DRAWING FIRST BLOOD by keara

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									BLOOD BATH:
SUSTAINING THE FIGHT AGAINST LAW ENFORCEMENT PHLEBOTOMY IN ARIZONA Matthew H. Green James Charnesky June, 2005

BLOOD BATH:
SUSTATINING THE FIGHT AGAINST LAW ENFORCEMENT PHLEBOTOMY IN ARIZONA

TABLE OF CONTENTS I. Introduction to Law Enforcement Phlebotomy in Arizona and Its National Significance A. B. Overview of the Legal Issues Anatomy of an Officer-Phlebotomy Program 1. 2. Cathee Tankersley and the Phoenix College Crash Course Southern and Northern Expansion of the PC Course, and ―the Utah Situation‖

II. History of Law Enforcement Phlebotomy Litigation in Arizona A. B. The 2003 Evidentiary Hearings: Mootispaw, Anderson, and Berndt The 2004 Evidentiary Hearings: The Justice Court Victories and the Maricopa County ―Short Hearings‖ Appellate Posture of the ―Phlebotocop‖ Issue in Divisions One and Two Streamlining the Attack in 2005 and Beyond 1. Presentation of Expert Witness Testimony: Diana Mass and Cathee Tankersley a. Our Opinion: Don’t Use An Expert Witness Unless Absolutely Necessary

C. D.

2. 3.

Presentation of Phlebotomy Program Coordinator Testimony Moving the Challenge From Superior Court to Courts of Lower Jurisdiction Looking to the Future: The Importance of Increasing Pressure in Municipal and Justice Courts

4.

III.

Everything You Need to Know to Challenge Blood Drawn By a Law Enforcement Officer

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A. Filing the Proper Discovery Motion B. Filing the Proper Suppression Motion C. Attaching the Proper Exhibits to the Suppression Motion D. Interview and Examination of the Officer Phlebotomist 1. Note: Effective Use of Cathee Tankersley’s Textbook

E. Interview and Examination of the Phlebotomy Program Coordinator F. Photographing the Scene IV. Drawing First Blood at the Evidentiary Hearing A. B. C. V. Preliminary Considerations: Warrants, Burdens, Subpoenas, and Exhibits Should Your Client Take the Stand? Lethal Injection: Killing the Prosecutor During Argument

Using the Officer Blood Draw to Your Advantage at Trial – Discussion

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Introduction to Law Enforcement Phlebotomy in Arizona and a Note About Its National Significance Phlebotomy is the medical procedure of withdrawing blood from the body. In a law enforcement context, phlebotomy means withdrawing blood from a criminal (usually DUI) suspect’s body for evidentiary purposes. Under the Fourth Amendment of the United States Constitution, and Article II, Section 8 of the Arizona Constitution, a blood draw is a search. Moreover, it is a particular kind of search: an invasive search of a person’s body. The United States Supreme Court has treated invasive searches somewhat differently than other kinds of searches, and a distinct body of case law addresses the issue (―the invasive search cases‖). To our knowledge Arizona was, until recently, the only state in the nation where police officers have been authorized to draw blood. The only other jurisdiction that has enacted a formal program of allowing officers to draw blood is Utah, and it is our understanding that Utah limits this practice to the Highway Patrol. Other states, including California, have taken steps—legislatively and otherwise—to follow Arizona’s lead. It is, most likely, only a matter of time until cops begin wielding needles in jurisdictions throughout the country. During a recent interview with Sergeant Greg Girard, the director of the Department of Public Safety’s (DPS) officer-phlebotomy program, we learned that law enforcement agencies from around the U.S. have contacted him, expressing interest in establishing their own programs. Sergeant Girard is a logical contact for those interested in starting similar programs. Under his supervision in 1995, DPS became the first law enforcement agency in the state to allow its officers to draw blood. Other law enforcement agencies began to follow DPS’ lead, especially over the past 3 years, and today police officers around Arizona frequently collect blood from DUI suspects. Overview of the Legal Issues Schmerber v. California and the U.S. Supreme Court’s Treatment of Blood Draws Of course, it wasn’t always this way. Prior to 1995, law enforcement agencies typically contracted with private medical organizations for their phlebotomy needs. Although the practices differed among jurisdictions, DUI suspects were often transported to a local hospital where a civilian medical professional would perform the blood draw. In 1966, the U.S. Supreme Court approved of this method in Schmerber v. California, 384 U.S. 757. Schmerber is the case that most appellate courts turn to for guidance when the constitutionality of any blood draw is challenged. In that case, the Court stated that the search was performed in a reasonable manner because ―[p]etitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices.‖ The Court also warned that: [S]erious questions . . . would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example,

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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 and pain. In its closing remarks, the Schmerber Court stated that its opinion was confined to bodily intrusions ―under stringently limited conditions,‖ and that it “in no way permits more substantial intrusions, or intrusions under other conditions.” Schmerber’s Three Commandments The criminal defense attorney can, and must, seize upon three rules enunciated in Schmerber: 1. Police officers shall not draw blood—ever! 2. Blood shall only be drawn by qualified medical personnel 3. Blood shall only be drawn in a medical (or ―clinical‖) environment The first rule, that police officers can never draw blood, is the defense attorney’s most basic and overarching argument. It is also the least complicated argument because it is strictly a legal issue. That is, the argument is limited to interpretation of the Court’s language. The State will invariably argue that the language about cops not drawing blood in the privacy of the stationhouse is dicta. The defense’s position is that the excerpt is clarifying language that unequivocally instructs the State what not to do. More importantly, the defense attorney should emphasize that the language at issue is the best guidance that exists on the subject of whether cops can draw blood, and the State proceeds at its own peril by disregarding such a stern warning from the highest court in the land. (The first rule stands alone from the second and third rules. In other words, if a trial court accepts the argument that Schmerber prohibits cops from ever drawing blood, the analysis need not proceed any further. But the second and third prongs must always be argued because the issues contained therein are entirely relevant as to why it’s unreasonable for cops to perform such searches.) The second and third rules are fashioned from the language cited above. In one sentence of the opinion, the Court said that the blood draw in Schmerber was reasonable because it was done by ―a physician in a hospital environment.‖ In a separate sentence, the Court warned that ―serious questions would arise‖ if the blood had been drawn ―by other than medical personnel or in other than a medical environment.‖ This language gives rise to a 2 prong test that must be satisfied by the State whenever it seeks to show constitutional compliance with Schmerber. There must be a medical, or clinical, environment, and there must be qualified medical personnel, to ensure that the search is reasonable.

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A.R.S. § 28-1388(A) And The State’s Defense Of Officer Phlebotomy The relevant statute at issue in these cases is A.R.S. §28-1388(A). It states that if blood is drawn for forensic purposes in a DUI case, ―only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content in the blood.‖ In 1990, the legislature added the ―another qualified person‖ language. Prior to the change, the statute stated that only those other than the arresting officer could draw blood. It is important to note that the language, as it exists today, does not explicitly authorize police officers to draw blood. But it does permit the State to argue that the statute allows for police officers to draw blood if they can demonstrate that they are ―otherwise qualified‖ to do so. In 2002, the Court of Appeals addressed the scope 28-1388(A) in two different opinions, State v. Olcavage, 203 Ariz. 44, and State v. Carrasco, 203 Ariz. 44. Olcavage involved the drawing of blood by civilian phlebotomy technicians. Carrasco was concerned with medical assistants that drew blood. In each case, Division 1 held that the respective civilian medical personnel that drew blood were qualified to do so pursuant to 28-1388(A). Neither Olcavage nor Carrasco involved officer phlebotomists, and neither case discusses the constitutionality of police officer blood draws. Many criminal practitioners, lawyers and judges alike, have mistakenly assumed that the issue of whether cops can draw blood was addressed in one of these two 2002 cases. It is important to educate a judge from the outset that the constitutionality of officer phlebotomy has never been considered by any appellate court, in any jurisdiction. (This is, at least, presently true. Several cases are now on appeal in both Division 1 and Division 2.) ―It’s the Constitution, Stupid” In the end, the State relies almost exclusively on state law to justify officer phlebotomy. And therein lies the crux of the problem for the State, and the significance of the issue. If Schmerber really means that police officers cannot, in fact, draw blood in the privacy of the stationhouse, then any interpretation of Arizona statutes or case law to the contrary creates a conflict between state and federal law. It creates a conflict between an Arizona statute and a United States Supreme Court opinion that addresses the scope of the Fourth and Fourteenth Amendments. Basic Supremacy Clause jurisprudence dictates that Arizona law must fall. Again, it is important to frame the issue in such terms from the start—the Fourth and Fourteenth Amendments ultimately control the constitutionality of the invasive search, not state law. Anatomy Of An Officer-Phlebotomy Program The various law enforcement agencies that have authorized their officers to draw blood share the same basic characteristics. All of the programs are variations of the

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original DPS design. First, officers attend a course called ―Phlebotomy for Law Enforcement‖ at Phoenix College.1 After completing the course, the officers claim they are ―certified‖ to draw blood. In actuality, there is no independent certification of phlebotomists in Arizona, nor does the Department of Health Services require people who draw blood to hold any kind of certification. Most police departments have appointed a sergeant or lieutenant to the position of ―phlebotomy coordinator.‖ This person is typically the commander of the department’s motor officer division. Most of the phlebotomy program coordinators have received training in phlebotomy. Normally it’s the same training that the officers they supervise have received, which is limited to the Phoenix College course. The typical law enforcement agency that develops an officer phlebotomy program also drafts and distributes a set of ―phlebotomy protocols.‖ The protocols consist of a four to five page document that generally describes the requirements for officers to draw blood, the role and responsibilities of the program director, and other procedures that must be followed. Whether they are required to or not, most officer-phlebotomists fill out a ―Blood Draw Report‖ every time that they collect a suspect’s blood. The blood draw report contains information about the time of the blood clot, information gathered from the suspect about the kinds of medication he or she is taking, and other very basic facts. The information in the report is not geared toward assessing patient (suspect) safety. The blood draw report also allows the officer to include a few notes about what happened during the blood draw, for example if something unexpected occurred. Officers rarely make detailed notes. Sometimes additional paperwork is used, like a ―Venipuncture Checklist.‖ As you probably can imagine, this document consists of a basic checklist for the officer to complete when he or she draws blood. The steps listed on the checklist, however, focus more on things that should be done to preserve the integrity of the specimen. Again, the checklist pays little attention to procedures that should be observed to protect the safety of the patient (suspect). Finally, many officer phlebotomists keep ―phlebotomy logs‖ of their blood draws. The phlebotomy logs generally resemble HGN logs, and the information that they contain is usually limited to the suspect’s name, the date of the draw, etc. Some officers don’t keep these kinds of logs, but instead keep copies of every blood draw report, thereby creating a record. Most departments require their officers to complete a minimum number of blood draws each year (between 24 and 48). Some departments require the officers to forward their paperwork (blood draw reports, checklists, logs) to the phlebotomy coordinator for review. Normally, the officers are also required to meet with the phlebotomy coordinator on an annual or semi-annual basis, and to attend some kind of continuing education lecture once a year. The ―lecture‖ may consist of receiving an article or two on the topic

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A small number of officers are EMT or paramedic certified and have prior experience drawing blood. Still, these officers usually go through the Phoenix College course, although it is believed that a few of them have not been required to do so by their respective departments.

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of phlebotomy, or it may be as informal as meeting with the program coordinator to discuss the previous year’s blood draw activities. The average officer-phlebotomist is never required to be directly observed while drawing blood, nor is the officer’s phlebotomy (or ―venipuncture‖) technique ever required to be evaluated after completing the Phoenix College course. Cathee Tankersley and the Phoenix College Crash Course Cathee Tankersley is Director of the Phlebotomy Program at Phoenix College. She teaches and oversees several phlebotomy courses. The normal phlebotomy course is at least one full academic semester in length. The course that she teaches to police officers is called ―Phlebotomy for Law Enforcement.‖ The class is only five days long. The class is 40 hours, and runs from 8 a.m. to 5 p.m., Monday through Friday. The Arizona Peace Officers Standards and Training Board (―POST‖) has approved the course for what it calls ―60 contact hours.‖ Officer-phlebotomists love to testify that they attended a 60-hour course. But they didn’t. The course is 40-45 hours in duration (the officers supposedly work through lunch everyday). Every officer receives a copy of the textbook, Phlebotomy Essentials, written by Ms. Tankersley and Ruth McCall. On Monday and Tuesday, the officers stay in the classroom and Ms. Tankersley or another instructor teaches from the textbook. On Wednesday and Thursday, the officers report to a local hospital—usually the V.A. Hospital or the Mayo Clinic—and must perform 100 successful blood draws. On Friday, the students spend half the day completing their required blood draws, and the second half of the day reviewing course-related material and taking one or more exams, or quizzes. An officer will rarely need additional time to complete his or her 100 clinical blood draws. If this happens, he or she will come back for a day or two the following week. Once the officers complete the truncated course, they receive a ―certificate‖ in phlebotomy from Phoenix College stating that they completed the Phlebotomy for Law Enforcement course. The piece of paper is misleading. As mentioned earlier, there is no state certification of phlebotomists in Arizona. Also, as Cathee Tankersley herself has testified, the course that she teaches to the police officers is identical to a basic course in ―venipuncture techniques‖ that she also teaches at Phoenix College. ―Venipuncture‖ refers to the act of penetrating a vein with a needle, while the term ―phlebotomy‖ is generally associated with the comprehensive discipline of blood collection in a medical context. The police officers who attend the Phoenix College course have not learned phlebotomy. They have attended a crash course in venipuncture.

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Southern and Northern Expansion of the PC Course and the Utah Situation The Phoenix College course is now taught to police officers at Pima Community College, too. From interviews we have conducted, it is our understanding that the curriculum is exactly the same as that which exists in Phoenix. DPS Sergeant Girard also recently testified that the course will soon be offered to police officers in Coconino County. Again, regardless of the location, the curriculum and format is the same. Within the last year we have also learned that the Utah Highway Patrol is now sending some of its officers to the Phoenix College course. This is a significant development, in that officer phlebotomy has now spread beyond Arizona. History of Law Enforcement Phlebotomy Litigation in Arizona Although police officers have been drawing blood in Arizona for almost ten years, the practice has only been significantly challenged over the past 3 years. The first case to really raise the issue was McFarlane v. Stanton. In that case, a retired doctor was stopped in Pinal County for DUI. The Department of Public Safety Officer demanded that the doctor submit to a blood draw in the remote substation. When the doctor asked the deputy to show him his credentials for drawing blood, the officer refused, and blood was drawn. The DUI charges were dismissed, but the Motor Vehicle Department refused to vacate the man’s driver’s license suspension. The administrative law case was thus appealed to Division 2, which essentially limited its unpublished opinion to whether the man had a right to see the officer’s credentials. The court ruled that the officer had no such legal obligation. The 2003 Evidentiary Hearings: Mootispaw, Anderson, and Berndt In March of 2003, attorneys from the Maricopa County Public Defender’s Office conducted a two day evidentiary hearing in State v. Dale Mootispaw. Mr. Mootispaw’s attorneys called Diana Mass, Director of the Arizona State University Clinical Laboratory Sciences Department, as an expert witness. Although Maricopa County Superior Court Judge Ruth Hilliard agreed with many of Ms. Mass’ concerns and criticisms about the Phoenix Police Department’s officer phlebotomy program, she denied the suppression motion. Because the case was resolved by plea agreement the morning of trial, Judge Hilliard’s ruling was not able to be appealed. Three months later, in June of 2003, attorneys from the Pima County Public Defender’s Office, led by Jim Charnesky, conducted a three day consolidated evidentiary hearing in the cases of State v. Wendy Anderson and State v. Duane Berndt. This time, Cathee Tankersley testified as an expert witness for the State. Again, Diana Mass testified for the defense. Pima County Superior Court Judge Kenneth Lee denied the suppression motions.

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The 2004 Evidentiary Hearings: The Justice Court Victories and the Maricopa County “Short Hearings” Last June, another multi-day evidentiary hearing was held in Pima County Justice Court in the cases of State v. Jimenez, TR03-046204 and State v. Jungers, TR03-007911. Although the record created at this hearing was substantially similar to the records created in Mootispaw and Anderson/Berndt, it was different in several important respects. This was, in part, due to the development of our legal arguments. After the Mootispaw and Anderson/Berndt hearings, we reflected upon the lessons learned from our early efforts. In Maricopa County, we went to work on the motion. The result was a more detailed look at the Fourth Amendment case law leading up to the Schermber decision, and a new expanded argument that cops should never draw blood. In Pima County, based upon the results of the Anderson/Berndt hearings, we also sought to re-focus the legal arguments and in the process, create a deeper record. The Anderson/Berndt hearings established that the Pima County Sheriff’s Department had virtually no regulations or protocols regarding officers drawing blood. Amazingly, the lack of protocols actually benefited the State in Anderson/Berndt. With almost no internal rules to follow, the State argued that the blood draws were procedurally acceptable, and whatever ―medical‖ standards the officers had failed to comply with were not applicable to forensic blood draws. In the Anderson/Berndt hearings, Judge Lee fully accepted this argument, finding the standards offered by Ms. Mass were not applicable in the law enforcement setting. In Pima County, we sought to combat this argument by expanding the record to make it clear that officers must comply with the same standards applicable to all phlebotomists. Weapon number one was a Pima County Sheriff’s Department protocol which specifically stated that the officers must comply with the applicable standard of care. A pre-trial interview with Sgt. Theel, the phlebotomy coordinator for the Pima County Sheriff’s Department, established that while he had no real understanding of the applicable standard of care, he believed the regulation meant the officers were to draw blood in compliance with medical standards. Armed with this new focus and the expanded motion, Mr. Charnesky associated with the Pima County Public Defender’s Office and filed motions in two Justice Court cases in which the officers clearly disregarded applicable medical standards. Here, reasonableness would be based not only on the Schmerber criteria, but also on the deputies complying with their own regulations mandating that they comply with the medical standard of care. The modified approach would strip the State of their most successful argument in Andeson/Berndt. The new focus also fit perfectly with the newly expanded legal arguments. Any discrepancies between the applicable standard of care, and the officer’s actions not only were proof of unreasonableness, but also proof that the officers were law officers with law enforcement interest first, not medical personnel interested first and foremost with the safety of the blood draw subject. The conflict of interest would be self evident.

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The Jimenez/Jungers hearings were held June 17-18, 2004. The record established that the officers breached the applicable standard of care in numerous ways. Not only did Ms. Mass clearly testify to this, but the State’s own expert witnesses also testified that the officers failed to follow proper protocol. Based upon this record, the court suppressed the blood results. The court did not go so far as to rule that officers could never draw blood, but did find that the specific facts of the cases before it constituted an unreasonable search in violation of the Fourth Amendment. The case is now on appeal in Pima County Superior Court. In Maricopa County, the litigation was evolving, too. An informal agreement was reached between the Maricopa County Attorney’s Office and Maricopa County Public Defender’s Office whereby the portions of the transcripts from the Mootispaw and Anderson/Berndt hearings with expert testimony were submitted in lieu of live expert testimony. In this way, cases involving the issue could be set for an evidentiary hearing of about 60-90 minutes, in contrast to hearings of 2-4 days. It also saved thousands of dollars in expert witness fees. The frequency of evidentiary hearings increased accordingly. In May of 2004, a series of these ―short hearings‖ were conducted in East Phoenix Justice Court No. 1 in three cases involving officer blood draws. Judge C.A. Mendoza ruled for the defendants in each case. The State dismissed each case, but never prosecuted the appeals. Appellate Posture of the “Phlebotocop” Issue in Divisions One and Two Division One of the Arizona Court of Appeals is expected to issue the first written appellate opinion on this issue in July of this year. The case before the court is State v. Andrew Johnson, No. 1 CA-CR 04-0303. Another case, State v. Larry Lytch, No. 1 CACR 04-0644, has been fully briefed and is awaiting assignment of a panel. They both are Maricopa County Public Defender cases. In Southern Arizona, two other cases out of the Pima County Public Defender’s Office are pending review by Division Two: State v. Edwel Brown, 2 CA-CR 2004-0389, and State v. Leonard McMahon, 2 CA-CR 2004-0139. In both of these cases, the record established in Anderson/Berndt was incorporated into the record. In addition, the Jimenez and Jungers cases are presently on appeal to the Pima County Superior Court. Although it is unclear how the Court of Appeals will address police officer blood draws, it is probably safe to assume that the issue will be appealed to the Arizona Supreme Court—and beyond—for quite some time. For this reason, it is important for defense attorneys to continue raising the challenge and preserving the records of their clients in appropriate cases.

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Streamlining the Attack in 2005 and Beyond Presentation of Expert Witness Testimony: Diana Mass and Cathee Tankersley The expert testimony of Diana Mass and Cathee Tankersley on the subject of phlebotomy is essential to both the State’s and the defendant’s positions. Neither professor, however, has been called to testify since the conclusion of the Jimenez, Jungers evidentiary hearing in June of 2004. For a variety of reasons, the Maricopa County Public Defender’s and County Attorney’s Offices have agreed that it is preferable to submit the transcripts of Diana Mass’ and Cathee Tankersley’s testimony at the Mootispaw and Anderson, Berndt hearings instead of calling the experts every time the issue is litigated. The same arrangement has now been generally accepted by most of the judges in Pima County Justice Court with the Jimenez, Jungers transcripts, although most often over the State’s objections. Here’s how it works: In Maricopa County, the defense files its suppression motion and attaches the transcripts as exhibits to the motion. In Maricopa County, there has been no formal stipulation to the admission of the exhibits, but the State consistently refers to the transcripts (exhibits to the defendant’s written motion) during argument. In Pima County, the motion can be filed with or without the exhibits. Regardless of how it is filed, use of the Jungers/Jimenez testimony must later be ruled upon as the State has consistently refused to stipulate to that record. Proceeding in this way is the better choice because it reduces the evidentiary hearing time from several days to, normally, less than 2 hours. It also saves thousands of dollars in expert’s fees. Nevertheless, attorneys are encouraged to list Diana Mass as a potential expert witness in all officer blood draw cases, just in case her live testimony becomes necessary. (Ms. Mass’ contact information is contained in Presentation Exhibit No. 2.). To be sure, some courts have opted to stipulate to Ms. Mass’ prior expert testimony, while at the same time taking limited new testimony from Ms. Mass regarding her evaluation of the specific facts of the new case. Ms. Mass’s testimony under this scenario takes approximately 30 minutes, as opposed to the full day of testimony in Mootispaw, Anderson/Berndt, and Jimenez/Jungers. Given that this is a Fourth Amendment challenge, if the facts of your case are significantly different than the facts testified to in the prior hearings, then such an approach may be necessary. Our Opinion: Don’t Use an Expert Witness Unless Absolutely Necessary There are several reasons why we suggest first trying to use transcripts of expert testimony from the three ―long‖ evidentiary hearings (Mootispaw, Anderson/Berndt, and Jimenez/Jungers) before using Ms. Mass or another expert witness. First, it is simply easier and less complicated to proceed in this fashion, since we have yet to complete an evidentiary hearing in less than two days when experts have testified. Also, the expense

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in terms of time, money, and other resources is exponentially higher to attorneys, clients, and the court when expert witnesses testify. Even more important is the fact that each one of the records that exists is, we believe, strong. As the defense bar increases the frequency of cop blood draw litigation, the State will undoubtedly attempt to strengthen its position. In our opinion, it is not likely that any new records will strengthen the defense position. For these reasons, we strongly suggest that you use the prior testimony, either by stipulation, or by convincing the court to accept the transcripts over the State’s objections. For these reasons, we recommend following the approach outlined below, which includes attaching the appropriate transcripts (and other exhibits) when challenging a cop blood draw in your case. Few, if any, problems to doing so should exist in Maricopa County and Pima County Superior Courts, and Pima County Justice Court, since these are the courts from which the transcripts come from. As mentioned earlier, East Phoenix Justice Court No. 1 has accepted the transcripts as well. In cases in municipal and Justice Courts, you should argue for the acceptance of transcripts in lieu of expert testimony for reasons of judicial economy. Most judges don’t really want to schedule a 2 to 4 day evidentiary hearing. Also point out that the transcripts come out of Arizona courts where the State had sufficient opportunity to cross-examine the defense expert and present its own expert testimony. Another reason to argue that acceptance of transcript testimony is proper lies within the structure of the Arizona Superior Court system. Article VI, section 1 of the Arizona Constitution states: ―The judicial power shall be vested in an integrated judicial department consisting of a supreme court, such intermediate appellate courts as may be provided by law, a superior court, such courts inferior to the superior court as may be provided by law, and justice courts.‖ It is also well established that, under our constitutional scheme, the Superior Court in Arizona is considered to be one court, with distinct branches of that court in each county. See Sanders v. Sanders, 52 Ariz. 156, 79 P.2d 523 (Ariz. 1938). Regardless of jurisdiction, you can always argue in Superior Court that the Mootispaw and Anderson/Berndt transcript originates within the Superior Court and, therefore, should be accepted. In any municipal or justice court, you may argue that every court of limited jurisdiction is subordinate to the Superior Court and, for that reason, it is appropriate to accept a transcript from a hearing in Superior Court. Presentation of Phlebotomy Program Coordinator Testimony As is the case with expert testimony, the testimony of the phlebotomy program coordinator of the involved agency is required. A similar approach has been followed. For example, Lieutenant Don McDonald, until recently, had been the coordinator of the Phoenix Police Department’s officer phlebotomy program. In State v. Mootispaw, he was extensively examined and provided a thorough record of the characteristics of

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Phoenix’s program. In subsequent hearings that involve the Phoenix Police Department, the transcript of Lieutenant McDonald’s testimony during the Mootispaw hearing has been submitted along with the expert witness’ transcripts. By substituting transcripts for live testimony, the record is fully preserved, and the costs to the court and to the parties are significantly reduced. Also, the number of cases, and the frequency with which they can be litigated, is dramatically increased.

Moving the Challenge From Superior Court to Courts of Lower Jurisdiction Over the past year and a half, the Maricopa County Public Defender’s Office started challenging officer phlebotomy in Justice Court, and attorneys have begun challenging officer blood draws in Chandler and Gilbert City Courts. The Pima County Public Defender’s Office and other private attorneys have also raised the issue with increased frequency in the Pima County Consolidated Justice Court. A hearing was held in Parker, where Diana Mass testified. As of yet, however, most of the municipal courts (and most of the Justice Courts) in Arizona have not yet been exposed to the suppression issues surrounding officer phlebotomy. The Importance of Increasing the Pressure in Municipal and Justice Courts There are several advantages to litigating the phlebotomy issue outside of Superior Court. First, the vast majority of DUI cases, including cop blood draw cases, originate in the lower courts. The misdemeanor client is normally much differently situated than the felony client. For example, a felony client with multiple priors who loses his evidentiary hearing is probably more likely to accept a plea offer at the last moment, since resolving the case could mean facing several years less in prison. This was the greatest obstacle to surmount at the Superior Court level. Most of the cases that are litigated are resolved prior to trial and the issue is never appealed. By increasing pressure in the lower courts, more cases are likely to make their way into the appellate pipeline. When this happens, the defense community forces the respective prosecuting agencies to take the issue seriously. It may result in better plea offers, which is in the interest of the client. The other advantage to striking quickly in the lower courts is that, unlike defense attorneys who will have the benefit of this presentation to prepare for an evidentiary hearing, it is doubtful that the city prosecutors are at all familiar with the pertinent suppression issues. The defense community therefore has the opportunity to make a forceful presentation to the city court judges. It is also plausible that judges may be more sympathetic to this issue in the context of a misdemeanor case. At least three Justices of the Peace in Maricopa and Pima Counties have already suppressed blood evidence in phleboto-cop cases.

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These are encouraging reasons to believe that the defense will have more success in the lower courts. This is important because, as the several Superior Court cases make their way to the Court of Appeals over the next year, it would be beneficial to have a split in the lower courts—even if only 2 or 3 more judges grant suppression motions. Moreover, the defense’s position is arguably stronger if it can demonstrate, by the numerous cases on appeal that the issue is one of statewide importance, which of course it is.

Everything You Need To Know To Challenge Blood Drawn By A Law Enforcement Officer In an effort to make it easier for the Arizona criminal defense attorney to effectively litigate an officer blood draw, sample motions and examinations have been included as exhibits to this presentation. Furthermore, the various exhibits to the suppression motion, including the expert testimony of Diana Mass and Cathee Tankersley, have been included. For clarification, the materials included with this presentation are referred to as presentation exhibits. The exhibits that should be attached to the suppression motion are described as presentation exhibits 6-14. They are numbered differently in the motion. The main question the attorney must ask prior to starting is ―has this law enforcement agency been the subject of prior litigation?‖ Thus far, the characteristics of the Phoenix Police Department, Chandler Police Department, Maricopa County Sheriff’s Office, and Pima County Sheriff’s Office programs have been explored on the record. That is, the phlebotomy program coordinators for each of these agencies have testified. It’s important to keep in mind this distinction. If you are challenging the blood draw in a case involving an agency other than those listed above, you will need to request additional discovery, and interview and examine the phlebotomy program director. In all other cases, the transcript of that person’s prior testimony should be sufficient. Filing the Proper Discovery Motions Presentation Exhibit 1 consists of a standard discovery motion that can be filed in every officer blood draw case. It not only includes all of the discovery one would normally request in a blood draw case, but also a request for the specific documents associated with officer phlebotomy. If you are involved with a law enforcement agency that has not been the subject of prior litigation, you must obtain the specific items requested prior to interviewing the phlebotomy program director.

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Presentation Exhibit 2 is a standard discovery reply (Rule 15.2 Notice of Defenses, Witness List, etc.) that includes Diana Mass’ and Cathee Tankersley’s contact information, should either witness’ live testimony become necessary. Filing the Proper Suppression Motion Presentation Exhibit 3 is the standard suppression motion that the Maricopa County Public Defender’s Office files when the involved agency is the Phoenix Police Department. Presentation Exhibit 4 has been modified for use in Maricopa County Sheriff’s Office cases. Presentation Exhibit 5 has been modified for use in a case that involves an agency in which the phlebotomy program director has not yet testified as to the program’s characteristics.2 Presentation Exhibit 5a is the standard suppression motion to be filed when litigating a case in Pima County Superior or Justice Court involving the Pima County Sheriff’s Department. It can be modified for a case involving DPS. Attaching the Proper Exhibits to the Suppression Motion It is important to attach the proper exhibits to the suppression motion. This makes for a very cumbersome filing, but without them you will not preserve all the issues for your client. The following exhibits are referred to in the various suppression motions discussed above (Presentation Exhibits 3-5a). Presentation Exhibit 6 is the transcript of Phoenix Police Department Lieutenant Don McDonald’s testimony in State v. Mootispaw. It should be attached in every Phoenix PD case. Presentation Exhibit 7 is the transcript of Maricopa County Sheriff’s Office Lieutenant Bill Hindman’s testimony in State v. Brennan. It should be attached in every MCSO case. Presentation Exhibit 8 is the transcript of Cathee Tankersley’s testimony in State v. Anderson and State v. Berndt. It should always be attached, regardless of law enforcement agency. Presentation Exhibit 9 is the transcript of Diana Mass’ testimony in State v. Anderson and State v. Berndt. It should always be attached, regardless of law enforcement agency.

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Note that Exhibit 5 actually involves the Chandler Police Department. Sergeant Cote, Chandler PD’s phlebotomy program coordinator, testified in State v. Juan Oscar Banda-Lopez, East Phoenix No.1 Justice Court, on May 18, 2004, but his testimony has not yet been transcribed.

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This exhibit consists of two days of testimony on June 2, 2003 and June 3, 2003. June 2, 2003 starts with that day’s caption sheet as p.1, the Index as p.2 and then pp. 141-185 follow. Immediately after page 185, the June 3, 2003 caption sheet appears, followed by the Index, and then pp. 3-126. Presentation Exhibit 10 is the transcript of Diana Mass’ testimony in State v. Mootispaw. It should always be attached, regardless of law enforcement agency.

Presentation Exhibit 11 is the transcript of Phoenix Police Department Officers Michael Rogers’ and Lee Campbell’s testimony in State v. Mootispaw. It may be attached as an exhibit to any suppression motion involving the Phoenix Police Department as support that the PPD performs blood draws in all kinds of unsanitary and dangerous environments. Presentation Exhibit 12 is Phoenix Police Department Report No. 2003-31625786, the ―Chris Treadway Incident.‖ The Officer Treadway incident is described in the suppression motion, and it illustrates the conflict of interest that exists when police officers draw blood. We recommend attaching this as an exhibit in each case. Presentation Exhibit 13 is the Arizona Republic article describing the Treadway incident. It is entitled ―Officer indicted in knife incident involving suspect.‖ We recommend attaching it as an exhibit in each case, too. Presentation Exhibit 14 is an excerpt from Cathee Tankersley’s book that describes the potential complications that can occur when officers draw blood. File it as an exhibit in motions when the phlebotomy program director has not yet testified in a previous hearing. Presentation Exhibit 15 is the transcript of the State v. Jimenez,/Jungers hearing in Pima County Justice Court. It should be submitted in its entirety when filing a motion in this court. Include this transcript also when filing any case in Pima County Superior Court involving Pima County Sheriff’s Department deputies. The court might not accept it, but it is deeper than the Anderson/Berndt record and strengthens both the per-se and factual reasonableness arguments. Also, since this transcript contains all the testimony used to litigate the issue in Pima County Justice Court, it is not necessary to attach transcripts from the Anderson/Berndt hearings. The State has consistently pushed for those transcripts to be included. State v. Anderson was a manslaughter case and the court appeared hostile to the defense motion, consistently sustaining State’s objections and seriously limited testimony. While the Anderson/Berndt transcripts are good records, the Jimenez/Jungers record is superior in almost every facet. By including a less extensive transcript you may open the door to some of the State’s arguments which were effectively eviscerated in the Jimenez/Jungers hearings.

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Interview and Examination of the Officer Phlebotomist Note: When interviewing and examining the officer phlebotomist, and the phlebotomy program director, it is much more helpful and effective to have a copy of Cathee Tankersley’s textbook, Phlebotomy Essentials. The textbook serves a similar purpose to the NHTSA FST Student Manual in that it provides the attorney a powerful impeachment tool. The book costs about $40.00 and can be purchased at the Phoenix College student bookstore or online at amazon.com. Presentation Exhibit 16 consists of sample questions that the officer phlebotomist should be asked during the evidentiary hearing. The interview of the officer should be designed to elicit the relevant information. These are the following essential pieces of information that must be ascertained from the officer phlebotomist. Their relevance should become clear when reviewing the questions set forth in Presentation Exhibit 17. 1. Establish the exact nature of the officer’s training and experience (e.g., is it limited to the Phoenix College course only, or have you had additional training? How many total blood draws have you performed? Have you attended any continuing education classes, or an annual policy protocol lecture? If so, what did you discuss or learn at the lecture?) Establish that the officer is generally familiar with Cathee Tankersley’s textbook, and agrees that the information contained therein is accurate and correct. It’s important to identify which edition he or she is familiar with (the second or third edition). Ascertain the location of the blood draw, and the general characteristics of the environment in which the blood draw took place (e.g., was the blood draw performed at the stationhouse, the DUI van, or on the trunk of the car?) If the blood draw was performed at a facility like the stationhouse or a mobile DUI van, you must determine if the officer 1) had drawn blood in that location prior to taking your client’s blood, and 2) was aware of other officers drawing blood in that location before your client’s blood was drawn. The officer is most likely unfamiliar with the exact cleaning schedule or routine at that location. If so, establish this during the interview. You must also determine whether or not your client’s arm was resting on a flat surface. If so, find out what the flat surface consisted of, and confirm that your client was not seated in a special phlebotomy chair. Also confirm that the officer did not spray or wipe down the surface area with a 1:10 bleach solution or EPA approved disinfectant. (The Chandler Police Department now does this. Most Pima County Deputies, after being burned in prior hearings, now will testify that they sprayed down the trunk of the car.)

2.

3.

4.

5.

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6.

If the blood was drawn in a mobile DUI van or trailer, determine the specific characteristics of the vehicle. These kinds of environments are typically unstable, the vehicles rock when people walk around, and especially when they enter or exit. They also typically have some kind of ―stabilizers‖ or ―levelers‖ that can be cranked down to decrease this problem. Find out if the stabilizers were deployed when your client’s blood was drawn. How many other people were in the van? Did anyone come in and out of the trailer while you were drawing blood? Could they have? Is there any rule or policy to prevent them from doing so? See also ―Photographing the Scene‖ below. It is important to establish violations in the accepted standard of care. Most important for our argument is to establish how the officer violated major safety protocols. Make sure you find out whether the officer had your client stand during the blood draw. This is a huge breach of protocol and one the Pima County Sheriff’s Department continues to do despite knowing better. Pre-hearing interviews are extremely important as you must lock the law officer into his story, and you must seek out the details which she has not included in her report. Any breach of protocol which increases the risk of harm to your client must be established in the hearing. Familiarize yourself with the acceptable medical protocol by reviewing prior transcripts and by reading Tankersley’s text. See ―Note‖ two paragraphs below.

7.

8.

Interview and Examination of the Phlebotomy Program Coordinator Again, the phlebotomy program coordinator is only a necessary witness if the involved law enforcement agency has not been the subject of litigation and the coordinator has not yet testified as to the program’s characteristics, and his or her supervisory duties. Note: There is one caveat to submitting the transcript of the coordinator’s prior testimony. When interviewing the officer-phlebotomist, you must confirm 1) that he or she has been drawing blood in that program at least since the date that the program director testified in court, and 2) that the program has not changed since that time. If it has, then you must determine what changes have been put in place. Your examination and argument must be modified accordingly. Presentation Exhibit 17 consists of sample examination questions for the phlebotomy program director. Specifically, it consists of the examination questions that were originally asked of Phoenix Police Department Lieutenant McDonald in State v. Mootispaw and of Maricopa County Sheriff’s Office Lieutenant Hindman in State v. Brennan. Whereas the Phoenix Police Department has a relatively comprehensive program, the Sheriff’s Office has (or at

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the time of the hearing had) almost no supervisory structure in place. The pertinent issues should be apparent, and the defense attorney should be able to prepare his prehearing interview by reviewing Presentation Exhibit 16 (and Presentation Exhibits 6 and 7). Photographing the Scene It is to the defense attorney’s advantage to photograph the scene and submit photographs as exhibits during the hearing. The same kinds of restraints on time and other resources that often prevent an attorney from visiting the scene in other cases are at play here, and the hearing can be done without photographs. But the reason for taking pictures when litigating this issue is much more compelling because, no matter how much the State wants to call a stationhouse or a DUI van a ―clinical environment,‖ the photos will almost always paint a much different picture. Photographs are very persuasive in evidentiary hearings of this kind.

Drawing First Blood At The Evidentiary Hearing Preliminary Considerations: Warrants, Burdens Subpoenas, and Exhibits Under Rule 16.2(b) of the Arizona Rules of Criminal Procedure, and Rodriguez v. Arellano, 194 Ariz. 211 (Div. 1 1999), the State bears the burden of going forward when evidence is obtained without a valid warrant. The opposite is true when a warrant was served prior to the search and seizure of the evidence. If your client’s blood was seized without a warrant, the State bears the burden of presenting evidence to demonstrate that a valid exception to the warrant requirement applies (usually consent). However, if your client’s blood was drawn after a valid warrant was served, you must subpoena the officer-phlebotomist (and possibly the program coordinator), and you will be limited to direct (and redirect) examination. Plan accordingly. Also, if you choose to use exhibits during your hearing, be sure to comply with Rule 15 requirements. For example, if you photograph the scene, timely disclose all photos. In past hearings, I have routinely made copies of relevant sections of Cathee Tankersley’s textbook. I have not disclosed these exhibits prior to the hearing, but instead laid foundation for the admission of the exhibits at the time of the hearing. (Although the exhibits are wide open to hearsay objections, I’ve managed to have them admitted at every hearing so far because the judge finds the exhibits to be helpful. Please also note that the officers will validate the textbook as a source of expert information and you probably can get it in as acceptable expert hearsay from learned treatises.

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Should Your Client Take the Stand? The answer to this question is only in the rarest of circumstances for the same reasons this is normally the answer at a DUI suppression hearing. But if your client complains of some especially egregious facts, and he is credible and sympathetic, it may be helpful to have him testify. However, keep in mind, his alleged intoxication will become an issue. Even if there are exceptional facts, if your client was loaded, this will be used to impeach his credibility and he will most likely incriminate himself. In such a circumstance, you will have failed to help your blood draw issue, and at the same time, probably assured your client of a conviction at trial. Lethal Injection: Killing the Prosecutor During Argument The basic legal argument is laid out in the suppression motion, variations of which appear in Presentation Exhibits 3-5. Presentation Exhibit 18 consists of a sample evidentiary hearing argument that attorneys may find helpful. Presentation Exhibit 19 consists of summaries of Diana Mass’ and Cathee Tankersley’s testimony in Presentation Exhibits 8, 9 and 10. By referring the judge to relevant portions of the expert testimony that support the position that 1) police officers are not qualified medical personnel and 2) the environment in which blood was drawn is not a safe, medical environment, the defense attorney can effectively present a compelling argument for suppression, and preserve his or her client’s record for appeal. Presentation Exhibit 20 is the Proposed Findings of Fact and Conclusions of Law submitted in connection with the Jimenez, Jungers cases. Use this document in the same way as you would Presentation Exhibit 19 in Pima County Justice Court cases.

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