I’d rather have a bottle in front of me than a LEO Phlebotomy

In an era of swine flu you would think that drawing blood in a jail, which are usually full of staph and other nasty bugs, would be verboten. Unfortunately police departments across Texas are giving cops a crash course in needle work and setting them loose to prey on the driving public.

Does the Constitution provide any protection from police station blood draws? Or will we add yet another DWI exception to the Bill of Rights?

This brings us to our case of the day from the Fort Worth Court of Appeals.
Johnston vs. State-

Facts- Christi Lynn Johnston was pulled over for having an expired vehicle registration. Using the latest in voodoo SFST “science” Dalworthington PD believed Johnston was intoxicated.

The arresting officer then requested a blood sample. Dalworthington PD had a policy against offering defendants the opportunity to provide a breath sample.

Johnson exercised her right to not be stabbed with a syringe and refused the officer’s request for blood. Reflexively the arresting officer pulled out his fill in the blank blood warrant, found a “friendly” magistrate, and a warrant for Johnston’ blood was quickly obtained.

To make matters worse, the police refused to take Johnston to a hospital for the procedure. Instead Dalworthington PD opted to go all Grey’s Anatomy at the police station. Like any normal freedom loving person would do at the sign of a cop with a needle, Johnston resisted. In a moment that would make the founders proud, Johnston was forcefully restrained while the police took her blood.

Issue- Are we really going to allow cops to draw blood from suspects at the police station? Really?

Holding- This particular blood draw was unreasonable and violated the 4th Amendment, but just barely..

Why was this blood draw deemed illegal? Cops have as much business drawing blood as dentists have driving the SWAT tank. What makes cops so bad at phlebotomy? What they don’t know can hurt you.

Here is a frighetning exchange between defense counsel and the vampire cop-

Q. . . . What type of tourniquet did [Officer Burkhart] use?
A. Latex.
Q. Does my client have latex allergies?
A. Not sure.
Q. You don’t have the slightest clue, do you?
A. No, sir.
Q. Was my client on blood thinners that night?
A. I don’t know, sir.
Q. You don’t have the slightest clue, do you?
A. No, sir.
Q. You didn=t ask any medical history before you stuck her or she was stuck with that needle, did you?
A. The jailers have a full medical history that they ask them while they=re booked into jail.
. . . .
Q. So you had a medical history on her before you took the blood?
A. That’s correct.
Q. Did you review that?
A. No, sir.
Q. So what good would it have done?
A. I”m not sure.
Q. . . . You didn’t know anything about her medically, did you?
A. No, sir.

Medical history, allergies, blood thinners? Why should the police be bothered with such minitua when they have drivers to convict and Constitutional protections to violate?

The most obvious problems with vampire police work is that LEO has an agenda which is in direct conflict with attending to the medical needs of a suspect. Cops aren’t trained to care about your medical history, they are trained to gather evidence for your prosecution.

The Transportation code requires that blood draws be done by trained professionals (not LEO’s or EMT’s) in a sanitary place. Police state judicial activism effectively vetoed the implied consent laws. Instead of the legislative process deciding how blood draws should occur, we have judges legislating from the bench.

The 2nd COA describes the end run around the legislative process thusly-

When a blood specimen is taken in accordance with a valid warrant, we must look to guiding Fourth Amendment principles to determine whether the method of taking the specimen is reasonable instead of chapter 724, the implied consent statute. Beeman, 86 S.W.3d at 615.

Unfortunately, this small victory could be overturned by the CCA. I can almost guarantee that PDR will be granted, and I wouldn’t bet against a reversal.


2 responses to “I’d rather have a bottle in front of me than a LEO Phlebotomy”

  1. Russell says:

    I’m slightly surprised that the State medical licensing boards aren’t screaming bloody murder. Drawing blood is a *medical procedure* and under State law cannot be performed except by a properly licensed individual.

  2. B. Weaver says:

    Excellent post. Thanks.

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