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New DWI Case Highlights Privacy Concerns in Breath and Blood Tests

Posted by Doug Murphy | Feb 28, 2019 | 0 Comments

The U.S. Supreme Court's decision to accept a case involving driving while intoxicated (DWI) is a strong indication that it is unhappy with the state of DWI law surrounding blood draws, breath tests, and a suspect's consent to a search. Of particular importance in the current case, State v. Mitchell, is the strong difference between DWI searches that involve a suspect's blood and those that involve a suspect's breath.

New DWI Case Involving Blood Draw

The crucially important fact of State v. Mitchell was that police performed a blood draw on a DWI suspect without his consent. The reason for the lack of consent was simple: the suspect was so lethargic from the alcohol in his system that he could not be woken up. Asleep, he could neither provide a breath sample nor consent to a blood draw for evidence of his blood alcohol content (BAC). So police decided that, while he had not consented to the blood draw, he had also not refused his consent. This a presumptuous decision by police to invade a person's body without their consent.

The evidence from the blood draw was then used against him in court, and he was found guilty.

Government Searches versus Your Privacy

The issue brings us back to one of the central questions in the Fourth Amendment, which prohibits unreasonable searches or seizures, and that question is: What is a search?

A search is an intrusion by law enforcement into someone's privacy. Of course, different areas of your life are more private than others. You would feel like it was a far more extreme violation of your privacy if police searched your bedroom than if they merely watched from the sidewalk what you were doing on your porch.

The Supreme Court has recognized that there are different levels of privacy you should expect as you move through life. In the context of DWI law, an important situation that calls into question your expectation of privacy is when police want to search for evidence of your BAC.

How police want to find your BAC directly relates to your expectation of privacy, such that: You have an honest concern for privacy with respect to a blood test because that would involve the police literally sticking a needle into your vein. Additionally, your blood contains lots of important information about who you are – all the way down to your DNA.

Meanwhile, breath tests are far less intrusive, do not carry the potential for pain or medical complications that a blood test carries, and have no capability to store any personal information beyond just the amount of alcohol on your breath.

This difference in your privacy expectations when the search is a blood test or a breath test lies at the heart of State v. Mitchell as well as prior DWI cases that have gotten attention by the U.S. Supreme Court. Simply put, courts have required police to take far more care of a DWI suspect's privacy concerns if the police want to perform a blood draw than when they merely want a breath sample. State v. Mitchell is going to expand on where those lines are drawn in the sand.

Houston DWI Defense Lawyer Doug Murphy

Doug Murphy is a board certified DWI defense lawyer serving the accused in Houston and throughout Texas. Call him at (713) 229-8333 or contact him online.

About the Author

Doug Murphy

Doug Murphy is one of only two Texas lawyers Board Certified in Criminal Law by the Texas Board of Legal Specialization, and also in DWI Defense by the National College for DUI Defense, accredited by the American Bar Association and the Texas Board of Legal Specialization.

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