Can the Police Really Take My Blood Without My Consent?
The short answer is – a law enforcement officer, with a badge and a gun, can do almost anything he/she wants when they have you on the side of the road. So, “yes,” an officer can “take” your blood. The issue, though, is whether the officer is justified in taking your blood sample and whether that evidence can be used against you in a criminal DWI case against you.
In many jurisdictions, especially in Harris County and Montgomery County, Texas, (Houston and Conroe), law enforcement agencies are adding another tool to their arsenal to go after persons suspected of driving while intoxicated. One of these is the “No Refusal” Weekend, where officers have access to a mobile blood draw van, one or more assistant district attorneys, a notary public, a fax machine connected to a judge, and a nurse or other medical person. The effort behind “No Refusal” Weekends is designed to get blood samples from persons who are detained and arrested for driving while intoxicated (DWI) by applying for – and getting, in a matter of minutes – a blood draw warrant. That warrant gives the officer the authority to get a sample of your blood to be tested for alcohol.
However, except for some statutory exceptions, an officer must first have “probable cause” to believe that you were driving while intoxicated and submit an affidavit and application for a search warrant to a judge, asking for authority to “forcibly” take a blood sample from you. While you may not be able to deny the officer the ability to take your blood — and you should never physically resist — you do not have to actively cooperate to give them the facts they should need to demonstrate probable cause to obtain a blood draw warrant.
First and foremost, do not take any – any – tests or answer any – any – questions except to identify yourself and show proof of financial responsibility (automobile liability insurance).
Often, folks stopped by the police on the side of the road are extremely Night-stop nervous and want to avoid, at all costs, going to jail. Unfortunately, they erroneously think that by cooperating with the officer they can avoid going to jail. Answering an officer’s questions about how much you had to drink, or participating in the HGN (“pen test”) or any other field sobriety tests, will often give the officer what she needs to make her affidavit and application for a blood draw warrant. So, the first and best advice is – do not take any – any – tests or answer any – any – questions except to identify yourself and provide proof of insurance.
When you are stopped by a law enforcement officer, always act politely and with respect toward the officer. Keep in mind that officers must take care for their own safety during a traffic stop, and it is important that the officer understand that you are not a threat to their safety.
Activate your emergency flashers when you notice the officer wants to pull you over. Pull off the roadway safely.
Locate your driver’s license and proof of insurance and then keep your hands on the steering wheel. Answer the officer’s questions about your license and your proof of insurance clearly and to the point. Don’t argue and don’t explain. If you can get by with just a ticket, that’s the best of the worst alternatives.
When you are stopped by a law enforcement officer and they ask you whether you’ve been “drinking,” and then they ask you to step out of your vehicle, the OFFICER ALREADY THINKS THAT YOU’RE DRIVING WHILE INTOXICATED. The officer already stopped you for another reason – speeding, unsafe lane change, “failure to maintain single lane,” or some other “traffic violation.” The officer will then likely note in his report that you “fumbled” for your license or insurance card, that your eyes were “bloodshot” or “glassy,” and that he smelled the “odor of an alcoholic beverage.” Once the officer forms these opinions, you are asked to exit your vehicle AND THE INVESTIGATION OF DRIVING WHILE INTOXICATED HAS COMMENCED.
You need to protect yourself at this point, and the only thing that can protect your interest is for you to decide to remain silent. Do not volunteer any information. Remain polite and do not argue.
Most likely, if the officer asks if you’ve been drinking, and then asks you to get out of your vehicle, the odds are good that she has decided that you are likely intoxicated and you are more than likely going to jail. Everything that happens after you get out of your vehicle is designed to bolster the officer’s opinion that you are intoxicated and to provide evidence to support the criminal charge against you. The blood draw on a “No Refusal” Weekend is one of the ways officers seek evidence against you.
While it may be intimidating, and while you may have your license suspended, and while the officer may try to tell you that if you “pass” these tests he will “let you go,” you should NOT participate in any of the field sobriety tests or consent to a breath or blood test. The chances of you passing the field sobriety tests are low. Remember – the defense of your DWI case starts when you’re asked to get out of your vehicle. If you GIVE the officer the evidence against you, you are many times more likely to be convicted of DWI. Just say “no, thank you, officer.”
The officer will likely ask you to take a number of field sobriety tests (and those are discussed elsewhere on this site). You should politely decline.
You have a right to decline to take these tests and you should exercise that right. Unlike refusing a breath test, the DPS cannot move to administratively suspend your license if you refuse to participate in these field tests. Remember, once the officer has asked if you’ve been drinking and asked you to step out of the vehicle, you are likely going to jail, anyway. Just say “no, thank you, officer,” when asked to perform any of these tests.
The best way to defend against the results of the Standard Field Sobriety Tests and the breath test is for the accused driver to say “no, thank you, officer,” when they are asked to take those tests. If there are no results for the officer to point to, then the jury will be left with less evidence upon which to base a possible “guilty” verdict and you can defend yourself more effectively against an unfair and unfounded charge of driving while intoxicated.
In other words, be polite and be patient. Keep in mind that “you can beat the rap, but you can’t beat the ride.” The number of people who “talk their way out” of a DWI arrest, or who pass the Standard Field Sobriety Tests, is very low. More than likely, you will NOT pass those tests, even if you’re not “driving while intoxicated.”
Still, even if you decline all of the tests, the officer may still apply for a blood draw warrant and they may still take your blood. But, at this point, you have at least given your attorney a chance to evaluate the affidavit and warrant and, if necessary, challenge it. Taking the tests or giving your consent will only make matters worse and make defending yourself against the charge of DWI more difficult and less likely of success.
You can decide to “take your chances.” But, if you want the best chance of clearing your name of a DWI charge, just say “no, thank you, officer.”
