Blood Will TellBlood Will Tell::Blood Search WarrantsBlood Search Warrants

W. Clay AbbottDWI Resource Prosecutor

TDCAA

Implied Consent LawImplied Consent LawTransportation Code 724.011(a)Transportation Code 724.011(a)

If arrested for an offense arising out of acts alleged to have been committed while the person was (DWI) the person is deemed to have consented … to submit to the taking of one or more specimens of the person’s breath

or blood for analysis to determine the alcohol concentration or the presence . . . . of a controlled substance, drug, dangerous drug or other substance.

What?What?• Officer’s Choice.

• State v. Neel (Tex.App. – Tyler 1991)

• Breath or Blood.• 724.012(b)

• Officer may request breath & blood sample.

» State v. Gonzales (Tex. App. - San Antonio 1993)» Texas DPS v. Duggin (Tex. App. – Houston 1997)

Breath or BloodBreath or Blood

• Who decides?

• Differences?– Breath Usually Lower– Preservation

• Anybody know how blood is tested?

When suspect When suspect consentsconsents

legal pre-requisites legal pre-requisites are waived.are waived.

When Suspect is Unconscious.When Suspect is Unconscious.

“A person who is dead, unconscious, or otherwise

incapable of refusal is considered not to have

withdrawn consent”.

Transportation Code 724.014

TC §724.012 – Mandatory BloodTC §724.012 – Mandatory Blood

• Mandatory taking of specimen of breath/blood if …– any individual has

died or will die, OR

– any individual other than the driver has suffered serious bodily injury

Causation – PC § 6.04(a)Causation – PC § 6.04(a)

• A person is criminally responsible if the result would not have occurred but forbut for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficientclearly sufficient to produce the result and the conduct of the actor clearly insufficientclearly insufficient.

When blood is drawn for “medical

reasons”.

Hospital Drawn SamplesHospital Drawn Samples

• Obtain results with Grand Jury Subpoena.– Dickerson v. State (Tex.App. – Houston 1998)– Thurman v. State (Tex. App. – Houston 1993)

• No right to Privacy– State v. Hardy (Tex. Crim. App 1997)

Search WarrantsSearch Warrants

• Mere Evidence– Not all Magistrates– Limited to Courts of Record– NO JP”S not all Municipal Judges

• Probable Cause

• Describe the Person

• Follow the Blood Draw Procedures

Art. 18.02. Grounds for Issuance Art. 18.02. Grounds for Issuance

• A search warrant may be issued to search for and seize:

• 10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense;

• This Includes Blood

• c) A search warrant may not be issued pursuant to Subdivision (10) of Article 18.02 of this code unless the sworn affidavit required by Subsection (b) of this article sets forth sufficient facts to establish probable cause:

• (1) that a specific offense has been committed, • (2) that the specifically described property or

items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and

• (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.

• Except as provided by Subsections (d) and (i) of this article, only a judge of a municipal court of record or county court who is an attorney licensed by the State of Texas, statutory county court, district court, the Court of Criminal Appeals, or the Supreme Court may issue warrants pursuant to Subdivision (10), Article 18.02 of this code.

Can you Issue?Can you Issue?

• Court of Record?

– Yes, always

• Not a Court of Record?

– Must be a qualifying County under 18.01 (i)

CCP 18.01 (i)CCP 18.01 (i)

• In a county that does not have a judge of a municipal court of record who is an attorney licensed by the state, a county court judge who is an attorney licensed by the state, or a statutory county court judge, any magistrate may issue a search warrant under Subdivision (10)

Awwww come on Clay do I have Awwww come on Clay do I have to get up in the middle of the to get up in the middle of the

night?night?• Art. 2.10. DUTY OF MAGISTRATES. It is the duty of

every magistrate to preserve the peace within his jurisdiction by the use of allall lawful means; to issue allall process intended to aid in preventing and suppressing crime

• Code of Judicial Conduct Cannon 3– (1)     A judge shall hear and decide matters

assigned to the judge except those in which disqualification is required or recusal is appropriate.

– (9)     A judge should dispose of all judicial matters promptly, efficiently and fairly.

So?So?

• Only if you think following the law and code of judicial conduct is important as a judge.

• Getting paid is between you and the city.

Art. 18.04. Contents of warrant Art. 18.04. Contents of warrant • A search warrant issued under this chapter shall

be sufficient if it contains the following requisites:

• (1) that it run in the name of "The State of Texas";

• (2) that it identify, as near as may be, that which is to be seized and name or describe, as near as may be, the person, place, or thing to be searched;

• (3) that it command any peace officer of the proper county to search forthwith the person, place, or thing named; and

• (4) that it be dated and signed by the magistrate.

Art. 18.08. Power of officer Art. 18.08. Power of officer executing warrantexecuting warrant

• In the execution of a search warrant, the officer may call to his aid any number of citizens in this county, who shall be bound to aid in the execution of the same.

Art. 18.10. How return madeArt. 18.10. How return made

• Upon returning the search warrant, the officer shall state on the back of the same, or on some paper attached to it, the manner in which it has been executed and shall likewise deliver to the magistrate a copy of the inventory of the property taken into his possession under the warrant. The officer who seized the property shall retain custody of it until the magistrate issues an order directing the manner of safekeeping the property. The property may not be removed from the county in which it was seized without an order approving the removal, issued by a magistrate in the county in which the warrant was issued; provided, however, nothing herein shall prevent the officer, or his department, from forwarding any item or items seized to a laboratory for scientific analysis.

FormsForms

• Detail all DWI Observations

• Stop Facts

• Refusal

• Place and Description of Defendant

• Time is of the Essence

When Would You Obtain a When Would You Obtain a Warrant?Warrant?

• Injuries

• Felonies

• Enhanced

• When drugs are suspected

–DRE Examination