Clay v. State

Sara Clay (defendant) was stopped for speeding by state trooper J. Ortega. During the stop, Ortega had probable cause to suspect that Clay was intoxicated. Ortega arrested Clay and asked her to provide a breath sample for testing. Clay refused. Ortega filled out an affidavit for a search warrant to obtain a sample of Clay’s blood for testing. Ortega then called Judge A. Lee Harris on the phone. Ortega and Harris knew each other and recognized each other’s voices. During the phone conversation, Ortega swore to and signed the affidavit. Ortega then faxed the affidavit to Harris. Harris signed the search warrant authorizing a blood draw for Clay and faxed the signed warrant back to Ortega. Ortega then arranged for Clay’s blood to be drawn. Clay was charged with driving while intoxicated. At trial, Clay filed a motion to suppress the evidence from the blood testing. The trial court denied the motion. Clay pled guilty pursuant to a plea agreement but retained her right to appeal. On appeal, Clay argued that the search warrant for the blood draw was invalid because the affidavit had not been sworn to in the physical presence of the judge. The Texas Court of Appeals held that the lack of a physical meeting between Ortega and Harris did not invalidate the search warrant. Clay’s petition for discretionary review to the Texas Court of Criminal Appeals was granted.