Lead Opinion
OPINION
delivered the opinion of the Court
The court of appeals held that the unrecorded compelled draw of Christi Lynn Johnston’s blood by a poiice officer, who was also a seasoned EMS provider, in the police station’s blood-draw room while Johnston was restrained violated the Fourth Amendment’s reasonable manner requirement.
I. Background
Officers Britt Stinson and Darren Burk-hart completed the Dalworthington Gardens Police Department’s driving-while-intoxicated (DWI) blood-draw certification program. Dr. Joe Del Principe, an emergency room doctor at Arlington Memorial Hospital, developed and instituted the program. Dr. Del Principe, certified Officers Stinson and Burkhart as venipuncture technicians.
After Officer Stinson arrested Johnston for DWI and took her to the Dalworthing-ton Gardens Police Station, he and Officer Burkhart obtained a warrant to draw Johnston’s blood. When the officers presented Johnston with the warrant and explained what was going to happen, she began to resist by kicking her feet and
The State charged Johnston with DWI. Johnston filed á pretrial motion to suppress the blood-test results, arguing that the blood draw conducted by a police officer at the police station violated her statutory and constitutional rights. The trial judge held a hearing on Johnston’s motion. Dr. Del Principe and Officers Burkhart and Stinson testified.
A. Dr. Del Principe
Dr. Del Principe testified that, in addition to his position as an emergency room (ER) doctor, which he has held for the past twenty-two or twenty-three years, he chairs Arlington Memorial Hospital’s Department of Emergency Medicine and serves as the Medical Director for Dal-worthington Gardens Emergency Services Department. Dr. Del Principe has performed thousands of blood draws during his career and has trained emergency medical technicians (EMTs), nurses, residents, and interns to draw blood throughout his career.
Upon request, Dr. Del Principe developed the DWI blood-draw program for the Dalworthington Gardens Police Department. Dr. Del Principe believed the program would be helpful so officers could avoid long waiting periods at the hospital to get blood drawn from DWI suspects. He used a Phoenix, Arizona course as a model, modifying it some, to train police officers to perform venipuncture blood draws. The fourteen-hour course included classroom instruction, homework, with assigned reading materials, and graded exams. After thé officers completed the fourteen-hour course, Dr. Del Principe required them to do a minimum of fifty “sticks” at the ER under the supervision of either a blood technician or nurse. Dr. Del Principe testified that he trained the officers to perform venipunctures according to accepted medical practice and that the course minimized any unjustified risk. The training that the officers received was equivalent to the training that Dr. Del Principe would give to the Hospital’s blood-draw technicians. Dr. Del Principe certified the officers to perform venipunc-ture blood draws upon completion of all of the course requisites. He also instituted a bi-annual re-certification course.
Dr. Del Principe did not subject the course to any type of peer review. And Dr. Del Principe stated that he never submitted the curriculum for approval by the Texas Commission on Law Enforcement Standards and Education (TCLEOSE).
Dr. Del Principe established a blood-draw room at the police department. He described the room as clean but not sterile, stating that a sterile environment, like that of an operating room, is not required. The cement floor could be cleaned easily in- the event of a blood spill. The room also contained a phlebotomy chair and a steel table, both of which were non-porous and could be cleaned with commercial sanitizer before each use. Dr.,Del Principe did not know whether the room would meet Occupation Safety and Health Administration (OSHA) standards.
Dr. Del Principe also developed two blood-draw checklists for the officers to adhere to when drawing a suspect’s blood. The checklists were designed to ensure that the officers follow Dr. Del Principe’s strict protocol. Dr. Del Principe stated that he had not yet developed a policy for instances in which a suspect resists or fights the officers. Dr. Del Principe believed that, when officers are unable to safely obtain a sample at the police station,
Dr. Del Principe also testified that he educated the officers about how certain medications and medical conditions may affect venipuncture blood draws. For example, drawing blood from the arm of a person who had a mastectomy and a lymph node removed could be problematic. It can also make a difference if a person is taking blood thinners. Dr. Del Principe stated that although the blood-draw checklists did not itemize any preliminary inquiry into a DWI suspect’s medical history, he taught the officers to make such an inquiry when they make an arrest or when the person enters the police station. He stated that he instructed the station’s employees to ask an individual whether he or she has any medical problems, like diabetes, when they enter the facility. And they were instructed to ask an individual whether he or she takes high blood pressure medication or blood thinners. Comparing the procedure for DWI blood draws performed at Arlington Memorial Hospital, Dr. Del Principe stated that he did not know whether suspects fill out any medical history form, but he stated that they do not see a doctor.
Dr. Del Principe testified about the general risks and dangers associated with ven-ipuncture blood draws. A hematoma, which is a collection of blood, may develop at the punctured site but it is “very common” and “not a serious thing.” It is also possible to puncture an artery, which is remedied by applying pressure until the blood clots. It is' also possible to stick a nerve, causing immediate pain that may, depending on the case, be excruciating. There is also the potential for .qausing long-term nerve damage. With respect to the Dalworthington Gardens program, Dr. Del Principe testified he has not received any report of a hematoma or a nerve stick.
Dr. Del Principe . stated that Officer Burkhart completed the course, receiving a ninety percent or above on the exams, but was exempted from doing the fifty sticks because of Officer Burkhart’s experience in drawing blood as an EMT. Officer Burkhart would also be exempt from the two-year re-certification course because of his continued work as an EMT. Dr. Del Principe stated that he had not personally observed Officer Burkhart start an intravenous line (IV) or draw blood, but he had been in the ER when Officer Burk-hart brought in a patient with an IV; he never noted any particular problems with an IV started by Officer Burkhart. Dr. Del Principe described Officer Burkhart as being “exceptional” at performing veni-puncture and believed that Officer Burk-hart had as much training and experience drawing blood as the Hospital’s blood technician.
B. Officer Burkhart
At the time of the hearing, Officer Burk-hart- had been a EMT for sixteen years and had six years of training as a police officer. He was currently employed as a firefighter and EMT, not as a police officer. When he drew Johnston’s blood, he was certified as an “intermediate EMT.” Approximately forty hours of the class-time towards that certification was devoted to the use of needles, venipuncture blood draws, and TVs. He can start IVs, which requires inserting a needle into a vein, intubate patients, provide basic life sup
Recalling Dr. Del Principe’s course, Officer Burkhart stated:
It was how to properly obtain blood using venipuncture with extremities only, which . is the upper extremities from your shoulder down to your fingertips. The proper way of cleaning the site, the proper way of inserting the needle, the proper way of withdrawing blood, and ... if there’s any bleeding, what you do to stop the bleeding.
Dr. Del Principe also educated them about the anatomy of the upper extremities.
Officer Burkhart testified that he cleaned the blood-draw room at the start of his shift and again after each time he used the room to draw a suspect’s blood. When he drew Johnston’s blood, he followed the acceptable medical practices that he learned from Dr. Del Principe and as an EMT:
Well, first, when we restrained her, we restrained her to protect her from hurting herself or ourselves [sic]. Once she calmed down' and we were able to draw the blood, I drew it correctly without, you know, jabbing the needle in, doing anything that’s going to harm her. I did it by what is technically correct and a safe way of drawing blood from her.
He also explained, in detail, the routine manner in which he draws blood from DWI suspects:
Once we determine a site, we apply a tourniquet. - We look for the area where we’re going to draw the blood from a vein. Once the area is located, you use Betadine because you cannot use alcohol. We clean the site with Betadine. From there we take a needle with a tube holder and a tube, and we inject the needle into the — or I’m sorry. Place the needle into a vein. We fill up an evidence tube or vacuum tube, to withdraw the blood. Once the tube’s filled up, we take the needle out, the tube out. We mix the tube so that — there’s an anticoagulant powder that’s in there — the blood doesn’t clump together, twist— however you want to say — stir or twist the tube so the powder gets into the blood so it doesn’t clot. Release the tourniquet, and then if there’s any bleeding,, hold her at — pressure until the bleeding is stopped and then place a Band-aid on it.
Johnston did not make any complaints about the way that the blood had been drawn. Only a “little bit of bleeding” came from the puncture site after the draw, and Officer Burkhart did not see any evidence of internal bleeding at that time.
Johnston’s attorney questioned Officer Burkhart in detail about the blood draw. He asked Officer Burkhart if getting “a little” medical history before . drawing blood is appropriate medical protocol. Officer Burkhart stated, “Not necessarily.” He then stated that an inquiry into a person’s medical history “is important under different circumstances.” When asked if he makes a medical history inquiry before performing a venipuncture during his work as an EMT, Officer Burkhart stated that it “depends on the situation.”
Officer Burkhart testified that he did not know whether Johnston was on blood thinners at the time he drew her blood. And he testified that it would have been “important” for him to know if she had had a mastectomy and a lymph node removed from her arm; he did not know whether Johnston had undergone such procedures. Officer Burkhart maintained that it is possible that Johnston may have had some medical condition that he did not know about that could have affected her health when he drew her blood.
C. Officer Stinson
Officer Stinson testified that, at the time of the draw, he was certified as a “basic EMT.” He had also completed Dr. Del Principe’s course. He had performed approximately 125 to 130 blood draws and had observed around 150. Officer Stinson stated that there was not a protocol in place for DWI suspects who “fight” in the blood-draw room. The general protocol when a suspect fights with a police officer, however, is to use as little force as possible to restrain the suspect.
Johnston had started the “basic book-in” procedures at the jail before the blood draw. According to Officer Stinson, jail personnel take a full medical history when a person is booked into the jail. Officer Stinson stated that there was a “medical history on [Johnston]” before the blood draw. But Officer Stinson never reviewed it. He also admitted that he did not know if Johnston was taking blood thinners.
Officer Stinson assisted Officer Burk-hart in drawing Johnston’s blood. The phlebotomy chair was disinfected before the draw. He helped restrain Johnston in the chair so Officer Burkhart could safely draw her blood. Johnston was cooperative after being restrained. Officer Stinson testified that Officer Burkhart followed the “recognized medical procedure” when drawing Johnston’s blood. Officer Burk-hart used a latex tourniquet. Officer Stin-son stated that he did not know whether Johnston is allergic to latex. Officer Stin-son also did not know whether Johnston had any bruising from the draw; he did not check on her after the draw to see how she was doing.
D. Trial Judge’s Ruling
The trial judge granted Johnston’s motion to suppress. The judge determined that the three witnesses were credible and reliable. Among other things, in his finding of fact, the trial judge found that Officers Burkhart and Stinson “followed medically accepted procedures in drawing blood” and that the clean-room checklist “follows medically accepted procedures” that were used in this case. The judge determined that Section 724.017 of the Transportation Code applies to all blood draws. Applying Section 724.017 of the Texas Transportation Code, the judge concluded that an individual who completes Dr. Del Principe’s course is not a qualified technician within the meaning of the Code.
Considering federal constitutional law, the judge concluded that under the Supreme Court’s opinion in Schmerber v. California,
II. Court of Appeals
The State appealed the trial judge’s ruling.
However, the court concluded that it was “troubled” by “other circumstances surrounding the blood draw” — that neither Officers Burkhart nor Stinson asked Johnston for a general medical history when Dr. Del Principe testified that he instructed the officers to make such an inquiry and that the officers’ adherence to his protocol was important.
We do not intimate that the inclusion of a rudimentary question about [Johnston’s] medical health or a brief followup on her condition after the blood draw is all that would have been required to make this blood draw reasonable, nor should our opinion be read to put a stamp of approval or disapproval on the Dalworthington Gardens blood draw program in general.14
The State petitioned us for review, raising several complaints about the court of appeals’s application of established standards of review. First, the State claims that the court improperly disregarded, and failed to defer to, the trial judge’s finding of fact that the blood draw was conducted in accordance with medically accepted procedures. Second, the State contends that the court improperly shifted the burden of proof to the State. As a warrant-based search and seizure, the burden shifted to Johnston to prove that it was unreasonable, and the record here does not support a determination that the blood draw was unreasonable. Third, the State complains that the court misapplied the totality-of-the-circumstances standard of review. “The Court’s narrow interpretation of a few facts, namely medical history testimony, undeveloped discussions of video capabilities, and the unsubstantiated need for the officers’ to provide follow-up care to [Johnston] turns the totality-of-the-eircum-stances approach úp-side-down.”
Johnston filed a cross-petition for discretionary review. She argues that our Legislature has established procedures for blood draws in the Transportation Code and contends that those procedures should be regarded as the bare-minimum safeguards for purposes of the Fourth Amendment. Because Officer Burkhart was not qualified to draw blood by statute, we should hold that he is not “medical personnel” as contemplated by the Supreme Court in Schmerber. Johnston also takes issue with the court of appeals’s determination that Schmerber is not a per se bar prohibiting law enforcement officers from drawing a DWI suspect’s blood.
Because of the importance of these issues to the jurisprudence of this State, we granted both parties’ petitions.
IY. Law
When reviewing a trial judge’s ruling ón a motion to suppress, wé view all of the evidence in the light most favorable to the trial judge’s ruling.
Schmerber v. California is the landmark case addressing the constitutionality of compulsory blood draws conducted for law-enforcement purposes under the Fourth Amendment. After Schmerber was injured in an automobile accident, police arrested him at the hospital while he was being treated for his injuries.
The Supreme Court held that the war-rantless blood draw constituted a search and seizure under the Fourth Amendment.
(1) “whether the police were justified in requiring [Schmerber] to submit to a blood test;” and,
(2) “whether the means and procedures employed in taking [Schmerber’s] blood respected relevant Fourth Amendment standards of reasonableness.”27
The second part of the analysis contains two discrete questions: first, to resolve the reasonableness of the “means” employed, it must be determined whether the test chosen was reasonable;
Based on the evidence, the court determined that the police had probable cause to obtain a sample of Schmerber’s blood without a warrant.
Then, considering the first part of the second reasonableness question, the Court held that the test chosen was reasonable.
Finally, based on the record, the Court concluded that the blood draw “was performed in a reasonable manner” because Schmerber’s blood was drawn by a physician in a hospital according to acceptable medical practice.
We are thus not presented with the serious questions which would arise if a*659 search involving use of a medical technique, even the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection or pain.38
V. Analysis
A. Reasonableness of Test Chosen
At the outset, we need to make clear that it is necessary to consider both reasonableness questions under Schmerber: first, whether the test chosen was reasonable; and second, whether it was performed in a reasonable manner. The issue, because of the court of appeals’s decision, involves more than a consideration of the second reasonableness question, which the court of appeals viewed as dispositive in affirming the trial judge’s ruling. The court of appeals erred to overlook Schmerber’s first reasonableness question when it stated that the trial judge could have held that the blood draw was performed in an unreasonable manner because the officers failed to make a general inquiry into Johnston’s medical history before the draw, as Dr. Del Principe trained them to do, and the officers’ failure to follow up on Johnston’s condition after the draw.
Our reading of Schmerber, however, establishes that the issue of an individual’s particular medical condition falls within the scope of the first reasonableness question: whether the test chosen was reasonable. And for the general population, the Supreme Court has determined that a blood test is a reasonable means in which to analyze an individual’s blood alcohol level.
Here, the court of appeals was incorrect to conclude that the officers’ failure to inquire into Johnston’s medical history and follow up on her condition subjected Johnston to an unjustified risk of medical harm, thereby supporting a ruling that the draw was unreasonable. The Supreme Court has taken into account the existence of specific medical conditions that may create an unjustified risk, trauma, or pain in ruling that blood-draw tests, when used on the general population, are reasonable. So there is a presumption that venipuncture blood-draw tests are reasonable under the Fourth Amendment, despite recognized medical anomalies and exceptions that may render the administration of such a test unreasonable. Thus, the failure to make an inquiry into an individual’s medical history before drawing blood and to conduct a follow up examination does not render blood draws per se unreasonable, as the court of appeals intimated.
In this case, as in Schmerber, there is no evidence in the record that Johnston suffers from a medical condition that would have made another means of testing preferable. Consequently, we do not need to consider whether law enforcement officials would have to grant a suspect’s request for a different means of testing. The presumption therefore stands that the venipuncture blood test chosen here as a way to measure Johnston’s blood alcohol level was reasonable.
On a final note, it is evident that the court of appeals’s concern for the well-being and safety of DWI suspects was a crucial factor in its decision-making. These are weighty concerns that should not be marginalized. But we are confident that law enforcement officials will be deliberate and conscientious when choosing the type of test to administer to obtain a suspect’s blood alcohol level.
B. Reasonableness of Manner of Performance
We now turn to the court of appeals’s resolution of Schmerber1 s second reasonableness question — whether the blood test was performed in a reasonable manner.
1. Applicability of the Texas Transportation Code
We begin by addressing Johnston’s contention that the Transportation Code provides the minimum requirements or safeguards for blood draws in assessing the reasonableness of how the draw was performed under the Fourth Amendment. Chapter 724 of the Texas Transportation Code, which contains Texas’ implied consent statutes, governs the State’s ability to obtain a breath or blood sample from a DWT suspect when there is no warrant.
We agree with the court of appeals’s determination that Chapter 724 is not controlling authority when it comes to determining the reasonableness of how a blood draw was performed under the Fourth Amendment. In Beeman v. State, we héld that Chapter 724 is inapplicable when there is a warrant to draw blood; therefore, compliance with Chapter 724 is not necessary to satisfy the Fourth Amendment.
We also agree with the court of appeals that it is appropriate to invoke traditional Fourth Amendment principles to determine whether a blood draw was performed in a reasonable manner. Accordingly, the reasonableness of the manner in which a' DWI suspect’s blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances surrounding the draw.
2. Medical Personnel and Environment
We now consider Johnston’s second challenge to the court of appeals’s opinion — that Schmerber prohibits all blood draws conducted by police officers in a non-medical environment. Officers Burk-hart and Stinson, Johnston contends, were acting in their capacity as peace officers, gathering evidence for a criminal investigation, and were certified under a program that has not been subjected to peer review or any external regulation. Thus, the officers were not acting as medical personnel. Further, Johnston argues that the room in which her blood was drawn does not constitute a medical environment: “[A] room inside the jail dedicated to the collection of
The court of appeals assumed, without deciding, that Officer Burkhart was qualified to draw a DWI suspect’s blood because of his training and experience as an EMT. The court also determined that most cases interpreting Schmerber have not applied such a narrow reading so as to restrict the location of blood draws to a hospital or clinic.
Because the court of appeals resolved this issue on grounds unrelated to Officer Burkhart’s qualifications to draw blood, we must address his qualifications in the first instance. We decline to rely on Dr. Del Principe’s DWT blood-draw certification program in deciding this issue; an opinion on the propriety of the course is not necessary given the record before us. We conclude that Officer Burkhart’s specific training and experience as an EMT, presented in detail at the suppression hearing, qualified him to perform the veni-puncture blood draw here.
Next, regarding the environment, we agree with the court of appeals’s determination that Schmerber does not require that compulsory blood draws be conducted in a hospital or clinic. Indeed, our own research of other jurisdictions demonstrates that courts have upheld blood draws conducted by doctors, nurses, or technicians within the confines of various law enforcement agencies.
The environment here, according to the evidence in the record, was safe; it was in accordance with accepted medical practices
3. Additional Circumstances
Having determined that • Officer Burk-hart was qualified to draw Johnston’s blood and that the environment in which her blood was drawn was safe, we need to evaluate the remaining circumstances surrounding the draw — how the draw was actually performed and the “more troubling circumstances” identified by the court of appeals.
In answering this issue, we agree with the State’s argument that the court of appeals failed to give proper deference to the trial judge’s finding that the officers “followed medically accepted procedures in drawing the blood.” The record supports a finding that both the equipment and technique used by Officer Burkhart were in accordance with acceptable medical practices.
The court of appeals found it troubling that Johnston’s blood was drawn in the privacy of the police station while she was alone with two officers, one being the arresting officer, and that the draw was not recorded when recording equipment was available. In this case, we cannot see how this supports an unreasonableness determination, especially in light of the court’s failure to offer any reasoning whatsoever. There is absolutely no evidence in the record that these factors subjected Johnston to any additional risk of infection and pain above and beyond those normally associated with venipuncture blood draws.
The court of appeals also found it troubling that Johnston was restrained and that- Dalworthington Gardens did not have a use-of-force protocol for DWI blood draws. Again, on this record, we are inclined to disagree. The testimony at the hearing established that it is not out of the norm, even in a medical setting, to restrain a uncooperative DWI suspect in order to obtain a blood sample. And Officer Stin-son testified that the department had a general use-of-force policy, which was to use only the minimum amount of force necessary. The testimony in this case is supported by our research of other jurisdictions addressing the use of force in this context. These courts have concluded that the reasonable use of physical force to obtain a blood sample is permissible.
Under the totality of the circumstances, we hold that Johnston’s blood was drawn in accordance with acceptable medical practices and was therefore reasonable. The deviation of the circumstances here from those in Schmerber did not “invite an unjustified element of personal risk of infection or pain.” The court of appeals erred to conclude otherwise.
Conclusion
The trial judge and the court of appeals erred to conclude that the blood draw was unreasonable under the Fourth Amendment. Therefore, the court of appeals erred to affirm the trial judge’s decision to grant Johnston’s motion to suppress the blood-test results. We reverse the court of appeals’s judgment and remand this case to the trial court.
Notes
. State v. Johnston,
.
. Johnston,
. Id. at 752.
. Id. at 759.
. Id. at 760 n. 14.
. Id. at 759 (citing State v. May,
. Id.
. Id.
. Id. at 760.
. Id.
. Id.
. Id.
. Id. at 761.
. State v. Garcia-Cantu,
. Guzman v. State,
. Garcia-Cantu,
. Guzman,
. Id.
. Kothe v. State,
. Schmerber,
. Id.
. Id.
. Id.
. Id.
. Id. at 767,
. Id. at 768,
. Id. at 771,
. Id. at 771,
. Id. at 768-70,
. Id.
. Id. at 771,
. Id.
. Id.
. Id.
. Id.
. Id.
. Id. at 771-72,
. Id. at 771,
. Schmerber,
. Id.
. See id.
. See Hudson v. Michigan,
. See id. at 597-98,
. Schmerber,
. Beeman v. State,
. Tex. Transp. Code Ann. § 724.017 (Vernon 1999).
. Johnston,
. Id.
. Id.
.
. Cf. Amador v. State,
. See May, 112 P.3d at 41-42 (blood draw by police officer with a week of phlebotomy training); see also State v. Noceo,
. See e.g., Moore,
. May,
. See text accompanying note 53 supra.
. Schmerber,
. State v. Clary,
. See Graham v. Connor,
Concurrence Opinion
filed a concurring opinion.
The majority cites to State v. May
This case presents the very question that the Supreme Court did not address in. Schmerber— blood draws taken “by other than medical personnel or in other than a medical environment.” While I agree that, in the circumstances of this case, the drawing of blood was properly done, I wish to avoid any implication that this Court would or should find that a blood draw, done on the side of the road at the rear of a police car, was properly “taken in a sanitary place.” Texas Transportation Code, Section 724.017(a). In my view, a road-side draw also violates the Fourth Amendment to the United States Constitution because such conditions create “an unjustified element of personal risk of infection and pain,” and such a search would therefore be unreasonable.
I concur in the judgment of the Court.
.