not familiar with any local cases in which blood alcohol evidence was not permitted at trial. Most cases from the “no refusal” operations are only now beginning to enter the court system, they said.

However, Austin defense lawyers have begun considering ways to attack such cases.

In December, attorney Bennie Ray attended a seminar at Emory University in Atlanta that dealt with blood draws. He said instructors encouraged the lawyersto seek the credentials of the phlebotomists who took the blood and call to testify everyone who handled the blood, including the person who tested its alcohol level.

Ray recently hosted a 90-minute training session for Austin defense lawyers to share his knowledge.

“We are in the learning curve of how to try them,” he said. “My personal opinion is that it is going to be more difficult for the state to win blood cases. You have a thousand things that can go wrong, and any of those things are going to be the subject of some kind of reasonable doubt.”

A successful argument

According to court records in the Tarrant County case, Johnston, a waitress, was arrested and charged with drunken driving Dec. 9, 2005. She was not offered a breath test and refused to voluntarily provide a blood sample. Officers obtained a warrant for her blood, court records said.

“The defendant offered some resistance and was unruly,” court records said. “She kicked her feet and moved around, and they secured the defendant’s legs to the legs of the chair and secured one arm to the arm of the chair. After the defendant had been restrained, she calmed down and offered no further resistance.”

To the Tarrant County judge, McDaniel argued that state law says that only a “physician, qualified technician, chemist, registered professional nurse or a licensed vocational nurse” may draw the blood of suspects. He said that the two police officers who drew Johnston’s blood were not “qualified technicians” under the law.

Prosecutors are appealing the decision that the blood is inadmissible to the Texas 2nd Court of Appeals in Fort Worth.

They said the officers had been trained by a local doctor in how to draw blood in a program modeled after an Arizona law enforcement agency’s. To practice, they diddozens of blood draws, prosecutors said.

Tarrant County Judge Billy D. Mills said in his ruling that although the officers complied with the law in how they took the blood, they were not qualified technicians.

No date has been set for an appeal hearing.

McDaniel said that if he does not prevail, he will take the case to the Texas Court of Criminal Appeals.

“We have a right to be free from unreasonable search and seizure,” he said. “This is unreasonable.”

tplohetski@statesman.com; 445-3605

http://www.statesman.com/search/content/news/stories/local/04/05/0405blood.html

~ by Stop Vampire Cops! on April 5, 2009.