Blood Search Warrants for DWI- Texas Current Emphasis on Blood Search Warrants by Law Enforcement Agencies in Austin/Travis County and San Antonio/Bexar County, Texas
I write this missive in response to a number of inquires about the current policy of obtaining Blood Search Warrants by Law Enforcement agencies (the Austin Police Department and San Antonio Police Department) in Texas.
Due to the increase in information and knowledge available to the citizens in relation to responding to a DWI investigation many citizens are refusing to take the Standardized Field Sobriety Tests or provide a Breath Sample. Police officers are becoming frustrated by the lack of "cooperation" from the citizens in assisting the officers in building a DWI case against themselves. One of the new techniques utilized by law enforcement agents is to work in cooperation with the courts to obtain "Blood Search Warrants".
Consider the following hypothetical: Imagine yourself on the way home from late dinner at a local Italian diner when you get stopped for failing to signal a lane change with no other traffic near your car. You explain to the officer that you had two glasses of wine with your meal but you are not intoxicated. The officer notices that you have bloodshot eyes, appear sluggish and lethargic and he smells the odor of an alcoholic beverage on your breath. He asks you to exit your vehicle and perform some "simple roadside agility tests". Before agreeing to perform the tests you recall your day so far:
- got up this morning at 5:00 a.m. and got in a tough workout at the gym before going to the office. You spent all morning on the computer and after an energy bar for lunch got right back in front of the computer screen. You worked on a new assignment until 7:30 p.m. and then stopped by your elderly mother's house to visit and help her with a few physical chores that she was unable to do for herself. You are physically tired but stopped to eat a bite on the way home.
Wanting to cooperate but unsure of your rights as a citizen you ask if it would be alright to speak to an attorney friend before taking the tests. The officer tells you that if you do not cooperate you will be arrested for DWI and taken to jail "due to the manifestations of intoxication he has already identified about your person." Because you consider yourself to be in pretty good shape for a person your age you decide that doing the tests is preferable to jail. You fail to mention your past physical sports injuries when he asked if you are injured since they are not something you are currently receiving treatment for.
The officer shines his flashlight in your eyes and tells you to follow his finger with your eyes while keeping your head still. You attempt to do as instructed but he yells at you twice to "keep your head still" and says "can't you follow my simple instructions." The officer keeps talking into the microphone on his shoulder during this eye test but you don't understand the terms he is using. Then he starts telling you about a Walk and Turn test. You are worried that your past leg and back problems could interfere with your performance.
Your anxiety is heightened when you realized that the officer is giving a lot of instructions and you have never tried these physical skills before. When he asks "do you understand?" you say yes so you don't look like someone that can't understand these "simple instructions". You become concerned and again ask for permission to call your attorney on your cell phone before you try to take anymore test. The officer then places you under arrest and asks if you are willing to provide a breath test. When you ask to speak to an attorney for the third time he tells you that he considers that "a refusal". You are handcuffed, placed in back of the patrol car and taken to the jail where a nurse awaits you with a hypodermic needle and draws your blood. As your blood is being pulled from your veins you ask yourself how are you going to explain this to your wife, kids, boss and your mother. You ask yourself - how did this nightmare happen?
Texas Law provides for the taking of blood without a warrant in Intoxication Manslaughter (fatalities) and Intoxication Assault (serious bodily injury) cases. The only issue in those situations is whether or not the officer has a belief that intoxication is involved. They cannot just take your blood without some indication that you are under the influence of an intoxicating substance. Otherwise, a blood draw would be allowed in every auto accident that resulting in death or injury. That law was written to assure that the blood draw could be done without delay in case there was no judge or magistrate available to sign a warrant and the evidence would be lost.
The latest fade in the "War on DWI" is the Blood Search Warrant. In Texas and throughout the nation, Law Enforcement agencies have found a loophole to circumvent the restriction on taking blood except in those most serious cases described above. By obtaining a Blood Search Warrant signed by a Magistrate the police have effectively extended the Statutorily allowed blood draw to any and all DWI cases.
The biggest concern I have is whether or not the Magistrate is "unbiased and neutral". Is the Magistrate being paid especially for this purpose? Does the Magistrate approve every Blood Search Warrant that is submitted for approval? Does the Blood Search Warrant Affidavit (the application for the warrant) actually contain enough information to justify the intrusion of taking the blood from a citizen's body.
Unfortunately, the legal battle must be fought in court after the blood has already been taken. Fortunately, our criminal justice system allows for this fight to occur. But remember I can only attack the Blood Search Warrant if you stand up for your Constitutional Rights and refuse to give your consent for the blood draw. You must force the police to get the Blood Search Warrant in order to give me the forum to fight the legal battle to suppress the evidence.
That doesn't mean you get to use physical force to resist the blood draw. Once the police have the Blood Search Warrant in hand they can take your blood and are authorized to use physical force to do so. You can also be charged with the criminal offense of "Resisting a Search" by failing to cooperate with the Blood Search Warrant. I advise clients to respectfully submit to a valid Blood Search Warrant. The system allows me to fight the legal battle in front of a different Judge than the one that signed the Blood Search Warrant.
As the "War on DWI" continues to escalate you can expect for even more Draconian measures to be created by the Law Enforcement agencies. The best weapon we have to resist this movement is to educate the citizenry and to ask for the public to keep tabs on pending legislation that may further restrict our rights as citizens. There is a need to prevent the catastrophic harm caused by drunken drivers. But caution must be exercised when we risk damage to our Constitutional Rights and individual freedom.
I believe that historically once the people lose individual freedoms to their Government they seldom reclaim them. I don't have a simple solution to the problem of drunk driving but I remain concerned about the cost of these Blood Search Warrants to the rest of our society.