Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of November 02, 2009

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

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State v. Johnston,   No. 02-08-00246-CR    (Nov. 5, 2009)   (Livingston, J., joined by McCoy and Meier, JJ.).

Held:    Although some of the trial court’s conclusions of law supporting its suppression of Appellee’s blood test results in this DWI case were erroneous or unnecessary, the trial court did not err in its ultimate conclusion that the manner in which police took Appellee’s blood was unreasonable under the Fourth Amendment, considering the totality of the circumstances. Here, after obtaining a warrant for Appellee’s blood, which Appellee conceded was valid, a trained officer drew Appellee’s blood in private at the police station (assisted only by the arresting officer) after restraining her to the blood draw chair with gauze, failed to ask for any prior medical history or issues, and failed to check on her condition afterward. Moreover, the police department did not have any guidelines for officers to follow in the event a suspect resisted such a blood draw, which Appellee did here. Although the United States Supreme Court’s decision in Schmerber v. California does not require blood draws to occur at a hospital, it does hold that such a bodily intrusion should be performed in a reasonable manner so as to minimize the risk of infection and pain from the procedure

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