In 2009, Texas legislators passed a law that allows a police officer to conduct a forced blood draw when a person is suspected of driving while intoxicated (DWI) in certain situations. However, many defense attorneys, legal scholars, and advocates have voiced concerns over the legality of a warrantless forced blood draw during a DWI.
Texas DWI Forced Blood Draw Law
Texas Code Section 724.012 dictates when a police officer is allowed to draw blood without a warrant during a DWI. Under the law, a forced blood draw can take place if the driver refuses to voluntarily give a sample for testing and another person has died or will die, has suffered from serious bodily injury, or suffered bodily injury and has been transported to the hospital for medical treatment.
In addition, a forced blood draw can take place if the driver was arrested for DWI with a child passenger or if the officer believes that the driver will be arrested for felony DWI because of prior convictions. Finally, the officer can force a blood draw if it is believed that the driver committed DWI and was previously convicted of either intoxication assault or DWI with a child passenger. In all other cases of suspected DWI, the police officer must get a warrant for the taking of blood if the driver has refused to voluntarily give a sample.
Legal Concerns with Forced Blood Draw
In 2013, the Supreme Court of the United States shed some light on the issue of warrantless blood draws during a DWI in the case of Missouri v. McNeely. A divided court ruled that the natural dissipation of alcohol in the blood is not enough to warrant a forced blood draw during a DWI; however, the court did say that other exigent circumstances could possibly allow for the warrantless test.
Other cities across Texas, such as San Antonio, have changed their procedures to require warrants for all blood tests during DWI cases. Every case of DWI must now be judged on its own merits and facts in order to determine whether the warrantless forced blood draw was legal, and some prosecutors are encouraging officers to get warrants for all blood draws in non-felony DWI cases.
There have also been questions of constitutionality in regards to forced blood draws under the Fourth Amendment search and seizure provisions. Under the law, this Amendment protects citizens from them or their property being taken without a warrant issued with probable cause, except in very limited circumstances. The forced blood draw potentially violates this amendment by allowing the warrantless taking of blood that may not meet the specific exceptions of the law.
Contact Our Office Today
If you were forced to have your blood drawn during a DWI stop in the Austin area,don’t face this case alone. Our dedicated attorneys at Buford & Gonzalez may be able to help. Call the office or contact us today for a free and confidential consultation of your case.