In Brazos County the Department of Public Safety has been using sleight-of-hand to prove up blood test results in ALR failure cases. Their conjuring attempts to correct an evidentiary
deficiency in their blood test proof. Specifically, the Department tries to argue these blood test failures resulted from the suspect’s “express consent” to provide a blood sample, rather than “implied consent” under Chapter 724 of the Texas Transportation Code. Under implied consent laws the Department must prove the qualifications of the person who drew the suspect’s blood. See Section 724.017, TEX. TRANSP. CODE. However, if implied consent laws do not apply and the suspect provides express consent, Section 724.017 compliance is unnecessary. In Brazos County the Department uses Texas Department of Public Safety Crime Laboratory Form “LAB-12b Rev 03 (06/2013)” as evidence of the suspect’s express consent. The form contains a Subject’s Consent Form and is found in blood test kits provided to police agencies by the Department. The arresting officer typically compels the suspect’s signature after the person orally agreed to provide a blood sample following the reading of the DIC -24 Statutory Warning.
The express consent argument is bogus, but some ALJs are falling for it. When form LAB-12b is examined closely, the Subject’s Consent Form is a reiteration of their implied consent to submit to the taking of a blood sample. The first paragraph of form LAB-12b references Section 724.017, TEX. TRANSP. CODE (implied consent blood drawer qualifications). Additionally, the Subject’s Consent Form parrots language from Section 724.011(a) of the Code as follows: “Be it remembered that on this [date], I [suspect] having been placed under arrest on a charge of driving a motor vehicle on a public highway while intoxicated, do voluntarily give a specimen of my blood to [arresting officer].” See Texas Department of Public Safety Crime Laboratory Form LAB-12b Rev 03 (06/2013). In addition, the arresting officer utilized the following implied consent procedures in Chapter 724 during the entire process culminating in the blood draw. “If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis . . . ” Section 724.011(a), TEX. TRANSP. CODE (emphasis added). “Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.” Section 724.013, TEX. TRANSP. CODE. “Before requesting a person submit to the taking of a specimen, the officer shall inform the person orally and in writing [of the consequences of a refusal].” Sections 724.015(1)-(7), TEX. TRANSP. CODE (the Statutory Warning). And finally, “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).” Section 724.017(a), TEX. TRANSP. CODE (emphasis added). Recall the conjured express consent argument is used to cure an evidentiary deficiency under the implied consent statutes. Specifically, the Department’s a failure to prove compliance with Section 724.017.
Before the Department is required to prove a qualified person took the specimen there must be a timely trial objection to the admissibility of the blood test results. See Stowers v. Texas Department of Public Safety, 465 S.W.3d 257 (Tex. App. – Houston [1st Dist] 2015, no pet.)(defendant waived their right to complain on appeal that DPS failed to prove Section 724.017 compliance absent a timely trial objection). Additional authority is Texas Department of Public Safety v. Hutcheson, 235 S.W.3d 312 (Tex. App. – Corpus Christi 2007, pet. denied). There the defendant raised Section 724.017 compliance during the evidence phase of the ALR hearing. Although a refusal case, Mr. Hutcheson refused to submit to a blood test because the arresting officer wanted to draw the sample himself. Mr. Hutcheson refused the request because the arresting officer did not “seem qualified” to draw blood. Hutcheson at 313. The Department did not admit any evidence showing a Section 724.017 qualified person was to draw blood in a sanitary place. Id. The Hutcheson court stated that Section 724.017 compliance was properly raised during the ALR hearing and held that “because the [arresting officer] was not an authorized individual . . . we hold that the Department failed to present substantial evidence that there was an appropriate request.” Id. at 316. By way of contrast, the Department may use language in Stowers for authority they are not required to prove Section 724.017 compliance. “Likewise, although Section 724.017 sets out the qualification for a blood draw, no statutory provision mandates the Department to adduce Section 724.017 compliance evidence at the administrative hearing as a component of its required proof to uphold a driver’s license suspension.” Stowers at 264. But a close inspection of Stowers shows this language is dicta! Stowers was decided on the defendant’s failure to object. It was not decided on whether the Department proved Section 724.017 compliance. Resist the Department’s sleight-of-hand here, as well.
As previously stated, to overcome a Section 724.017 compliance problem the Department has argued express consent. They rely on King v. State, No. 05-10-00610-CR, 2012 Tex. App. LEXIS 11133, at **9-10 (Tex. App. – Dallas, Feb. 10, 2012, pet. ref’d)(mem. op., not designated for publication) for authority to show where a defendant voluntarily and expressly consented to a blood draw the procedure employed to execute such blood draw was not required to comply with Section 724.017, TEX. TRANSP. CODE. In other words, because the defendant provided express consent for the blood specimen, the implied consent requirements of Chapter 724 did not apply. However, King is distinguishable. At the time Mr. King gave his consent to submit to a blood draw he had not been arrested and he had not been provided the DIC-24 Statutory Warning. Consequently, his consent did not fall under the provisions of Texas Transportation Code Chapter 724 and was held to be express consent. The Department also relies upon Subririas v. State, 278 S.W.3d 406 (Tex. App. – San Antonio 2008, pet. ref’d). But Subririas suffers the same defect as King. Ms. Subririas objected to the admission of two blood samples obtained before she was placed under arrest. She had not been read the Statutory Warning. Consequently, the implied consent provisions of Chapter 724 had not engaged. The only remaining issue, which was resolved against her, was whether her consent was voluntary.
Some ALJs are getting this wrong. Nonetheless, the best practice is to protect your ALR trial record while anticipating an appeal to county court (or even higher). Following are the necessary trial objections where the Department’s evidence lacks sufficient evidence regarding the qualifications of the person drawing blood. (an affidavit by the blood drawer may prove Section 724.017 compliance). First, object to blood test results in the police officer report as lacking the proper predicate for admission and as hearsay. Object to any references in the police report related to the blood drawer’s qualifications as hearsay and for lack of personal knowledge, as well. Finally, object to the admission of the blood test results (usually an Alcohol Content Laboratory Report and Alcohol Analysis Affidavit) based on Section 724.017 non-compliance. Make sure you obtain adverse rulings. Accordingly, if the ALJ fails to reward you with a win, you’ll be in a satisfactory position to argue these issues on appeal.
(“Off the Back” featured in the “Voice For The Defense” March 2016)
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.
“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.