There Will Be Blood

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The Interplay Between Hospital Blood Draws and the Warrant Requirement in DWI Cases
Saturday, August 24th, 2019
There Will Be Blood

Introduction

The Court of Criminal Appeals’ recent decision in State v. Martinez has served to reinvigorate legal challenges to blood draws in intoxication cases. 2019 Tex. Crim. App. LEXIS 237, *1, 2019 WL 1271173–PD-0878-17. To fully understand and apply Martinez, it is necessary to understand the cases leading up to Martinez. It is important to recognize that these cases all deal with hospital blood draws in emergency-room cases, not consent or warrant cases. These cases do not impact consensual blood draws (“consent draws”). The warrant issue may be present in any non-consent case.

Important Predicate Cases

The interplay between the cases discussed below was vital to the Court of Criminal Appeals’ recent decision in Martinez. Knowledge of the facts and law discussed in each is essential to arguing motion practice based on Martinez.

(1) State v. Comeaux, 818 S.W.2d 46 (Tex. Crim. App. 1991) (plurality op.)

Comeaux was involved in a traffic accident and was taken to a hospital for treatment. Comeaux, 818 S.W.2d at 48. At the hospital, a sample of his blood was taken for medical purposes. Id. at 48–49. Tests done on the blood did not include analysis for blood-alcohol content. Id. at 49 [emphasis added]. The DPS trooper investigating the accident wanted a sample of blood from Comeaux, even though there was no suspicion that he had consumed any alcohol and the trooper did not believe he was intoxicated at the time of the accident. Id. at 48. The State obtained the sample and tested it at the DPS laboratory. Id. at 49, 50–51.

The trial court, the court of appeals, and a plurality of this Court concluded that Comeaux’s Fourth Amendment right was violated. Id. at 48, 53. Because Comeaux was a plurality opinion, it did not establish binding precedent. Hardy, 963 S.W.2d at 519.

Key facts:

  1. No BAC test by hospital
  2. No p/c to believe patient was intoxicated
  3. Patient not under arrest at hospital

(2) State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997)

Appellee (Hardy) was involved in an automobile accident on December 3, 1992. Trooper Authier of the Department of Public Safety investigated the scene and formed the opinion that appellee was intoxicated. Due to his injuries, appellee was subsequently “life-flighted” to a local hospital. During the course of treatment, the hospital drew blood from appellee and conducted a blood-alcohol test for medical purposes.

Important note: In its findings of fact and conclusions of law, the trial court found that blood was not taken from appellee in response to a request from Authier or any governmental agency. This matters.

In Hardy, the issue involved blood that was not only drawn by the hospital, but also tested by the hospital for blood-alcohol content. Id. at 518. The State did not obtain the blood in order to test it; instead, the State sought the hospital’s test results. Id. at 523–24.

There is no question that the drawing of blood from a person’s body infringes on an expectation of privacy recognized by society as reasonable. Skinner v. Railway Labor Exec. Assn., 489 U.S. 602, 616, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989). Where the drawing of blood is instigated by the government, a subsequent analysis of the blood by government agents also constitutes an invasion of a societally recognized expectation of privacy. Id. However, the present case does not involve the drawing or analysis of blood by government agents.

With regard to the blood-alcohol test results, appellee’s expectations of privacy could potentially have been implicated at three different stages: (1) the physical intrusion into his body to draw blood, (2) the exercise of control over and the testing of the blood sample, and (3) obtaining the results of the test. But in the first two stages, appellee’s expectation of privacy had already been frustrated by the actions of nongovernmental agents. The physical intrusion occurred, and the blood was tested by medical personnel for medical purposes. While appellee definitely possessed a privacy interest in the former, see Skinner (cited above), and may have possessed a privacy interest in the latter, see Comeaux (plurality opinion, cited above), those interests were frustrated by the actions of medical personnel. The only question remaining is whether appellee had a reasonable expectation of privacy at the third stage—his test results.

In reversing the suppression order, the CCA noted “in the case of blood test results obtained by subpoena, where the tests were conducted by medical personnel solely for medical purposes, the person’s interest in bodily integrity is not presented.”

Key facts:

  1. BAC test performed by hospital, not by government and not at request of government
  2. Pre-existing p/c to believe patient was intoxicated
  3. Patient not under arrest at hospital
  4. Blood results obtained via subpoena of pre-existing test records

(3) State v. Huse, 491 S.W.3d 833 (Tex. Crim. App. 2016)

The State obtained evidence of Appellee’s blood-alcohol concentration by issuing a grand jury subpoena for his hospital medical records. The trial court granted Appellee’s motion to suppress on two grounds relevant to Appellee’s current petition for discretionary review: 1) that obtaining Appellee’s medical records without a warrant violated the Fourth Amendment, necessitating suppression under both the federal exclusionary rule and Article 38.23 of the Texas Code of Criminal Procedure; and 2) that a misuse of the grand jury subpoena process caused the State’s acquisition of Appellee’s medical records to violate both state and federal law, also requiring suppression of the evidence under our state exclusionary rule, Article 38.23. See U.S. Const. amend. IV; Tex. Code Crim. Proc. art. 38.23.

On February 13, 2010, at approximately 2:00 o’clock in the morning, Appellee missed a curve and plowed his car into a cotton field. Lubbock County Deputy Sheriffs who responded to the scene detected the odor of alcohol on Appellee’s breath. They transported him to the Covenant Medical Center in Lubbock. While there, Appellee’s blood was drawn for medical purposes at 4:50 a.m. Later analysis of his blood revealed a blood-alcohol concentration of .219.

Department of Public Safety Trooper Troy McKee met with Appellee at the hospital at approximately 5:15 a.m. He also noticed the odor of alcohol on Appellee’s breath as well as other signs of alcohol ingestion. Appellee admitted to having had six or seven beers between 7:30 and 11:30 the previous evening. Appellee refused McKee’s request for a specimen of breath or blood for blood-alcohol analysis, and McKee did not attempt to compel one.

On March 30, 2010, based on McKee’s offense report, a Lubbock County Assistant District Attorney filed an application for a grand jury subpoena duces tecum to obtain Appellee’s medical records for the February 13th incident. The subpoena issued by the District Clerk to Covenant Medical Center required an employee of the hospital to appear before the grand jury, but stated that the hospital could comply by simply calling the District Attorney’s office, presumably to arrange delivery of Appellee’s medical records from that day to the Assistant District Attorney. No grand jury was actively investigating Appellee. Neither was any grand jury involved in the issuance of the subpoena, nor were the medical records required to be, nor ever actually were, returned to a grand jury.

On March 31, 2010, the day after the subpoena duces tecum issued, Appellee was formally charged by information with the misdemeanor offense of driving while intoxicated. Ultimately, the trial court ordered the blood draw suppressed. The State appealed, and the Seventh Court of Appeals reversed. Appellant (Huse) petitioned for discretionary review.

Hardy explicitly recognized that when the State itself extracts blood from a DWI suspect, and when the State conducts the subsequent blood-alcohol analysis, two discrete “searches” have occurred for Fourth Amendment purposes. Id. at 840. Unlike in Hardy, in which we withheld any opinion about an expectation of privacy in medical records in general, because the impact of HIPAA was at issue in Huse, we stated that
“[w]e have no doubt that HIPAA might support a broader claim that society now recognizes (if it did not already) that a patient has a legitimate expectation of privacy in his medical records in general. Id. at 841.

The State does not need to obtain a warrant to obtain the results of blood-alcohol testing by a hospital, performed for medical purposes, following a traffic accident. However, the continuing validity of Comeaux, representing Hardy’s second category, remained unaddressed. Then comes Martinez.

Key Facts:

  1. BAC test performed by hospital, not at direction of police
  2. P/c existed to believe patient was intoxicated
  3. Patient not under arrest at hospital

New law: State v. Martinez, 2019 Tex. Crim. App. LEXIS 237, *1, 2019 WL 1271173–PD-0878-17

Facts: Appellee (Martinez) was involved in a traffic accident. He was taken to a hospital where his blood was drawn for medical purposes. The blood was not tested for alcohol or controlled substances by the hospital. The State later acquired and tested the blood, both without a warrant. After a hearing on the Motion to Suppress, the trial court made the following findings of historical fact, to which both the Court of Appeals and Court of Criminal Appeals deferred:

1.   On February 5, 2014, Juan Martinez was transported by ambulance from the scene of a traffic accident to Christus Spohn Hospital in Beeville, Texas. The defendant was not under arrest.

2.   Nurse Gary Calloway testified that upon arrival to the hospital, “trauma procedures” were begun on the defendant, which included the taking of blood from the defendant by the nurse for medical purposes. The defendant was conscious during the blood draw, though not entirely coherent. There was testimony that defendant’s blood, as contained in the hospital vials, ceased to metabolize or change and that the passage of time would not change the results of a test on the drawn blood.

3.   Nurse Calloway testified that during the course of the “trauma procedures,” defendant became aware of his blood being drawn and was informed of the need for a urine sam­ple. Defendant told the nurse he could not afford any tests and needed to leave the hospital as his daughter was out in the parking lot. Defendant removed all monitors and IVs, got dressed, and ran out of the hospital.

4.   Trooper Quiroga testified that he arrived at the hospital shortly before the defendant left, but the Trooper was unaware the defendant was running away from the hospital and did not have the opportunity to speak with him before he fled. At no time was the defendant placed under arrest.

5.   Hospital staff told Trooper Quiroga that they had defendant’s blood. Trooper Quiroga testified that he told the hospital not to destroy the blood and proceeded to obtain a grand jury subpoena from the Bee County District Attorney’s Office to gain possession of defendant’s blood.

6.   Upon presentation of the grand jury subpoena, the hospital released defendant’s blood (four vials) to an agent of the Department of Public Safety—Trooper Keese. The hospital’s representative testified as to their lab procedures and stated that the hospital had no policy in place to show a chain of custody on the vials of blood. There was no documentation as to the chain of custody for the vials of blood while in the hospital’s care and control. It was testified that the blood was not tested by the hospital and there were no medical records indicating a test of the drawn blood. (This is an important fact.)

7.   Upon receipt of the vials of defendant’s blood, Trooper Keese immediately placed it in a DPS box (standard DPS blood kit) and mailed it, using the U.S. Postal Service, to the DPS lab in Austin, Texas, for testing.

Based upon those factual determinations, the trial court made the following conclusions of law:

1.   The Court finds the seizure of the defendant’s blood from the hospital and subsequent search of that blood by the DPS lab constitute a search and seizure within the scope of the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution.

2.   The initial seizure of Juan Martinez’s blood from the hospital by the State using a grand jury subpoena was a valid seizure.

However:

3.   The search of the blood was performed without the necessary search warrant. The blood had been drawn and was no longer subject to mutation or metabolization. Further, the blood was in the possession of the DPS and not subject to destruction. There were no exigent circumstances to justify a search of the blood without a warrant.

4.   The search of the blood, and the subsequent blood test results, are found to be inadmissible at this time.

Conclusions 2 and 3 are the most important for litigating a Martinez issue. Conclusion 3 is also relevant to the possibility of a “staleness” argument if the test is not done within 10 days of the warrant issuing.

Interestingly, this case was neither briefed nor argued by the State Prosecuting Attorney’s Office.

The State’s Theories:

Abandonment

In affirming the suppression order, the Court rejected the State’s (unsupported) argument that the blood had been “abandoned” by Appellee. The factual briefing behind this assertion was woefully inadequate. Note, the Court did not per se rule out a future abandonment theory were the same to be adequately briefed. Expect the State Prosecuting Attorney’s office to try to revive this argument with better merits briefing.

Third-Party Doctrine

The Court also rejected the State’s “third-party doctrine” argument, usually a favorite of the Court to affirm a conviction on arguably tainted evidence. The State’s brief quoted a definition of the third-party doctrine but did not provide any further explanation or argument as to how or why the quoted language applies in this case. To the extent that the State relied upon the third-party doctrine to argue that whatever privacy interest Appellee may have had in his blood was defeated by the doctrine, the CCA determined the doctrine is inapplicable to blood draws without a warrant.

Martinez’s theories

HIPAA

The HIPAA analysis in this opinion is not very detailed because the argument wasn’t raised in the intermediate appellate court. A violation of HIPAA will be a factor in the reasonable expectation of privacy analysis but is not likely to be an independent ground to exclude results (HIPAA provides only for a civil, not evidentiary, penalty). See Sims v. State, 2019 WL 208631 (Tex. Crim. App. Jan. 16, 2019)(PD-0941-17)(holding that evidence may only be excluded for constitutional violations and statutory violations where the statute specifically provides for an exclusionary remedy. Because neither the Stored Communications Act nor the Texas equivalent provide for exclusion, and there was no constitutional violation [debatable], the unlawfully obtained evidence is not subject to suppression).

Reasonable Expectation of Privacy

Appellee cites the Supreme Court’s opinion in Birchfield v. North Dakota, in which the Supreme Court examined warrantless breath and blood testing incident to arrest for drunk driving. Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed. 2d 560 (2016). The Supreme Court held that warrantless breath testing incident to arrest was permissible, but warrantless blood testing incident to arrest was prohibited by the Fourth Amendment. Id. at 2184. In reaching these separate conclusions, the Court emphasized the limited scope of information that could be obtained from a breath test:

[B]reath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath. In this respect, they contrast sharply with the sample of cells collected by the swab in Maryland v. King. Although the DNA obtained under the law at issue in that case could lawfully be used only for identification purposes . . . the process put into the possession of law enforcement authorities a sample from which a wealth of additional, highly personal information could potentially be obtained. A breath test, by contrast, results in a BAC reading on a machine, nothing more.

Id. at 2177. As for the scope of information that could be obtained from a blood test:

[A] blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. Even if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BAC, the potential remains and may result in anxiety for the person tested.

Id. at 2178.

The Supreme Court considers the analysis of biological samples, such as blood, to be a search infringing upon privacy interests subject to the Fourth Amendment. The second category we recognized in Hardy, the State’s exercise of control over and testing of a blood sample, constitutes a search. This is consistent not only with the privacy concerns mentioned by the Supreme Court in Birchfield and Skinner, but also with Skinner’s characterization that chemical analysis was a “further” invasion of privacy interests and that collection and testing were “intrusions” (plural) that constituted “searches” (plural). Skinner, 489 U.S. at 616, 617; see also Huse, 491 S.W.3d at 840 (State’s blood-alcohol analysis is a separate search discrete from State’s drawing of blood). Practice note: the use of the plural for “intrusions” and “searches” is important.

The Court adopted the Comeaux plurality reasoning, finding that it reached the correct result. There are private facts contained in a sample of a person’s blood beyond simple confirmation of suspicion that a person is intoxicated. These private facts are those that a person does not voluntarily share with the world by the mere drawing of blood and may be subject to Fourth Amendment protection. The Court held that there is an expectation of privacy in blood that is drawn for medical purposes. (NOTE: This says drawn for medical purposes and will not extend a reasonable expectation of privacy to blood tested for medical purposes.) The expectation is not as great as an individual has in the sanctity of his own body against the initial draw of blood. Missouri v. McNeely, 569 U.S. 141, 148, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (compelled physical intrusion beneath the skin and into the veins to obtain a sample of blood for use as evidence in a criminal investigation “implicates an individual’s ‘most personal and deep-rooted expectations of privacy.’”) (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985)); Hardy, 963 S.W.2d at 526. Great! Right? Well, don’t get too excited: [The expectation of privacy] is greater than an individual has in the results of tests that have already been performed on the blood. Individuals in the latter case have, as we held in Hardy and Huse, no expectation of privacy. Hardy, 963 S.W.2d at 527; Huse, 491 S.W.3d at 842.

Key Facts:

  1. No BAC test by hospital
  2. Not under arrest when at hospital
  3. Specific revocation of consent to treatment
  4. No chain of custody kept

What Does It All Mean?

Some of the key questions arising after the Martinez decision will require further litigation. The opinions below are mine.

Issue 1: Does the State need two (2) warrants to test the blood?

No. The number of warrants is not important. The content of the warrant is important. Can the State get two warrants? Certainly. Do they need to get two warrants? If the warrant for the drawing of the blood also authorizes the testing of the blood, then no. If the warrant only authorizes taking the blood, but not testing the blood, then YES, a second warrant is necessary. Does the State need a second warrant in every case? No.

Issue 2: Staleness of the blood testing warrant.

“Staleness” is a legal doctrine provided for in Article 18.07 of the Code of Criminal Procedure that requires evidence be tested within a certain time frame. This issue is much closer than the number of warrants and appears to be a question of first impression.

Article 18.02(10) and 18.01(j) combine to form the basis for the ability to obtain a warrant for evidence contained in a person’s blood. Then, Article 18.07(a) provides for the base-level timelines, providing:

The period allowed for the execution of a search warrant, exclusive of the day of its issuance and of the day of its execution, is: (1) 15 whole days if the warrant is issued solely to search for and seize specimens from a specific person for DNA analysis and comparison, including blood and saliva samples; or (2) 10 whole days if the warrant is issued under Article 18B.354; or (3) three whole days if the warrant is issued for a purpose other than that described by Subdivision (1) or (2).

Tex. Code Crim. Proc. Ann. art. 18.07(a).

This appears, on its face, to allow for a staleness argument. However, as the CCA observed in Jones v. State, “evidence of ongoing criminal activity will generally defeat a claim of staleness.” 364 S.W.3d 854, 861 (Tex. Crim. App. 2012) (quoting United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001)). See State v. Cuong Phu Le, 463 S.W.3d 872 (Tex. Crim. App. 2015)(ongoing grow operation). Because the removal of the blood from the body terminates the natural metabolic processes that would otherwise destroy the evidence, the court could determine that the blood vial represents “ongoing” evidence of criminal activity that will not materially alter or degrade over time. This could, at least in theory, defeat a staleness argument.

State v. Dugas, 296 S.W.3d 112 appears to be the first staleness case on blood warrants. There, the Houston Court of Appeals (14th Dist) reversed a suppression order, rejecting the theory that the information was stale. State v. Dugas, 296 S.W.3d 112, 117 (Tex. App.—Houston [14th Dist.] 2009). Cf Crider v. State, 352 S.W.3d 704, 711 (Tex. Crim. App. 2011)(blood search affidavit must contain sufficient facts within its four corners to establish probable cause that evidence of intoxication would be found in appellant’s blood at the time the search warrant was issued. This, however, only requires the evidence be present at the time of issuance of the warrant and would not alter the timeline for executing the warrant.)

Crider, infra, will be the standard the various courts of appeals use to rule on a staleness argument. Note, here, the difference between staleness to draw the blood and staleness to test that blood. Alcohol in a person’s bloodstream disappears quite rapidly, thus the facts cited to support probable cause to search for alcohol in a DWI suspect’s bloodstream become stale quite rapidly. 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. . . . This is enough to draw the blood, but it may not be enough to test the blood. The higher the level of intoxication at the time of the stop, the longer some evidence of alcoholic intoxication would remain in the blood. . . . [I]t would be exceedingly unlikely that a person who was tested some 24 hours after he ceased drinking would register any detectable level of alcohol in his blood. Crider at 708–09 (citations omitted).

However, once removed from the body, the blood is no longer subject to metabolization. Because properly preserved blood may be accurately tested for quite some time, a staleness argument on the test warrant (if separate from the draw warrant) may not be as open and shut as some practitioners would hope.

Rejecting a staleness argument is also consistent with the Court’s tendency towards practicality in the application of rules governing application of the Code of Criminal Procedure. Recall, the existence of the automobile exception pre-dates the invention of two-way radio communication. The automobile exception was a recognition of the impossibility faced by a peace officer in the field at the time. They could either go get a warrant or they could stay with the suspect. Doing both was, literally, impossible. While necessary, indeed maybe even indispensable, for police work in the 1920s to the ’40s, the advent of in-car computers, cellular phones, and instant communication have completely removed the impossibility of securing a suspect while simultaneously obtaining a warrant. Even so, the automobile exception remains. This practicality is likely to be the reason the Court refuses to apply staleness to blood-test warrants. DPS cannot turn tests around that quickly. Absent a massive increase in funding and personnel, they will never be able to do so. Recognizing this practicality, the Court may be very hesitant to apply “staleness” to blood-test warrants.

Issue 3: Standing/Ability to contest search

This is likely the strongest takeaway from the Comeaux, Hardy¸ Huse, Martinez line of cases—and is the most direct linkage between the cases. In Comeaux and Martinez, no BAC testing was done by the hospital. In Hardy and Huse, the hospital drew and tested the blood. This distinction matters.

The Fourth Amendment does not apply to a search or seizure, even an arbitrary one, “effected by a private party on [its] own initiative,” such as the one that the hospital conducted in the context of treating [Skinner]. Skinner v. Railway Labor Exec. Assn., 489 U.S. 602, 614, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989)[emphasis added]. Thus, a defendant has no standing to (and cannot now) complain of either the blood extraction or the blood-alcohol analysis themselves when conducted by a non-governmental entity. Huse at 840. The Court has already decided that there is no standing to contest the hospital’s actions where the hospital is not a state actor. However, this rule does not apply when the hospital is a state actor. “Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 63, (1989). See also United States v. Jacobsen, 466 U.S. 109, 113–114 (1984); Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971).

Conclusion

Below is a table of the case law discussed in this article. Blood draws are a reality and occur with a great deal of regularity these days. Get a good grasp on the issues, anticipate the State’s likely arguments, and don’t be afraid to litigate these blood-draw cases.

There Will Be Blood - 1