Driving While Intoxicated Case Law Update - Texas District ...

consenfs, 724.012 does not apply. He further objected to the first and second blood draws as
being in violation of Rule 403 of the Tbxas Ru/es of Evidence and that was rejected after applying
the six factors that go to that issue. The attack on the reliability of the retrograde extrapolation was
also rejected based on the facts of this case. ln his final point, he argued that the medical blood
draw should have been suppressed because it was not taken by a person qualified fo do so under
Transportation Code 724.017 while conceding that medical blood draws are not required to meet
the standards sef forth in section 724.107, but argued they should still be applicable to ensure
reliability of said draws. Ihrs rssue was not properly preserved for review.
O. OFFICER BLOOD DRAW PROCEDURE "NOT UNREASONABLE'' UNDER THE
4TH AMENDMENT AND NoN.MEDIGAL ENVIRoNMENT Is UPHELD
State v. Johnston,2lll WL 891324 (Tex.Crim. App., March 16,2011). Cert. denied Oct.3, 2011
Defendantwas arrested by Dalworthington Gardens Police Dept. for DWI and a search warrantfor
blood was obtained. Suspecf resrsfed blood draw and was restrained. Resu/f = .19. At MTS
hearing the Trial court found that the blood'draw was done by recognized medical procedures,
force used was reasonable, but officer who did the draw was not qualified under 724.017 of
Transportation Code and the seizure of defendant's blood violated the 4th Amendment's
reasonableness requirement by not being taken by medical personnel in a hospital or medical
environment. Court of Appeals confirmed that Transportation Code does not apply, held it was not
a problem that blood was not drawn in medical environment, and made no finding that officer was
not qualified. Under 4' Amendment found the means used were not "reasonable." ln so holding
the Court mentions no medical history taken, no video recording, no wriften guidelines for use of
force. Court of Criminal Appeals reversed holding that being a police officer does not disqualify an
otherwise qualified person from performing a blood draw after stating that the officer in this case
was demonstrated by the record to be qualified to do so. lt further sfafed that while a medical
environment is idealfor such draws, that does not mean that other seftings are unreasonable under
the 4th Amendment and the setting in this case was proper.
P. PROPER TO BRING OUT IN QUESTIONING DEFENDANT'S FAILURE TO ASK
TO RETEST BLOOD SAMPLE
Schmidt v. State, 2010 WL 4354027 (Tex.App.-Beaumont 2010).
Prosecutor's eliciting testimony from State's chemist that the defense had not requested access
to the blood sample to perform its own testing was not improper nor was it an attempt to shift the
burden of proof. The Court pointed out that generally, the State can comment on a defendant's
failure to present evidence in his favor and even comment on the absence of evidence from the
defense so /ong as sa id comment refers to evidence other than a defendant's own testimony. They
further held this question was a proper response to the defense questioning of the uyifness about
how the sample was preserved.
L07