In 2014, the Texas’ Court of Criminal Appeals, the state’s highest criminal court, ruled that it is unconstitutional for an officer to take a suspected DWI offender’s blood without consent or a warrant.

Writing for the majority, Justice Elsa Alcala stated,

“We hold 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.”.

Why Warrants Are Required

The Fourth Amendment of the U.S. Constitution prohibits the unreasonable search or seizure of a person or his/her affects. Therefore, if no exception to the Fourth Amendment applies, officers are required to obtain a search warrant prior to taking a suspected drunk driver’s blood unless consent is given.

In Galveston County, Texas this is still a little bit of a problem because the Galveston County District Attorneys Office actually is teaching the police how to formulate and document exigent circumstances. And exigent circumstances are an exception to the warrant statute. I have heard this in recorded telephone phone calls between the on-call Assistant DA and the arresting officer and have been heard about emails that further explain exigent circumstances to the DWI officers.

What Does This Ruling Mean?

It is believed that this ruling will have a major effect on how police in Texas gather evidence that illustrates a driver’s blood alcohol content (BAC) level is above the legal threshold of 0.8 percent. Previously, an officer could bring a suspect to a hospital, or other sanitary place, for blood to be drawn by a doctor, nurse, or other qualified technician.

Now, in order to obtain blood evidence, a prosecutor will need to find a judge to issue a warrant. As such, many counties, especially those with “no-refusal weekends,” are keeping a magistrate judge on call to issue warrants requested by officers who seek to obtain blood evidence of suspected drunk drivers.

This decision stems from the criminal appeal of the case of David Villarreal, who was arrested in 2012 for DWI. The officer in his case testified there was probable cause to believe that Villarreal had previous convictions for DWI, and therefore used the state’s transportation code to have Villarreal’s blood drawn at a hospital without a warrant or his consent. The transportation code gave officers leave to require breath or blood tests when the suspected driver had previously been convicted or placed under community supervision for drunk driving offenses more than twice.

The blood test showed that Villarreal’s BAC was 0.16 percent, well over the legal threshold. He was convicted of felony driving while intoxicated and the prosecutors had requested he face at least 25 years in prison. His attorney appealed, and due to the high court’s ruling, the blood evidence used against him at trial is now inadmissible. Villarreal’s attorney suspects that the prosecution will retry the case, which is weaker now that the blood evidence is excluded.

How A DWI Attorney Can Help Your Case

Are you in need of a criminal appeal for a DWI conviction based on evidence that may have been obtained unconstitutionally? If the police made an error or mistake when arresting you, we may be able to assist. Contact our experienced Galveston DWI attorneys at The Law Offices of Tad Nelson & Associates. We are committed to providing zealous representation for those who have been charged or convicted of a DWI offense in the South Texas area.