Keep in mind, there was no accident in this case. No one was injured. The officer observed Ms. Johnston's driving and noticed that her registration sticker had expired. A simple misdemeanor and the arresting officer is asking a judge for permission to perform an invasive procedure.
Some four hours after Ms. Johnston's refusal, Officer Stinson and Officer Darren Burkhart returned to draw blood carrying a warrant signed by a municipal court judge. Ms. Johnston resisted and the officers restrained her. They tied her legs to the legs of the chair and one of her arms to an arm of the chair with gauze. Officer Stinson then held Ms. Johnston's free arm down while Officer Burkhart drew her blood.
In Dalworthington Gardens, Joe Del Principe, D.O., (that's doctor of osteopathy) supervises the department's phlebotomy training under which officers attend 14 hours of classroom lecture, take a basic phlebotomy test, are given copies of articles on drawing blood to read and complete a minimum of 50 blood draws at the hospital. This, according to the department, makes the officers competent to draw blood -- although the training falls short of that required for phlebotomy technicians.
According to Section 724.017 of the Texas Transportation Code, in order to be admissible in court, a blood draw must be conducted by medical personnel, including "qualified technicians."
Not once during the blood draw did either of the officers, who both completed the department's course, inquire about Ms. Johnston's medical history. The officers failed to ask Ms. Johnston if she was taking any blood thinners. The officers also neglected to videotape the the blood draw -- even though there was a camera in the room.
Ms. Johnston filed a motion to suppress the results of the blood test on the grounds that the officers did not follow the requirements laid out in the Transportation Code for evidential blood draws.
The trial court sided with Ms. Johnston and ordered the results of the test suppressed on the grounds that the search was unreasonable per the Fourth Amendment because the officers did not follow the prescriptions of the Transportation Code. In particular, the trial court ruled that the officer was not a qualified technician under Section 724.017.
The State appealed the suppression order on the grounds that Section 724.017 was not the exclusive authority on the reasonableness of a blood draw.
The Fort Worth Court of Appeals upheld the suppression in an opinion released on November 5, 2009, in which the Court expressed its concerns that the officers did not ask Ms. Johnston any questions about her medical history, did not record the blood draw and that the department did not have a formal policy on the degree of force to be used when drawing blood from an uncooperative person.
It is important to note that the Court did not make any decision on whether the use of police officers to draw blood was reasonable, nor did the Court rule on whether or not the department's policy on blood draws was reasonable.
According to the Court: "We simply hold that, here, under the totality of the circumstances presented, the trial court did not err by granting appellee's motion to suppress."
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