How Is a DWI Blood Search Warrant Legal?

Police officers in certain Texas counties commonly apply for search warrants in order to obtain blood from driver’s suspected of Driving While Intoxicated (DWI).  Harris county was the first county to initiate this procedure about 7 or 8 years ago, and now several Texas counties seek search warrants for blood when suspects refuse to give their breath or blood voluntarily. When a warrant is signed by judge, officers can use physical restraints and force in order to obtain blood from an arrested driver.

A search warrant is an order from a judge or magistrate that commands a police officer to collect a specimen. Once a judge signs a warrant, an officer does not have an option not to take the blood sample. The law in Texas further allows an officer to summon necessary assistance in collecting evidence (getting a nurse to take the blood).

It Just Seems Like a Violation of My Body

Many people are offended by the police practice of taking blood from people against their will.  Some Texas District Attorneys do not choose to employ this tactic in simple misdemeanor DWI arrests.  While it is shocking that police and prosecutors will resort to these invasive measures just to prosecute a simple DWI case in which no one is injured, it is happening every day in Houston and other cities in Harris county.

How Are These Blood Draws Legal?

Texas law has always allowed police to request authorization from judges to get blood samples in DWI cases.  The blood of a person was not specifically listed in the Code of Criminal Procedure prior to 2013.  Presumably, officers could obtain warrants from judges under Texas Code of Criminal Procedure Art. 18.02 (10) as”…evidence tending to show that a particular person committed an offense.”

Effective in 2013, the legislature authorized magistrates to be able to authorize search warrants for blood in DWI cases in which the defendant refuses a voluntary sample.  Texas Code of Criminal Procedure 18.01 (j) provides magistrates, sometimes called “hearing officers,” to authorize search warrants in DWI refusal cases.  Hearing officers are on duty 24 hours a day in Harris County to review probable cause in cases of warrantless arrests, and to review probable cause in these DWI refusal cases.

The United States Supreme Court has not specifically reviewed this process used in Texas.  Most DWI lawyers do agree though, that these procedures probably do not violate the Constitution.  The Supreme Court has allowed blood draws even in DWI cases where the police do not first get a warrant.  Schmerber v. California384 U.S. 757 (1966).  These cases do require emergency circumstances to exist that would take so much time that the evidence of alcohol in the blood could dissipate.

Top DWI lawyers across the country have fought some of these cases with success.  In 2013 the Supreme Court held that a blood sample taken without the consent of the suspect or without a warrant was illegal if no emergency circumstances existed.  Missouri v. McNeely, Docket No.  11-1425 (2013).  This ruling has also called into question laws in Texas that allow police to take blood from certain DWI suspects without a warrant or any regard to emergency circumstances. 

My Blood Was Taken Against My Will

If your blood was taken with your permission then you will have limited legal grounds to try to contest the blood draw. You still need an experienced DWI attorney to investigate the collection and testing procedures however. If your blood was taken without your consent, then the police procedures must be examined by your lawyer very carefully. If the police did get a search warrant, there are proper procedure for requesting and executing a warrant that must be carefully followed. Obtain strong representation and get a lawyer for your DWI charge that has extensive experience in these matters.  If the police did not get a warrant, then the legal avenues for them to take your blood are even narrower.  Do not try to fight this process yourself or with a cheap lawyer who will not stand up to the government.

Written by

Jim Medley

For more than 20 years, attorney Jim Medley has perfected his craft in the field of criminal justice. He garnered extensive knowledge during his 12 years as a police officer in Texas, and applied that knowledge during his time as a professor of criminal law and criminal justice. Mr. Medley brings a unique skill set to the table, and as a result, he would be an invaluable asset in the courtroom should you need DWI or criminal defense in Houston.

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