Texas Court Holds Blood Draw Violates 4th Amendment

Finally, a Texas court has said enough is enough when it comes to drawing a person's blood in a Texas DWI case.  The 2nd Court of Appeals affirmed the decision of the trial court to suppress the blood draw pursuant to a warrant.  The case summary from the 2nd Court of appeals states:

Although some of the trial court’s conclusions of law supporting its suppression of Appellee’s blood test results in this DWI case were erroneous or unnecessary, the trial court did not err in its ultimate conclusion that the manner in which police took Appellee’s blood was unreasonable under the Fourth Amendment, considering the totality of the circumstances. Here, after obtaining a warrant for Appellee’s blood, which Appellee conceded was valid, a trained officer drew Appellee’s blood in private at the police station (assisted only by the arresting officer) after restraining her to the blood draw chair with gauze, failed to ask for any prior medical history or issues, and failed to check on her condition afterward. Moreover, the police department did not have any guidelines for officers to follow in the event a suspect resisted such a blood draw, which Appellee did here. Although the United States Supreme Court’s decision in Schmerber v. California does not require blood draws to occur at a hospital, it does hold that such a bodily intrusion should be performed in a reasonable manner so as to minimize the risk of infection and pain from the procedure.

The Court said that just because you have a warrant to take a Texas DWI suspect's blood, that is not the end of the inquiry.  Because we have this little document called the United States Constitution, the government must not only have a warrant.  The State of Texas must also execute that blood warrant in a reasonable manner.

Chief Justice John Roberts lets us all know where he stands on the issue of DWI / Drunk Driving

The Supreme Court refused to hear a drunk driving case from Virginia.  Chief Justice John Roberts wrote a dissent to the decision not to hear the DWI case in which he says the lower court ruling will "grant drunk drivers one free swerve" that could potentially end someone's life.

In the underlying DWI case, the defendant was convicted of driving while intoxicated.  The evidence at trial was the driver was pulled over after a motorist called in a drunk driver.  The officer did not personally observe any traffic violation before stopping the driver.  The case was appealed to the highest court in Virginia and was ultimately overturned because of the stop.

In his dissent, Chief Justice Roberts goes on to say,

The stakes are high. The effect of the rule below will be to grant drunk drivers 'one free swerve' before they can be legally pulled over by police.  It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.

Isn't this exactly what is required for a valid stop.  The officer must state with particularity the reason for the stop - the observations he/she has made prior to pulling someone over.  The 4th Amendment to the Constitution of the United States protects each and every one of us from unreasonable searches and seizures.  Chief Justice Roberts - BELIEVE IT OR NOT, THE CONSTITUTION APPLIES TO DWI / DRUNK DRIVING CASES ALSO. 

It seems like people, even Supreme Court Justices, don't think the United States Constitution should apply to driving while intoxicated cases.  I guess I am just a strict constructionist that believes the Constitution should apply equally to all cases.  If the police don't follow the rules, the evidence is no good.

New Texas DWI Laws - More freedoms taken away

The most recent Texas Legislature has again given the State more power over its citizens to invade a persons body without a search warrant.  Senate Bill 328 allows the police to take your blood in a Texas DWI case WITHOUT a search warrant in the following situations:

  1. When an individual involved in a wreck causes any bodily injury to another person;
  2. When an individual is arrested for DWI with a child passenger under 15 years of age;
  3. When an individual has 2 or more convictions for DWI; or
  4. When an individual has been previously convicted of DWI with a child passenger under 15 years of age, intoxication assault or intoxication manslaughter.

At first glance, this new law seems to make sense.  However, let's look a little closer.  What the statute allows our government to do is force you to give your blood - yes, strap you down and forcibly take your blood without a search warrant.  There will be no independent review of the officers actions before they force this blood draw. 

My concern for our citizens is that a police officers will use this DWI statute to make marginal arrests and force individuals to give blood without a search warrant when they otherwise would not have made an arrest at all. We are giving the police more and more power every day.  Now the interested party - the arresting officer - makes the decision to draw our blood, not a Judge as was previously required.

Anytime we let an officer invade, probe or take fluids from our bodies, there should be a warrant required.  We all have a protected interest in our bodies and the legislature has deprived us of our right to require at a bare minimum a search warrant that is signed by a detached and neutral judge.  Instead, we are allowing an interested party, the police officer making a DWI arrest, to make a decision with no oversight.  Shame on our legislature giving the police the ability to search and seize our blood without a warrant.

The hope is that through DWI lawyers fighting this type of legislation, the legislature will realize the threat to our constitution and change the law or that the judiciary will strike the law down as an unconstitutional invasion on our right to be free from unreasonable searches and seizure.

Image:  Sharon Gott