Blood evidence against state District Judge Elizabeth Berry should be thrown out because authorities drew it from her in a DWI interview room, her attorney argues in court filings.
Texas law requires that blood specimens “must be taken in a sanitary place,” her attorney Mark Daniel wrote in a motion to suppress evidence filed Friday.
“Such blood draw procedure was not performed at a hospital, doctor’s office, or even in the medical area or nursing station with the jail facility,” Daniel wrote.
A hearing has been set for Jan. 22.
Alvarado police stopped Berry’s SUV on Nov. 8 for allegedly going 92 mph in a 65-mph zone on northbound Interstate 35W. After noticing signs that she had been drinking and seeing empty beer cans inside her vehicle, officers asked Berry to take a field sobriety test, which she refused, Chief John Allen has said.
At the Johnson County Jail, Berry declined to take a breath test. Authorities obtained a search warrant to draw Berry’s blood, which was taken about three hours after police stopped her.
County Attorney Bill Moore said he charged Berry with DWI based on the test results, which he has not released.
Daniel contends that authorities must show that the interview room meets “the strict requirements of the medical community for a sanitary place.” He pointed out that hospitals and medical service providers must comply with local and state requirements in order to operate.
“No such regulations, safeguards or inspections apply to or occur at the Johnson County Jail,” he wrote.
Daniel seeking to suppress all oral or written statements made after Berry was stopped, detained or arrested because the arrest and search were made “without probable cause or reasonable suspicion.”
A Johnson County Sheriff’s spokesman could not be reached for comment Tuesday morning. A woman who answered the phone at the Alvarado Police Department said Chief Allen had no comment.
If convicted of the Class B misdemeanor, Berry, 43, could face up to 180 days in jail and a $2,000 fine.