1. DWI The New World of Videos & Blood Tests

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

3. We Live In a Changing World Crime Scene Photographs
1984 Was 34 Years Ago
Crime Scene Photographs
Domestic violence victims
Crime Scenes
Burglary
Aggravated Assault
Homicide
Alcohol Involved Car Crashes
Prosecutor’s relied on officers and crime scene techs to hopefully take photographs of victim injuries and of crime scenes, including car crashes that involved alcohol. They never took as many photographs as we wanted because film was expensive and a headache to develop. It was even worse when we asked for multiple copies. We still want those photographs today, and we often get dozens upon dozens of photographs, when only a few will do. That is because of digital photography.
The only issue today, is the fact that photographic evidence can be doctored, or even manufactured so easily.
“1984”
Was 35 Years Ago

4. In-Car Cameras

5. BODY CAMERAS
Welcome
to the
New World

6. Cell Phones
Authentication is Important Because Cameras Are Everywhere today:
Cameras
Cell Phones
In-store Security Cameras
Downloadable photography
In – Car Videos
Body Cams
Go-Pro Cameras
Television Cameras
Google Earth
MapQuest

7. Did the photograph actually capture what it purports to show?
Modern Predicate for Admissibility of a Photograph:
Authentication:
Governed simply by Tex. Rule Evid. 901: When a photograph is authenticated by a witness with knowledge, the admissibility of the photograph is conditioned on the witness's identification of the exhibit as a fair and accurate depiction of the event the photograph purports to portray. Tex.R. Evid. 901(b)(1); Kelley, 22 S.W.3d at 644; Davis v. State, 687 S.W.2d 78, 81 (Tex.App.–Dallas 1985, pet. ref'd).
There is no requirement the individual authenticating the photograph have been the photographer or even been present when the photograph was taken. Kelley, 22 S.W.3d at 644; Davis, 687 S.W.2d at 81.
Does it accurately represent the scene?
Is it relevant to a disputed issue?
Always subject to other objections such as relevance and cumulative.
Only if it is OBJECTED TO – Otherwise it is not the Court’s problem.
CAN YOU TRUST WHAT YOU SEE ON VIDEO?

8. VIDEO Is there any audio?
Video Evidence isn’t what it used to be. It is better! When I started prosecuting, police in-car video cameras were crap. The video was usually in black and white, grainy, and hard to see. I prosecuted cases where a defendant, caught on video, could maybe successfully argue that the person seen on screen wasn’t even him. The quality of video evidence has changed dramatically. In-car video is in color, and tends to be very clear. Even most in-store video is much better than it used to be. One of our investigators is assisting a local law enforcement agency with a homicide investigation that yielded evidence of sex trafficking. With the use of modern cell-phone technology, he was able to track the susupect’s vehicle from Beaumont, Texas, to Atlanta, Georgia and back. He successfully acquired video footage of the suspects at every hotel and Bucee’s along the way.
Authentication of Video Depends Upon Whether Audio is Attached
No Audio Attached:
Fowler v. State, 544 S.W.3d 844 (Tex. Crim. App. 2018). Tells the courts to treat the video as if it were any other photograph.
Does it accurately represent the scene?
Is it relevant to a disputed issue?
Always subject to other relevant objections, such as relevancy, cumulative)
(Only if it is OBJECTED to, otherwise it is not the court’s problem)
THINGS A JUDGE MAY NEED TO RULE ON AT TRIAL:
Admissibility
Cumulative
404(b) probative value outweighed by unfair prejudice
NOTE: Authentication is a TRIAL issue, NOT a PROBABLE CAUSE DETERMINATION when it comes to things like: decisions to charge, offense to indict for, issuance of search warrants, etc…
Video with Audio (Sound) Attached:

9. 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

10. That officers video-tape DWI arrests
NOT REQUIRED
That officers video-tape DWI arrests
DWI VIDEOS
Two types:
In-car police videos
Video of initial contact and field sobriety testing at scene
Video of the suspect in the back seat of the patrol car.
May involve conversation (maybe custodial, maybe not)
DWI interview room videos
May involve field sobriety testing
Reading the DIC warnings
These things should not be a problem regarding a DWI video
No sound on video / audio did not record - Video still admissible
Audio portions of field sobriety tests
Audio of refusal to perform field sobriety tests
Invocation of right to counsel (made during a breath test refusal)
Field sobriety tests are non-testimonial (No Crawford Issue)
Verbal field sobriety tests are also non-testimonial
Absence of video (Unless destruction was in bad faith)
Post – arrest defendants in the back seat of a patrol car have no privacy rights
Inability to identify background voices.
The person who made the recording is unavailable to testify
Police Officer

11. 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
THINGS THAT MAY BE SUPPRESSABLE
Predicate for Admissibility
Invocation of right to counsel (But it must be clearly invoked)
Jury should not be allowed to hear a defendant’s invocation of right to counsel
Jury should not be allowed to hear officer give Miranda Warnings and ask if he wants to waive the rights – in cases where the defendant asserted it.
Invocation of right to terminate the interview
Implication of 38.22
Is it custodial?
Is it questioning/interrogation?
Extraneous offenses (if objected to)
Only if objected to.
Otherwise, it is NOT your problem!

12. 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
THINGS THAT ARE NOT SUPPRESSABLE
Audio of Field Sobriety Tests
Verbal field sobriety tests like alphabet and counting are non- testimonial
Field sobriety tests are non-testimonial
Field Sobriety Test refusal
Breath Test refusal
Including invocation of right to counsel during the refusal
Video portion of the recording – even if the audio did not record
In-car videos may be admissible even if the recording operator / officer is unavailable to testify.

13. BLOOD TEST EVIDENCE YOUR OWN BLOOD
It is not inherently illegal to possess your own blood
It is not typically an instrumentality of a crime
It is not typically the fruits or proceeds of a crime

14. FIRST OPTION

15. 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
Any Magistrate
THESE ARE VERY DIFFERENT SEARCH WARRANTS
Typically used to find evidence that isn’t illegal to possess:
To help prove the crime
To help prove a particular person committed the crime
PROPERTY OR ITEMS
Constituting evidence of an offense (OR)
Constituting evidence to show that a particular person committed an offense
EXAMPLE:
Kidnapping and sexual assault of the lady from the bar.
EVIDENTIARY SEARCH WARRANTS MUST BE VERY SPECIFIC
18.01(C): Requires the sworn affidavit set forth probable cause AND
More stringent requirements than a normal PC Affidavit:
Must name a specific offense has been committed
Must specifically describe property or items to be searched for or seized constitutes evidence of that particular offense, AND
The property or items to be searched for or seized are located at or on that particular person, place, or thing.
NOT LIKE YOU SEE ON TV WHERE THEY GRAB EVERYTHING!
BLOOD WARRANTS

16. WHO SIGNS SEARCH WARRANTS?
com
WHO SIGNS SEARCH WARRANTS?
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
REGULAR SEARCH WARRANT
Items listed in (Other than those items listed in 18.02(10)
ANY MAGISTRATE

17. 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

18. 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

20. 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.

21. TEXAS COURT OF CRIMINAL APPEALS
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

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

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

24. NO Illegal Block NO, NO, NO, NO…. And Just For Clarification…….
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

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