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Blood Draw

In most felony DWI cases in Texas, the arresting officer will ask the driver to submit to a blood test. If the driver does not give free and voluntary consent, then the arresting officer will seek a warrant. An experienced criminal defense attorney can file a motion to suppress the blood and the blood test results if the consent was not voluntary or if the officer did not first obtain a search warrant.

Likewise, the defendant may establish that he requested a chemical test within two hours after his arrest and the law enforcement agency refused such a test. VCS Art. 6701 L-5, Sec. 3(f). If that request is denied, then evidence that he refused testing or the results of the chemical test taken by the arresting officer can be suppressed.

Attorney for a DUI Blood Case in San Antonio, TX

If your felony DWI case involves a breath or blood test or the refusal to submit to a chemical test of the breath or blood, then contact an experienced DWI attorney at Flanary Law Firm, PLLC. Don Flanary represents clients charged with felony and misdemeanor DWI cases involving blood draw in San Antonio and throughout Bexar County, TX.

Call 210-880-3931 today.

The Mandatory Blood Draw Statute in Texas

The Mandatory Blood Draw Statute in Texas is found in Transp. Code § 724.012. The mandatory blood draw statute provides for certain exceptions to the right of a person to withdraw his implied consent and requires an officer to take a specimen of the person’s breath or blood even if the person is conscious and refuses to provide a sample.

Under Transp. Code § 724.012, an officer is required to take a breath or blood sample of a suspect whenever the officer reasonably believes that:

  • as a direct result of a DWI accident a person has died or will die;
  • any person other than the suspect has suffered serious bodily injury; or
  • any person other than the suspect has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment.

Under Transp. Code § 724.012(b)(2), the mandatory blood draw statute in Texas also requires a mandatory breath or blood test if the officer arrests a person for an offense under Penal Code § 49.045, DWI with Child Passenger.

Texas law also provides for a mandatory breath or blood test if, at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person has been previously convicted of or placed on community supervision for one of the following offenses:

  • any two previous DWI cases;
  • DWI with Child Passenger;
  • Intoxication Assault; or
  • Intoxication Manslaughter.

The Mandatory Blood Draw Statute in Texas requires a breath or blood specimen on any DWI which is a felony, or any person who has previously been convicted of a felony DWI or related charges of intoxication assault or intoxication manslaughter.

DWI Blood Testing in Texas Prior to Missouri v. McNeely

Prior to Missouri v. McNeely, 133 S. Ct. 1552, 1557-63, 1567-68 (2013), peace officers in Texas relied on the authority of the Mandatory Blood Draw Statute in Texas to justify taking blood samples from DWI suspects without first obtaining a blood search warrant from a judge or magistrate. After the McNeely decision in 2013, warrantless blood draws have been challenged in court on the ground that the evidence obtained without a warrant violated the defendant’s Fourth Amendment right against an unreasonable search or seizure.

In Missouri v. McNeely, 133 S. Ct. 1552, 1557-63, 1567-68 (2013), the United States Supreme Court held that in drunk-driving investigations the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.

The United States Supreme Court in the McNeely decision concluded that “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” 133 S. Ct. at 1561.

The Ruling in State v. Villareal, 475 S.W.3d 784 (Tex. Crim. App. 2014)

After McNeely, the Texas Court of Criminal Appeals addressed the implication of this holding on the implied consent and mandatory blood draw statutes in Texas in State v. Villareal, 475 S.W.3d 784 (Tex. Crim. App. 2014). In Villareal, the Court of Criminal Appeals held that “a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory- blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment.” 475 S.W.3d at 815.

The Villareal court found that the Mandatory Blood Draw Statute in Texas “is silent as to whether a law-enforcement officer conducting a mandatory, non-consensual search of a DWI suspect’s blood is required to first seek a warrant.” Id. at 810. The court also found that “[t]o the extent the mandatory-blood-draw statute may be interpreted as authorizing a warrantless search that would violate a defendant’s rights under the Fourth Amendment, it cannot do so.” Id.

Therefore, the “the provisions in the Transportation Code do not, taken by themselves, form a constitutionally valid alternative to the Fourth Amendment warrant requirement.” Id. at 813. As the Villareal case made clear, if the officer does not get a warrant prior to conducting a forced blood draw, the evidence is subject to being suppressed. In fact, the exigent circumstances exception provides the only other exception to the warrant requirement for a forced blood draw.

For example, in State v. Cuba, 2016 WL 1211361 (Tex. App.—Austin, March 25, 2016, no pet. hist.) (not for publ.), the defendant had two prior DWI convictions and was accused of causing an accident involving bodily injury to another person who was taken to a hospital. In that case, the warrantless nonconsensual blood draw taken under Transp. Code § 724.012 (b)(1)(C) and (b)(3)(B)).

When Can the Court Issue a Blood Search Warrant?

After the McNeely decision, law enforcement officers need to apply for blood search warrants in most DWI cases if free and voluntary consent is not obtained. Under Art. 18.01(j), Code of Criminal Procedure, a justice of the peace, acting as a magistrate, who is an attorney licensed by the State of Texas is authorized to issue a blood search warrant in any county in Texas.

If the justice of the peace, acting as a magistrate, is not an attorney, then the justice of the peace is only authorized to issue a blood search warrant under certain conditions found in Art. 18.01(i), Code of Criminal Procedure.

As a result, the legislature in Texas has made it easier for officers in the field to obtain a search warrant for a forced blood draw. Art. 18.01(b-1), Code of Criminal Procedure now permits a magistrate to consider information communicated by telephone or other reliable electronic means when determining whether to issue a search warrant.

Whether the Consent to Submit to a Blood Test was Voluntary

In many of these cases, the defense will file motions on a pre-trial basis asking the court to exclude the results of a blood test because the officer did not obtain a warrant and the defendant did not give free and voluntary consent. Even if the court denies the motion before trial, the defense can raise the issue at trial when the state introduces a test result from a breath, blood or urine specimen taken from the defendant.

The jury is then instructed that before it can consider the evidence, the burden of proof is on the State to prove by clear and convincing evidence that the brea
th, blood or urine specimen obtained from the defendant, was freely and voluntarily given by the defendant with his consent, and that there were no threats, duress or physical violence used against the defendant, or promises of benefit, to induce him to consent to the taking of a breath, blood or urine specimen.

The jury is then instructed that if they do not believe by clear and convincing evidence that the defendant gave freely and voluntarily consent for the breath, blood or urine specimen for the purpose of determining the alcoholic content thereof, if any, the jury should not consider any portion of evidence introduced before concerning the purported alcoholic content of the defendant’s breath, blood or urine specimen.

Additional Resources

Texas’ High Court Rules Warrantless Blood Draws Unconstitutional – This article published on November 26, 2014, explains a recent ruling on a controversial law allowing police to collect blood samples without a warrant from drivers who refuse to submit. The ruling impacts the “no refusal” DWI enforcement in Bexar County and other Texas jurisdictions. The ruling requires law enforcement officers to obtain a search warrant before they force suspected drunken drivers to submit to a test measuring their blood-alcohol content unless they have voluntary consent or exigent circumstances. The article discusses why cities such as San Antonio already require judges to sign a warrant when a suspect refuses to submit. Even before the ruling in Bexar and Harris counties, the district attorneys offices already seek search warrants in all cases where DWI suspects refuse a breath test or blood draw.

Finding a Lawyer for a DWI Blood Test Case in Bexar County, TX

If you were arrested in a DWI case or a more serious felony case for intoxication manslaughter or intoxication assault in San Antonio or Bexar County, TX, then contact an experienced criminal defense attorney at Flanary Law Firm, PLLC.

Call Don Flanary to discuss the charges pending against you, the possible penalties, and the best defenses that can be used to fight the charges. Call to find out whether the law enforcement officers were required to obtain a search warrant in your case before conducting a forced blood draw. Also talk with an experienced DWI lawyer to learn more about motions that can be filed to suppress or exclude the blood and blood test results.

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