COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-246-CR

THE STATE OF TEXAS APPELLANT

V.

CHRISTI LYNN JOHNSTON APPELLEE

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FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY

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OPINION

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The State appeals from the trial court’s order granting appellee Christi

Lynn Johnston’s motion to suppress the results of her blood test in this

misdemeanor driving while intoxicated prosecution. We affirm the suppression

order.

Background Facts

The trial court found the following pertinent facts. Officer Brett Stinson

of the Dalworthington Gardens Police Department pulled appellee over after
observing her driving and learning that her vehicle registration had expired.

After determining that she exhibited signs of intoxication, he gave her field

sobriety tests and then arrested her for DWI. Officer Stinson took appellee to

the Dalworthington Gardens Police Department where he conducted a DWI

interview and second field sobriety test on video, read appellee the required

statutory warnings (DIC-24 form), and asked appellee if she would give a blood

sample. She refused. Officer Stinson did not ask appellee to give a breath

specimen because the department’s policy was to ask only for a blood

specimen.

After appellee refused to give a blood sample, Officer Stinson prepared

an affidavit to obtain a search warrant authorizing a blood draw, which was

authorized by a Dalworthington Gardens city judge, who presides over a court

of record. Then Officer Darren Burkhart, with Officer Stinson’s assistance,

“forcibly obtain[ed]” a blood specimen from appellee. Appellee initially resisted

and was “unruly.” Thus, the officers had to “secure[] [appellee’s] legs to the

legs of the chair and secure[] one arm to the arm of the chair” with flexible

gauze. Officer Stinson held the other arm while Officer Burkhart obtained the

blood sample from the vein in appellee’s wrist. Once appellee was restrained,

she calmed down and did not resist anymore. The trial court found that the

officers “followed medically accepted procedures in drawing [appellee’s] blood.”

2
The officers drew appellee’s blood according to a Dalworthington Gardens

Police Department program

set up and . . . supervised by Dr. [Joe] Del Principe, a doctor of

osteopathy, licensed to practice medicine in the State of Texas,

with 22–23 years of emergency room experience. . . . There is no

peer review of the program established by Dr. Del Principe nor is

there any governmental or other regulatory agency that has

approved the program or that establishes the curriculum and/or

monitors any rules of compliance or activity.

Officers take fourteen hours of classroom lecture and are given a standard

phlebotomy text and photocopies of articles on venipuncture as outside reading

material. They must also do a minimum of fifty venipuncture draws at a

hospital. Officers Stinson and Burkhart received certificates indicating they had

successfully completed the program. However, the trial court found that “[t]his

course of study falls short of the minimum requirements for a person to become

a phlebotomy technician.”

At the time of the draw, Officer Stinson was an “EMT basic” and Officer

Burkhart was an “EMT intermediate.” Officer Burkhart testified at the

suppression hearing that he had performed “thousands” of blood draws in the

sixteen years he had been an EMT.

1

1... He had participated in over 1600 classroom hours as an EMT; he

estimated that at least forty of those hours related to venipuncture. The

training he received from Dr. Del Principe was in addition to those forty hours.

Officer Burkhart had also worked as a firefighter, and at the time of the

3
The trial court further found that

[t]he blood draw was done in a room located in the

Dalworthington Gardens Police Department building and the room

was equipped for the purpose of doing blood draws. The room also

was used by officers to walk through and operate the DWI video

equipment. The room was checked and cleaned before drawing

blood in this case by the officers. The clean room checklist . . .

follows accepted medical procedures and was followed in this case.

The room where the blood specimen was obtained was a sanitary

place for such purpose.

Based on these findings of fact, the trial court concluded that Officer

Stinson had probable cause to arrest appellee, that the search warrant for

appellee’s blood was lawful and valid, and that the officers used only the force

necessary to obtain the sample. But the trial court further concluded as

follows:

6. In obtaining the blood sample, the officers were acting in

their capacity of peace officers gathering evidence for a criminal

prosecution and not in the capacity [of] professional medical care

providers providing medical services.

7. A phlebotomist is not automatically a qualified technician

under § 724.017 of the Transportation Code.

8. The completion of the program established by Dr. Del Principe

for the Dalworthington Gardens Police Department does not qualify

one as a qualified technician under § 724.017 of the Transportation

Code.

suppression hearing, was working as a firefighter for the City of Pantego.

4
9. [Appellee’s] blood sample was seized pursuant to a search

warrant validly executed in accordance with articles 18.01 and

18.02 of the Code of Criminal Procedure in order to obtain

evidence to prosecute [appellee] for the crime of driving while

intoxicated as proscribed in Tex. Penal Code § 49.04.

10. Tex. Transp. Code § 72[4].017(a) & (c) governs the taking

of blood samples seized in the prosecution of all intoxication-related

driving offenses.

11. Tex. Transp. Code § 724.017(a) & (c) governs the taking of

blood samples seized pursuant to a search warrant under articles

18.01 and 18.02 of the Texas Code of Criminal Procedure for

intoxication-related driving offenses.

12. Although the State complied with Tex. Trans. Code

§ 724.017(a) by having the blood draw taken in a sanitary place,

the seizure violated the Fourth Amendment’s reasonableness

requirement by not being taken by medical personnel in a hospital

or medical environment.

13. Officer Burkhart is not a qualified technician under § 724.017

of the Transportation Code. Pursuant to the Transportation Code

§ 724.017, as an EMT Officer . . . Burkhart is specifically excluded

from taking blood samples from defendants arrested for driving

while intoxicated.

14. The blood seized from [appellee] by Officer . . . Burkhart

pursuant to a search warrant is not admissible as a matter of law.

[Emphasis added, citation omitted.] Thus, the trial court ordered that the

results of appellee’s blood test be suppressed. The State appeals from that

order.

5
Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). We give almost total deference to a trial court’s rulings on questions

of historical fact and application-of-law-to-fact questions that turn on an

evaluation of credibility and demeanor, but we review de novo application-oflaw-to-fact questions that do not turn on credibility and demeanor. Amador,

221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.

2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

Because the trial court found that each of the witnesses testifying was credible

and reliable, the issues involved in this appeal are the trial court’s legal

conclusions, which we review de novo. See Amador, 221 S.W.3d at 673.

Issues on Appeal

The State presents six points challenging the suppression order. In its

first three points, the State contends that the trial court’s decision runs afoul

of the Fourth Amendment’s preference for warrant-based seizures, the Fourth

Amendment’s good faith exception, and the Court of Criminal Appeals’s opinion

in Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). In its last three

points, the State challenges the trial court’s rulings that chapter 724 of the

6
transportation code—the implied consent statute—governs the taking of blood

samples seized pursuant to a warrant, that sections 724.017(a) and (c) govern

the taking of blood samples in all intoxication-related driving offenses, and that

the Dalworthington Gardens Police Department’s blood draw program did not

comply with the transportation code. Appellee, however, frames the issue

thusly:

[I]t is undisputed that the police had probable cause and had

obtained a lawful search warrant to compel [her] to submit to the

blood draw. . . . [But the] trial court’s ruling . . . should be

affirmed because, regardless of the justification for issuance of the

warrant, the means by which the police chose to execute that

search warrant were unreasonable. [Emphasis added.]

According to appellee, then, even blood draws pursuant to a warrant must be

performed by a “civilian health care professional” in a medical environment in

accordance with the minimum standards set out in chapter 724 of the

Transportation Code. [Emphasis added.] Because the State briefs most of its

points together, we will address them by topic rather than in consecutive order.

Schmerber v. California and Chapter 724 of Transportation Code

The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007). The taking of a blood sample

implicates the Fourth Amendment. Schmerber v. Calilfornia, 384 U.S. 757,

7
767, 86 S. Ct. 1826, 1834 (1966); Ramos v. State, 124 S.W.3d 326, 331

(Tex. App.—Fort Worth 2003, pet. ref’d).

In Schmerber, the United States Supreme Court held that a warrantless

blood draw performed at a police officer’s direction by a physician in a hospital

“according to accepted medical practices” was reasonable under the Fourth

Amendment. Schmerber, 384 U.S. at 771–72, 86 S. Ct. at 1836; State v.

Comeaux, 818 S.W.2d 46, 53 (Tex. Crim. App. 1991) (plurality op.). The

Court determined that to be valid, such a warrantless search must (1) be

supported by probable cause, (2) occur in the presence of exigent

circumstances in which the delay necessary to obtain a warrant would result

in the destruction of evidence, (3) employ a reasonable test, and (4) be

executed in a reasonable manner. Schmerber, 384 U.S. at 769–72, 86 S. Ct.

at 1835–36; see Comeaux, 818 S.W.2d at 53. The Court made clear that

when a search involves a bodily intrusion, such as a blood draw, the execution

of the search must be accomplished in a reasonable manner, i.e., according to

reasonable “means and procedures,” even when the search itself is justified.

Schmerber, 384 U.S. at 768, 86 S. Ct. at 1834; see Blumenstetter v. State,

135 S.W.3d 234, 243 (Tex. App.—Texarkana 2004, no pet.) (citing Schmerber

for the holding that “the taking of blood by a medical laboratory technician in

a hospital is a reasonable method of extraction”).

8
Although the Court specifically did not announce a holding governing

cases in which the blood was drawn somewhere other than a hospital or by a

person other than a doctor, nurse, or “medical laboratory technician,” the Court

did provide some future guidance as follows:

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 the stationhouse. To

tolerate searches under these conditions might be to invite an

unjustified element of personal risk of infection and pain.

Schmerber, 384 U.S. at 771–72, 86 S. Ct. at 1836 (emphasis added).

Here, police obtained a warrant for a blood sample from appellee, who

concedes on appeal that the warrant was valid and supported by probable

cause.

2

Instead, appellee challenges “the means by which the police chose to

execute that search warrant [as] unreasonable.” In other words, she challenges

the fourth Schmerber prong, that the search be executed in a reasonable

manner. The State contends that the trial court should not have applied the

holding in Schmerber and the statutory requirements of chapter 724 to

2... Specifically, appellee states, “In this case, it is undisputed that the

police had probable cause and had obtained a lawful search warrant to compel

[a]ppellee to submit to the blood draw. Thus, the first prong of the Schmerber

analysis goes in favor of the State, i.e., [a]ppellee does NOT contest that there

was sufficient probable cause to support issuance of the warrant, or possibly,

a warrantless blood draw.”

9
determine the reasonableness of the blood draw because Schmerber and

chapter 724 apply only to warrantless blood draws. According to the State,

the fact that the blood was seized pursuant to a valid search warrant “controls

this case and mandates the rejection of any attack against the admission of the

seized blood evidence.”

The State’s contention that the resolution of this case—based upon the

mere existence of a warrant—is “simple” ignores the requirement that even a

search authorized by a warrant must nevertheless be executed according to

reasonable means. See, e.g., Dalia v. State, 441 U.S. 238, 258, 99 S. Ct.

1682, 1694 (1979); Coleman v. State, 833 S.W.2d 286, 290 (Tex.

App.—Houston [14th Dist.] 1992, pet. ref’d). The means of execution is the

focus of Schmerber’s fourth prong, not the justification for the search, which

in this case was satisfied by the police’s procurement of a valid warrant

supported by probable cause. See State v. Davis, 207 P.3d 281, 285 (Kan. Ct.

App. 2009) (holding, under Kansas law interpreting Schmerber, that although

consent effectively replaces the probable cause and exigent circumstances

requirements, it would not abrogate the State’s responsibility to show that

blood draw was nevertheless performed in reasonable manner); Matter of Abe

A., 437 N.E.2d 265, 269 (N.Y. 1982) (explaining that valid court order or

warrant based upon probable cause replaces exigent circumstances requirement

10
articulated in Schmerber); see also Schmerber, 384 U.S. at 768, 86 S. Ct. at

1834. The resolution of the matter here, then, does not depend on whether the

blood draw was taken pursuant to a warrant, as opposed to by express or

implied consent; the resolution of this issue depends on whether the “means

and procedures” by which the officers conducted the authorized blood draw

were nevertheless reasonable. Schmerber, 384 U.S. at 768, 86 S. Ct. at 1834.

Thus, we overrule the State’s first point.

Under Texas law, absent the circumstances present in section 724.012(b)

of the transportation code, police may obtain a blood sample only pursuant to

the accused’s express consent or a valid warrant. Tex. Transp. Code Ann.

§ 724.012(b) (Vernon Supp. 2009), § 724.013 (Vernon 1999); Flores v. State,

871 S.W.2d 714, 720 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 926

(1994); Muniz v. State, 264 S.W.3d 392, 395 (Tex. App.—Houston [1st Dist.]

2008, no pet.); see U.S. Const. amend IV. When police obtain a blood

specimen pursuant to a warrant, as was done here, the requirements set forth

in section 724.017 regarding blood draws are not mandatory; “consent, implied

or explicit, becomes moot.” Beeman, 86 S.W.3d at 616; Cantrell v. State, 280

S.W.3d 408, 412 (Tex. App.—Amarillo 2008, pet. ref’d). In other words, once

the police obtain a valid warrant for blood “by presenting facts establishing

probable cause to a neutral and detached magistrate,” the subsequent search

11
must be evaluated under Fourth Amendment reasonableness standards.

Beeman, 86 S.W.3d at 615–16; Coleman, 833 S.W.3d at 290. Because

chapter 724, the implied consent statute, does not offer greater protection than

the Fourth Amendment, and is simply “another method of conducting a

constitutionally valid search,” its prescribed method of obtaining blood draws

is simply one way in which a blood draw can be deemed reasonable for

admissibility purposes

3

; that is, if a search pursuant to implied consent is

performed according to the parameters set forth in chapter 724, it will be

reasonable under both the Fourth Amendment and Texas law. Beeman, 86

S.W.3d at 615 (emphasis added); see Tex. Transp. Code Ann. § 724.017(a)

(Vernon Supp. 2009) (providing that blood must be drawn in “sanitary place”

by “physician, qualified technician, chemist, registered professional nurse, or

licensed vocational nurse”); see also Schmerber, 384 U.S. at 771–72, 86 S. Ct.

at 1836 (authorizing blood draw according to “accepted medical practices” by

medical professional in medical environment). But that does not mean that

another method of obtaining a specimen pursuant to a warrant will be

unreasonable under the Fourth Amendment simply because it was not taken in

3... Section 724.017 additionally provides a statutory framework for

ensuring that blood draws are performed in a safe manner for purposes of

license revocation. See Tex. Dep’t of Pub. Safety v. Hutcheson, 235 S.W.3d

312, 315–16 (Tex. App.—Corpus Christi 2007, pet. denied).

12
strict compliance with the implied consent statute’s requirements. See

Beeman, 86 S.W.3d at 615; cf. Schmerber, 384 U.S. at 769–72, 86 S. Ct. at

1835–36; Coleman, 833 S.W.2d at 290 (holding that blood draw by

phlebotomist pursuant to warrant was reasonable despite language in warrant

directing that draw be made by medical doctor). Thus, 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. For this reason, we conclude that if the requirements of the

statute are considered in a Fourth Amendment case-by-case totality of the

circumstances reasonableness analysis, they are merely to be considered as

nonexclusive factors. See Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim.

App. 1997) (“Each search and seizure question must turn on the facts of that

particular case.”).

Accordingly, we conclude and hold that the trial court’s tenth and

eleventh conclusions of law are erroneous. We sustain the State’s third, fourth,

and fifth points, but—having determined that chapter 724 does not exclusively

govern the issue—we need not address the State’s sixth point challenging the

trial court’s conclusion that the Dalworthington Gardens Police Department’s

13
blood draw program does not comply with chapter 724.

4

 See Tex. R. App. P.

47.1; State v. Iduarte, 232 S.W.3d 133, 140 (Tex. App.—Fort Worth 2007),

aff’d, 268 S.W.3d 544 (Tex. Crim. App. 2008). However, because our

sustaining these points does not end our inquiry into whether the blood test

results here should have been suppressed, we must address the State’s

contention that the search was reasonable under the Fourth Amendment.

5

Reasonableness of Blood Draw Under Fourth Amendment

Whether a search is reasonable is a question of law that we review de

novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).

Reasonableness is measured by examining the totality of the circumstances. Id.

at 63. It requires a balancing of the public interest and the individual’s right to

be free from arbitrary detentions and intrusions. Id. Accordingly, we must look

at all circumstances surrounding the blood draw in this case.

Officer Stinson’s Testimony

Officer Stinson, the arresting officer, testified to the procedure that

Dalworthington Gardens police used in 2005 for suspicion of DWI

arrests: “You take them back to our jail. We read them through the DWI

4... Our holding also renders the trial court’s seventh and eighth

conclusions unnecessary.

5... Although the State did not assign this complaint as a specific point,

it does provide pertinent argument in its brief.

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interview form, conducting the walk-and-turn test and one-leg stand in the DWI

interview room. After they complete that, we read the DIC-24 form, requesting

a sample of blood.” The video taken in this case confirms that Officer Stinson

followed this procedure with appellee. Officer Stinson did not ask for a breath

or urine test, only blood, in accordance with the department rules that require

him to ask only for blood. Appellee refused and acknowledged her refusal by

signing the DIC-24. After appellee refused to consent to a blood draw, Officer

Stinson placed her in the booking area and obtained a search warrant from the

municipal judge.

It was three hours and forty-five minutes to four hours after the initial

stop before Officer Stinson was able to obtain the warrant and return to the jail.

Officer Stinson explained the procedure the department used for taking blood

pursuant to a search warrant or consent:

Before we take [a suspect] in, we inspect the room to make sure

it’s clean. Before getting any needles, vials, anything out, we wipe

down the room with a commercial disinfectant to make sure

everything’s disinfected, the chair, the table, the stool that’s in

there; wipe it down and make it as clean as we possibly can before

continuing on.

He explained that, to his knowledge, this procedure is followed every time

officers take a blood draw; he followed it for appellee’s blood draw. The room

is also routinely inspected to make sure that it is clean. Although the room is

15
used only for blood draws, officers have to walk through it to operate the video

recorder.

Officer Stinson testified that appellee was “unruly” at first when the

officers tried to take her blood; specifically, she was “more or less pulling her

arms up against her chest, kicking her legs, stuff of that nature.” Officer

Stinson did not think he needed to take appellee to the hospital because she

was “fairly cooperative” after he and Officer Burkhart used soft Kerlix roll gauze

to restrain her feet and left wrist to the blood draw chair.

6 Officer Stinson

assisted Officer Burkhart in performing the blood draw by holding down

appellee’s left arm and handing him the vial. The officers did not videotape the

blood draw because it was not required “under departmental rules.”

Officer Stinson had been trained to do blood draws under Dr. Del

Principe’s program; he had performed “approximately 125, 130.” He had done

blood draws at Arlington Memorial Hospital under the supervision of nurses,

who educated him on the “recognized medical procedures” that were supposed

to be followed. Furthermore, according to Officer Stinson, Officer Burkhart

followed these medically recognized procedures in drawing appellee’s blood.

6... Officer Stinson testified that appellee was still able to move her arm

around.

16
On cross-examination of Officer Stinson, the following exchange occurred

regarding his and Officer Burkhart’s knowledge of appellee’s medical condition

that night:

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.

Officer Stinson testified that he did not know whether appellee’s arm bruised;

he did not check on her later that night.

17
According to Officer Stinson, he was a qualified technician as a result of

having gone through Dr. Del Principe’s program. Of the minimum of fifty sticks,

or venipunctures, he did at the hospital, only one or two of them were under

the doctor’s direct supervision. According to Officer Stinson, the officers were

not given “any specific protocol” on what to do if a suspect was fighting a

blood draw, just “restrain using the least amount of force possible.” They were

never taught to take a suspect to the hospital if that suspect was fighting them.

They did, however, have a protocol for going to the hospital if an officer was

accidentally stuck with a needle.

Officer Burkhart’s Testimony

At the time of trial, Officer Burkhart was working as a firefighter in the

City of Pantego. He had been a firefighter for sixteen years and had six and a

half years of police training. At the time he drew appellee’s blood, he was

working as a police officer for Dalworthington Gardens. At the time of the

suppression hearing, he was classified as an EMT-Intermediate, which meant

he was allowed to “start IVs, intubate patients, give certain drugs and provide

basic life support.” In addition to working as a firefighter, he worked part-time

on an ambulance.

When asked how many blood draws he had performed as an EMT, Officer

Burkhart responded, “Thousands.” He had also done “many” venipunctures in

18
a hospital setting. He had taken over 1600 hours of classroom work for his

EMT training. He estimated that at least forty of those hours related to “the

use of needles and . . . blood draws, venipunctures, [and] IVs.” The training

by Dr. Del Principe was in addition to his EMT training. He described Dr. Del

Principe’s course as follows:

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,

proper way of inserting the needle, proper way of withdrawing the

blood, and what you do after the blood’s done, how you - - if

there’s any bleeding, what you do to stop the bleeding.

The course was similar to his EMT training in that they both taught

anatomy of the arm and gave homework, including the on-site hospital training.

Officer Burkhart testified that Dr. Del Principe was familiar with him and his

ability to perform “invasive medical procedures” on patients before he went

through the course and that he had brought around fifty to one hundred

patients to Dr. Del Principe after having performed such a procedure. Because

of his prior training, he was exempt from having to do the fifty hospital sticks

that the other officers had to do. What Dr. Del Principe’s course taught him

matched the techniques he learned in his EMT courses.

Officer Burkhart testified that he also had additional training through

continuing education courses that a different doctor would conduct: “Our

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doctor - - our medical director comes out and we have skill sessions where we

have to do certain skills in front of him.” According to Officer Burkhart, neither

that doctor nor Dr. Del Principe had ever had a problem with his training and

experience in venipunctures.

Officer Burkhart confirmed that he cleaned the blood draw room before

drawing appellee’s blood. The officers showed appellee the warrant and

explained what they were going to do. He confirmed they had to secure her to

the chair. According to Officer Burkhart, appellee said, “[D]o whatever you

have to do.” He described the procedure for drawing the blood as follows:

Once we determine a site, we apply a tourniquet. We look for the

area where we’re going to draw the blood from a vein. Once the

area is located, you use Betadine because you cannot use alcohol.

We clean the site with Betadine. From there we take a needle with

a tube holder and a tube, and we inject the needle into the - - or

I’m sorry. Place the needle into a vein. We fill up an evidence tube

or vacuum tube, to withdraw the blood. Once the tube’s filled up,

we take the needle out, the tube out. We mix the tube so that - -

there’s an anti-coagulant powder that’s in there - - the blood

doesn’t clump together, twist - - however you want to say - - stir

or twist the tube so the powder gets into the blood so it doesn’t

clot. Release the tourniquet, and then if there’s any bleeding, hold

her at - - pressure until the bleeding is stopped and then place a

Band-aid on it.

He stuck her right wrist because it was a good vein, which he had learned from

both experience and training.

20
According to Officer Burkhart, in taking appellee’s blood, he did not

deviate from what he had been taught; he followed the list of guidelines given

to him. He and Officer Stinson also did the same kinds of things that would be

done at a hospital to eliminate any unjustified risk to appellee. He explained,

Well, first, when we restrained her, we restrained her to protect her

from hurting herself or ourselves. 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 technically correct and a safe way of drawing

blood from her.

Officer Burkhart admitted he did not know whether appellee was on blood

thinners, whether she had had a mastectomy with a lymph node removal, or

any other medical condition that could have affected her health. He admitted

that knowing those things could have been important at the time of the blood

draw because she “possibly” could have had a condition that might have

affected her health. Officer Burkhart did not check appellee’s arm for bruising,

nor did he know if anyone else checked on appellee after the blood draw.

The State asked Officer Burkhart if, as an EMT, he asks for a medical

history before doing a venipuncture; he said it depends on the situation. When

asked if he saw any evidence of internal bleeding after taking appellee’s blood,

he responded, “No,” explaining that

[t]here was just a little bit of bleeding coming out of the vein. If

you blow a vein, it’s obvious. It swells up, bruises quickly. And if

21
I had been concerned, which is the same thing, you just direct

pressure and ice pack. There was just a little bleeding coming out

of where the needle site was.

Dr. Del Principe’s Testimony

Dr. Del Principe is a doctor of osteopathic medicine; at the time of the

suppression hearing, he was a full-time emergency room doctor at Arlington

Memorial Hospital and had worked in emergency room care for approximately

twenty-two or twenty-three years. He was the chairman of the hospital’s

Department of Emergency Medicine, president of the group that contracted to

run the hospital’s emergency room, and Medical Services Director for

Dalworthington Gardens. He had personally performed thousands of blood

draws. Apart from the officers he supervised in the training program, he had

trained a “few hundred” others to draw blood over the course of his career,

including student nurses, doctors, interns, and residents.

Dr. Del Principe prepared the Dalworthington Gardens program for training

officers to draw blood after meeting with a person who runs a phlebotomy

school in Phoenix, Arizona and who had prepared a similar program.

7 He got

that person’s curriculum and adapted it to the program he was developing,

adding “some things that [he] thought [were] necessary to be able to train

7... Dr. Del Principe admitted that no one had reviewed his program to

determine if it was in accordance with accepted medical practices.

22
anyone to do venipunctures to draw blood.” According to Dr. Del Principe,

there are three sections to the course: homework reading material with a

standard phlebotomy text and several articles on venipuncture, a fourteen-hour

classroom course with tests, and fifty or more sticks

8

at the Arlington Memorial

emergency room under the supervision of either Dr. Del Principe, one of the

emergency room nurses, or a blood tech. He certified the officers based on the

direct feedback he received on how they did their sticks. The State introduced

into evidence the outline to the course. According to Dr. Del Principe, the

manner in which the officers were trained and practiced was in accordance with

accepted medical practices. In addition to training the officers, he would also

oversee and talk to them on a regular basis to make sure they were not having

problems.

9

According to Dr. Del Principe,

[P]hlebotomist really entails a lot of things. They do more

than drawing blood. They will collect various samples, whether it’s

urine, stool, [or] blood samples. They do cultures, they run tests

on blood samples, so they do a lot more than just drawing blood.

8... According to Dr. Del Principe, the sticks were required only for those

who had not done sticks before.

9... Dr. Del Principe had also established a two-year recertification course

consisting of a one-day class and additional sticks at the hospital if the officer

had not done “a number of sticks” since being initially trained.

23
That’s why in hospitals you’ll see they have people that just -

- they have just blood techs that just draw blood. They don’t do

the testing, but the phlebotomists have a more - - I’d say more

advanced degree. They have more training in terms of handling

blood samples; transferring blood samples, for example, the culture

mediums to run specific tests on blood samples, so they have more

advanced knowledge than a blood tech will.

A blood tech would just actually draw blood on behalf of the

phlebotomist, and the phlebotomist would then process in the

variety of ways whatever tests need to be run.

Dr. Del Principe described the people at Arlington Memorial who were blood

techs as

paramedics, firefighters that are paramedics. We have one

individual that basically out of high school . . . was trained by the

hospital to draw blood and has been there for a number of years.

He does not have a phlebotomy degree, but he’s a, you know,

blood draw tech they call him. I’m sure they have different names

for them, but he basically trained, you know, by somebody

showing [him] how to do that and then doing so many, and then he

was certified to as a qualified technician in the hospital.

According to Dr. Del Principe, he trained the officers to be “qualified

technicians,” which is a different standard of training than what a phlebotomist

would receive because of a phlebotomist’s additional duties other than drawing

blood.

10 Dr. Del Principe testified that the officers he trained had the same or

similar training as those working for the hospital as blood draw techs and that

10... The officers’ training is limited to venous rather than arterial samples.

24
with their training, the officers could work as hospital blood techs.

11 He stated

that if any of the officers had a problem drawing blood, they could call him to

come to the station and draw the blood or take the suspect to the hospital.

Dr. Del Principe testified as to Officer Burkhart’s training, stating that he

was exempt from the hospital sticks because of his extensive prior experience

in drawing blood. He had not seen Officer Burkhart start an IV or draw blood,

but he had been in the emergency room forty or fifty times when Officer

Burkhart brought in a patient he had started an IV for, and “he had no particular

problems with that.” He thought Officer Burkhart was “exceptional” at

venipuncture and that he would be the equivalent of a blood tech at the

hospital.

Dr. Del Principe testified that the blood draw room was designated as

such because it had a concrete floor that could be painted and cleaned easily

if there were a blood spill. It also had a stainless steel table and phlebotomy

chair that could be wiped down and sanitized easily. The chair allows the

patient to lie down in a more relaxed position and makes it easier for the person

drawing blood to obtain a specimen. Dr. Del Principe chose the chair because

it is best for the patient.

11... He admitted on cross that he did not know if they would actually be

eligible for hire in that capacity at any of the local hospitals.

25
The State also introduced the “Clean Room Checklist” the officers were

supposed to use when drawing blood; the copy in the record is signed by both

Officer Stinson and Officer Burkhart. According to Dr. Del Principe, the

checklist

systematically allows an officer to go through each of these steps

to make sure they are completing everything that needs to be

completed.

You know, there’s always a number of things that need to be

done, and this assures that we are following strict guidelines, strict

procedures, in not only the interview, but what’s - - what supplies

you need to get out and in what order, what you need to do as far

as bringing the subject into the room. [Emphasis added.]

Although Dr. Del Principe testified that the officers ask everyone coming in for

a blood draw if they have any medical problems generally, because he trained

them to do so, he admitted that the question is not listed in the blood draw

checklist.

12 He stated that a more detailed questioning process was not needed

in the checklist because the officers are trained to ask if a suspect has “any

particular medical problems any time they’re arrested.” However, he also

stated that he was not aware whether a medical history is taken when a

suspect’s blood is drawn at a hospital.

12... In addition, he admitted the officers are not trained to ask more

specific questions, such as whether a suspect has diabetes or is taking high

blood pressure medication or blood thinners.

26
According to Dr. Del Principe, the Dalworthington Gardens program

minimizes any unjustified risk of pain or infection for a person whose blood is

drawn for suspected DWI because the blood draw occurs in a clean room, the

“patient” is lying down, the officers know how to talk to the “patients” and

calm them down, the “patients” are more relaxed because there are not a lot

of people walking around and looking at them, and there were less sick, and

therefore possibly less contagious, people than in a hospital.

Under cross-examination, Dr. Del Principe admitted that he and the

department had not decided on a process to be followed if someone were

fighting the officers and that if the officers were unable to get blood drawn

safely, they would take the suspect to the emergency room where that person

would be secured to obtain the blood. Dr. Del Principe nevertheless felt that

the officers who had received training from him would be qualified to take blood

from someone who was resisting and fighting. He said that in the twenty-four

years he had been practicing, he had sometimes had to hold down persons

whose blood was being drawn for law enforcement. When blood draws are

taken in the hospital, the officers typically help the hospital staff secure the

person whose blood is being drawn. Dr. Del Principe admitted there are

inherent medical risks to drawing blood. He also stated that the only protocol

for accidental needle sticks was to go to the hospital.

27
Reasonableness Under Totality of Circumstances

The trial court found that the seizure of appellee’s blood “violated the

Fourth Amendment’s reasonableness requirement by not being taken by medical

personnel in a hospital or medical environment.” [Emphasis added.] However,

most cases interpreting Schmerber do not read it so narrowly as to restrict the

location of a blood draw to a hospital or clinic only. Draws taken in jails and

sheriff’s offices have been upheld as reasonable.

13

 Here, there was extensive

13... See State v. May, 112 P.3d 39, 41–42 (Ariz. Ct. App. 2005)

(holding blood test taken at rear of police vehicle by sheriff’s department

phlebotomist reasonable); Moore v. State, 915 S.W.2d 284, 290–91 (Ark.

1996) (upholding blood draw performed by physician, in private, at sheriff’s

office because, “[a]s blood is routinely drawn by nurses, technicians, and other

non-physicians, frequently in non-medical facilities, appellant was not in this

instance subjected to an ‘unjustified element of personal risk and pain’”); People

v. Mari, 528 P.2d 917, 918 (Colo. 1974) (holding blood draw valid under

Fourth Amendment when taken by medical technologist at sheriff’s office);

State v. Cardona, No. CRIM. A. IN08-05-1015–18, 2008 WL 5206771, at

*1–2, 8 (Del. Super. Dec. 3, 2008) (mem. op.) (upholding draw by contract

phlebotomist at Wilmington Police Department); Davis, 207 P.3d at 286

(upholding blood draw taken in kitchen area behind sheriff’s dispatch office);

State v. Sickler, 488 N.W.2d 70, 73–74 (S.D. 1992) (holding blood draw

reasonable under Schmerber when performed at county jail by deputy sheriff

who was also a licensed practical nurse); State v. Mason, No. 02C-01-9310-

CC-00233, 1996 WL 111200, at *9 (Tenn. Crim. App. Mar. 14, 1996) (not

designated for publication) (concluding that blood draw need not be taken in

“hospital environment” to be reasonable if performed by qualified person, in

conformity with procedures established by department of health and without

threatening the health or safety of the accused); State v. Daggett, 2001 WI

App. 32, ¶¶ 7–17, 250 Wis. 2d 112, 115–20, 640 N.W.2d 546, 548–51

(holding that location of blood draw—county jail booking room—was not

unreasonable under Fourth Amendment), review denied, 2002 WI 23, 250 Wis.

28
testimony that the trial court found to be credible as to the “clean” and

appropriate nature of the room in which the blood draw was taken.

Accordingly, we conclude that the location of the draw was not inherently

unreasonable under the Fourth Amendment or Schmerber simply by virtue of it

occurring in the clean room at the police station as opposed to a “medical

environment.”

We are more troubled by other circumstances surrounding the blood

draw. Although Dr. Del Principe testified that the officers should have asked

for at least a general medical history because he had trained them to do so,

both officers Stinson and Burkhart testified that they failed to make even a

minimal inquiry as to appellee’s health or medical condition.

14

In fact, such a

2d 559, 643 N.W.2d 96; see also People v. Esayian, 5 Cal. Rptr. 3d 542,

545–46, 549–50 (Cal. Ct. App. 2003) (upholding blood draw performed at

detention facility by phlebotomoist even though phlebotomist was unqualified

under state statute and noting that Schmerber “did not attempt to set any

specific rules for blood tests conducted outside the hospital setting”); cf. Garcia

v. State, 112 S.W.3d 839, 848–49 (Tex. App.—Houston [14th Dist.] 2003,

no pet.) (holding that Harris County jail was “sanitary place” under section

724.017).

14... For purposes of this analysis, we will presume, based on Officer

Burkhart’s extensive history in drawing blood and employing venipuncture

generally as an EMT, that he was qualified to draw appellee’s blood for

purposes of obtaining a specimen as directed by the municipal judge’s warrant,

and under the Fourth Amendment and Schmerber, regardless of the trial court’s

conclusion of law number 13, which as we have previously stated is

inapplicable in that it is based on the alternative means for a reasonable blood

draw set forth in the implied consent statute.

29
question was not even listed on the blood draw checklist. Although Dr. Del

Principe testified that he was unsure whether a medical history is taken when

a suspect’s blood is drawn at a hospital, he obviously thought that such a

question was important enough to train the officers to ask it. And he testified

specifically as to the importance of following strict guidelines and procedures,

not only in cleaning the room, but also in performing an “interview” prior to the

blood draw. Cf. People v. Mateljan, 28 Cal. Rptr. 3d 506, 509, 512–13 (Cal.

Ct. App. 2005, review denied), cert. denied, 546 U.S. 1171 (2006) (affirming

trial court’s denial of motion to suppress blood draws by statutorily-unqualified

phlebotomists who were otherwise experienced in taking blood when testimony

was directly conflicting as to whether the taking of a prior medical history was

necessary). Thus, the trial court could have concluded that, under the totality

of the circumstances—and based on Dr. Del Principe’s credible testimony—the

lack of prior questioning of appellee about her general medical

history, combined with the officers’ failure to follow up on her condition,

subjected appellee to an unjustified risk of medical harm,

15

thus making the

15... Although Officer Stinson testified that the jailers always take a

medical history, there is no evidence in this record (a) of appellee’s medical

history or (b) that any of the jailers had medical training that would enable them

to recognize a condition serious enough to warrant communicating that

information to the officer prior to a blood draw or to provide follow-up care or

recognize a subsequent medical emergency after a blood draw.

30
blood draw unreasonable under the Fourth Amendment as illustrated by the

example set forth in Schmerber.

This lack of at least a prior rudimentary inquiry into appellee’s medical

and/or general health condition and lack of at least a cursory follow-up becomes

even more troubling when considered in light of the other circumstances

surrounding this blood draw, i.e., it was taken in the privacy of the police

station without a video recording, even though one was available; alone with

two officers, including the arresting officer; restraint was necessary; and the

department did not have any guidelines for the use of force in such a

situation.

16 Accordingly, we conclude and hold, albeit for slightly different

16... Because appellee has conceded that the warrant was valid and based

upon probable cause, we are not presented with the equally troubling issue of

the constitutionality—or wisdom—of a program that divests the officer of any

discretion in determining what type of specimen to obtain from a suspect,

especially considering Dr. Del Principe’s admission that there are inherent risks

in drawing blood, and the officers’ and Dr. Del Principe’s admissions that

different medical conditions can impact whether a blood draw is advisable

medically. See Tex. Transp. Code Ann. § 724.012(c) (giving officer discretion

in asking for specimen of breath or blood); Coggins v. State, 160 S.W.3d 177,

179 (Tex. App.—Texarkana 2005, no pet.) (same). Moreover, under

Schmerber the officer is required to consider what method of obtaining

evidence of a suspect’s blood-alcohol concentration is reasonable under the

circumstances. 384 U.S. at 771, 86 S. Ct. at 1836. The officer should thus

consider the particular circumstances as well as the suspect’s willingness to

perform other, less intrusive means, e.g., a breathalyzer or urinalysis. See id.

When appellee refused the blood draw, she was not asked (nor did she offer)

to take a less intrusive test, nor did she raise any of the concerns warned of in

Schmerber; instead, she said only that she would have to ask her lawyer about

31
reasons than those specifically articulated by the trial court in its twelfth

conclusion of law, that this blood draw was not reasonable under the Fourth

Amendment and the guidance of Schmerber.

We caution, as did the Supreme Court in Schmerber, that our decision,

as in other Fourth Amendment reasonableness cases, is based “only on the

facts of the present record.” See Schmerber, 384 U.S. at 772, 86 S. Ct. at

1836. We do not intimate that the inclusion of a rudimentary question about

appellee’s medical health or a brief follow-up on her condition after the blood

draw is all that would have been required to make this blood draw reasonable,

nor should our opinion be read to put a stamp of approval or disapproval on the

Dalworthington Gardens blood draw program in general. 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. We overrule the State’s

contention that the search was executed reasonably under the Fourth

Amendment.

it. See id. (“[F]or most people, the procedure involves virtually no risk, trauma,

or pain. Petitioner is not one of the few who on grounds of fear, concern for

health, or religious scruple might prefer some other means of testing, such as

the ‘Breathalyzer’ test petitioner refused . . . . We need not decide whether

such wishes would have to be respected.”).

32
Applicability of Good Faith Exception

In its second point, the State contends that, regardless of whether the

blood extraction was reasonable under the Fourth Amendment, the trial court

should nevertheless have denied the motion to suppress because the officers

obtained appellee’s blood in good faith reliance upon the warrant. Article

38.23(a) of the code of criminal procedure excludes evidence obtained in

violation of any provision of “the Constitution or laws of the State of Texas, or

of the Constitution or laws of the United States of America” except evidence

obtained “in objective good faith reliance upon a warrant issued by a neutral

magistrate based upon probable cause.” Tex. Code Crim. Proc. Ann. art.

38.23(a)–(b) (Vernon 2005); Dunn v. State, 951 S.W.2d 478, 479 (Tex. Crim.

App. 1997).

Because the State did not urge denial of the motion to suppress on this

ground in the trial court, however, it failed to preserve the issue for appellate

review. State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998); State

v. Ballman, 157 S.W.3d 65, 71 (Tex. App.—Fort Worth 2004, pet. ref’d). We

may not reverse a trial court’s suppression order on unpreserved grounds.

Mercado, 972 S.W.2d at 77; Ballman, 157 S.W.3d at 71. Moreover, it is

doubtful whether article 38.23(b) governs the admissibility of evidence obtained

pursuant to an otherwise valid warrant, but according to an unreasonable

33
procedure, i.e., whether it applies absent a technical defect in the process of

obtaining a warrant. See United States v. Leon, 468 U.S. 897, 916, 104 S. Ct.

3405, 3417 (1984) (“[T]he exclusionary rule is designed to deter police

misconduct rather than to punish the errors of judges and magistrates.”); State

v. Tipton, 941 S.W.2d 152, 155–56 (Tex. App.—Corpus Christi 1996, pet.

ref’d) (reversing trial court’s order suppressing evidence because police failed

to provide defendant with copy of affidavit referenced in warrant). We overrule

the State’s second point.

Conclusion

Having determined that the method of performing the blood draw in this

case was unreasonable under the Fourth Amendment, and in doing so, having

overruled the State’s dispositive points, we affirm the trial court’s suppression

order.

TERRIE LIVINGSTON

JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

PUBLISH

DELIVERED: November 5, 2009

34