DWI The New World of Videos & Blood Tests Cameras Can Be - PowerPoint PPT Presentation

DWI The New World of Videos & Blood Tests

Cameras Can Be Vicious First they frame you! Then they shoot you! Then they hang you on the wall! AND THEY ARE EVERYWHERE

“1984” Was 35 Years Ago

In-Car Cameras

BODY CAMERAS Welcome to the New World

Cell Phones

Did the photograph actually capture what it purports to show? CAN YOU TRUST WHAT YOU SEE ON VIDEO?

VIDEO Is there any audio?

Fowler v. State 544 S.W.3d 844 (Tex. Crim. App. 2018) How to authenticate a video Without the audio • Treat like a photograph • Accurately represent the scene • Relevant to a disputed issue Authentication of a video with audio is governed by Tex. Rule of Evidence 901

NOT REQUIRED That officers video-tape DWI arrests Police Officer

Things a Judge May Have to Rule On • Admissibility • Invocation of 6 th Amendment Right to Counsel (Must be Clearly Invoked) • Invocation of Right to Terminate the Interview (If it is an Interview) • Extraneous Offenses Only if objected to. Otherwise, it is NOT your problem!

These Things Are NOT a Problem • No sound on the video = no problem • Audio portions of Field Sobriety Tests • Refusal to perform Field Sobriety Tests • Invocation of Right to Counsel during a breath test refusal • Video portions – even if the audio did not record • Field Sobriety Tests are Non-Testimonial • Verbal Field Sobriety Tests are Non-Testimonial • Absence of a video-tape (Unless destruction was in bad faith) • Post-Arrest defendants in back seat of patrol car (No right to privacy) • Inability to identify background voices In-car videos may be admissible even if the recording operator / officer is unavailable to testify.

BLOOD TEST EVIDENCE

FIRST OPTION

Evidentiary Search Warrants 18.02(10) • Property or items constituting evidence of an offense • Evidence that tends to show that a particular person committed an offense BLOOD WARRANTS

WHO SIGNS SEARCH WARRANTS? 18.01 - EVIDENTIARY REGULAR SEARCH WARRANTS WARRANT District Court ( And magistrates • with jurisdiction over criminal cases serving a District Court ) Items listed in 18.02 (Other Statutory County Courts com • than those items listed in County Courts ( Licensed Att orney) • 18.02(10) Municipal Courts Of Record • (Licensed Attorney) Court of Criminal Appeals • ANY MAGISTRATE Supreme Court of Texas •

Who Can Sign a Blood Warrant? 18.01(j) Any magistrate who is an attorney licensed by this State may issue a search warrant under 18.02(10) to collect a blood specimen from a person who is arrested for: DWI • DWI with a child passenger • Boating While Intoxicated • Assembling or operating an amusement • park ride while intoxicated Intoxication Assault • Intoxication Manslaughter • AND Refuses to submit to a breath or blood alcohol test

If There Is No Refusal If the suspect DOES NOT REFUSE to give consent An officer can always seek a normal 18.02(1) Evidentiary Search Warrant BUT In that instance, only certain judges can sign the warrant Consider this before you refuse to sign or suppress a warrant unnecessarily

Missouri v. McNeely Natural dissipation of alcohol does not constitute a per se “emergency” Emergency/Exigent circumstances must be determined on a case-by-case basis, based upon the totality of the circumstances RESULT = Reliance upon Chapter 724 (Transportation Code) is no longer sufficient, by itself, to justify a mandatory blood draw. It can still be done, but it is difficult to establish “exigency” for a blood draw.

Villarreal v. State TEXAS COURT OF CRIMINAL APPEALS A “nonconsentual” search of a DWI suspect’s blood, conducted pursuant to Chapter 724 (Implied Consent), when undertaken in the absence of a WARRANT, or any applicable exception to the warrant requirement – VIOLATES THE 4 TH AMENDMENT BUT The Court did not disavow “exigent circumstance” possibilities altogether

Weems v. State DWI / Car Crash / Hospital Minutes Away Magistrate Normally Available to Sign Warrants Record Not Clear = Other Officer Could Have Secured a Warrant

Cole v. State 490 S.W.3d 918 (Tex. Crim. App. 2018) Same result / Similar Facts in Dennison v. State

Illegal Block Defense Lawyers will try to claim that a “Blood Warrant” has to comply with the factual requirements in Chapter 724 of the Transportation Code NO, NO, NO, NO…. And Just For Clarification……. NO Warrants are independent from the Transportation Code

CONCLUSIONS Consent = GREAT! Blood Warrants = GREAT! Chapter 724 Mandatory Blood Draw = DIFFICULT! BLOOD WARRANT = PLEA!