Mandatory Blood Draw Upheld Despite Error in Criminal History

After a person has been arrested for DWI, one of the ways an officer can lawfully obtain blood under Texas Transportation Code section 724.012 is when there is reliable information from a credible source that the suspect has two prior convictions for driving while intoxicated.  What constitutes “reliable information from a credible source?”

Lyssy v. State, No. 01-12-00898-CR (Tex. App. — Houston [1st] February 6, 2014 no pet., a case handed down just last month out of the First Court of Appeals in Houston, touches on this issue. Michael Joe Lyssy filed a motion to suppress blood drawn pursuant to this above-referenced section of the Transportation Code arguing that an unverified computer-generated report from a crime database was not “reliable information from a credible source” on which the officer could rely upon to perform a mandatory draw blood from a DWI-arrestee. In Lyssy’s case, the report listed a single conviction for “driving while intoxicated 2nd,” but did not list any other prior DWI convictions that would confirm that the defendant had a second conviction.

On it’s face, the criminal history report did not list two separate driving while intoxicated offenses. It simply listed one offense that was entitled a second offense. At the scene, the officer did not investigate this discrepancy further. Later, at a date prior to the motion to suppress, the officer did learn that Lyssy, in fact, had just one prior DWI conviction.

Is an Unverified (and Ultimately Erroneous) Criminal History Report Sufficient Basis to Perform a Mandatory Blood Draw a DWI arrestee?

Reliable Information

The First Court of Appeals affirmed the trial court’s decision to deny Lyssy’s motion to suppress. The Court found the officer could properly rely on the information listed in the criminal history in this case, even if the information later proved to be incorrect. The court compared this set of facts to those of a 2012 case out of San Antonio, State v. Flores. There the Court of Appeals in San Antonio opined “…reliable information from a credible source …does not mean that the information must be infallible.” In Lyssy, the officer received information from his dispatch who used the Texas Crime Information Center and the National Crime Information Center (TCIC/NCIC) to provide the officer with details of prior convictions. Police departments often use and rely on these databases to check for previous arrests/outstanding warrants. The officer in Lyssy testified that he always relies on information from these databases when making a stop and considered it reliable.

The Criminal History Database: Texas Crime Information Center (TCIC)

The Texas Department of Health and Safety maintains the TCIC database relied on by officers throughout the state. Both TCIC and NCIC (National Crime Information Center) are updated “24/7”.  In Lyssy, the officer testified that, “any incident, any contact with a potential subject, we rely on the returns given by our dispatch via TCIC/NCIC.” He also testified that he has found information from TCIC/NCIC to be credible and reliable in the past. However, that night the TCIC report had an error, listing Lyssy’s only previous DWI as a second conviction. Despite this error, the Court found that the information presented at the time to the officer could be considered reliable and met the requirements under § 724.012 of the Texas Transportation Code. Because the information was deemed reliable and credible, the officer properly conducted a warrantless seizure of evidence pursuant to statutory authority. In a footnote, the court clarifies their opinion is not meant to suggest TCIC or NCIC reports are per se reliable.

Other Texas Cases

In another case, Aviles v. State, 385 S.W.3d 110 (Tex. App. 2012), the court found that information displayed on an officer’s mobile laptop, of two prior DWI’s, was credible information from a reliable source. Additionally, in Comperry v. State, 375 S.W.3d 508 (Tex. App. 2012), the printout of a criminal history from the TCIC database showing two prior DWI convictions constituted reliable information from a credible source. In Comperry, the defendant protested the accuracy of the printout and the trial court found it confusing and incorrect, even though the purpose of the database was to give reliable and complete information pertaining to persons’ criminal history. These line of cases indicate if the information the officer relied upon is from a source that historically has been found to be reliable, a showing that the information was incorrect in a particular case will unlikely be sufficient to show the information was not “reliable information from a credible source” in that case.

Michael Hanson is a third year law student at Texas Tech School of Law. He participates in various advocacy organizations and teams, which includes being a member of his schools Board of Barristers as well as various National advocacy teams. He is a Student Ambassador for Texas Tech and has participated in eight jury trials and one bench trial while performing extern duties on behalf of his school at the Tarrant County District Attorney's office. In addition, he has taken part in several motions to suppress as a student, working full-time alongside Assistant District Attorneys for over three months. He currently works as a Law Clerk at the Law Office of Shannon Brady Geihsler where he assists in legal research for various Criminal Law issues. Mr. Hanson is interested in being a litigator after graduation. His interests in law include Constitutional Law, Criminal Law, Family Law, Sports Law, International Law, and Arbitration.