Many individuals, whether they have been placed under arrest or not, or whether they are facing a current DWI charge, have questions relating to whether law enforcement officials have the legal right to obtain blood specimens. It is an area of law, that after discussing with various individuals, many people have misconceptions related to what the actual law is. You can read more regarding DWI Blood Draws by clicking HERE. Below hopefully can help serve as a guideline for those seeking additional information as to what their rights are if faced with a situation on whether to consent, or refuse, to allow the taking of a blood specimen. By no means is this list exhaustive of all possible questions. If you have further inquires, please contact Carl directly at Carl@CederLaw.com, or the office in general at Info@DFWDefenders.com. The Law Offices of Carl David Ceder welcomes any questions related to this subject to help the general public to stay as informed as possible.
Blood draws following DWI arrests are becoming increasingly common among law enforcement agencies in Texas. Many people have a variety of questions related to the constitutionality of the forced taking of a blood specimen when an individual indicates a refusal. Generally speaking, the investigation officer of the DWI must have the requisite standard of "probable cause" to believe that a driver was legally intoxicated before they would be able to obtain a valid search warrant authorizing the taking of a suspect's blood. However, there are certain circumstances which exist in Texas that authorize law enforcement officers to take blood without consent if certain factors are present. If you have any questions about your specific DWI blood test, or what your specific rights are in this process, please call The Law Offices of Carl David Ceder for further information.
► Is taking a blood sample without my consent a violation of my constitutional rights?
Generally speaking, taking an individual's blood constitues a "search" within the significance of the 4th Amendment to the United States Constitution. Despite this, the United States Supreme Court has authorized warrantless searches for blood in DWI cases, most notably in as early Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, the Court held that a State may, over the suspect's protest, have a physician extract blood from a person suspected of Driving While Intoxicated, without violating the suspect's rights under the 4th or the 5th Amendment to the United States Constitution.
However, the dynamics of warrantless blood draws everywhere has dramatically changed pursuant to the United States Supreme Court case and the resulting opinion written in Missouri v. McNeely. Missouri v. McNeely, 133 S.Ct.1552 (United States Supreme Court 2013). In McNeely, the United States Supreme Court affirmed an opinion of the Missouri Supreme Court, agreeing that an involuntary blood draw should indeed be included as a "search" - as to how that term is applied and used in the Fourth Amendment. As such, the holding of the McNeely opinion seems to indicate that a warrant is generally required before a law enforcement official can legally obtain a blood speciment from an individual. However, the Supreme Court left open the possibility that the "exigent circumstances" exception to that general requirement, and it is amiguous as to when facts would support such a finding with possible DWI cases. The actual opinion can be located at the following link: HERE.
In Texas, the Legislature and the Courts require a search warrant for a blood draw in all instances, other than those statutorily created circumstances where a warrantless draw is valid (*notwithsanding, for now, how the McNeely opinion will be structurally applied in Texas - the validity of this statute is now in question). Regardless, in 2011, the Texas Legislature made new requirements allowing for warrantless blood draws in limited circumstances (pursuant to House Bill 1199). A search warrant, pursuant to this law, allowed for warrantless blood draws for those suspected of Driving While Intoxicated in DWI cases where, most commonly, pertaining to those following vehicle accidents relating to injury and/or death, when it is an arrest for DWI with Child Passenger, and also those where the individual has two or more prior DWI convictions on their record (thereby making it a Felony DWI arrest).
***Regardless, as of now, what the United States Supreme Court stated with in McNeely opinion means, as of now, and as directly related to the citized accused in Texas of Driving While Intoxicated is that: WARRANTLESS BLOOD DRAWS MAY RESULT IN SUPPRESSION OF YOUR CHEMICAL TEST, SO ALWAYS CHOOSE TO REFUSE! MAKE THE INVESTIGATING POLICE OFFICER OBTAIN A BLOOD SEARCH WARRANT!!!
► What led to the increased level of DWI blood draws in Texas?
Many DWI Defense Attorney's openly marketed campaigns campaigns advising individuals to refuse to take breath tests (which again, we believe is still the best policy to follow if arrested for suspicion of Driving While Intoxicated). Notwithstanding the unreliability of breath tests in general, and the inherent flaws and variables of the Intoxilyzer 5000, refusing to submit to the taking of a chemical test on this machine, generally speaking, is not a wise approach to take. Police officers, and Breath Test Operators, are trained to obtained a result that is over a .08. If you consent to the taking of a breath sample on the Intoxilyzer 5000, and the result is over a .08, you have effectively given the police further evidence to utilize against you when seeking a conviction in court.
Given the tactic stated above, and how most DWI Defense Attorney's advised those against consenting to a breath test on the Intoxilyzer 5000, police officers began seeking alternative methods to obtain the Blood-Alcohol Content ("BAC") of a suspect arrested for a DWI. Additionally, the Texas case of Mata v. State, made it virtually impossible for the prosecutors to scientifically estimate a person's alcohol concentration while driving. Mata v. State, 46 SW 3d 902 (2001). As such, the elements to be proved for the citizen accused to be convicted of Driving While Intoxicated in Texas rapidly became, for DWI Defense Attorney's in trial, ripe to argue what it really legally is: an "opinion" crime, totally within the discretion of the"subjective" interpretation of the investigating police officer. In response to this above, many Texas District and County Attorney Offices, and the Department of Public Safety, decided to increasingly start taking blood in a wide variety of DWI arrests, especially when the arrestee refused to allow for the taking of a breath test. Many police departments issued "No-Refusal" weekend policies on certain occasions, implementing a wide misconception to the general public regarding what their actual rights are when arrested for DWI and asked to consent, or refuse, the taking of a chemical specimen (whether by breath or blood).
► What is the difference between whether I merely consent to my blood being drawn, in contrast to making them obtain a search warrant to obtain a sample?
The difference can between both of these options can be integral to your case. In all likelihood, there will be a huge difference in time, in reference to when the blood is actually drawn, which is a very significant concern in the metabolic process involving alcohol. Hence, the longer it takes the investigating police officer to acquire the blood specimen (which will take more time, in some cases significantly more time, via the process they will have to follow to properly obtain a blood search warrant) the less pertinent it may become, and in all likelihood, the lower your "BAC" result will be.
In some instances, it has been the case where the investigating officers will try to threaten, or coerce, a subject into submitting to the taking of a breath of blood sample - without them having to follow the protocol in obtaining a search warrant - then, after a certain amount of time passes, the investigating officer does not follow through with obtaining the search warrant. This could be the case for a variety of reasons - perhaps the investigating officer is close to being relieved of their shift, or they do not want the higher workload of what it requires to obtain a blood search warrant, or perhaps they have trouble in finding a magistrate or judge to sign the search warrant, or a "qualified technician" (pursuant to Section 724.017 of the Texas Transportation Code) to actually obtain the sample, etc. For this reason, it is always wise to refuse all chemical tests, and make them follow procedure in obtaining a blood search warrant. Even if they do, your "BAC" level likely will have decreased over this timeframe, as well - they may not follow proper protocol in obtaining the search warrant, allowing your DWI Defense Attorney to attack its validity later in court. The net of which is — ALWAYS REFUSE!
► What happens if I refuse to take, or fail a chemical test?
Generally, if a person declines or fails a blood or breath test following an arrest for Driving While Intoxicated in Texas, the individual is usually subjected to a a license suspension that can range from 90 days, and up to 2-years. The length of suspension is based primarily upon the amount of alcohol-related convictions the citized accused has had prior in the past, and over what time period each arrest occurred.
Regardless of whether you submitted to the taking of a chemical specimen, or if it was deemed to be a chemical refusal, the most important thing initially is to request an "ALR Hearing" within 15 days following your arrest. To read more about this process, please click HERE. This hearing is indepenent of the criminal portion of your DWI arrest, and is purely related to helping preserve your privilege to drive and your driver's license from being suspended. Our office usually always advises requesting the hearing, if for no other reason than because doing so the defendant can request the written discovery on the case in a more expedient fashion, and is done so via the Texas Rules of Civil Procedure. However, this is just one of the reasons it is essential to request a hearing prior to the State Office of Administrative Hearings (SOAH) suspending your license, which will effectively halt, and possibly altogether stop, the Texas Department of Public Safety (DPS), from making an attempt to administratively (civilly) suspend your privilege to drive. Again, contacting a skilled, trained, and experienced Texas DWI attorney promptly after your arrest is vital.
► Is a blood draw more accurate than the breath test?
The two types of tests, or "BAC measurements" are very much distinct, in terms of determining what the level was, or may have been, at the time of driving. In this respect, they are both imprecise for reasons of analyzing alcohol concentration while "operating a motor vehicle" - which is an element of proving that the citizen accused was, in fact, Driving While Intoxicated. Gas Chromatography (blood testing) is more precise, if at all, and vulnerable to the .000000001 while breath testing is precise, if at all, and sensitive to the .001. The dilemma, with both is that they are sensitive to their initial setup ailments, and the more sensitive the machine, the more complications can occur during testing if the initial set-up conditions are off. Thus, a blood draw can be a more precise measure the alcohol concentration after arrest than the breath test machine (if all is procedure and protocol is done in the proper manner). The blood draw has many more scientific hurdles that must be done correctly, however, in order for the BAC result to be precise, and for the integrity of the sample, when actually tested, to be accurate.
► Can I be successful with my case if a blood sample was obtained?
ABSOLUTELY. In light of the cumbersome, and differing, variables that must be done in the correct manner, it is often the case that blood samples, when actually tested, have results that are skewed because the integrity was not maintained. To read more about the exhaustive list that must be done correctly in order for a blood sample to maintain its integrity, please read HERE.
► Are blood tests the “Gold Standard” for determining BAC levels?
Blood is analyzed utilizing gas chromatography in most circumstances. In some situations, the results are validated or quantified using enzymatic analysis or mass spectroscopy. Gas chromatography is more sensitive in measuring substances than is the Intoxilyzer 5000. Its measurements are accurate down to the billionths of a gram. However, the gas chromatogram machine itself is particularly sensitive to its initial conditions, that is, its "set-up" or calibration. If the machine is not calibrated properly, it is merely not a scientific test, and it can be wildly erroneous. The concern in the DWI case is not essentially the precision of the machine itself, but it is the qualifications and scientific reliability of the operator of the machine and his laboratory’s methodologies. Another issue with the gas chromatogram is the blood draws are typically further away in time from the arrest than are chemical specimens obtained via the taking of a breath sample. The law requires that the officer must go through a number of steps, procedures, and hurdles, before and during the legal process before, during, and after, obtaining the blood sample. For instance, there should be a well documented chain of custody to be preserved to prove the integrity of the sample, in showing where the sample was from the time of the blood draw, to the time of it being tested. In addition, a magistrate must be accessible to sign a search warrant just before the blood can be drawn (if an individual does not consent). All of these procedures must be in place and to perfection, for scientific purposes, for the process to commence and for the blood sample to be accurate and precise.
► Contact Us Now
You can contact The Law Offices of Carl David Ceder at anytime for assistance at 214.702.CARL(2275) or at 469.2000.DWI(394). You can also e-mail Carl directly, at Carl@CederLaw.com; or to the office for general inquiries at Info@DFWDefenders.com. Phones should be answered 24 hours a day/7 days a week for immediate and personal assistance. E-mail messages will be responded to with 24-48 hours, depending on whether Carl is in trial.