No consent? DWI blood search warrant required

warrant for blood draw

Search warrants are required for nonconsensual DWI blood draws

Just hours ago, the Court of Criminal Appeals in Texas determined that police officers must obtain a search warrant to draw blood from suspected intoxicated drivers if the suspect does not consent to provide a specimen voluntarily.

Blood search warrant

In State v. Villarreal, the Court of Criminal Appeals was presented with the issue of whether officers could perform nonconsensual blood draws pursuant to 1) implied consent or 2) mandatory blood-draw provisions under state law without first obtaining a warrant. In the 5-4 decision, the Court decided that officers must first obtain a warrant.

Implied consent

Implied consent in Texas is the idea that individuals have given their implied consent to provide a sample of breath or blood to a police officer who has reason to believe the person is intoxicated. In Texas, if you refuse to provide a sample of breath or blood voluntarily, your driver license will be suspended for 180 days for refusing to provide that sample of breath or blood. Additionally, evidence of your unwillingness to provide a sample of breath or blood may be admissible in a trial against you.

Mandatory blood draws

Statutory blood draws, on the other hand, are situations where the legislature had allowed officers to draw blood without consent. One such situation is where an officer has reliable information from a credible source that the suspect has been convicted of DWI on two or more occasions in the past. Another instance where the legislature in Texas allowed for mandatory blood draws was in situations where the suspected intoxicated individual caused injury or death of another.

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If officers want your blood after you refuse to provide a sample of breath or blood, they must obtain a warrant to get your blood. The Court made clear that an officer cannot obtain blood without either consent or a warrant.

In 2013, the United States Supreme Court ruled in Missouri v. McNeely that without evidence of an exigent circumstance, officers cannot perform nonconsensual blood draws without a warrant and that the fear of dissipation of alcohol alone is not enough to show an exigent circumstance. Some prosecutors in Texas, however, did not believe that McNeely barred warrantless nonconsensual blood draws because McNeely only addressed blood draws in light of the exigency created by the dissipation of alcohol and did not specifically prohibit warrantless nonconsensual blood draws that were authorized by a state’s “carefully tailored implied consent” laws.

The Court of Criminal Appeals explicitly rejected the following arguments that:

  1. a suspect’s implied consent is enough to overcome the requirement for a warrant;
  2. there is a lesser expectation in the privacy of one’s blood when the person is driving; and
  3. the minimal intrusion of a blood draw is outweighed by the need to protect the public’s interest in having safe roadways.

The Supreme Court of the United Stated heard the case Missouri v. McNeely and decided the natural dissipation of alcohol in the bloodstream does not always constitute an exigency that would allow for a warrantless blood draw.

What does this mean for you?

If officers want your blood after you refuse to provide a sample of breath or blood, they must obtain a warrant to get your blood. The Court made clear that an officer cannot obtain blood without either consent or a warrant.

While this is not a surprising decision, it is an important one. This serves as a reminder to the State that the burden to prove a case is on the State. What citizens expect officers to do in any case, whether they are investigating a murder or a DWI, is to investigate and gather evidence. If an officer is unwilling to obtain a search warrant, the officer knows that he may face a jury that may consider his work in the field an incomplete investigation.

If you are arrested for driving while intoxicated in Tarrant County, call Varghese Summersett PLLC to discuss your options with an attorney who stays abreast of changes in DWI laws as they happen.

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Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese