Q: Are search warrants to physically extract a blood sample legal when a DWI arrestee refuses to give blood/breath sample when asked? For now, yes. Generally speaking, the mandatory taking of a blood sample under the new Texas “no refusal” law has been upheld by a Texas court (wrongfully, in my opinion) as a “reasonable search and seizure” within the scope of the Fourth Amendment to the United States Constitution.
Q: Who is authorized to conduct the actual blood draw? EMTs or other property trained personnel.
Q: What if the arrestee physically resists the blood draw? Good question…according to the State agencies promoting and enforcing the “no refusal” weekend (here’s an article/press release that appeared in the Dallas Observer), “refusal” is simply not an option for you…which is, of course, silly. A law can’t prevent you from refusing to consent to a blood draw any more than I can prevent my toddler from refusing to brush his teeth.
The real question is: how far can the police go in making you comply? Can one officer hold you down while another one shoves a syringe in your leg? Can they handcuff you to a hospital bed against your will? Could they Taser you if you put up a fight? The answer is a bit tricky.
- First of all, there is no clear legal precedent (in terms of a Court ruling) that addresses the limits of police force in the context of DWI “no refusal” laws. Why? Well, most judges are scared to rule against the constitutionality of strict DWI laws of political reasons (because MADD and other groups will campaign against them at the next election- accusing them to be soft on drunk drivers.)
- Second, as a matter of practical application, where the police should draw the line is not always where the line gets drawn (just ask Rodney King). But, what is clear (and what they never tell you when publicizing these “no refusal” weekends), is that under the law and Officer may only use “reasonable force consistent with maintaining their safety and the safety of the arrestee” (more on this 4th Amendment standard in later post).
So what does this mean in terms of the amount of force an officer can (and/or will) use to restrain you and extract your blood this New Years Weekend? Who knows! Because the Texas “no refusal” laws are relatively new and because there is no clear ruling from any Texas Court, police officers are left to apply their own judgment on how far to push it. As a legal/constitutional question, however, I believe there is a clear answer as to whether these “no refusal” laws violate your constitutional rights- And I don’t think you have to be a lawyer to figure it out. In fact, I know that you don’t…and hopefully, over the next several blog posts, I will be able to furnish you (the good strong P1) with the information and perspective necessary for you to answer this and any other Constitutional Rights issue you may encounter. Its really pretty easy once you understand the contours of the civil liberties which you are birthright as an American.
ADVICE FOR “NO REFUSAL” WEEKEND…Take a cab. Seriously. On “no refusal weekends” like these there is about an 80%-90% chance that you will be going to jail if a police officer so much as smells alcohol on your breath (based on my experience over the last few years representing 100+ DWI defendants).
But if you do find yourself driving after having a couple, here is one Useful Tip- obey all traffic laws to the T. IF you do that, the police will have no basis to pull you over. Specifically,
- Stay in your lane,
- Come to a complete stop BEHIND THE WHITE LINE at all red lights and stop signs (even if making a right on red),
- Don’t cross over any solid white or yellow lane dividers if changing lanes,
- Use your turn signal 100 ft. before making a turn, and
- Make sure your inspection and registration stickers are up to date.
Obey all traffic laws and you should get home safely.
Though this should only be construed as my opinion and not legal advice, I believe your constitutional right under the 4th Amendment if you consider the search to be unreasonable (discussed further in a later post). Further, what should happen and what does happen are two different things...