New Texas Blood Draw Law
A frequent question of late always revolves around what the law and policy is surrounding the right of law enforcement officers to draw blood. The newly created Texas Senate Bill 261 and Texas House Bill 747 significantly expands the authority of police to obtain a sample of blood for DWI suspects. The police now have the authority to take blood samples from DWI suspects WITHOUT a search warrant under the following conditions:
- Authorizes a blood draw if there has been an accident that required someone other than the DWI suspect to be taken to a hospital or medical clinic;
- Authorizes blood draws for people accused of DWI with Child Passenger;
- Authorizes blood draws for people who are suspected of having two prior DWI convictions or a prior felony DWI conviction
The distinguishing characteristic of the new law is that it gives the police authority to take the samples without your consent or the approval of a neutral, detached judge through the search warrant process. Before, the law only provided the taking of blood without a warrant in Intoxication Manslaughter cases (fatalities) and Intoxication Assault cases (serious bodily injury). That law was written to ensure that a blood draw could be done without delay in case there was no judge or magistrate available to sign a warrant before the evidence might be lost.
Blood Search Warrants
If you fail to voluntarily submit to a blood or breath test, in some cases a police officer can get a search warrant to forcibly take your blood. The 4th Amendment to the United States Constitution prohibits unreasonable searches and seizures. Extracting a sample of your blood certainly qualifies as a search and seizure, and therefore the withdrawal of your blood for purposes of DWI testing must be reasonable.
The 4th amendment requires that search and seizure warrants be approved by a neutral and impartial magistrate and always supported by probable cause. They must also be limited in scope, specifically stating the person or place to be searched and the items to be seized. The warrant must establish that the police have probable cause to believe a person has committed the offense of DWI. If any of the above requirements are not met, an attorney should file a motion to suppress the blood test results as violation of the 4th amendment right of the accused to be free of unreasonable searches and seizures.
Texas Blood Search Warrant Law
In Beeman v. State, 86 S.W.3rd 613 (Tex. Crim. App. 2002), Texas Courts upheld a search warrant for blood in a misdemeanor DWI case where the accused failed to submit to a chemical test. As detailed above, taking a blood sample is a search and seizure within the scope of the Fourth Amendment to the United States Constitution and also Article 1, section 9 of the Texas Constitution. In Schmerber v. California, 384 U.S. 757 (1966) the Supreme Court recognized blood as an "item" which may be obtained through an evidentiary search warrant.
Arresting Officer Statements Regarding Blood Draw
The arresting officer should not dictate to the accused that a warrant will be obtained for their
blood if they refuse to submit to a sample because it could result in a claim of coerced consent. Under Erdman v. State, 861 S.W.2d 890 (Tex. Crim. App. 1993), a defendant can suppress the breath test result as involuntary if officers give other information regarding the refusal in addition to the required DIC statutory warnings. In light of the ongoing debate on blood draws, many people now are only submitting to the taking of a blood sample because they have heard the news regarding "forced blood draws" and "no refusal weekends." As a result, they submit because they are under the erroneous assumption that if they do not submit, it will be taken anyway. It is a clear Erdman violation if the arresting officer coerces the consent by threatening with a search warrant.
Attacking Blood Draws
Regardless of the situation, an individual should politely refuse when asked to submit to a chemical test when under investigation for DWI. If the arresting officer does not follow the proper procedure for obtaining a valid search warrant, the blood draw can be attacked in court.
Even if you have a case with a blood level over the legal limit, it is important to know that there are many ways how this result can be inaccurate. Many times, police blood testing fails to follow prescribed rules for the testing, analysis, and preservation of the sample. The state must prove the proper chain of custody with regards to who maintained control over the sample from the time of the draw to the time of the test. Often, the EMT performing the draw will impair the test by using alcohol to sterilize the site where the blood sample is taken. That use of alcohol may compromise the test and the blood sample may become contaminated thereby skewing the results. All of these factors may lead to suppression of the test result by a judge in court. Therefore, it is important to hire an attorney who can properly evaluate the evidence to determine the proper defense and course of action for your blood test case.
The Law Offices of Carl David Ceder, PLLC, welcomes every opportunity to work with a DWI charge with a blood specimen. Carl is equipped to fight any DWI blood test can, and will work to hold the state accountable in proving the blood test is accurate and reliable. Read more on blood draw DWI cases here.
If you are in need of a driven, skilled, and knowledgeable DWI blood test attorney, please call The Law Offices of Carl David Ceder, PLLC at 214.702.CARL (2275) now.