Texas DWI Blood Test/Blood Draw Laws
DWI Blood Tests in Texas
The requirements under which a blood test can be drawn from a citizen in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County is controlled by the Texas Transportation Code governing blood draw laws for the entire State of Texas. If you consented to or were forced to give a blood test, the first question that must be answered is whether your blood test was as a result of a request from a law enforcement officer or if the blood test was drawn at a hospital for medical purposes.
If your blood test was requested and drawn as a result of a request of a law enforcement officer, the provisions of the Texas Transportation Code §724.017 has control of jurisdiction. The prosecution will be required to prove that your blood sample was taken: (1) at the request or order of a peace officer, (2) by a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse, (3) in a sanitary place.
It is very important that the legality of the blood draw is explored thoroughly, because the punishment for DWI and repeat offenders is staggering.
Is it Legal to Forcibly Draw the Blood of a DWI Suspect in Texas?
Under Texas law, there are circumstances in which a person can be compelled, or forced, to give a sample of their blood.
Texas Transportation Code §724.012. TAKING OF SPECIMEN states:
“(a) One or more specimens of a person’s breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:
(1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or
(2) was in violation of Section 106.041, Alcoholic Beverage Code.
(b) A peace officer shall require the taking of a specimen of the person’s breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer’s request to submit to the taking of a specimen voluntarily:
(1) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident:
(A) any individual has died or will die;
(B) an individual other than the person has suffered serious bodily injury; or
(C) an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment;
(2) the offense for which the officer arrests the person is an offense under Section 49.045, Penal Code; or
(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:
(A) has been previously convicted of or placed on community supervision for an offense under Section 49.045, 49.07, or 49.08, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections; or
(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.
(c) The peace officer shall designate the type of specimen to be taken.”
When Can the Police Draw Blood for DWI Suspicion Without My Consent in Texas?
If you have been arrested for DWI involving a car accident and a passenger or driver of the car you hit left in an ambulance for treatment of injuries, Texas Laws give police permission to forcibly take a blood sample from you. The State of Texas also allows law enforcement to forcibly draw blood without your consent if the following conditions were present at the time of your DWI arrest:
- someone died or will die from the car accident injuries;
- an individual (other than you) has suffered serious bodily injury; or
- an individual (other than you) has been transported to a hospital or other medical facility for medical treatment of injuries that occurred in the accident; or
- you had a child passenger younger than 15 years old at the time of the DWI arrest;or
- you were previously convicted of DWI with child passenger; or
- you have a previous felony DWI conviction; or
- you have an existing conviction of intoxication manslaughter; or
- you were previously convicted of intoxication assault.
That means that if you have been arrested for DWI with a child passenger under 15 years of age, or have been previously convicted of specific DWI-related offenses (including a previous DWI with child passenger, Felony DWI, Intoxication Assault, or Intoxication Manslaughter conviction) and would not submit to a blood test Texas law provides that law enforcement may forcibly take a blood sample from you.
What If They Served Me With a Warrant For My DWI Blood Test?
If you have been arrested for DWI or DUI in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County and you were served with a warrant forcing you to give a blood sample it is important to remember that although this may be lawful, the police must follow strict requirements for your blood result to be admissible in court.
Is it Legal for a Search Warrant to be Issued to Draw Blood Without My Consent?
Yes, it is legal for a search warrant to be issued allowing police to forcibly draw blood without your consent. However, the law enforcement officers have to cross their t’s and dot their i’s because they must follow very detailed protocol for the blood draw to remain legal and admissible in court as evidence.
Because a search warrant authorizing law enforcement to compel a sample of your blood is treated as an evidentiary search warrant under the Texas Code of Criminal Procedure Article 18.02(10), police officers must take care to meet the following requirements:
- a DWI blood search warrant must be signed by a magistrate (not a justice of the peace judge or municipal court judge); and
- the affidavit accompanying the warrant must sufficiently establish probable cause that you committed the crime of DWI; and that
- the specific evidence sought to be seized would constitute evidence necessary for the DWI.
How Do the Results of a BAC Blood Test Affect My DWI Case in Texas?
Although Texas courts have held that a DWI blood test result is relevant to the issue of intoxication, it is important to remember that a DWI blood test result does not prove that you were intoxicated at the time of driving. Under Texas law, the prosecution must prove beyond a reasonable doubt that you were intoxicated at the time you were operating your motor vehicle.
A specific blood test result obtained hours after a DWI arrest provides no specific conclusions as to whether or not you were intoxicated at the time you were initially stopped for suspicion of DWI. As a result, prosecutors will attempt to rely upon Retrograde Extrapolation as a means of going back-in-time to determine your blood alcohol level at the time you were driving.
Retrograde Extrapolation to Determine BAC Hours Later
In order for the prosecution to perform the computations necessary to perform Retrograde Extrapolation, they will need certain information that only you could have provided during your interview with the police officers. Texas case law has established the minimum amount of information that would be needed in order to determine your blood alcohol level at the time of driving: weight, time of your last drink, and the period of time you had been drinking. However, there are other factors that can affect the accuracy of the retrograde extrapolation analysis (ex. How much you had to eat and when you ate it, etc).
If you have been arrested for DWI in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County, you may have been asked by a police officer to submit to a blood test. Generally, once you have been arrested for DWI by a Tarrant County police officer, the next step for you is to decide whether you should agree to give a sample of your breath or blood to be analyzed.
Contact a DWI Blood Draw Attorney for Help
At The Hampton Law Firm, our team of experienced DWI defenders know the ins and outs of blood draw laws. Schedule a consultation and we will carefully review the facts surrounding your DWI blood test and take the time to explain how those results affect your case and fight to keep your record free from a drunk driving conviction. Call The Hampton Law Firm now at 817-435-2909 to schedule an appointment with our defense lawyers focusing specifically on DWI cases.