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 6th 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

• perator / 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

• ffense

BLOOD WARRANTS

com

WHO SIGNS SEARCH WARRANTS?

REGULAR SEARCH WARRANT Items listed in 18.02 (Other than those items listed in 18.02(10) ANY MAGISTRATE 18.01 - EVIDENTIARY WARRANTS

• District Court (And magistrates

with jurisdiction over criminal cases serving a District Court)

• Statutory County Courts
• County Courts (Licensed Attorney)
• Municipal Courts Of Record

(Licensed Attorney)

• Court of Criminal Appeals
• 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 4TH 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!