Tuesday, August 09, 2011

DWI Law - Texas Blood Draw Method Constitutional Says Court

In Pacheco v State of Texas, --- S.W.3d ----, 2011 WL 3211265 (Tex.App.-Fort Worth) the Court of Appeals was asked to review the reasonableness of the defendant's blood draw under the Fourth Amendment. The Texas court summarized its view of the general law in this area as follows:
"A blood draw constitutes a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 758–59, 86 S.Ct. 1826, 1829 (1966). The “Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Id. at 768, 86 S.Ct. at 1834. The Supreme Court has set out a two-step test for determining the reasonableness of a blood draw. Id. A blood draw is reasonable under relevant Fourth Amendment standards if:

(1) the police had justification in requiring the suspect to submit to a blood test, and

(2) the police employed reasonable means and reasonable procedures in taking the suspect's blood."
In the instant case the defendant only challenged the means and procedures employed.

Christy Smith, a medical technologist certified by the American Society for Clinical Pathology, drew a sample of Pacheco's blood for testing. Smith testified that she has more than thirty years of experience as a medical technologist and that she has taken thousands of blood samples in that capacity. Smith wrote a reminder on a sticky note after drawing Pacheco's blood that said, “Pacheco, Ernest. 11/12/08. Hispanic male, short,” and “looked like Val,” one of Smith's coworkers. Smith testified that she drew blood only from Pacheco that day and that she followed the same procedure drawing his blood as she followed when drawing samples from all patients. According to Smith, the procedure follows Weatherford Regional Hospital's policies and protocols, and it does not require the technologist to ask for a patient's medical history before drawing blood.

Pacheco argued that Clark and Smith failed to obtain Pacheco's “general medical history” and that “no follow up was done.” Pacheco contended that this failure subjected him to “an unreasonable risk of medical harm that made the blood draw unreasonable under the 4th Amendment of the United States Constitution.” The State argues that the “highly trained, educated, experienced, and certified medical technologist who drew [Pacheco's] blood in a hospital testified that she does not conduct either procedure as part of her normal blood draw routine, but she did follow hospital policy and procedure.... Therefore, neither was medically necessary in this case.”

The court responded to those claims as follows:

"For the general population, the Supreme Court has determined that a blood test is a reasonable means in which to analyze an individual's blood alcohol level. Id.; see also Breithaupt v. Abram, 352 U.S. 432, 435–36, 77 S.Ct. 408, 410 (1957) (explaining that those entering the military, marrying, or going to college must take blood tests and millions voluntarily donate blood so the “blood test procedure has become routine in our everyday life”); Johnston, 336 S.W.3d at 659. Courts may deem blood testing to be unreasonable over another method of testing when “the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing.” Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836. But failing to inquire into an individual's medical history before drawing blood and failing to conduct a follow-up examination do “not render blood draws per se unreasonable.” Johnston, 336 S.W.3d at 659. Therefore, the suspect has the burden to show that the type of test employed was “not a reasonable means to obtain a blood alcohol level assessment as to him or her individually.” Id. at 660. The record must contain evidence showing that the police chose a test that was not reasonable due to a “verifiable medical condition,” or we will presume that the choice to administer the test is reasonable. Id.

Here, the record contains no evidence that Pacheco suffers from a medical condition that would have made another means of testing preferable. See id. And Pacheco is not one of “the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing,” as Pacheco had already refused to give a breath specimen. See Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836. Because Smith's failure to ask Pacheco about his medical history and conduct a follow-up examination did not render the draw unreasonable, we conclude that the police chose a reasonable means to obtain a blood alcohol assessment as to Pacheco, individually."

Pacheco then argued that Clark and Smith did not perform the procedure in a reasonable manner because the paperwork documenting the blood draw was incomplete. He contended that the “lack of identifiers places a patient at risk”; that medical procedures concerning the identity of the patient are “critical to preventing, diagnosing[,] and treating a person and can prevent unreasonable risks of medical harm”; and that it “creates unreasonable risks of medical harm.” The State argued that Pacheco failed to demonstrate how some clerical errors in the accompanying paperwork rendered the blood draw constitutionally unreasonable.

To that claim, the court wrote:

"Police officers act reasonably when drawing blood if they act in accordance with accepted medical practices, including the equipment and technique that they employ. Johnston, 336 S.W.3d at 663. The Supreme Court has explained that tolerating searches that were conducted by unqualified personnel or outside a medical environment may “invite an unjustified element of personal risk of infection and pain.” Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836. Searches justified by a valid warrant have a presumption of legality unless the opponent produces evidence rebutting the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007). “[T]he reasonableness of the manner in which a DWI suspect's blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances surrounding the draw.” Johnston, 336 S.W.3d at 661.

Pacheco's argument that identifiers can prevent unreasonable risks of harm is misplaced because the standard is whether the blood was drawn in accordance with accepted medical practices, and Smith testified that she followed both the hospital's policy for drawing blood and the directives of her certification on how to draw blood. Pacheco argues that the lack of “identifiers” put him at “risk of medical harm,” but he fails to explain how he was at risk. Without more, Pacheco has failed to satisfy his burden to rebut the presumption of reasonableness. The record contains evidence supporting the trial court's conclusion that “the manner in which [Pacheco's] blood was drawn was reasonable.”

In denying the appeal, the court concluded:

"Under the totality of the circumstances, we hold that the equipment and technique Smith employed to draw Pacheco's blood followed medically accepted practices and was therefore reasonable. See Johnston, 336 S.W.3d at 662–63 (holding “Johnston's blood was drawn in accordance with acceptable medical practices and was therefore reasonable.”). The circumstances here did not “invite an unjustified element of personal risk of infection or pain.” See Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836."

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