Texas Blood Search Warrants
Below are some common questions regarding blood search warrants in Texas.
Are search warrants to obtain blood legal when a DWI arrestee refuses to give a blood or breath sample?
Yes. Generally speaking, taking a blood sample is a search-and-seizure within the scope of the U.S. Constitution and the Texas Constitution. Blood is legally considered an "item" which may be obtained through an evidentiary search warrant.
Should an officer tell an arrestee that a warrant will be obtained for their blood if they refuse to submit a sample?
No, because it could result in a claim of coerced consent. A criminal defendant can suppress his or her breath test result as involuntary if officers give him or her information in addition to the statutory warnings.
What if an arrestee agrees to a breath test after being informed that a warrant has been issued?
The officer should continue to rely on a warrant and record the fact that the defendant also gave consent.
Who is authorized to conduct the actual blood draw?
This is different than a mandatory blood draw under Texas law in that anyone who is qualified or trained to perform a blood draw may do so. For example, unlike a mandatory blood draw, a search warrant blood draw may be done by an EMT.
What if the arrestee physically resists the blood draw?
Officers may use reasonable force consistent with maintaining their safety and the safety of the arrestee. Resisting a search is usually a Class A Misdemeanor under Texas law.
May the search warrant be obtained by faxing the affidavit to a judge?
Yes, Texas law only requires that "facts" in a sworn affidavit be presented to the magistrate who signs the search warrant. Texas law requires that an affiant must swear that within his or her has personal knowledge of the facts within his or her written affidavit and that those facts establish probable cause. Nothing in Texas law requires that the officer personally appear before the magistrate. Also, electronically transmitted documents constitute a written document for all legal purposes.
What magistrate may sign a search warrant seeking a blood sample in a DWI case?
There are two requirements that need to be met under Texas law. First, the magistrate must be an attorney. Second, the magistrate statutorily is allowed to sign evidentiary search warrants.
Who may administer an oath to an officer (or affiant) who is seeking a search warrant to draw blood in a DWI case?
Texas law lists out who may specifically administer and certify an oath.
Can a magistrate sign a search warrant that will be executed outside of his or her jurisdiction?
Yes. Although it is the duty of every magistrate to preserve the peace within his or her jurisdiction by the use of all lawful means, Texas law denotes no territorial limitations to a magistrate's jurisdiction when issuing a search warrant. Most cases involving the jurisdiction of magistrates involve justices of the peace. When acting as a magistrate, the jurisdiction of a justice of the peace is coextensive with the limits of the county.
To assure that your rights are protected to the fullest extent of the law, you will need the experience of a criminal law attorney who has been previously involved in such cases. Our firm has served the Dallas area for over 40 years, and attorney Jerry W. Melton is Board Certified in Criminal Law by the Texas Board of Legal Specialization. We have the resources to answer all of your questions concerning a blood search warrant and the qualifications to present a strong case for you. Please fill out our form online or call 972-980-8000 today and schedule your free consultation.