State v. Johnston

• Court: Texas Court of Appeals
• Writing for the Court: TERRIE LIVINGSTON, Justice
• Citation: State v. Johnston, 305 SW 3d 746 (Tex. App. 2009)
• Decision Date: 05 November 2009
• Docket Number: No. 2-08-246-CR.,2-08-246-CR.
• Parties: The STATE of Texas, Appellant, v. Christi Lynn JOHNSTON, Appellee.

305 S.W.3d 746

The STATE of Texas, Appellant, v. Christi Lynn JOHNSTON, Appellee.

No. 2-08-246-CR.

Court of Appeals of Texas, Fort Worth.

November 5, 2009.

Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallin, Assistant Criminal District Attorney, Chief of Appellate Section, Tanya S. Dohoney, Lloyd Whelchel, Amanda Gartner, & Melinda Westmoreland, Assistant Criminal District Attorneys, Fort Worth, TX, for Appellant.

Avery McDaniel, Fort Worth, for Appellee.

Panel: LIVINGSTON, McCOY, and MEIER, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

The State appeals from the trial court's order granting appellee Christi Lynn Johnston's motion to suppress the results of her blood test in this misdemeanor driving while intoxicated prosecution. We affirm the suppression order.

Background Facts

The trial court found the following pertinent facts. Officer Brett Stinson of the Dalworthington Gardens Police Department pulled appellee over after observing her driving and learning that her vehicle registration had expired. After determining that she exhibited signs of intoxication, he gave her field sobriety tests and then arrested her for DWI. Officer Stinson took appellee to the Dalworthington Gardens Police Department where he conducted a DWI interview and second field sobriety test on video, read appellee the required statutory warnings (DIC-24 form), and asked appellee if she would give a blood sample. She refused. Officer Stinson did not ask appellee to give a breath specimen because the department's policy was to ask only for a blood specimen.

After appellee refused to give a blood sample, Officer Stinson prepared an affidavit to obtain a search warrant authorizing a blood draw, which was authorized by a Dalworthington Gardens city judge, who presides over a court of record. Then Officer Darren Burkhart, with Officer Stinson's assistance, "forcibly obtained" a blood specimen from appellee. Appellee initially resisted and was "unruly." Thus, the officers had to "secure appellee's legs to the legs of the chair and secure one arm to the arm of the chair" with flexible gauze. Officer Stinson held the other arm while Officer Burkhart obtained the blood sample from the vein in appellee's wrist. Once appellee was restrained, she calmed down and did not resist anymore. The trial court found that the officers "followed medically accepted procedures in drawing appellee's blood."

The officers drew appellee's blood according to a Dalworthington Gardens Police Department program

set up and ... supervised by Dr. Joe Del Principe, a doctor of osteopathy, licensed to practice medicine in the State of Texas, with 22-23 years of emergency room experience.... There is no peer review of the program established by Dr. Del Principe nor is there any governmental or other regulatory agency that has approved the program or that establishes the curriculum and/or monitors any rules of compliance or activity.

Officers take fourteen hours of classroom lecture and are given a standard phlebotomy text and photocopies of articles on venipuncture as outside reading material. They must also do a minimum of fifty venipuncture draws at a hospital. Officers Stinson and Burkhart received certificates indicating they had successfully completed the program. However, the trial court found that "this course of study falls short of the minimum requirements for a person to become a phlebotomy technician."

At the time of the draw, Officer Stinson was an "EMT basic" and Officer Burkhart was an "EMT intermediate." Officer Burkhart testified at the suppression hearing that he had performed "thousands" of blood draws in the sixteen years he had been an EMT.¹

The trial court further found that

the blood draw was done in a room located in the Dalworthington Gardens Police Department building and the room was equipped for the purpose of doing blood draws. The room also was used by officers to walk through and operate the DWI video equipment. The room was checked and cleaned before drawing blood in this case by the officers. The clean room checklist ... follows accepted medical procedures and was followed in this case. The room where the blood specimen was obtained was a sanitary place for such purpose.

Based on these findings of fact, the trial court concluded that Officer Stinson had probable cause to arrest appellee, that the search warrant for appellee's blood was lawful and valid, and that the officers used only the force necessary to obtain the sample. But the trial court further concluded as follows:

6. In obtaining the blood sample, the officers were acting in their capacity of peace officers gathering evidence for a criminal prosecution and not in the capacity of professional medical care providers providing medical services.

7. A phlebotomist is not automatically a qualified technician under § 724.017 of the Transportation Code.

8. The completion of the program established by Dr. Del Principe for the Dalworthington Gardens Police Department does not qualify one as a qualified technician under § 724.017 of the Transportation Code.

9. Appellee's blood sample was seized pursuant to a search warrant validly executed in accordance with articles 18.01 and 18.02 of the Code of Criminal Procedure in order to obtain evidence to prosecute appellee for the crime of driving while intoxicated as proscribed in Tex. Penal Code § 49.04.

10. Tex. Transp. Code § 724.017(a) & (c) governs the taking of blood samples seized in the prosecution of all intoxication-related driving offenses.

11. Tex. Transp. Code § 724.017(a) & (c) governs the taking of blood samples seized pursuant to a search warrant under articles 18.01 and 18.02 of the Texas Code of Criminal Procedure for intoxication-related driving offenses.

12. Although the State complied with Tex. Trans. Code § 724.017(a) by having the blood draw taken in a sanitary place, the seizure violated the Fourth Amendment's reasonableness requirement by not being taken by medical personnel in a hospital or medical environment.

13. Officer Burkhart is not a qualified technician under § 724.017 of the Transportation Code. Pursuant to the Transportation Code § 724.017, as an EMT Officer ... Burkhart is specifically excluded from taking blood samples from defendants arrested for driving while intoxicated.

14. The blood seized from appellee by Officer ... Burkhart pursuant to a search warrant is not admissible as a matter of law.

Emphasis added, citation omitted. Thus, the trial court ordered that the results of appellee's blood test be suppressed. The State appeals from that order.

Standard of Review

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002). Because the trial court found that each of the witnesses testifying was credible and reliable, the issues involved in this appeal are the trial court's legal conclusions, which we review de novo. See Amador, 221 S.W.3d at 673.

Issues on Appeal

The State presents six points challenging the suppression order. In its first three points, the State contends that the trial court's decision runs afoul of the Fourth Amendment's preference for warrant-based seizures, the Fourth Amendment's good faith exception, and the Court of Criminal Appeals's opinion in Beeman v. State, 86 S.W.3d 613 (Tex.Crim.App.2002). In its last three points, the State challenges the trial court's rulings that chapter 724 of the transportation code—the implied consent statute—governs the taking of blood samples seized pursuant to a warrant, that sections 724.017(a) and (c) govern the taking of blood samples in all intoxication-related driving offenses, and that the Dalworthington Gardens Police Department's blood draw program did not comply with the transportation code. Appellee, however, frames the issue thusly:

It is undisputed that the police had probable cause and had obtained a lawful search warrant to compel her to submit to the blood draw.... But the trial court's ruling ... should be affirmed because, regardless of the justification for issuance of the warrant, the means by which the police chose to execute that search warrant were unreasonable. Emphasis added.

According to appellee, then, even blood draws pursuant to a warrant must be performed by a "civilian health care professional" in a medical environment in accordance with the minimum standards set out in chapter 724 of the Transportation Code. Emphasis added. Because the State briefs most of its points together, we will address them by topic rather than in consecutive order.

Schmerber v. California and Chapter 724 of Transportation Code

The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007). The taking of a blood sample implicates the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966); Ramos v. State, 124 S.W.3d 326, 331 (Tex.App.-Fort Worth 2003, pet. ref'd).

In Schmerber, the United States Supreme Court held that a warrantless blood draw performed at a police officer's direction by a physician in a hospital "according to accepted medical practices" was reasonable under the Fourth Amendment. Schmerber, 384 U.S. at 771-72, 86 S.Ct. at 1836; State v. Comeaux, 818 S.W.2d 46, 53 (Tex.Crim.App.1991) (plurality op.). The Court determined that to be valid, such a warran...