Texas DWI Blood Draw Warrants- FAQ

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Texas prosecutors and the Fort Worth police are planning to celebrate July 4th by mocking the freedom our country was founded on. It’s another holiday DWI “no refusal” party and you’re invited.

To celebrate the desecration of our Bill of Rights, here is an FAQ on DWI blood draw warrants.

What is a “no refusal” blood draw warrant?
If a DWI suspect refuses to give a breath sample officers will get a warrant to take the suspects blood by force.

What’s wrong with that?
Where to start? First, there are no protections for DWI suspects. No due process. No right to counsel. The legislature never approved blood warrants. They are judicial activism. Finally, prosecutors seek to hide this practice from the public.

There is no right to counsel?
Our courts have held that judges, cops, and prosecutors can conspire to take your bodily fluid and you have no right to counsel.

What is the procedure?
Prosecutors line up cooperative judges to rubber stamp fill in the blank warrants that are faxed in by police. (Yes, they really use fill in the blank warrants).

Do these really violate the Constitution?
Sure. Here is your Texas Constitution-

In all criminal prosecutions the accused shall… not be compelled to give
evidence against himself

Blood would seem to be evidence in a DWI case. Forcing you to give meets most definitions of “compelling”. Luckily, our prosecutor friendly appeals courts have held that “evidence” doesn’t really mean “evidence.” “Evidence” means testimony. Obviously.

How Do They Violate State Law?
You don’t need a law degree to understand how forced blood draws violate Texas law.

§ 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.

How is this judicial activism?
The law and our Constitution forbid these forced blood draws. Texas prosecutors could have lobbied the legislature to pass a law and amend the Texas Constitution to allow these blood draws. Instead, prosecutor made an end run around the law and got pro-State judges to create new law.

What if you refuse to allow the officer’s to take your blood?
As you would expect, this process born from tyranny, ends with police brutality. The police hold you down while a needle is stuck in your arm. Assaulting suspects to steal their blood is un-American and degrades the criminal justice system. The more we “get tough” on DWI, the more we treat DWI suspects like GITMO detainees.

How can I learn more?
You can’t. Prosecutors love to brag about these forced blood draws on their message board. However, they will routinely fight open records request to disclose the details of this practice.

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Posted in: DWI Defense Lawyer, Police and Texas Laws
Updated:

15 responses to “Texas DWI Blood Draw Warrants- FAQ”

  1. Bad Court Thingy says:
    July 2, 2008 at 10:04 pm

    Fortunately, none of the counties I practice in engage in blood draw warrants, so I haven’t really done any research into the issue. Has a blood draw warrant case made it up to the court of criminal appeals?

  2. Richard Alpert says:
    July 3, 2008 at 7:26 am

    Yes. This practice has been upheld by the Texas Court of Criminal Appeals in Beeman v. State, 86 SW3d 613 (Tex. Crim. App 2002). It is perfectly legal and as any 1st year law student knows the right against self incrimination deals with statements and not the collection of physical evidence. In fact the involuntary drawing of blood even without a search warrant was upheld by the Supreme Court of the United States in Schmerber v. California, 384 US 757 (1966)

  3. Robert Guest says:
    July 3, 2008 at 9:56 am

    Richard,
    The Texas Constitution clearly forbids the compulsion of evidence. There is no mention of a limit to incrimination.

    “He shall not be compelled to give evidence against himself,”
    The opinion is Beeman is hardly a landmark of jurisprudence. Beeman also represents judicial activism. . The Transportation Code deals with the procedure for blood draws and implied consent. 724.013 limits the State’s power to draw blood. Holding down suspects to take their blood with a warrant isn’t available. In Beeman, COCA ignored those limitations and gave the State a power the legislature prohibited.

    That being said. I would like to read your DWI (Blood Will Tell) paper. Please mail a copy to my office.

    Sincerely,
    RG

  4. Don Foard says:
    July 3, 2008 at 10:47 am

    Robert:

    If I remember right you are a
    Red Raider. You will be happy (?) to see that Lubbock is right in tune with the times as they announced their very own “no refusal” weekend. I plan to write letters to the powers and the editor, but I want to get all my facts together, and I am not a lawyer. I don’t understand why people are not more outraged by this. I find it ironic that they do this on Indedendence Day. IMO, this is exactly the kind of thing that our forefathers fought in The Revolutionary War, WW I and WW II, so we wouldn’t have to endure. It is straight up fascism. DA’s office in Lubbock invokes the same old tired BS: “If it gets one drunk driver off the road and saves one life, it’s worth it”. Somebody quick, get me a barf bag.
    I may need you to clear up some questions later. Thanks for your blog.

  5. Robert says:
    July 3, 2008 at 10:54 am

    Don,
    Thanks for reading. Yes, I graduated from Tech Law. The current quarterback Graham Harrell is from Ennis, where I now live. Guns Up!

    I’m sad to see these warrants expanding to Lubbock.

    I would be glad to help you learn more about these blood draws.

    Sincerely,
    RG

  6. berz says:
    July 4, 2008 at 12:51 am

    A district judge accepts faxed warrants from the cops at midnight but everyone else has to wait for normal business hours to file anything?

    Thats not fair! Especially if you want to fight the warrant. Judges should make their home fax number public if they are gonna accept fax filings at home.

  7. Don Foard says:
    July 5, 2008 at 9:54 am

    To berz: It’s not even a District Judge. It’s a “magistrate” which is anything from a JP to a $20,000 a year Municipal Judge, with a GED credential and a $30 fax machine. Feel better?

  8. Bethanyblue says:
    July 9, 2008 at 5:55 pm

    This law is absolutely frightening to me. It is a violation of the religiuos rights of certain groups of people for sure. Although I am a Christian, I know that the Islamic faith is not allowed to donate blood… how would this blood draw be any different; and how could the state hold that it is not illegal for their rights to be violated by this practice?? Also, with the development of cloning and practices in line with Stem Cell research, who is to say that in 5, or even 1 year from now that the blood drawn will not be used for ‘experimental’ purposes…. since after exiting the body it is no longer personal property, but that of the state?

    It scares me to think that my children are growing up in a world where the foundation of the government is being corupted by money hungry politicians.

    What has happened to our government???? When will the control be handed back to the individuals that Vote?

  9. peepee power says:
    July 22, 2008 at 5:55 pm

    The dwi chapter of the penal code specifies a prohibited level of alcohol in the urine and also the transportation code says you have the right to give them urine instead of breath or blood.

    Funny how the “fill in the blank” warrant doesnt mention urine. This leads the magistrate to believe there was no other option for obtaining the evidence and is a clear lie by omission. A lie in a sworn court document is aggravated perjury!

    Heck yeah file a farking aggravated perjury complaint on the cops who sought the blood warrant containing this lie of of omission. Who cares if the DA refuses to bring it to the grand jury you still get to ask the cop about it when he testifies. Ha.

  10. zivkam says:
    August 29, 2008 at 12:47 pm

    Previously posted comments… {“The Texas Constitution clearly forbids the compulsion of evidence. There is no mention of a limit to incrimination.

    “He shall not be compelled to give evidence against himself,”}
    It is the job of the courts to decide the “intent” of the way the Constitution was written through case law. You may argue all you want about “no limit to incrimination”, but then wouldn’t a person being served with a search warrant for their house containing evidence against them have the right to refuse the search? Of all the “chopshop” warrants issued for blood draw, I have not heard any argument that there wasn’t enough probable cause to support the warrant.

    The State is finally providing the solid evidence that defense attorneys have been asking for in front of juries for years. Instead of only an Officer’s opinion, the State now gives you hard evidence obtained with a warrant signed by a judge.

  11. johncena says:
    September 18, 2008 at 3:29 am

    This law is absolutely frightening to me.its time for the citizens of the great state of Texas to stand up and put an end to these blood warrants imposed by the police, they will start using these every time you get pulled over you will not have to be drunk to have this done to you, This is the start of a police state..
    =========================
    johncena
    Dui In California

  12. justadumbcopfromlbb says:
    November 4, 2008 at 12:30 pm

    It would seem to me that all of the lawyers here are overlooking one very important fact in a blatant attempt to deceive the public and make them erroneously believe that a blood warrant for a DWI is somehow violating their rights. Just a bunch of swindlers hoping to make an easy buck from unsuspecting offenders who don’t understand the law.

    Any peace officer investigating any crime may present an affidavit for search warrant to a magistrate which outlines facts amounting to probable cause to obtain a warrant to search for evidence. It happens every day for countless offenses under investigation, ie. burglary, robbery, sexual assault, homicide, etc etc.
    Many types of cases other than DWI also involve warrants for blood evidence.

    A “Blood, Sweat and Tears” warrant as they are often called is commonly used to obtain DNA evidence in sexual assaults, or to make comparison and subsequent positive identification of a suspect if blood is found at a crime scene etc.

    It also does not matter if the affidavit has “fill in the blank” guides for the officer to follow. Most patrol level officers have never written a search warrant affidavit. Warrant affidavits are generally written by detectives, many times with the help of a prosecutor, and can take hours or even days to complete. “Fill in the blank” affidavits are nothing more than a template, or guide used by officers which ensures that they have already gatehered the required facts to support probable cause, and have an expedient way to produce the required documents.

    There are many, many prosecutors and defense attorneys alike who have even profited by writing and selling “how to guides” that provide samples and fill in the blank affidavits for every offense imaginable. Some of those same lawyers then go out and complain that fill in the blank affidavits should not be used…most often to collect a fee.

    And finally, for those who are trying to make comparisons to instances of consent, denial of consent and how they apply to statute, maybe they should remember that although a person does have the right to tell a police officer “no”, the police officer also has the right to do their job and seek a search warrant if they have probable cause to obtain one.

    And finally, I have not met but a few law school graduates from Texas Tech who have any real life or court room experience. Most of them are still living in classroom la-la land, and spent a little too much of mommy and daddy’s money on booze themselves while they were in school. The few of them who do have the experience and are worth their salt don’t waste their time “ambulance / jail chasing” a bunch of drunks to make a quick buck.

  13. Anonymous says:
    November 17, 2008 at 11:18 pm

    Hey justadumbcopfromlbb:

    what about the Transportation Code prescribing when blood can/ cannot be drawn, and over the suspect’s objections. But, the last paragraph of your comment shows your educational/intelligence level, or the low level it is.

    DefenseAttorney, but also a humane person — from Houston

  14. hey dumb cop (your name, not mine) says:
    August 18, 2009 at 12:34 am

    I am sure you have never skirted the law; I can hear the integrity in your voice. Of course, we need you on that wall.

    Here’s hoping I don’t set this guy off and wind up “offed.”

    By the way, just as much of a constitutional rights violation can occur if law enforcement acts as though they “filed” an application affidavit for a warrant; then comes a fill-in-the-blank called ineveitable discovery and independent source. I have seen it.

    And we wonder why this nation is falling apart at the seams, as though OBAMA is the first to be “clever.”

    I am genuinely frightened.

  15. hey dumb cop (your name, not mine) says:
    August 18, 2009 at 12:34 am

    I am sure you have never skirted the law; I can hear the integrity in your voice. Of course, we need you on that wall.

    Here’s hoping I don’t set this guy off and wind up “offed.”

    By the way, just as much of a constitutional rights violation can occur if law enforcement acts as though they “filed” an application affidavit for a warrant; then comes a fill-in-the-blank called ineveitable discovery and independent source. I have seen it.

    And we wonder why this nation is falling apart at the seams, as though OBAMA is the first to be “clever.”

    I am genuinely frightened.

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