By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Courts allow police to apply for search warrants for mandatory blood draws.
A warrant, in theory, is a precise legal document which explains to the judge or magistrate reviewing the warrant why the police believe it’s likely evidence of blood over 0.08 will be present in your system. In practice, however, police utilize one-size fits all warrants with boilerplate language.
A recent U.S. Supreme Court Opinion, Missouri v. McNeely, has in all likelihood invalidated Texas law which allowed for warrantless blood draws on felony DWI arrests. Thus, the only way a blood draw without consent can be done is through a warrant. In McNeely, the courts held the process for applying for blood warrants has become so simplified that only if there is exigent circumstances may an officer proceed without a warrant.
Books have been written about search warrants so I can’t cover them all here — but as with many things in the law, it’s complicated.
With a DWI blood warrant, the judge allows the police to draw your blood. If you are in that situation, then you must comply with the officer’s instructions. Your remedy is to fight the search in court later.
There are all sorts of legal problems with DWI blood warrants in Dallas and Collin County. Arguments can be made the the practice breaks or comes close to breaking several other statutes and laws.
The Texas Transportation Code Section 724.103 states, “…a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.” This language can be argued to be in conflict with the search warrant statute.
Texas Code of Criminal Procedure 14.06 suggests that when someone is arrested, the officer shall take the person arrested before a magistrate “without unnecessary delay.” Where the police hold someone while they take 30 minutes or an hour to get a search warrant, it can be argued they violate this provision too.
Blood warrants and draws are a complicated area of the law. It takes a detail oriented lawyer to be able to analyze the medical and legal issues behind proper blood draws and the underlying science.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice, please consult an attorney.