OCTOBER D87 - Voice For The Defense Online

urinalysis procedure which, if instituted,would lend uniformity and possible wideracceptance of results.Proper PredicateThere is no case law in Texas that isdirectly on point regarding the properpredicate for the admissibility of urinalysisresults in a DWI case. However, the courtin Isaacks v. State advocates virtually thesame predicate for the admissibility ofurine tests detecting controlled substancesin urine (the "EMIT" test4'), as the courtshave held for breathalyzer tests for alcohol.The common law proper predicate foradmissibility of test results in the breathalyzerexam consists of the following:I) the use of properly compounded chemicals;2) the existence of periodic supervisionover the machine and its operation byone who understands the scientifictheory of the machine; and,3) proof of the results of the test by awitness qualified to interpret the result~.~*Therefore, it seems likely that courts willrequire a similar predicate for DWI urinetesting.ConsentConsenf Under StatuteAs is set out in V.T.C.S. 67011-5 $1:Any person who operates a motor vehicleupon the public highways or upona public beach in this state shall bedeemed to have given consent, subjectto the provisions of this Act, to submitto the taking of one or more specimensof his breafl~ or blood for the purposeof analysis to determine the alcohol concentrationor the presence in his bodyof a controlled substance or drug if arrestedfor any offense arising out of actsalleged to have been committed whilea person was driving or in actualphysical control of a motor vehiclewhile intoxicated. Any person so arrestedmay consent to the giving of anyother type of specimen [i.e., urine] todetermine his alcohol concentration, buthe shall not be deemed, solely on thebasis of his operation of a motor vehicleupon the public highways or upona public beach in this state, to havegiven consent to give any type of specimenother than a specimen of his breathor blood. [emphasis added]This statute provides that consent is"deemed" to have been given only withrespect to a blood or breath sample. Anyrequest by the state for the taking of otherbody specimens, i.e., urine, requires the-press consent of the arrestee.Colisenf Under Case LawIn regard to Section 1, the focal pointfor defense counsel ought be the issue ofwhether actual consent was given andwhether the DWI suspect was under arrestat the time of urine specimen removal.It has been settled that there is no violationof one's constitutional rights by thetaking of bodily fluids.45 In the context ofa DWI case, the taking of a bodily fluidis not an unlawful search and seizure underthe Fourth Amendment to the United StatesCDLPITCDLA Tentative Meeting and Course ScheduleApril 7-8, 1988CDLP FEDERAL CRIMINAL LAW1987-1988 SEMINARSouth PadreOctober 15-16, 1987(4:WJ.W CDLPl5:W-6:W TCDLA)CDLP SKILLS COURSE1 December 12, 1987 Aprll21-22, 1988LEGISLATIVE UPDATE (Board Mceting 10:W-nwn) TCDLA DWI SEMINARSan Antonio (Four Seasons Hotel) Austin San AntonioOctober 16, 1987CDLP EXECUTIVE COLMMITI'EEMEETINGFOUR SEASONS HOTEL,SAN ANTONIO4:W-5:W p.m.October 17, 1987FOUR SEASONS HOTEL,SAN ANTONIOJanuary 9, 1988NOMINATING COMMITI'EEMEETINGLake McQoeeoey-San AntonioJanuary 14-15, 1988CDLP FEDERAL CRIMINAL LAWSEMINARDallasApril 23, 1988TCDLAICDLP EXECUTIVECOMMITTEE MEETINGSan AntonioTCDLA Board MeetingMay 2-6, 1988CDLP CRIMINAL TRIALADVOCACY INSTITUTEHuntsville9 W-10.00 a.m.TCDLA Executive Committee Mccting February 12, 1988 June LO, 19881O:W-I0.W a.m. CDLP DWI SEMINAR TOBE ANNOUNCEDTCDLA Board MeetingCorpus ChrisfiJune 9-11. t988November 19-20, 1987SBOT CONVENTIONCDLP SKILLS COURSE1 Fcbruary 24-27, 1988 For1 WorthLEGISLATIVE UPDATE TCDLA SPRING SEMINAR TCDLAICDLP Exewlwe Committee Meet~ngOdwa Wen Orleans) TCDLA Annual Board Meeting(out of state)December 10-11-12, 1987CDLP JURY SELECTION SEMINARAustin (% day on 12th)TCDLA Board Meeting July 15, 1988TCDLA Executive Commillec MeetingCDLP SKILLS COURSECDLP Executive Commillce MeettngCollege Statcon or BryanDecember I I, 1987 March 18, 1988 August, 1988TCDLAlCDLP EXECUTIVE CDLP SEX CRIMES SEMINAR CDLP SKILLS COURSECOMMITTEE MEETING El Paso LongviewOctober 1987 1 VOICE for the Deferlsc 29