How to Fix a Blood Warrant Scandal

If you haven’t seen the Netflix docuseries How to Fix a Drug Scandal, stop what you are doing.  Go invest four hours of your life.  Prepare to be blown away.  Director, Erin Lee Carr, explores how far government employees (attorneys, judges, and lab personnel) are willing to go to prevent mass decriminalization.  While the cases in the docuseries involved two drug lab analysts compromising drug testing in Massachusetts, a similar battle is raging in Texas involving blood labs and the way blood warrants are written.  Since the Court of Criminal Appeals landmark decision in Martinez, which declared that the seizure of one’s blood and the subsequent testing of one’s blood are two distinct searches under the Fourth Amendment, various Courts of Appeal are trying to distinguish the language to avoid suppressing blood results in Driving While Intoxicated (DWI) related cases and accidents.  The fix is in, and courts seem more concerned with protecting convictions than following the law.  Until our courts force the government to follow basic Fourth Amendment Law, the fix may be in, but the problem remains.

Massachusetts’ Scandal

In 2013, Massachusetts State Police arrested 35-year old Amherst crime lab chemist, Sonja Farak, for tampering with evidence: and that was only the beginning.¹  Over time and once Farak had been given immunity, details emerged that Farak had been in fact using the drugs that she was tasked with testing—for nearly a decade.  The scope of Farak’s addiction and the number of people convicted as a result of her drug testing came to light despite repeated efforts to hide the scope of Farak’s wrongdoing.²  The docuseries How to Fix a Drug Scandal examines the lengths to which some actors in the criminal justice system will go to protect convictions, cover up a scandal, and affect 35,000 lives in the process.

Farak was not the only one.  Just six months before Farak’s arrest, another Massachusetts lab chemist, Annie Dookhan, was caught dry labbing her results.³  Dry labbing is simply plucking a result out of thin air and reporting it—without ever testing a sample.  Dookhan’s work affected thousands of cases.  Whereas Farak was literally high for most of her Amherst lab career, she actually tested the samples.  Dookhan, on the other hand, lied about testing every sample.⁴

Together, Farak and Dookhan were responsible for compromising over 35,000 drug cases which helped land thousands of people in prison.⁵

But in April 2017, 21,587 cases were dismissed because of Dookhan’s involvement, according to Bustle.⁶  In 2019, the Boston Globe reported that over 24,000 charges from around 16,000 cases were dismissed due to Farak’s involvement.⁷

Texas’ Growing Scandal

When analyzing the atrocities that occurred in Massachusetts and the nature of the scandal, one realizes the limitless potential for abuse by lab employees with little or no oversight.⁸  It starts with the police who are tasked with getting crime off the streets.  Any evidence collected should be analyzed and reported by an independent lab.  An independent lab is critical for accurate, reliable and credible results since it is such powerful evidence.  As we know, all labs make mistakes. However, very few labs or analysts will ever admit making mistakes.⁹  The accused then hires a criminal defense attorney to essentially audit the lab results and ensure that any search and seizure was in accordance with the Constitution.  Ultimately, the trial judge should then act as “Gate Keeper,” refusing evidence when the testing does not clearly and convincingly show reliable, accurate results.

As Massachusetts showed us, the desire to keep convictions and prevent a scandal far outweigh following the law, being open and honest with juries about all of the issues, and requiring proper policy and procedure checks and balances.  When a mistake is made, Judges should encourage dissemination of all faulty evidence and demand corrective action.  But in reality, Massachusetts fought tooth and nail to keep the public at large—and those affected and on trial—in the dark about the evidence at the heart of the scandal.

These lab issues are not unique to Massachusetts.  Already in Texas, private chemist Amanda Culbertson discovered dry labbing (28 of 32 people in a sample batch run) by Texas Department of Public Safety crime lab El Paso analyst Ana Romero.  Culbertson found Romero had essentially copied and pasted the data from one subject to another.  And those electronic data files were “magically erased.”  In two complaints, Culbertson reported her findings to the Texas Forensic Science Commission (TFSC), which investigated the claim.¹⁰  The TFSC found evidence Romero may have dry labbed or may just have been negligent for the lab not to have procedural safeguards in place protect against dry labbing.¹¹

The TFSC abandoned the 28 blood tests and enacted preventative measures but never talked to Romero.¹²  To date, Romero has not been charged or properly investigated and granted immunity to disclose how far her dry labbing goes back to determine how many cases were truly affected over her tenure in the crime laboratory. 

Just like Massachusetts and any science lab run by human beings, Texas has crime lab evidence issues.  The next wave to fix a blood warrant scandal is making its way through the judiciary—fighting the mass suppression of results and failure to demand narrowly drawn warrants and searches of the “informational dimension” of blood evidence.

Judges Fighting Martinez

Martinez requires the government to obtain an additional search warrant to authorize the testing and analysis of blood separate from seizing the blood for medical purposes.¹³  After a traffic accident, Martinez was taken to the hospital where medical personnel drew his blood for medical purposes.¹⁴  Martinez voluntarily left the hospital after informing nurses he could not afford any tests.¹⁵  Subsequently, upon the State’s presentation of a grand jury subpoena, the hospital released Martinez’s blood to a Department of Public Safety agent; the State sent the blood to a crime laboratory for testing.¹⁶ Martinez moved to suppress the blood test results, and the trial court granted the motion.¹⁷  Affirming the trial court, the Court of Criminal Appeals held “there is a Fourth Amendment privacy interest in blood that has already been drawn for medical purposes.”¹⁸  Martinez had a subjective expectation of privacy in his blood drawn for medical purposes, and the State’s warrantless testing of the blood “was a Fourth Amendment search separate and apart from the [initial] seizure of the blood by the State.”¹⁹  Because no exception to the warrant requirement applied, the State was require to obtain a warrant before testing Martinez’s blood.²⁰

Some trial courts are properly suppressing blood in accordance with the Fourth Amendment and Martinez—finding that a blood warrant was obtained to draw the subject’s blood (seizure), but a subsequent search warrant for the testing and analysis (searching) was never obtained.²¹  However, various Courts of Appeal are refusing to follow Martinez and are narrowly construing the facts in order to avoid proper suppression.²²  In Crider, Hyland, and Staton, the courts mistakenly relied on the fact that in Martinez the blood was drawn by a hospital for medical purposes.²³

How to Prevent a Scandal

It may seem like a rhetorical question, but how can the Judicial Branch (Judges) and the Executive Branch (State attorneys) remain distinct to prevent this growing scandal?  

1. Seize the Blood Legally

There are really only three ways that the people of Texas can have their blood drawn legally.  The first is by consent.  But consent to a blood draw must be freely and voluntarily given.²⁴   Or they are unconscious and have deemed to consent via Texas’s Implied Consent statute.²⁵  The second way is that a hospital is allowed to draw someone’s blood for medical purposes and not at the direction of the police.  HIPAA governs and protects the person’s privacy.  But the State may then go get a grand jury subpoena and ask for the person’s records or evidence.²⁶  This is what happened in Martinez—the State used a grand jury subpoena for evidence obtained for medical purposes.²⁷  And third, as is custom around Texas, a Judge signs a blood warrant to draw the blood from the person and authorizes a variety of people to help in that extraction. 

The Court of Criminal Appeals already acknowledged there are two distinct triggering events implicating Fourth Amendment protection: 1) the initial extraction of the blood from the arm, and 2) the subsequent search of the “informational dimension” of the blood.²⁸

Various Courts of Appeal are fighting Martinez and using the hospital draw as the distinguishing factor.  However, no one is arguing that a valid blood draw warrant doesn’t grant the police agency authority to properly seize the blood from the arm. Martinez’s blood was drawn in a valid manner just as a valid blood draw warrant would allow.  What’s missing is the subsequent authority or power to violate a person’s Fourth Amendment privacy concerns and conduct a search on the information contained within the blood.

2. Search the Blood Legally

Blood draws and warrants really began to be the normal policy and procedure around 12 years ago.  Since that time, many counties are able to get blood warrants 24 hours a day, seven days a week.  And somewhere about 7 years ago, the State began drafting form affidavits for blood warrants and form blood warrants for judges or magistrates to sign.  These forms were undoubtedly written to make the State more efficient and reduce the number of mistakes that could invalidate a warrant.  But, importantly, these pre-Martinez form warrants only authorized an extraction of blood—not subsequent testing. 

Remember, if properly drawn in a grey top tube as required by Texas DPS procedure, these tubes should contain a preservative and an anti-coagulant and be properly refrigerated.  Numerous State analysts testify that the blood was properly drawn, stored and available to the defense to retest at any time.  If that’s the case, what is stopping the State from retesting the blood with a proper search warrant?  

3. No Common-Sense Exception to the Fourth Amendment

The Crider and Staton courts boldly claim “common sense dictates that blood drawn for a specific purpose will be analyzed for that purpose and no other.”²⁹  But a neutral, detached magistrate’s “common sense” reading all depends on what the affiant-officer is qualified to opine about.  Most blood warrant affidavits are signed by an officer who was certified only in Standard Field Sobriety Tests, which are exclusive to determining intoxication by alcohol.  Most of these affidavits only show signs of alcohol intoxication and ultimately opine only alcohol as the intoxicating substance.  And then, the results come back under the legal limit, or it involves a death or serious injury and the State then tests the blood for drugs or medications.

What if the officer is not a Drug Recognition Expert? What qualifications does he possess even to speculate on what substance the person is intoxicated?  And did he conduct an examination?  The magistrate or judge signing the warrant must first determine the scope of the search based on the facts and qualifications of the officer swearing to the information in the affidavit.

While the Courts of Appeals suggest using “common sense” in order to determine what the State of Texas will want to search for, they obviously underestimate the zeal of the State of Texas and overlook the constitutional purpose behind the Fourth Amendment.  

Our current practice violates the most fundamental tenant of Fourth Amendment law—preventing the government from conducting limitless, general searches.³⁰  Presumptions should be in favor of citizens, not the government.  Drafting warrants to cover these situations is nothing new, and courts should not worry about testing other seized evidence: “Because biological evidence is sui generis, this practice need not be replicated under circumstances when the object of the warrant is nonbiological[.]”³¹  The State can, moreover, streamline the process by drafting a single warrant properly tailored to authorize both drawing and testing.  Professor LaFave’s treatise explains:

When a magistrate is faced with a petition for a search warrant attempting to seize biological evidence (such as blood) from a criminal suspect, the warrant that issues should explicitly incorporate the scope of testing authorized on that sample. To obviate the general warrant problem, such restrictions need to be narrowly tailored in light of the supporting affidavit of probable cause presented.³²

The State routinely searches for alcohol, medication, and/or illegal drugs on their own request all without a warrant specifically allowing the search.  The State must be required to rewrite the pre-Martinez warrants to expressly authorize what the blood is to be searched for, using what type of analysis, and for what length of time, just like a warrant to search a house, which contains less sensitive information than a person’s blood.

Easy Fix to Prevent a Scandal

It’s now in the hands of the Court of Criminal Appeals. Some trial courts have followed Martinez by properly suppressing evidence, but various courts have tried to distinguish or interpret the intentions of the Court of Criminal Appeals in Martinez to avoid suppression.  What if the State of Texas just did it right?  The State has been relying on pre-Martinez forms to get what are now insufficient blood warrants.  First, the State should be required to rewrite all the blood warrant forms to accurately reflect Martinez.  This would require specifically stating the blood is to be tested and analyzed, how it will be analyzed, for what substances and within what period of time.  Second, for all current cases with this outdated paperwork, the State needs to go get a new warrant and retest all of their samples.

Yes, Martinez may require more paperwork.  It is not busy work, though.  Justice favors protecting our Constitutional rights more than potentially suppressing blood, reopening cases, and decriminalizing some people.  Massachusetts learned the hard way by trying to cover up a drug lab scandal.  Texas is in the midst of a blood warrant scandal.  The Courts can remain unbiased and detached and not feel any guilt by trying to cover up the State’s outdated paperwork or desire not to back log the crime labs.  Let’s not trample our Fourth Amendment to prevent suppression of illegally searched evidence.  Get the State to do their job and not aid in covering up this injustice.

* The authors would like to thank Dustin Hoffman, Law Clerk at Westfall Sellers and 2020 Texas A&M School of Law J.D. Candidate, for helping write this paper.

1. See, e.g., Kelly Wynne, The Crazy Drug Lab Story in Netflix’s ‘How to Fix a Drug Scandal’ is the True-Crime Escape You Need, Newsweek (Apr. 2, 2020, 3:50 PM), https://www.newsweek.com/crazy-drug-lab-story-netflixs-how-fix-drug-scandal-true-crime-escape-you-need-1495601.
2. Id.
3. Id.
4. Id.
5. Id.
6. Id. (citing Gretchen Smail, Where is Annie Dookhan Now? The ‘How to Fix a Drug Scandal’ Subject is Moving On, Bustle (Mar. 31, 2020), https://www.bustle.com/p/where-is-annie-dookhan-now-the-how-to-fix-a-drug-scandal-subject-is-moving-on-22680575).
7. Id. (citing Danny McDonald, 24,000 Charges Tossed Because They Were Tainted by Former Amherst Lab Chemist’s Misconduct, Boston Globe (Sept. 24, 2019, 8:22 PM), https://www.bostonglobe.com/metro/2019/09/25/charges-tossed-because-they-were-tainted-former-amherst-lab-chemist-misconduct/MUPgdHeLy8bdrzl5KGtvIN/story.html).
8. And as one former District Attorney remarked, the Massachusetts drug crime lab did not perform pre-employment or random drug screening—something that could have prevented a lab analyst with access to all of the drugs in Massachusetts from using it like a personal stash on her decade-long drug binge.  Matt Murphy, SJC Dismisses Thousands More Drug Cases, CommonWealth Magazine (Oct. 12, 2018), https://commonwealthmagazine.org/criminal-justice/sjc-dismisses-thousands-more-drug-cases/ (last visited Apr. 17, 2020) (“In many ways, what is predictable is preventable,” [Northwestern Massachussets District Attorney David] Sullivan said. “Regular drug testing of Sonja Farak would have detected her addiction and prevented the wholesale dismissal of thousands of drug cases. The fact that no drug lab employee had pre-employment or post-employment drug testing was inexcusable.”).
9. Even Sonja Farak claimed she did not make a mistake while testing drugs high for over nine years. See Maura Healy, Investigative Report Pursuant to Commonwealth v. Cotto, 471 Mass. 97 (2015), at 13 (Apr. 1, 2016) (“Farak admitted to being totally controlled by her addiction at that time, but still maintained that there were no inaccuracies in her testing.” (citing grand jury testimony)) (available at https://www.publiccounsel.net/dlclu/wp-content/uploads/sites/19/2018/05/Farak-Report-Final-040116.pdf)
10. Texas Forensic Sci. Comm’n, Final Report on Complaint by Amanda Culbertson Against the Texas Department of Public Safety—El Paso 5–6 (Aug. 16, 2019), available at https://www.txcourts.gov/media/1446310/culbertson-final-report-08162019.pdf.
11. See id. at 11–12.
12. See id. at 13–14.
13. See State v. Martinez, 570 S.W.3d 278, 292 (Tex. Crim. App. 2019).
14. Id. at 281.
15. Id. at 282.
16. Id.
17. Id. at 282-83.
18. Id. at 292.
19. Id.
20. Id.
21. See, e.g., State v. Staton, No. 05-19-00661-CR, ––– S.W.3d –––, 2020 WL 1503125, at *1 (Tex. App.—Dallas Mar. 30, 2020, no pet. h.) (quoting trial court’s suppression order).
22. See Crider v. State, No. 04-18-00856-CR, 2019 WL 4178633, at *2 (Tex. App.—San Antonio Sept. 4, 2019, pet. granted) (mem. op., not designated for publication); Hyland v. State, No. 13-16-00596-CR, ––– S.W.3d –––, 2019 WL 6205465, at * 3 (Tex. App.—Corpus Christi Nov. 21, 2019, no pet.) (op. on remand); Staton, 2020 WL 1503125, at *3.
23. This fact is not dispositive, like it wasn’t in Ferguson v. City of Charleston, where the Supreme Court held that a hospital policy implemented to identify and prosecute mothers who tested positive for cocaine violated the Fourth Amendment. 532 U.S. 67, 85–86 (2001).Ferguson distinguished prior cases that had found testing reasonable when done under circumstances in which the subject had lower privacy expectations and in which the testing had a “special purpose” divorced from law enforcement. Id. at 78–79. Critical to Ferguson’s holding was the “extensive involvement of law enforcement officials at every stage of the policy[.]” See id. at 84. Because the purpose of the hospital’s policy was “to obtain evidence of criminal conduct by the tested patients that would be turned over to the police and that could be admissible in subsequent criminal prosecutions[,]” Ferguson concluded that “[t]he Fourth Amendment’s general prohibition against nonconsensual, warrantless, and suspicionless searches necessarily applies.” See id. at 86. Similarly, law enforcement’s involvement at every stage of the process here—requesting, drawing, and testing—heightens Fourth Amendment protection.
24. Fienen v. State, 309 S.W.3d 328, 333 (Tex. Crim. App. 2012).
25. But see State v. Villarreal, 475 S.W.3d 784, 815 (Tex. Crim. App. 2014).
26. See Martinez, 570 S.W.3d at 291–92.
27. Id. at 282.
28. Id. at 292.
29. Crider, 2019 WL 4178633, at *2; Staton, 2020 WL 1503125, at *3.
30. See 2 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 4.6(a) (5th ed., Oct. 2019 update).
31. Id. § 4.10(e) (quote omitted).
32. Id. (quote omitted) (emphasis added).

TCDLA

Mark Ryan Thiessen

Mark Thiessen is a criminal trial lawyer and the Chairman/CEO of the Thiessen Law Firm in Houston, Texas. Mark is Board Certified in (1) Criminal Law by the Texas Board of Legal Specialization; (2) DUI Law by the DUI Defense Lawyers Association; and (3) DUI Defense Law by the National College for DUI Defense through the American Bar Association. Mark earned the American Chemical Society-Chemistry and the Law (ACS-CHAL) Forensic Lawyer-Scientist designation, which is the highest form of scientific recognition available for lawyers. Mark is a frequent legal seminar lecturer, author of numerous published legal articles, and a faculty member for various organizations. Mark is the current DWI Committee co-chair and on the Board of Directors for Texas Criminal Defense Lawyers Association (TCDLA), President and on the Board of Directors for Harris County Criminal Lawyers Association (HCCLA) and a Charter Member and Director for DUI Defense Lawyers Association (DUIDLA). Mark is a 7 time Texas Super Lawyer and in the Top 100 Super Lawyers in Houston (2017-19). In 2019, Mark was the only DWI lawyer to be named to the Top 100 Super Lawyers in all of Texas. Mark has won DWI cases from total refusals up to quadruple intoxication manslaughter. and 832-654-3058.

Frank Sellers

Based in Fort Worth, Texas, Frank Sellers is a partner at Westfall Sellers. His practice includes both trial and postconviction cases. Frank is AV Rated by Martindale, a 5-time SuperLawyers Rising Star, and has been voted twice to the list of Top 100 Rising Stars in Texas. He is a TCDLA Board member, co-chair of the DWI Resource Committee, and past president of the Lubbock Criminal Defense Lawyers Association. Frank graduated from Texas A&M and then Texas Tech Law School, where he was an editor on the Law Review, on the Board of Barristers, and selected for numerous national mock trial teams. He began his career under the mentorship of well-known West Texas defense attorneys Dan Hurley and David Guinn. He can be contacted at and 817-928-4222.