Evidence obtained from the defendant’s blood is often the lynchpin in a Texas criminal case. And since the analysis of blood is such an intensely scientific process, no wonder the State (and often the Defense) employs an expert to testify about it. But before we consider the analysis of a blood specimen, we must first consider how the specimen was collected, and by whom it was collected, to determine its admissibility. The purpose of this article is to explore the law applicable when law enforcement conducts a blood draw. More specifically, is there a difference between a blood sample obtained via the implied consent statute and one obtained via a search warrant? Further, this article will analyze some critical terms used in the controlling blood-draw statute and the case law governing their application. That is, what is a “qualified technician” and “emergency medical technician,” or EMT?
Rethinking Johnston and Who Can Draw Blood Under Chapter 724
Some argue the first thing to examine is whether a blood specimen was collected with implied consent or via a search warrant. They insist that under prevailing case law, if the suspect refused consent and a warrant is issued, the means by which the blood sample was collected is not controlled by Texas statutes. Rather, the collection is examined under a reasonableness test pursuant to the Fourth Amendment and adopted in State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011). See also Schmerber v. California, 384 U.S. 757 (1966). The flaw in this logic, however, is the assumption that Johnston’s reasoning was sound. When we deconstruct the opinion, we find a patchwork of conflicting ideas tenuously connected by leaps in logic, all of which lead the court to a conclusion alienated from the case law and statutes it relied upon to reach the decision.
Let’s first review the facts from Johnston. There, Ms. Johnston had been arrested for DWI and refused to provide a breath or blood specimen. As a result, Officers Stinson and Burkhart obtained a search warrant for a blood draw. Johnston at 651. Upon presenting her with the warrant, Ms. Johnston resisted. Consequently, both officers restrained her and collected the blood sample themselves. Id. at 651–652. Interestingly, one of the officers had received EMT certification, and both officers had completed a weekend training course on venipuncture. Id. Nonetheless, the trial court granted a motion to suppress the blood evidence, determining the officers were not “qualified technicians” under Section 724.017, Tex. Transp. Code. This statute outlines who may conduct blood draws. And at the time of Johnston, EMTs were not allowed to draw blood under prevailing statutes. Id. at 655. The trial court relied upon Schmerber v. California and held the blood draw violated the Fourth Amendment reasonableness standard.
By the time the Court of Criminal Appeals reviewed the case, the issue had been framed in a light far removed from Tex. Transp. Code § 724. In fact, the Court of Criminal Appeals determined that Chapter 724 did not even apply to search-warrant draws. The Court dedicated less than one page of thought to the idea and dismissed it under Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). Johnston at 660–661. Then the Court resorted to applying Schmerber. The Court held that when there was a search warrant for a blood specimen in Texas, Chapter 724 did not apply. Furthermore, the test of admissibility was whether the blood draw was reasonable under the Fourth Amendment. It finally reasoned that when two officers with minimal training restrained and drew blood from an individual at a police station and without a recording, that was reasonable under the Fourth Amendment. See, generally, Johnston. Despite the holding, the Court misread Beeman, misapplied Schmerber, and completely ignored the Texas statute designed to control law enforcement blood draws.
Regarding the statute itself, sections of Chapter 724 of the Texas Transportation Code refer to conditions that must be met if a breath or blood specimen is taken at the request or at the order of an officer. An “order” is not defined in the statute, but the term suggests that both consent and non-consent blood draws are controlled by the provisions of Chapter 724. Otherwise, if Chapter 724 was only intended to regulate voluntary blood draws, why did it also include language regulating information provided by officers before requesting specimens? Furthermore, even though it was overturned, sections of the statute also regulated mandatory blood draws obtained without consent. This suggested a legislative intent that Chapter 724 should regulate all blood draws, regardless of whether the draw was voluntary or not.
The Johnston opinion relied primarily on two other cases to reach its erroneous conclusion. First, it relied upon Beeman to conclude that Chapter 724 did not apply to cases where a search warrant was used to obtain a blood specimen. Johnston at 661. However, the Beeman holding was read too broadly by the Court. Rather, Beeman narrowly held that Section 724.013 did not absolutely prohibit the taking of a blood specimen if a person refused to provide one voluntarily. Beeman at 616. (But even this reading was questionable. Regarding separation of powers, it could be interpreted as legislating from the bench.) Additionally, the aspect of Beeman relied upon by the Johnston court also indicated that a search warrant made consent moot. In either event, none of this reasoning came close to deciding that a search warrant for blood removed the necessity that law enforcement comply with Chapter 724 before obtaining a blood sample from a suspect.
The other case Johnston erroneously relied upon was Schmerber v. California, 384 U.S. 757 (1966). Schmerber examined the exigent circumstances that might create an exception for the need to obtain a search warrant for blood. But again, this was a far cry from the issues the Johnston court was deciding. Schmerber involved a hospital doctor taking a blood sample from an unconscious suspect without a search warrant. Id. at 771. Significantly, this procedure has since been heavily legislated and questioned (if not outright condemned) in other cases at both national and state levels. See Missouri v. McNeely, 133 S.Ct. 1552 (2013), and State v. Villareal, 475 S.W.3d 784, 787 (Tex. Crim. App. 2014). Nevertheless, the reasonableness test of Schmerber was applied to determine whether the medical procedure of a doctor drawing a patient’s blood in a hospital was reasonable. Not surprisingly, the procedure was found to comply with Fourth Amendment standards. However, the Supreme Court also warned against the implications of blood draws conducted by the police in police stations:
We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of a station house. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
Schmerber at 771–772.
In Johnston, the Court of Criminal Appeals’ reliance on Schmerber defied logic, especially since Schmerber specifically warned against the exact fact pattern in Johnston! Moreover, Johnston was made even more questionable by the application of Chapter 724 requirements in Krause v. State, 405 S.W.3d 82 (Tex. Crim. App. 2013), a case in which the blood draw was not voluntary (though it related to a now-defunct mandatory blood-draw statute). Consequently, defense attorneys should make sure to litigate Chapter 724 issues in any case involving blood draws, regardless of whether the suspect voluntarily submitted to the officer’s request, or whether the suspect refused and a search warranted was issued. Chapter 724 suggests it should apply in both situations, and any arguments to the contrary are unsupported and likely incorrect.
Now that we’ve crafted a good argument why Chapter 724 applies to both voluntary blood draws and those depending upon a search warrant, let’s look at the chapter sections regulating who may draw the blood specimen. Tex. Transp. Code § 724.017(a) states in relevant part:
(a) Only the following may take a blood specimen at the request or order of a peace officer under this chapter:
1) A physician;
2) A qualified technician;
3) A registered professional nurse;
4) A licensed vocational nurse; or
5) A licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic authorized to take a blood specimen under Subsection (c)
Tex. Transp. Code § 724.017(a)
The correct application of this statute should not be overlooked, as a mistake can often make blood specimens inadmissible, depending upon the qualifications of the person drawing the blood. Procedurally, State v Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011), decided that when the State sought to admit blood-alcohol concentration evidence at trial, as the proponent of evidence, it must fulfill all required evidentiary predicates and foundations including those of Section 724.017.
EMT Blood Draws
Courts have held that establishing the predicate of Section 724.017 was necessary before admitting evidence regarding a person’s blood-alcohol concentration offered by the State. Garcia v. State, 112 S.W.3d 839, 848 (Tex. App.—Houston [14th Dist] 2003, no pet). Regarding emergency medical technicians, or EMTs, this controlling statute recently changed. Prior to the current version of Section 724.017, EMTs were prohibited from conducting blood draws admitted in criminal cases. Nevertheless, case law created exceptions where an EMT could be considered a “qualified technician” under the previous version of Section 724.017(a). Importantly, some of this case law is still relevant today when determining what a “qualified technician” is under the statute. And thankfully, the legislature clarified the issue of an EMT’s ability to draw blood when the statute was amended in September 2013, at which time they added 724.017(a)(5) and 724.017(c). Subsection 724.017(a)(5) now states an EMT may conduct a blood draw, but only if they were authorized under Subsection (c). That subsection states:
A licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic may take a blood specimen only if authorized by the medical director for the entity that employs the technician-intermediate or technician-paramedic. The specimen must be taken according to a protocol developed by the medical director that provides direction to the technician-intermediate or technician-paramedic for the taking of a blood specimen at the request or order of a peace officer. In this subsection, “medical director” means a licensed physician who supervises the provision of emergency medical services by a public or private entity that:
(1) provides those services; and
(2) employs one or more licensed or certified emergency medical technician-intermediates or emergency medical technician-paramedics.
(c-2) If a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic takes a blood specimen at the request or order of a peace officer, a peace officer must:
(1) observe the taking of the specimen; and
(2) immediately take possession of the specimen for purposes of establishing a chain of custody.
Tex. Transp. Code § 724.017(c) and (c-2).
In short, before an EMT is authorized to conduct a blood draw, they must: (1) be authorized by the medical director of their facility; (2) the medical director must be a licensed physician who supervises emergency medical services, and (3) the blood specimen has to be taken according to the protocol developed by said medical director for the taking of specimens at the request or order of a peace officer. Furthermore, if all these prerequisites are met, the officer must observe the collection of the specimen and immediately take possession of it. These prerequisites must be proven before such a sample is admissible. And not surprisingly, they are often overlooked by law enforcement agencies.
Qualified Technician Blood Draws
If the blood drawer does not meet one of the immediately obvious criteria of the statute (e.g., physician, registered professional nurse, or licensed vocational nurse), it is error to admit a blood sample without evidence demonstrating the individual was a “qualified technician” under Section 724.017(a). Cavazos v. State, 969 S.W.2d 454, 456 (Tex. App.—Corpus Christi 1998, pet ref’d). Essentially, a qualified technician is someone who possesses experience and training sufficient to meet the qualification threshold. When the State relies upon this subsection, however, they have to prove it—even when a phlebotomist drew the blood. Because “phlebotomist” was not listed among those individuals automatically qualified, a blood sample taken by a phlebotomist satisfied the statute only when the individual was proven to be a “qualified technician.” Torres v. State, 109 S.W.3d 602, 605 (Tex. App.—Fort Worth 2003, no pet.).
In Cavazos, the court held it was error to admit a blood sample taken by a phlebotomist employed at a hospital without evidence showing they were a qualified technician under Section 724.017(a). There, the State failed to make this showing because no one testified regarding the person’s qualifications. Furthermore, the record contained no evidence the blood was drawn by someone the hospital had determined to be qualified. Cavazos at 456. Nevertheless, phlebotomists have been held to be qualified technicians, but only after the phlebotomists, or their supervisors, testified regarding their qualifications. State v. Bingham, 921 S.W.2d 494, 495–96 (Tex. App.—Waco 1996, pet. ref’d.). See also, Krause v. State, 405 S.W.3d 82 (Tex. Crim. App. 2013)(analyzing whether an EMT was a qualified technician).
Defense attorneys should be wary of any discovery listing a “qualified technician” as the person who conducted a blood draw, as this is often an EMT (who is now regulated under a different section of the statute) or an individual whose qualifications have not been established. One must look to extrinsic evidence to determine their qualifications, and case law provides guidance as to who may be a “qualified technician.” For instance, in Torres the individual who drew blood was determined to be a qualified technician after showing they had: (1) been practicing phlebotomy for 26 years; (2) were employed by the hospital specifically for phlebotomy; (3) were certified by the National Phlebotomy Association; and (4) had conducted “thousands and thousands and thousands of blood draws” throughout their career. Torres v. State, 109 S.W.3d 602, 605. In the Bingham case, the court determined someone was a qualified technician after showing they had: (1) completed four months of classes and phlebotomy training with a college, focusing primarily on anatomy and blood work; (2) they were employed as a phlebotomy technician; and (3) the Medical Technologist/Supervisor of the Hematology Lab at the hospital testified to their qualifications, which included multiple clinical rotations. State v. Bingham, 921 S.W.2d 494, 494–96. Lastly, in Krause it was proven the individual in question had been certified as an intermediate EMT and had been hired on at the hospital, where their primary duty was drawing blood and had been doing so for six years, averaging 50–100 blood draws daily. 405 S.W.3d at 84.
Looking to outside sources, it appears the closest thing to a “qualified technician,” as envisioned by the statute, is a Certified Phlebotomist. To obtain this certification,1 individuals must pass courses in Medical Terminology and Human Disease/Pathophysiology. They then complete courses entitled Phlebotomy I and Phlebotomy II. Both of these are 6 weeks long with more than 100 combined contact hours, requiring passing grades on multiple quizzes and tests and completing numerous types of blood draws during class. After completing these courses, individuals must sit for board examinations accredited by the American Society of Clinical Pathology to earn the title Certified Phlebotomist. Finally, to maintain this certification, which renews every three years, a Certified Phlebotomist must complete continuing education courses.
Anyone claiming to be a “qualified technician” under Chapter 724 of the Texas Transportation Code should be thoroughly vetted. Common issues to look for include EMTs passed off as qualified technicians. Under the latest version of the statute, EMTs must be held to the strict standards outlined and discussed above. By far, though, the most egregious misapplication of this standard is when police attempt to pass off an individual with little or no training as a qualified technician. As noted in Johnston, in the Dallas–Fort Worth area, Dr. Del Principe offered weekend training courses to law enforcement officers, who might subsequently argue they were qualified technicians. But upon a closer reading of Johnston, we see the training offered to officers and jailers was simply a 14-hour weekend course that entailed performing only 50 blood draws. There was no other medical education or training prerequisite. Johnston at 652. Comparing this training with that required of Certified Phlebotomists, it was obvious such minimal instruction was a veiled attempt by law enforcement to sidestep the responsibilities placed on them by the legislature. But as defense attorneys, it is now imperative we hold judges, law enforcement personnel, and the prosecution to those high qualification standards set by Chapter 724 of the Texas Transportation Code.
1. In accordance with the teaching schedule of Soni Cecil, ASPC Certified Coordinator of Health Professions, Dallas County Community College District.