Blood Draw Attorney in San Antonio, TX

After McNeely, the Texas Court of Criminal Appeals addressed the implication of this holding on the implied consent and mandatory blood draw statutes in Texas in State v. Villareal, 475 S.W.3d 784 (Tex. Crim. App. 2014). In Villareal, the Court of Criminal Appeals held that “a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory- blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment.” 475 S.W.3d at 815.

The Villareal court found that the Mandatory Blood Draw Statute in Texas “is silent as to whether a law-enforcement officer conducting a mandatory, non-consensual search of a DWI suspect’s blood is required to first seek a warrant.” Id. at 810. The court also found that “[t]o the extent the mandatory-blood-draw statute may be interpreted as authorizing a warrantless search that would violate a defendant’s rights under the Fourth Amendment, it cannot do so.” Id.

Therefore, the “the provisions in the Transportation Code do not, taken by themselves, form a constitutionally valid alternative to the Fourth Amendment warrant requirement.” Id. at 813. As the Villareal case made clear, if the officer does not get a warrant prior to conducting a forced blood draw, the evidence is subject to being suppressed. In fact, the exigent circumstances exception provides the only other exception to the warrant requirement for a forced blood draw.

For example, in State v. Cuba, 2016 WL 1211361 (Tex. App.—Austin, March 25, 2016, no pet. hist.) (not for publ.), the defendant had two prior DWI convictions and was accused of causing an accident involving bodily injury to another person who was taken to a hospital. In that case, the warrantless nonconsensual blood draw taken under Transp. Code § 724.012 (b)(1)(C) and (b)(3)(B)).

When Can the Court Issue A Blood Search Warrant?

After the McNeely decision, law enforcement officers need to apply for blood search warrants in most DWI cases if free and voluntary consent is not obtained. Under Art. 18.01(j), Code of Criminal Procedure, a justice of the peace, acting as a magistrate, who is an attorney licensed by the State of Texas is authorized to issue a blood search warrant in any county in Texas.

If the justice of the peace, acting as a magistrate, is not an attorney, then the justice of the peace is only authorized to issue a blood search warrant under certain conditions found in Art. 18.01(i), Code of Criminal Procedure.

As a result, the legislature in Texas has made it easier for officers in the field to obtain a search warrant for a forced blood draw. Art. 18.01(b-1), Code of Criminal Procedure now permits a magistrate to consider information communicated by telephone or other reliable electronic means when determining whether to issue a search warrant.

Whether The Consent To Submit To A Blood Test Was Voluntary

In many of these cases, the defense will file motions on a pre-trial basis asking the court to exclude the results of a blood test because the officer did not obtain a warrant and the defendant did not give free and voluntary consent. Even if the court denies the motion before trial, the defense can raise the issue at trial when the state introduces a test result from a breath, blood or urine specimen taken from the defendant.

The jury is then instructed that before it can consider the evidence, the burden of proof is on the State to prove by clear and convincing evidence that the breath, blood or urine specimen obtained from the defendant, was freely and voluntarily given by the defendant with his consent, and that there were no threats, duress or physical violence used against the defendant, or promises of benefit, to induce him to consent to the taking of a breath, blood or urine specimen.

The jury is then instructed that if they do not believe by clear and convincing evidence that the defendant gave freely and voluntarily consent for the breath, blood or urine specimen for the purpose of determining the alcoholic content thereof, if any, the jury should not consider any portion of evidence introduced before concerning the purported alcoholic content of the defendant’s breath, blood or urine specimen.