If Joshua Barton wanted to test the chair he sat in when his blood drawn after his arrest for DWI in 2015, then he should have gotten sick right away, Texas' 5th Court of Appeals ruled Wednesday. Because he didn't, the level of cleanliness in the room police use to draw blood for evidence can't be used to support his defense now.
If any of that sounds odd, know this: The U.S. Supreme Court has ruled that blood draws made in unsanitary conditions violate Constitution's protection against cruel and unusual punishment, and Barton isn't the only defendant to raise the issue in a DWI case locally.
In April, Dallas County Criminal Court Judge Nancy Mulder ruled that evidence benefiting Barton's defense might be found on the chair in which Barton's blood was taken. She ordered the county to produce the chair to the defense for testing by April 23. The district attorney's office, which declined a request for comment, appealed. Prosecutors argued that any evidence of unsanitary conditions observed so long after Barton's arrest, and the fact that Barton didn't get sick, made that evidence immaterial.
That argument didn't sway Mulder, nor did the video presented by prosecutors of Barton's blood test, but Wednesday's opinion from the appeals court sided with prosecutors.
“He presented no evidence he actually suffered illness that could in some way be linked to the blood test. At best, Barton established that unidentified tests a year after his arrest would show the existence of contaminants on the chair that might harm some hypothetical person but that did not actually harm him. We cannot conclude such a showing provided a basis for the trial court’s conclusion that inspection and testing of the chair is in any way material to Barton’s defense," Chief Justice Carolyn Wright wrote.
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During a similar case in 2012, then State District Judge John Creuzot threw out the blood test of Jeffrey Fowler, a Dallas Police Department officer who injured a woman while driving drunk. In Fowler's case, police officers testified that the chair in Lew Sterrett jail was so dirty that they wouldn't sit in it to eat. As the jury in that case deliberated, however, Fowler took a deal that gave him eight years probation, so the dirty-chair defense wasn't tested at the appellate level.
After the Fowler case, Dallas police promised that they were taking measures to ensure that the blood draw room at Lew Sterrett was cleaner than state law required.
Both Joshua Boykin, the arresting officer in Barton's case, and Randall Dean, an infection prevention specialist who works for Parkland Jail Health and the Dallas County Jail, testified that the room was clean to the eye. Jessica Lindsey, the woman who drew the blood, disinfected the blood-draw chair before Barton's blood was taken, they said, leading prosecutors to claim that "even if there had been dangerous substances in the blood-draw room at an earlier time, the moment of truth came only when the needle touched the skin."
Barton's lawyer John Lassiter said Wednesday he plans to take the blood-draw issue to the Texas Criminal Court of Appeals, the state's highest criminal court.