Recently, the highest criminal court in the state, the Texas Court of Criminal Appeals, has ruled that blood search warrants are required for officers to obtain blood samples from those who they suspect are driving while intoxicated.
Blood samples are to be used as evidence of the suspected drunk driver’s blood alcohol content (BAC) level, illustrating the driver was driving while intoxicated. If the results of the test determine that the level of alcohol in the suspect’s system is above the legal threshold of 0.8 percent, the suspect will be charged with DWI.
Legally Obtaining a Blood Sample
There are two primary ways for an officer to legally obtain a suspected drunk driver’s blood sample as evidence of Driving While Intoxicated.
One way is to obtain the freely given consent of the suspect. An officer may not use coercion or force to obtain consent. Such coerced consent, when brought to trial, is likely to be found invalid, therefore invalidating all evidence obtained under the false pretenses.
The second way is to obtain a valid search warrant from a judge or authorized magistrate. Often, counties have magistrates on call who can issue a warrant for a blood search at all times of the day and night.
While you have the right to refuse consent to a blood draw, it doesn’t guarantee that you’re in the clear. The officer, with probable cause, can swear an affidavit to a magistrate or judge and obtain a search warrant requiring you to submit to blood testing anyway.
If the magistrate or judge finds that the officer has illustrated probable cause that;
- the driver of a motor vehicle is driving while intoxicated,
- the driver’s blood can provide evidence that the crime has indeed occurred, and
- the blood containing the evidence is the driver’s own blood, a warrant will be issued.
Refusing to Consent to a Blood Draw
If a warrant for a blood sample is issued and you refuse, Texas law allows an officer to use reasonable force to obtain the sample. The refusal may result in additional charges being filed against you.
Thus, we at The Law Offices of Tad Nelson & Associates advise that you don’t resist. With our help, the stop or the warrant may be challenged and the sample may be later suppressed at trial, resulting in the destruction of the state’s case.
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Remember, you have the legal right to refuse to have your blood drawn without a search warrant. Unless some exception applies, blood evidence taken from you without your consent or a valid search warrant, won’t be admissible against you in court.
With an experienced DWI defense lawyer on your side you’ll be able to challenge & review evidence, pose Constitutional challenges to searches of your person and property, and keep some or all of your driving privileges throughout the litigation of your case.
Our attorneys will fight to ensure that your legal rights are protected and that you’re treated fairly. To contact our DWI defense team to review your case at no charge, call us at 713-489-7373 or send us a confidential message via contact form.