Texas Enables Police to Draw Blood From More Suspected Drunk Drivers

A Texas driving-while-intoxicated (DWI) conviction can have dire consequences. Depending on the circumstances and the driver’s criminal history, penalties and related expenses can include prison time, steep fines, high fees, increased insurance rates, probation, a permanent criminal record, driver’s license restriction or revocation, attorneys fees, alcohol education classes, community service and an interlock ignition device.

Texas consistently ranks near the top of states in alcohol-related crashes and deaths. On September 1, 2009, Texas got even tougher on drunk driving suspects. Supported by Mothers Against Drunk Driving (MADD) and by law enforcement, and with broad legislative support, a new 2009 law (S.B. No. 328) expands the circumstances in which a police officer must take a blood or breath sample to test for alcohol content against the will of a drunk driving suspect, even without a warrant. Blood samples, rather than breath samples, are being more closely scrutinized in the press, as blood testing is considered more accurate by some and is by nature more intrusive to the body.

The Nicole “Lilly” Lalime Act

The new law is named after a deceased Houston-area child who was the victim of a drunk driver. In December 2008, 13-year-old Lilly Lalime exited the school bus and was struck by John Jacob Winne, a drunk driver with a previous DWI conviction who is accused of fleeing the accident scene and faces felony murder charges. Lalime died from shockingly severe injuries on the way to the hospital.

In Texas previously, blood or breath samples could only be forcibly taken without a warrant from suspects refusing testing when the accident in question caused death or serious bodily injury. The new law mandates the taking of a driver’s blood or breath specimen even without a warrant whenever any of the following occur in connection with a suspected DWI violation:

• Death
• Serious bodily injury of anyone other than the driver
• Transportation to a medical facility for treatment of bodily injury of anyone other than the driver
• Driver has a previous felony DWI conviction or community supervision placement in Texas or another state for driving drunk with a child passenger under 15, intoxication assault or intoxication manslaughter
• Driver has two or more misdemeanor DWI convictions or community supervision placements in Texas or another state

Opponents of the bill point to the inherent invasion of privacy of a forced test on the body and question the security of such samples being held by the government. Defense attorneys critical of the new law point to the trauma and invasiveness of having a blood sample taken against one’s will, arguing such a violation of personal privacy goes too far, and raising the specter of an exhausted, stressed cop jabbing a suspected drunk driver’s arm on a dirty street corner in the dark.

Police Action Still Has Limits

Texas criminal defendants have rights guaranteed by the U.S. and Texas Constitutions. Undoubtedly, criminal defense lawyers will be watching to see how the new law is enforced.

The U.S. Supreme Court has ruled that taking a warrantless body fluid sample without consent does not violate the Fifth Amendment protection against self-incrimination, but the more difficult question is whether such police action could infringe on a suspect’s Fourth Amendment constitutional protection against unlawful search and seizure. The Supreme Court has said that the Fourth Amendment is not violated by such a test incident to a valid arrest, so long as the officer reasonably believes that quick action is warranted because the evidence will be lost by the elimination of alcohol from the body over time, and that the test itself and the manner of its administration is reasonable.

Lawyers and courts will probably consider whether forced extraction of blood or breath under the new law complies with legal and constitutional standards, including:

• Were the initial traffic stop and arrest legal?
• Did the facts support drawing a sample without a warrant?
• Was “recognized medical procedure” followed?
• Was appropriate and clean medical equipment used?
• Was the sample properly stored, handled and preserved?
• Were police officers or personnel correctly trained in appropriate medical technique?
• Was the defendant injured by the test?
• Was there something unique about the defendant — such as mental illness, mental retardation or religious belief — that would change whether the forced testing was reasonable?

Be Prudent

Use common sense when your social life includes drinking alcoholic beverages:

• Designate a non-drinking driver
• Take public transportation
• Call a cab
• Ask a sober friend for a ride
• Have your party at home and stay there

If you make the unfortunate mistake of drinking and driving, however, do not try to face the full force of the Texas legal system alone. Contact an experienced criminal defense attorney to advise and represent you. If your blood was drawn without a warrant and without your consent, your lawyer can look closely at whether the new law was correctly applied, and whether your legal and constitutional rights were observed. DWI cases challenging the new law will soon wind their way through the courts and help to clarify the legal parameters.