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Legality of Blood Samples Taken From Suspects in DWI Cases

On April 17 of this year, the United States Supreme Court decided the case of Missouri v. McNeely. The issue in the case was whether or not police officers, after having arrested someone for suspected DWI, could impose on arrestees a nonconsensual blood withdrawal. And, basically, the answer is, "No, not without a warrant, unless an exception applies."

For the past few years, Texas, along with some other states (including Missouri), have been under the impression that a person who is arrested for an alleged DWI, and who refuses to submit to a Breathalyzer test and/or a blood test, can be subjected to a forced blood withdrawal, at a hospital or other sanitary location, due to "exigent circumstances." They have expanded on the idea of "exigent circumstances" — an emergency situation — to include the dissipation of alcohol in the bloodstream. They have argued that, because traces of alcohol in the body gradually fade, over time and after someone has had their last drink, an emergency situation exists, when an alleged drunk driver is arrested, because potential evidence is gradually being destroyed. So, in order to avoid this destruction of evidence, many law enforcement officers have believed that, in this "emergency situation," there is no need to obtain a warrant.

However, the slow dissipation of alcohol in the bloodstream does not present the law enforcement officer with an "emergency situation," and the U.S. Supreme Court has decided that, in order to invade a person's body and privacy, to this extreme extent, by nonconsensually drawing their blood, a warrant is required, unless an ACTUAL emergency situation occurs. Merely being suspected of DWI is not an emergency situation. An emergency situation may occur when someone was injured or killed, as a result of the suspected DWI.

If a person refuses to provide the arresting officer with a "specimen" of blood and no true emergency situation exists, the officer must obtain a warrant, in order to conduct a nonconsensual blood withdrawal. First, the arresting officer must create a statement, regarding his/her probable cause for arresting the alleged offender. Then, the officer must contact a "neutral magistrate," usually a judge, in order to have the request for a warrant accepted. If the judge believes that the officer's request is valid, the judge will issue the warrant, and a person's Fourth Amendment right to be free from unreasonable searches and seizures is protected by these safeguards of justice.

Many states have argued that, because alcohol in the blood dissipates over time, there should be an exception to the warrant requirement. They are suggesting that it is an emergency situation, an "exigent circumstance," which should allow the officer to bypass a person's constitutional right to a warrant being issued before his/her bodily fluids are seized. But, the U.S. Supreme Court disagrees. The court adopted a "totality of the circumstances" analysis of the situation, which is a fact and case-specific analysis. Each case is closely analyzed based on its specific facts. The court acknowledged that each case is special and different.

In order for the warrant requirement to be legally disregarded, the arresting officer and the court must look at the whole picture. The simple fact that the officer believes that the arrestee is intoxicated is not enough. Failing field sobriety tests is not enough.

The ruling in Missouri v. McNeely is VERY broad. Whether or not an officer can conduct a nonconsensual blood withdrawal for someone w/prior DWIs is still up for debate. The court stuck to a "totality of the circumstances" approach and emphasized "exigent circumstances" as the exception to the warrant requirement.

The Texas DWI statute allows for nonconsensual withdrawals in situations where injury or death occurred and/or the arrestee has prior related offenses on his/her record. If they were taking people's blood w/o a warrant based merely on the fact that they were worried about alcohol dissipating in the blood and evidence being destroyed, they were violating their own state law. The United States Supreme Court said it's OK in cases involving injury/death, but they were mute regarding prior DWI-related offenses.

If a nonconsensual blood sample is taken in Texas it is worth exploring whether a motion to suppress could be used to throw out evidence of the blood sample. Contact us for more information.