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DWI Blood Search Warrants

If you are pulled over in Texas because a law enforcement officer suspects you are driving while intoxicated (DWI), you may be compelled to provide evidence against yourself in the form of a warrant being issued for your blood to be drawn and tested.

For many years Texas has been an "implied consent" state. This has meant that just by having a Texas driver's license, the law assumes that you consented to having a breath test to determine if you had used alcohol or drugs. However, implied consent does not necessarily mean you have actually provided consent, but if you refuse the tests, the state will automatically suspend your driver's license for a specific period of time.

Several years ago the Texas Legislature passed a law that allows law enforcement officers to order blood drawn from a suspect that the officers suspect might be intoxicated if officers believe alcohol may have played a role in a traffic accident.

The law, which is often referred to as "No Refusal", has been in place for years in several counties across the state on weekends, holidays, or other special dates, and in Harris County 365 days a year. In fact, Harris County officials have discussed training a force of technicians specifically to work with mobile DWI units that are investigating accidents.

What Does No Refusal Mean?

Under the long-time implied consent law, you had the right to refuse to take a breathalyzer test. Doing so would likely mean that you would have your license suspended, but it was still your right to refuse the test.

Many drivers have refused the breathalyzer, even if it meant having their license suspended, because, without the breathalyzer test, it was harder for prosecutors to secure a DWI conviction. Besides, breathalyzers are notoriously unreliable and drivers can test positive for alcohol even when they haven't been drinking.

No refusal policies allow officers to bring a suspected drunk driver who refuses a breathalyzer test to a police station or another location for a blood test. Because police are not legally allowed to take your blood without a warrant, in no refusal areas, and on no refusal weekends, the officer must seek a warrant. The officer must convince a magistrate judge to issue a warrant for a blood draw by showing probable cause of DWI.

How Does it Work?

  • An officer stops the driver of a car, boat, or motorcycle on suspicion of DWI.
  • The officer arrests the driver for DWI and asks the suspect for a breath or blood sample.
  • When the suspect refuses a breathalyzer test, the officer takes the subject back to a police station or other location (or works with paramedics assigned to the mobile DWI unit if the driver has been involved in an accident).
  • The officer approaches a magistrate judge with probable cause and asks for a warrant, though if an accident occurred, the officer may not need to get a warrant.
  • If the judge determines that the officer has probable cause, the judge will issue a warrant.
  • A nurse or phlebotomist will then take a sample of the DWI suspect's blood to analyze it for evidence of alcohol or drug use.

Legal Challenges

In November 2014, Texas' highest criminal court ruled that the no-refusal law is unconstitutional. According to Judge Elsa Alcala of the Texas Court of Criminal Appeals, "...[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."

Judge Alcala was referring to the 4th Amendment to the U.S. Constitution, which exists to protect people's right to privacy and freedom from unreasonable intrusions by the government. U.S. courts generally say that arrest warrants are preferred, but not required, to make a lawful arrest under the Fourth Amendment. However, an arrest without a warrant may be justified when the arresting officer has probable cause and an urgent need to conduct the arrest. Probable cause is present when the officer has a reasonable belief in the guilt of the suspect

In 2013, the United States Supreme Court addressed whether a search warrant is required before the police may seize a sample of a suspect's blood for alcohol testing in Missouri v. McNeely. The State of Missouri argued that because the level of alcohol decreases over time, the state had an urgent need to collect blood from a suspect and that police did not need a warrant to seize the blood from someone who is suspected of driving while intoxicated.

The U.S. Supreme Court did not completely agree with that reasoning, though it did agree that circumstances could exist that would allow the arresting officer to not get a search warrant.

The Sixth Appellate District Court in Texarkana and the Thirteenth Appellate District Court have both addressed Texas' no refusal law. Generally, the courts have held that the taking of the defendant's blood based only upon the implied consent provisions violated defendants' Fourth Amendment right to be free from unreasonable searches and seizures.

Why Do Officers Like No Refusal Laws?

No refusal laws allow officers to gather evidence against suspects they believe have been driving while intoxicated. Blood evidence against a suspect can be very powerful and persuasive in court. Almost 90 percent of people charged with DWI are convicted at trial or plead guilty to the DWI charges against them when there is blood evidence against them.

On the other hand, only 50 percent of people charged with DWI are convicted or plead guilty when there is no blood or breath evidence of intoxication, and the only proof of DWI is the arresting officer's observations.

Also, as the law is written, officers can order the blood draw without first getting a warrant issued by a judge. This greatly speeds up the process, allowing the officer to collect blood before the level of alcohol in the blood has decreased. Allowing officers to work with nurses and paramedics assigned to a mobile DWI unit also makes the entire process much quicker and smoother for officers.

Is This Good or Bad for Suspects?

It's definitely bad for suspects. The no refusal law prevents a suspect from maintaining autonomy over their own body and could even force the suspect into providing evidence against themselves.

Being able to order a blood draw without a warrant is especially bad for suspects, as it removes the necessary discretion of a judge from the decision. When a warrant is not required, the arresting officer has the sole authority to decide to order a blood draw.

In addition, the no refusal law is a very confusing, murky area of the law. It remains to be seen how it will impact DWIs in Texas, and there will likely be many more legal challenges before a clear legal interpretation is made. Some police departments, wary of seeing DWIs thrown out because of violations of defendants' rights, have changed their procedures to insist that their officers obtain a warrant in most DWI matters.

Perhaps even worse than warrantless blood draws, the true danger of no refusal policies is that magistrates could issue rubber stamp search warrants to draw blood, without really considering the merits of the officer's request. Without a search warrant, any procedure as invasive as a blood draw is an unreasonable search and seizure under the law. Those constitutional protections could be eroded by Texas' no refusal law.

Also, the warrants may make it easier for prosecutors to use this evidence at any later trials that may result. Other prosecutors may insist that a warrant was not necessary. This could pit the word of law enforcement against that of the impaired motorist, leading to very difficult and complex cases.

Contact Our Houston DWI Defense Attorney for Blood Test Evidence

If you were charged with a DWI, and your blood was taken as evidence, your rights may have been violated. You need a defense lawyer who understands Texas DWI laws backward and forward and who understands your rights and options.

You need to take this matter very seriously. DWIs in Texas are serious crimes that carry severe penalties. A conviction for DWI can greatly alter your life and be very expensive for you for many years to come. Depending on your profession, a DWI conviction can even limit your ability to earn a living.

You need to talk today to an attorney who can explain what has happened in your specific case and who can help you understand all your rights and options. DWI Defense Attorney Doug Murphy can review the facts of your case with you. He can work with you to prepare a strong defense to the accusations that you are facing. You may be able to challenge some of the evidence the prosecution plans to bring against you, and you may be able to question the police procedures that were used in your arrest. Contact Board Certified DWI Attorney Doug Murphy today at 713-229-8333.

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