DWI Law- Illegal Search Warrant Suppresses Blood Draw Says Texas

In Crider v. State of Texas, --- S.W.3d ----, 2011 WL 5554806 (Tex.Crim.App.) the defendant appealed the denial of his motion to suppress the search warrant. He claimed that the warrant failed to establish that the warrant was "timely" and not "stale". The appellate court agreed, holding that:

"[T]he affidavit in this case is not sufficient to show probable cause because there could have been a twenty-five-hour gap between the time the officer first stopped appellant and the time he obtained a search warrant for blood."

In discussing the requirements for a search warrant, the court pointed to the law governing timeliness for the search warrant, otherwise referred to as the 'staleness doctrine":

"Probable cause is not determined by merely counting the number of days between the time of the facts relied upon and the warrant's issuance. The significance of the length of time between the point probable cause arose and when the warrant issued depends largely upon the property's nature, and should be contemplated in view of the practical considerations of every day life. The test is one of common sense." 

"Affidavits are to be read “realistically and with common sense,” and reasonable inferences may be drawn from the facts and circumstances set out within the four corners of the affidavit.FN8 But there must be sufficient facts within the affidavit to support a probable-cause finding that the evidence is still available and in the same location. We agree that the “proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued.” FN9 No hard-and-fast rule sets the outer limit of time between stopping an apparently intoxicated driver and the existence of probable cause that evidence of intoxication will still be found within that person's blood. The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense. The hare and the tortoise do not disappear over the hill at the same speed. The likelihood that the evidence sought is still available and in the same place is a function, not just of the watch or the calendar, but of the particular variables in the case:

(1) the type of crime—short-term intoxication versus long-term criminal enterprise or conspiracy;

(2) the suspect—“nomadic” traveler, “entrenched” resident, or established ongoing businessman;

(3) the item to be seized—“perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a bank vault filled with deeds, a “meth lab,” or a graveyard corpse); and

(4) the place to be searched—a “mere criminal forum of convenience or secure operational base.” 

Applying the above, the court then determined the likelihood that alcohol would still be found using a scientific analysis:

"Assuming that a suspect did not drink after being stopped by an officer, at least “some” evidence of alcoholic “intoxication” (defined as 0.08 BAC) should still be in his blood system four hours later because it takes at least four hours for the average person to eliminate 0.08 grams of alcohol (per one hundred milliliters of blood) at a rate of 0.02 grams of alcohol (per one hundred milliliters of blood) per hour. Put simply, it takes four hours of hourly 0.02 BAC decreases to make a BAC of 0.08 drop to zero.

The higher the level of intoxication at the time of the stop, the longer some evidence of alcoholic intoxication would remain in the blood. For example, if the average person's blood-alcohol level were twice the limit of legal intoxication, with a BAC of 0.16 at the time he were stopped, his level would be approximately 0.08 four hours later, and some level of alcohol would still be in his blood up to seven to eight hours later.FN14 But it would be exceedingly unlikely that a person who was tested some 24 hours after he ceased drinking would register any detectible level of alcohol in his blood. (This would correspond to an initial blood-alcohol content of 0.48, six times the legal limit and nearly lethal.)

The court also held that it must use the most extreme time periods when applying the stalenss doctrine:

"United States v. Button, 653 F.2d 319, 324–25 (8th Cir .1981) This case gave rise to the so-called “ Button Rule” of staleness:

"Generally when the courts are forced to make an assumption as to when transactions occurred “within” a given period, for purposes of determining probable cause, it must be assumed that the transactions took place in the most remote part of the given period.... The reason for this policy is obvious. If this were not the construction given to this phrase, stale information could be made to appear current by the mere use of “within” language. For example, if a dozen drug purchases were made in the first week of January and one wished to obtain a search warrant in the first week of March based solely on this information he would need only say that “within the last two months a dozen purchases were made”, rather than “a dozen purchases were made in the first week of January.” 

Based upon all of the above, the appellate court held that the search warrant was defective, and remanded the case with directions.

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DUI Law - Florida Says Search Warrants for Blood Draw on Misdemeanors Illegal

In State of Florida v. Geiss, --- So.3d ----, 2011 WL 2097694 (Fla.App. 5 Dist.), 36 Fla. L. Weekly D1132, the Defendant was charged with driving under the influence (DUI). A search warrant was issued for his blood. The Circuit Court, Brevard County, George Maxwell, J., suppressed results of defendant's blood test. State appealed.


On appeal, the appellate court held that the State lacked statutory authority to draw blood as property used as a means to commit misdemeanor DUI. The trial court also found that the blood draw was not authorized by the warrant statute, section 933.02, Florida Statutes, because blood is not “property” used as a “means to commit” a crime:

"In addressing this issue, we should first clarify that although this case was ultimately filed as a felony case based upon Geiss's prior DUI record, the affidavit for the search warrant did not set forth Geiss's complete record, and only averred that Geiss possessed one prior DUI conviction. So, the affidavit alleged probable cause to believe that Geiss had violated the misdemeanor DUI statute. This is significant because section 933.02, Florida Statutes, only allows the state to secure a warrant to seize “property ... used as a means to commit” a misdemeanor. § 933.02(2)(a), Fla. Stat. (2010). By contrast, the statute also authorizes the state to secure a warrant for “property [that] constitutes evidence relevant to proving that a felony has been committed.” § 933.02(3), Fla. Stat. (2010); see also, Bordo, Inc. v. State, 627 So.2d 561, 562–63 (Fla. 4th DCA 1993) (“Thus, property used to commit any crime—whether felony or misdemeanor—may be seized under a warrant; while property merely constituting relevant evidence of a crime may be seized only if the suspected crime is a felony.”). Because the affidavit below only alleged facts supporting probable cause for a misdemeanor DUI, the original issuing magistrate and the trial court reviewing the warrant in the case below properly considered only whether blood constituted “property ... used as a means to commit” the crime of DUI in this case. See, e.g., Martin v. State, 906 So.2d 358 (Fla. 5th DCA 2005) (limiting review to four corners of search warrant to determine whether sufficient probable cause existed). We agree with the trial court that it was not."


Geiss argued that blood is not “property” within the meaning of the statute. The appellate court wrote:


"The statute uses the word “property,” a broad and flexible term that is not defined in the statute. It is a term that should properly be construed in the context of the statute's purpose of identifying items that are the proper subject of a search warrant. In that sense, “property” does not exclude those substances that are naturally produced by the human body. Human blood, whether it is being stored for later transfusion in a hospital refrigerator, being donated to a blood bank or flowing through the veins of an arrestee, is something tangible over which a person or entity may exercise ownership, which has value and which may be sold or transferred for consideration like other material objects. In those important respects, blood is indistinguishable from other fluid materials such as vodka, insulin or gasoline and like each of them may be seized, secured and subjected to chemical and other scientific analysis. The fact that it would require an invasive procedure to extract fluids from the human body does not alter the form or composition of human blood or make it any less suitable a subject for a search warrant.




State v. Isley, 11 Fla. L. Weekly Supp. 1102a (Fla. Brevard County Ct.2004), aff'd, Isley v. State, Case No. 05–2004–AP–59852 (Fla. 18th Cir. Ct. 2005). Other Florida trial courts have reached the same conclusion. See State v. St. George, 16 Fla. L. Weekly Supp. 324a (Fla. Duval County Ct.2009); State v. McKinnon, 16 Fla. L. Weekly Supp. 329a (Fla. Duval County Ct.2009). This reasoning is persuasive. Blood may be extracted from the body and donated and/or sold for further use. And, blood has long been routinely seized for testing as evidence in many types of criminal cases. It only makes sense that the legislature would intend the term “property” to broadly include the types of physical items that would routinely be seized in connection with a criminal investigation."


The appellate court nevertheless found that the search warrant was unauthorized:


"However, we agree that blood is not “used as a means to commit” driving under the influence. Instead, blood is seized for its evidentiary value.FN4 And, no one uses his or her blood “as a means to” do anything, as those words are commonly used or understood. Given that statutes should be construed in accordance with their “plain and ordinary meaning,” Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla.2011) (citations omitted), and that search warrants must strictly conform to the statutes and constitutional provisions which authorize their use, State ex rel. Wilson v. Quigg, 154 Fla. 348, 17 So.2d 697, 701 (1944); Crain v. State, 914 So.2d 1015, 1020 (Fla. 5th DCA 2005) (en banc), we agree with the trial court that blood cannot be drawn based upon probable cause that a suspect has committed misdemeanor DUI in light of the plain language of section 933.02, Florida Statutes.


Unfortunately, applying the good faith exception to warrants as stated in U.S. v. Leon, the appeals court held that the good faith exception to the exclusionary rule applied and reversed the suppression.

Editor's Note: Even though this blood draw squeezed in under the gun due to a 'good faith' exception, such an exception arguably cannot be used again, because the courts have now put the police on notice (through this opinion) that such warrants are legally unauthorized.

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DUI Appeal of the Day (DAD) - Warrant was “invalid”- 4th amendment testimony inadmissible

In State of Utah v. Dominguez, --- P.3d ----, 2011 WL 692811 (Utah), 2011 UT 11 a judge erroneously issued a telephonic search warrant authorizing a blood draw from defendant that was not issued in compliance with the rule requiring the magistrate to retain the search warrant and all supporting documents. The Supreme Court, however, found that the failure to do so did not require exclusion of the evidence. "[N]ot all constitutional errors trigger exclusion: “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” United States v. Leon, 468 U.S. 897, 916 (1984) (emphasis added)."

Of equal interest in the opinion was the courts resolution of whether the defendant was prejudiced at all. The court first noted that the defendant's 'silence' in not contesting the accuracy of the officer's averments in the application essentially conceded to their truth. The defendant countered that such an analysis would compel the defendant to choose between testifying at a Franks hearing and making admissions that could be used against him later, or tacitly accept the violation of his rights. The courts response to that argument was as follows:

In testifying at a Franks hearing, Dominguez would not have had to “forfeit his Fifth Amendment right to remain silent,” as the court of appeals concluded. State v. Dominguez, 2009 UT App 73, ¶ 17, 206 P.3d 640. In fact, the law is well settled that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). “Without this rule, a defendant would have to surrender his Fifth Amendment privilege against self-incrimination in order to assert a valid Fourth Amendment claim.” State v. Hansen, 2002 UT 125, ¶ 49 n. 4, 63 P.3d 650.

Note: The case is yet another example that, even if a violation of law is proved in the area of search and seizure, courts are expecting that there be a policy justification before blindly ordering a suppression of evidence.

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DWI Appeal of the Day (DAD) - Blood Search Warrant Insufficient

Rarely does any DWI reported out of the Texas appellate courts end well for the defendant. This is one of those rarities. In Farhat v. State of Texas, --- S.W.3d ----, 2011 WL 56056 (Tex.App.-Fort Worth), the defendant was arrested for DWI by Corporal Finley. Corporal Finley then prepared a sworn affidavit for a blood-draw search warrant, and the magistrate subsequently signed a search warrant based on the affidavit.

The case presents a good summation of search warrant law, both federal and state:

The police may obtain a defendant's blood for a DWI investigation through a search warrant. * * * A search warrant cannot issue unless it is based on probable cause as determined from the four corners of an affidavit. * * * Under the Fourth Amendment and the Texas constitution, an affidavit supporting a search warrant is sufficient if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. * * * Article 18.01(c) requires an affidavit to set forth facts establishing that (1) a specific offense has been committed, (2) the item to be seized constitutes evidence of the offense or evidence that a particular person committed the offense, and (3) the item is located at or on the person, place, or thing to be searched. * * * No magical formula exists for determining whether an affidavit provides a substantial basis for a magistrate's probable cause determination. Tolentino, 638 S.W.2d at 501. Instead, when a court reviews an issuing magistrate's determination, the court should interpret the affidavit in a commonsense and realistic manner, recognizing that the magistrate may draw reasonable inferences.

The affidavit in support of the blood warrant states, in total,

On 01-11-2008 at approximately 0050 hours, I, Cpl. Finley # 516 was driving eastbound in the 1900 block of Justin road and visually observed a vehicle turning from Sellmeyer onto Justin road. I turned around at the light and started westbound when I could see a vehicle driving very slow approximately 30 miles an hour in a 40 mile per hour zone. I pulled my patrol vehicle behind the vehicle a silver BMW with dealer plates. The vehicle was weaving from sided [sic] to side and continued for about a half a mile in the left lane. As the vehicle approached the KFC parking lot the vehicle turned on the right turn signal and crossed over the left lane into the parking lot. I activated my overhead lights and conducted a traffic stop in the parking lot at 2180 Justin road KFC. I noticed two pill bottles in the center console and asked where the driver later identified as Farhat, Samuel David, A/M DOB 05-04-1966 the defendant [sic]. I asked the defendant to step out of the vehicle to check to see if he was ok to drive. The defendant refused to do any road side test and was placed in double locked properly spaced handcuffs.

The appellate court reversed the trial court's finding that the affidavit established probable cause, making such statements as the following:

In other words, we hold that the meager facts contained within the four corners of the affidavit did not provide the magistrate with a substantial basis to conclude that there was a fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood.* * * trial court's findings of fact state that Corporal Finley suspected Farhat of DWI “based on the erratic driving behavior, the pills in the console, and the Officer's opportunity to personally observe the driver.” But the affidavit contains no mention of what those personal observations were. * * * “It is one thing to draw reasonable inferences from information clearly set forth within the four corners of the affidavit ... [but] it is quite another matter to read material information into an affidavit that does not otherwise appear on its face.” * * * Because the affidavit is totally devoid of any of the officer's specific personal observations of Farhat, the affidavit contains no facts within its four corners from which the magistrate could have reasonably inferred from Farhat's demeanor, behavior, or appearance that there was fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood. * * * The magistrate's probable cause determination cannot be a mere ratification of Corporal Finley's conclusions.* * * We cannot agree with the trial court's finding that a reasonable interpretation of Corporal Finley's statement in his affidavit that Farhat “continued for about a half a mile in the left lane” was that Farhat “was driving in the wrong lane, to wit: the oncoming traffic.” Why would an officer follow a vehicle that is driving into oncoming traffic for half a mile without immediately turning on his patrol vehicle's overhead lights and executing a stop? The affidavit clearly demonstrates that Corporal Finley did not activate his overhead lights during that one-half mile; he waited until after Farhat turned into the KFC parking lot to initiate a stop. * * * We do not know from the affidavit the extent of Farhat's weaving or whether he was weaving outside of his lane or into oncoming traffic nor is it reasonable to infer such facts.* * * Too many inferences must be drawn and too many facts must be read into the affidavit in this case, which result in at most “a tenuous rather than a substantial basis” for the issuance of a warrant.

In finding that the affidavit fell short of proving probable cause, the appellate court also determined that the error was 'not harmless':

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. * * * Because the error involved is of constitutional magnitude, we apply rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to Farhat's conviction or punishment. * * * The question is whether the trial court's error in denying Farhat's motion to suppress was harmless beyond a reasonable doubt. * * * In applying the “harmless error” test, our primary question is whether there is a “reasonable possibility” that the error might have contributed to the conviction. * * *

The only evidence that Farhat was intoxicated came from the results of a blood test, obtained in violation of Farhat's constitutional protection against unreasonable search and seizure. We are thus unable to determine beyond a reasonable doubt that the trial court's error in denying Farhat's motion to suppress did not contribute to Farhat's conviction or punishment for DWI. See Williams, 958 S.W.2d at 195. We sustain Farhat's sole point.


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DUI and blood draws by force?

Image by Subliminati via Flickr

A few weeks ago the Chicago Tribune reported that Rep. Keith Farnham, D-Elgin, introduced a bill to the Illinois House that authorizes police to use "all reasonable and necessary force" while executing a search warrant. If passed, this provision would apply to, among others, DUI suspects who refuse to submit to a search warrant for a sample of their blood. The current law requires that a person who has been involved in an accident causing serious injury or death must provide a sample of their blood, but it is silent as to the amount of force that can be used to require a suspect to comply. However, the failure to comply with a request for a breath test or blood draw does have ramifications: a refusal will result in an automatic 1-year drivers' license suspension. Of course, even if this law is enacted, it will have little practical effect, as Don Ramsell of our office explains in the article:

Defense attorney Donald Ramsell, who serves on the Illinois State Bar Association's traffic law committee, says the number who refuse is "minuscule." Ramsell says he's handled more than 13,000 DUI cases since 1986. "I have never had a single client in the face of a search warrant who has ever refused."

Nevertheless, the implications of the proposed law are disturbing, since a forced blood draw implicates fundamental privacy rights. Fortunately, as explained in the Chicago Tribune article, the proposed bill is likely unconstitutional:

The Farnham bill, though, is probably unconstitutional. Former Cook County Circuit Judge Daniel Locallo cites a 2005 ruling by the Illinois Supreme Court that a DUI defendant did not have the right to refuse such a test. But the court warned that its ruling "does not give law enforcement officers unbridled authority "...to use physical force in obtaining blood, urine and breath samples."

Let's hope that the proposed bill never sees the light of day. If, however, it does become law, then subsequent forced blood draws and the arrests resulting therefrom may set the ground work for an interesting and important constitutional challenge addressing one of our most basic rights: the right to be free from unlawful searches and seizures.

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