DWI Blood Tests: 3 sections of the Transportation Code you should know concerning DWI blood test laws by Plano DWI lawyer Troy Burleson
By Collin, Dallas and Denton County DWI Attorney Troy Burleson
Collin, Dallas and Denton County mandatory DWI blood tests: As I have reported in multiples posts, local counties are experimenting with mandatory blood tests from citizens suspected of DWI who refuse a breath test. These mandatory blood draws are likely to be challenged on state and United States constitutional grounds. As counties increasingly use this overly invasive tactic (forcible inserting a needle into citizens’ veins), challenges to these policies are sure to follow.
Currently, the law allows a police officer to obtain a warrant from a judge or magistrate and obtain your blood. As reported, many local prosecutors and district attorneys believe that citizens do not have a right to refuse a scientific test, such as breath or blood.
However, a review of the Texas Transportation Code reveals that a citizen does have a right to refuse a breath or blood test. Below are three relevant sections from chapter 724 of the Texas Transportation Code which controls the law and procedures for blood and breath testing in Texas:
1) Implied Consent Law:
Most citizens do not know that as a condition of being issued a Texas driver’s license, they gave “implied consent” that they would submit to a breath or blood test if asked to do so by a police officer. Here is the Implied Consent law:
§ 724.011. CONSENT TO TAKING OF SPECIMEN. (a) If a
person is arrested for an offense arising out of acts alleged to
have been committed while the person was operating a motor vehicle
in a public place, or a watercraft, while intoxicated, or an offense
under Section 106.041, Alcoholic Beverage Code, the person is
deemed to have consented, subject to this chapter, to submit to the
taking of one or more specimens of the person’s breath or blood for
analysis to determine the alcohol concentration or the presence in
the person’s body of a controlled substance, drug, dangerous drug,
or other substance.
(b) A person arrested for an offense described by Subsection
(a) may consent to submit to the taking of any other type of
specimen to determine the person’s alcohol concentration.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 1013, § 32, eff. Sept. 1, 1997.
2) Your Right to Withdraw your Implied Consent and Refuse a Breath or Blood Test:
Although you gave implied consent to submit to a breath or blood test when you received your driver’s license, the Transportation Code allows you to WITHDRAW your implied consent and refuse a breath or blood test. Below is the relevant section from the Texas Transportation Code:
§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON
REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a
specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
This section of the Transportation Code clearly states that a
“specimen may not be taken”
if a citizen refuses to submit to the test. Therefore, according to the Transportation Code, you have an ABSOLUTE RIGHT to refuse a blood or breath test.
3) Exceptions to your Right to Refuse a blood or breath test:
As indicated in 724.013 of the code, there are some exceptions that prohibit a person from refusing a blood or breath sample. Below are the exceptions from Section 724.012(b) of the Texas Transportation Code:
(b) A peace officer shall require the taking of a specimen
of the person’s breath or blood if:
(1) the officer arrests the person for an offense
under Chapter 49, Penal Code, involving the operation of a motor
vehicle or a watercraft;
(2) the person was the operator of a motor vehicle or a
watercraft involved in an accident that the officer reasonably
believes occurred as a result of the offense;
(3) at the time of the arrest the officer reasonably
believes that as a direct result of the accident:
(A) any individual has died or will die; or
(B) an individual other than the person has
suffered serious bodily injury; and (4) the person refuses the officer’s request to submit
to the taking of a specimen voluntarily.
I am having a hard time understanding the stance of certain district attorneys and counties who seem to believe a citizen does not have a right to refuse a blood or breath test. It seems clear that unless you are 1) involved in an accident, 2) in which an individual has died, will die or suffered serious bodily injury, and 3) you are arrested for DWI then you do have a right to refuse a blood or breath test result (See the above sections from chapter 724 of the Texas Transportation Code). Therefore, I believe it is only a matter of time before these mandatory blood test policies are challenged in the Texas appeals courts.