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Blood Test Seminar – Live Blogging – Attacking the State’s Search WArrant

One of today’s speakers, Mark Daniel, a Ft. Worth Criminal Defense Attorney, has been getting a lot of recognition for his recent work on Tarrant County District Judge Elizabeth Berry’s case.  Much of the good press was about he finally getting her case dismissed.  Not easy in a case where a blood test was taken. 

He first attacked the search warrant in the case, and got the blood test results kept out of court.  After some appeals by the state, he then won the appeal.  The State’s response after that was to dismiss the case. 

Mark’s talk is about fighting search warrants in DWI cases. . .

Some of what Mark pointed out, is that this is still a new area of law.  His feel is that it is here to stay, and the only way to fight back is to do just that — fight back.  Especially in these borderline cases.  Try and litigate these cases!

First off, there are still plenty of mistakes being made.  The officers are the ones that are asking for the warrants, and are not perfect about articulating probable cause.  

Nurses and Doctors aren’t on the State payroll.  The hospitals might not like their nurses and doctors sitting around waiting to testify all day long.  And they wont be at court unless we are litigating these cases.

Cops must be saying facts that support the PC.  Just checking off boxes wont necessarily be enough. 

Who can sign warrants – After Sept 1st, there will be a lot of other people that will be allowed to sign these warrants.  This includes any local magistrate that is a licensed attorney.  This would also include courts that are not courts of record.

Additionally (and I’ll post more on this later), there are going to be plenty more blood draws coming WITHOUT a warrant.  Some of this may be outside the 4th amendment, if properly fought.  This isn’t going to happen here at the local level, but maybe if appealed higher.  Some of the new times the police can take blood without a warrant is where, a) a DWI felony, b) a DWI with a child passenger in the car, and c)a DWI where there is bodily injury and someone goes to the hospital.

According to Mark, "c) a DWI where there is bodily injury and someone goes to the hospital" is an area where the TCDLA fought hard with the legislature.  Apparently it was originally worded just "bodily injury".  That could be pretty much anything — broken fingernails, etc.

 With PC, you need facts, not just conclusions.  Looked intoxicated, failed the test, etc isn’t enough.  Also, we need to know about training and experience of the affiant as well.

You can request a Frank’s hearing.  This is when there are false statements in a warrant.

Faxed warrants can be fought as well.  In the Govt code, it says an affidavit has to be before an officer.  In fact, at one point, a court said that we need to let the legislature ask for allowing fax warrants. 

Overall, this was an awesome speaker.  Probably about the best speaker I have heard in the past few years — and I hit a lot of these seminars.  Also gave out great materials of his briefs and case law that he has looked up and used. in the past.