CHRISTI LYNN JOHNSTON v. THE STATE OF TEXAS (concurring)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1736-09

CHRISTI LYNN JOHNSTON, Appellant

v.

THE STATE OF TEXAS

ON STATE'S AND APPELLEE'S

PETITIONS FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

Johnson, J., filed a concurring opinion.

C O N C U R R I N G O P I N I O N

The majority cites to State v. May (1) among examples of courts in other states that have found various conditions acceptable under Schmerber. But the blood draw in May was not done by a physician in a hospital environment as was true in Schmerber, and the Schmerber Court said in dicta that it was "not presented with the serious questions which 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 . . . ," and that "[t]o tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain." Id.

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.

Filed: March 16, 2011

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1. 112 P.3d 39 (Ariz. Ct. App. 2005)(quoting Schmerber v. California, 384 U.S. 757 (1966); a blood sample "taken by a physician in a hospital environment according to accepted medical practices" was reasonable. Id. at 771-72.)