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FAQ - BLOOD SEARCH WARRANTS

Q Are search warrants to obtain blood legal when a DWI arrestee refuses to
give a blood/breath sample?
Yes, Beeman v. State, 86 S.W.3rd 613 (Tex. Crim. App. 2002) (upheld a search
warrant for blood in a misdemeanor DWI-refusal case). Generally speaking,
taking a blood sample is a search and seizure within the scope of the Fourth
Amendment to the United States Constituion and Article 1, section 9 of the Texas
Consititution. Schmerber v. California, 384 U.S. 757, 77, 86 S.Ct. 1826 (1966).
Blood is an "item" which may be obtained through an evidentiary search warrant
under Article 18.02(10). Gentry v. State, 640 S.W.2d 899, 902-03 (Tex. Crim.
App. 1982)

Q. 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. Under Erdman v.
State, 861 S.W.2d 890 (Tex. Crim. App. 1993), a defendant can suppress his
breath test result as involuntary if officers give him information in addition to the
statutory warnings.

Q Are search warrants to obtain blood legal when a DWI arrestee refuses to
give a blood/breath sample?
Yes, Beeman v. State, 86 S.W.3rd 613 (Tex. Crim. App. 2002) (upheld a search
warrant for blood in a misdemeanor DWI-refusal case). Generally speaking,
taking a blood sample is a search and seizure within the scope of the Fourth
Amendment to the United States Constituion and Article 1, section 9 of the Texas
Consititution. Schmerber v. California, 384 U.S. 757, 77, 86 S.Ct. 1826 (1966).
Blood is an "item" which may be obtained through an evidentiary search warrant
under Article 18.02(10). Gentry v. State, 640 S.W.2d 899, 902-03 (Tex. Crim.
App. 1982).

 

Q. 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. Under Erdman v.
State, 861 S.W.2d 890 (Tex. Crim. App. 1993), a defendant can suppress his
breath test result as involuntary if officers give him information in addition to the
statutory warnings.

 

Q. 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.

 

Q. Who is authorized to conduct the actual blood draw?
This is different then a mandatory blood draw under Trasnsportation Code
§724.017, anyone who is qualified/trained to perform a blood draw may do so.
Unlike mandatory blood draws, a search warrant blood draw may be done by
EMTs.

 

Q. 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 typically a Class A Misdemeanor
under Tex.Penal Code §38.03(a).

Q. May the search warrant be obtained by faxing the affidavit to a judge?
Yes, Sec. 18.01 of the Code of Criminal Procedure only requires that "facts" in a
"sworn affidavit" be presented to the magistrate who signs the search warrant.
Tex. Code of Criminal Procedure Art. 18.01(b) requires that an affiant must
swear that he has personal knowledge of the facts within his written affidavit and
that those facts establish probable cause. Nothing in the provision requires that
the officer personally appear before the magistrate. Also, electronically
transmitted documents constitute a written document for all purposes. See TEX.
CODE CRIM. PROC Art. 2.26.

Q. What magistrate may sign a search warrant seeking a blood sample in a
DWI case?
There are two requirements that need to be meet. First, the magistrate must be
an attorney. Second, the magistrate statutorily is allowed to sign evidentiary
search warrants.

Q. Who may administer an oath to an officer/affiant who is seeking a search
warrant to draw blood in a DWI case?
Texas law lists who may administer and certify an oath. See Tex. Gov't Code
§602.002.

Q. Can a magistrate sign a search warrant that will be executed outside of
his jurisdiction?
Yes. Although it is the duty of every magistrate to preserve the peace within his
jurisdiction by the use of all lawful means, the Code denotes no territorial
limitations to a magistrate's jurisdiction when issuing a search warrant. Most
cases discussing 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. See Ex parte Clear, 573 S.W.2d 224
(Tex. Crim. App. 1978)