According to Lt. Steve Dorris, the PIO for the Baytown Police Department, he helped us fully understand a couple of different scenarios with blood draws:
1. If the suspect consents to the blood draw then it is done at our jail by certified EMS personnel.
2. If the suspect does not consent, we then have to get a blood search warrant, and in that case we take them to the ER where a phlebotomist draws the blood.
In both scenarios we take custody of the blood vial and it is sent to the lab for analysis.
The background of the draws:
Texas is what is called an implied consent state, what that basically means is when you get a DL in the state of Texas it is “implied” that you consent to a sample of your breath or blood during a DWI investigation as a condition of you having a DL. For years officers could take a blood sample without consent of suspected drunk drivers. However, in 2014 the Texas Court of Criminal Appeals ruled this to be unconstitutional which is why now, absent consent, we have to apply for a search warrant to draw your blood. This all stems from a 2012 case in Nueces County involving defendant David Villarreal (in case you want to look up the case). In that case, the officer stopped Villarreal on traffic, and when he refused to perform Field Sobriety Tests so the officer took him to the hospital and had his blood drawn without consent or a warrant. This case was appealed and the Texas Court of Appeals agreed with the Villarreal’s attorney, deeming this practice to be unconstitutional, and thus blood warrants came into existence in Texas and are commonly used today in DWI investigations.
Over the weekend, Baytown EMS was called to the Baytown Jail several times over the weekend and once earlier today to do the blood draw of a detainee. The blood sample is normally used for evidence for dockets.
The Mandatory Blood Draw Statute in Texas is found in Transp. Code § 724.012. The mandatory blood draw statute provides for certain exceptions to the right of a person to withdraw his implied consent and requires an officer to take a specimen of the person’s breath or blood even if the person is conscious and refuses to provide a sample.
Under Transp. Code § 724.012, an officer is required to take a breath or blood sample of a suspect whenever the officer reasonably believes that:
- as a direct result of a DWI accident a person has died or will die;
- any person other than the suspect has suffered serious bodily injury; or
- any person other than the suspect has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment.
Under Transp. Code § 724.012(b)(2), the mandatory blood draw statute in Texas also requires a mandatory breath or blood test if the officer arrests a person for an offense under Penal Code § 49.045, DWI with Child Passenger.
Texas law also provides for a mandatory breath or blood test if, at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person has been previously convicted of or placed on community supervision for one of the following offenses:
- any two previous DWI cases;
- DWI with Child Passenger;
- Intoxication Assault; or
- Intoxication Manslaughter.
The Mandatory Blood Draw Statute in Texas requires a breath or blood specimen on any DWI which is a felony, or any person who has previously been convicted of a felony DWI or related charges of intoxication assault or intoxication manslaughter.
Case Laws:
Missouri v. McNeely, 133 S. Ct. 1552, 1557-63, 1567-68 (2013)
STATE V. VILLAREAL, 475 S.W.3D 784 (TEX. CRIM. APP. 2014)
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