State v. Johnston
| Decision Date | 16 March 2011 |
| Docket Number | No. PD–1736–09.,PD–1736–09. |
| Citation | 336 S.W.3d 649 |
| Parties | STATE of Texasv.Christi Lynn JOHNSTON, Appellee. |
| Court | Texas Court of Criminal Appeals |
OPINION TEXT STARTS HERE
WM. Reagan Wynn, Forth Worth, for Appellant.Tanya S. Dohoney, Asst. Crim. D.A., Forth Worth, Jeffrey L. Van Horn, State's Attorney, Austin, for State.
The court of appeals held that the unrecorded compelled draw of Christi Lynn Johnston's blood by a police officer, who was also a seasoned EMS provider, in the police station's blood-draw room while Johnston was restrained violated the Fourth Amendment's reasonable manner requirement.1 Under the facts here, which demonstrate that the test chosen was reasonable and that it was performed in a reasonable manner, we disagree. We reverse the court of appeals's judgment and remand this case to the trial court.
Officers Britt Stinson and Darren Burkhart completed the Dalworthington Gardens Police Department's driving-while-intoxicated (DWI) blood-draw certification program. Dr. Joe Del Principe, an emergency room doctor at Arlington Memorial Hospital, developed and instituted the program. Dr. Del Principe certified Officers Stinson and Burkhart as venipuncture technicians.
After Officer Stinson arrested Johnston for DWI and took her to the Dalworthington Gardens Police Station, he and Officer Burkhart obtained a warrant to draw Johnston's blood. When the officers presented Johnston with the warrant and explained what was going to happen, she began to resist by kicking her feet and moving her arms. The officers restrained Johnston's feet and left arm with “Kerlix” gauze. Officer Stinson held down Johnston's right arm while Officer Burkhart drew blood from a vein in Johnston's right wrist.
The State charged Johnston with DWI. Johnston filed a pretrial motion to suppress the blood-test results, arguing that the blood draw conducted by a police officer at the police station violated her statutory and constitutional rights. The trial judge held a hearing on Johnston's motion. Dr. Del Principe and Officers Burkhart and Stinson testified.
Dr. Del Principe testified that, in addition to his position as an emergency room (ER) doctor, which he has held for the past twenty-two or twenty-three years, he chairs Arlington Memorial Hospital's Department of Emergency Medicine and serves as the Medical Director for Dalworthington Gardens Emergency Services Department. Dr. Del Principe has performed thousands of blood draws during his career and has trained emergency medical technicians (EMTs), nurses, residents, and interns to draw blood throughout his career.
Upon request, Dr. Del Principe developed the DWI blood-draw program for the Dalworthington Gardens Police Department. Dr. Del Principe believed the program would be helpful so officers could avoid long waiting periods at the hospital to get blood drawn from DWI suspects. He used a Phoenix, Arizona course as a model, modifying it some, to train police officers to perform venipuncture blood draws. The fourteen-hour course included classroom instruction, homework, with assigned reading materials, and graded exams. After the officers completed the fourteen-hour course, Dr. Del Principe required them to do a minimum of fifty “sticks” at the ER under the supervision of either a blood technician or nurse. Dr. Del Principe testified that he trained the officers to perform venipunctures according to accepted medical practice and that the course minimized any unjustified risk. The training that the officers received was equivalent to the training that Dr. Del Principe would give to the Hospital's blood-draw technicians. Dr. Del Principe certified the officers to perform venipuncture blood draws upon completion of all of the course requisites. He also instituted a bi-annual re-certification course.
Dr. Del Principe did not subject the course to any type of peer review. And Dr. Del Principe stated that he never submitted the curriculum for approval by the Texas Commission on Law Enforcement Standards and Education (TCLEOSE).
Dr. Del Principe established a blood-draw room at the police department. He described the room as clean but not sterile, stating that a sterile environment, like that of an operating room, is not required. The cement floor could be cleaned easily in the event of a blood spill. The room also contained a phlebotomy chair and a steel table, both of which were non-porous and could be cleaned with commercial sanitizer before each use. Dr. Del Principe did not know whether the room would meet Occupation Safety and Health Administration (OSHA) standards.
Dr. Del Principe also developed two blood-draw checklists for the officers to adhere to when drawing a suspect's blood. The checklists were designed to ensure that the officers follow Dr. Del Principe's strict protocol. Dr. Del Principe stated that he had not yet developed a policy for instances in which a suspect resists or fights the officers. Dr. Del Principe believed that, when officers are unable to safely obtain a sample at the police station, they would bring the suspect to the hospital where the suspect is would then be secured before blood is drawn. Dr. Del Principe opined that any certified officer would be qualified to draw blood in the station's blood-draw room from a suspect who resists or fights. He also stated that, based on his personal experience, forcibly taking blood from a suspect is acceptable. Dr. Del Principe explained that he instructed the officers to go to the hospital if they get stuck by a needle.
Dr. Del Principe also testified that he educated the officers about how certain medications and medical conditions may affect venipuncture blood draws. For example, drawing blood from the arm of a person who had a mastectomy and a lymph node removed could be problematic. It can also make a difference if a person is taking blood thinners. Dr. Del Principe stated that although the blood-draw checklists did not itemize any preliminary inquiry into a DWI suspect's medical history, he taught the officers to make such an inquiry when they make an arrest or when the person enters the police station. He stated that he instructed the station's employees to ask an individual whether he or she has any medical problems, like diabetes, when they enter the facility. And they were instructed to ask an individual whether he or she takes high blood pressure medication or blood thinners. Comparing the procedure for DWI blood draws performed at Arlington Memorial Hospital, Dr. Del Principe stated that he did not know whether suspects fill out any medical history form, but he stated that they do not see a doctor.
Dr. Del Principe testified about the general risks and dangers associated with venipuncture blood draws. A hematoma, which is a collection of blood, may develop at the punctured site but it is “very common” and “not a serious thing.” It is also possible to puncture an artery, which is remedied by applying pressure until the blood clots. It is also possible to stick a nerve, causing immediate pain that may, depending on the case, be excruciating. There is also the potential for causing long-term nerve damage. With respect to the Dalworthington Gardens program, Dr. Del Principe testified he has not received any report of a hematoma or a nerve stick.
Dr. Del Principe stated that Officer Burkhart completed the course, receiving a ninety percent or above on the exams, but was exempted from doing the fifty sticks because of Officer Burkhart's experience in drawing blood as an EMT. Officer Burkhart would also be exempt from the two-year re-certification course because of his continued work as an EMT. Dr. Del Principe stated that he had not personally observed Officer Burkhart start an intravenous line (IV) or draw blood, but he had been in the ER when Officer Burkhart brought in a patient with an IV; he never noted any particular problems with an IV started by Officer Burkhart. Dr. Del Principe described Officer Burkhart as being “exceptional” at performing venipuncture and believed that Officer Burkhart had as much training and experience drawing blood as the Hospital's blood technician.
At the time of the hearing, Officer Burkhart had been a EMT for sixteen years and had six years of training as a police officer. He was currently employed as a firefighter and EMT, not as a police officer. When he drew Johnston's blood, he was certified as an “intermediate EMT.” Approximately forty hours of the class-time towards that certification was devoted to the use of needles, venipuncture blood draws, and IVs. He can start IVs, which requires inserting a needle into a vein, intubate patients, provide basic life support, and administer certain drugs. He testified that he has performed venipunctures thousands of times.
Recalling Dr. Del Principe's course, Officer Burkhart stated:
It was how to properly obtain blood using venipuncture with extremities only, which is the upper extremities from your shoulder down to your fingertips. The proper way of cleaning the site, the proper way of inserting the needle, the proper way of withdrawing blood, and ... if there's any bleeding, what you do to stop the bleeding.
Dr. Del Principe also educated them about the anatomy of the upper extremities.
Officer Burkhart testified that he cleaned the blood-draw room at the start of his shift and again after each time he used the room to draw a suspect's blood. When he drew Johnston's blood, he followed the acceptable medical practices that he learned from Dr. Del Principe and as an EMT:
Well, first, when we restrained her, we restrained her to protect her from hurting herself or ourselves [sic]. Once she calmed down and we were able to draw the blood, I drew it correctly without, you know, jabbing the needle in, doing anything that's going to harm her. I did it by what is...
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