Blood Draw Test and Warrants for DWI

Of all the types of search warrants, the ones for blood are undeniably the most intrusive.

Refusal of Consent for Blood Test

If you did not clearly consent to your blood draw let us know, as we may be able to get those results suppressed for that very reason. Only if you did not consent to the blood draw does the issue of a then warrant come into play.

If you are under arrest and refuse consent to the blood draw then police either have to obtain a warrant or be able to show exigent circumstances existed to draw your blood without a warrant. Fortunately, the Courts have ruled that the fact that the alcohol in your system is steadily metabolizing away does not count as an “exigent circumstance”.

Fighting the warrant – Even if police do get a warrant the DA’s still have to prove probable cause for it or we may be able to get the results suppressed. Also we look at the warrant itself to make sure it conforms to all the required elements. If the stated reasons for the stop and the probable cause for the warrant are false or exaggerated we can attack the warrant.

Physical force – We have had clients tell us they refused a blood draw and the police used physical force to get them to submit to a blood draw. If this force is excessive to the point of an assault or bordering on an assault we can use this to keep a client’s blood draw from being admissible in court.

Maintaining the integrity of the blood draw warrant – One issue defense attorneys deal with is that cops are sworn to the warrant by other cops rather than by a judge or licensed sworn Assistant DA. The problem with this is that if a cop administrates the oath it is practically impossible for defense counsel to decipher the chicken scratch to figure out his name and agency since many times DWI arrests are multi-jurisdictional.

Exigent Circumstances for Drawing Blood Without a Warrant or Consent

The Fourth Amendment guarantees the right to be free from unreasonable search and seizure. To draw blood without a warrant and without the consent of the arrested person requires an exigency, or emergency, such as a serious accident causing severe injuries to any party, or unless you have prior DWI convictions. What constitutes “exigent circumstances” has never been defined but is determined by the totality of the facts. But you can be sure that these will always be construed by the State in favor of “exigent circumstances existed” wherever blood was drawn without a warrant.

The good news is – the burden is on the State to prove up the exigency in a warrantless, no consent blood draw. Typically the cops will say that “the exigency” was that getting a warrant would have taken too long. But there are so many easy ways to get a warrant that we can easily overcome this bogus exigency – in Harris and surrounding counties there are always several DA’s, judges and magistrates on duty, there are many forms available, and the officer can swear to the Probable Cause Affidavit over the phone then fax it to the magistrate.

When the DAs argue it was not practical for the police to get a warrant, we can also argue from case law to prove how easily it can be done. Governing case law states that if the warrant could have been reasonably gotten between the time of the arrest and the time of the blood draw – and this is practically always the case, given prevailing conditions in Harris and surrounding counties – then no exigent circumstance exists. When we hold their feet to the fire, prosecutors have a hard time arguing that they could not obtain a warrant in a reasonable amount of time.

When the DA’s try to get us to back down from using emerging DWI case law we stand firm and continue to argue our points. We make sure the State understands that we take “innocent until proven guilty” seriously and that they will have to work hard to prove up guilt.

If you or a loved one has been charged with DWI in Houston, Harris County, or surrounding areas contact criminal defense attorney Carl Haggard of The Haggard Law Firm for a free confidential consulation about your case. Even if you took the blood test we can fight for you. Carl has over 30 years of experience defending people in Houston against DWI charges and has a winning track record.

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