Tuesday, December 16, 2008

Forced blood draws in Texas

If you are arrested on suspicion of driving while intoxicated in Texas, Chapter 724 of the Texas Transportation Code authorizes a peace officer to request a sample of your breath or your blood for testing.  In fact, Section 724.012(b) requires an officer to request a sample of your breath or blood if you're arrested on suspicion of violating the state's DWI statute.  Per Section 724.012(c), the officer gets to decide whether to request breath or blood.

Section 724.019 allows a citizen accused to request an independent blood test within two hours of providing a sample pursuant to a request from a peace officer.  I have yet to speak to a client who was informed of this right after blowing into the state's breath test machine.

Section 724.017(a) only authorizes a physician, qualified technician, chemist, registered professional nurse or license vocational nurse to take an evidential blood specimen from a citizen accused of DWI.  Interestingly enough, per Section 724.017(c), the term "qualified technician" does NOT include emergency medical technicians or service workers. The blood must be drawn in a sanitary place. Neither the back of an ambulance, the police station nor the county jail are considered to be sanitary places.

While the results of blood tests are looked upon as more accurate that breath test results, there are several avenues available to attack the results.  The state, for instance, must prove up the chain of custody for the blood sample and, based on Crawford, affidavits will not suffice.  The prosecutor will have to bring in every person who handled the blood specimen.  The state will also have to prove that the sample was collected, stored and tested in accordance with the procedures for the particular sample kit used to collect the specimen.  Expiration dates, tube caps and placement of labels become important issues in attacking the validity of a blood test result.  

The warrant authorizing a forced blood draw must be signed by an impartial magistrate and must contain the allegations within the four corners of the document.  On many "No Refusal" weekends, either MADD or a victims' rights group will donate the funds to supply a judge and registered nurse in case a citizen accused declines a breath test.  How neutral and impartial is a judge who's being paid by MADD going to be?

As I have said many times before, and will continue to say, the best way to avoid being arrested for driving while intoxicated is NOT to drink and drive.  But, if you do, and if you're falsely accused of DWI, contact my office.

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