Category: DWI

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.”

“ESSENTIAL NEED” OR “OCCUPATIONAL” DRIVER’S LICENSES

In Texas, when a person is convicted of driving while intoxicated (DWI), or their driver’s license is suspended in an Administrative License Revocation (ALR) proceeding or another administrative proceeding or action brought by the Department of Public Safety (DPS), then during that suspension that person may be eligible to obtain a court order for the issuance of an “essential need” or “occupational” driver’s license. (We lawyers use the labels “essential need” license and “occupational” license interchangeably, and once the court has ordered that you may obtain a license, the DPS issues what it calls a “restricted” license.)

The “essential need” or “occupational” license proceeding is governed by the Texas Transportation Code and is conducted, normally, in a county court or county court at law, though district courts may have jurisdiction as well. Depending on the county, the proceeding to obtain the license is either in the same court as handled the DWI case or in another court with civil jurisdiction. Some counties have special procedures. (See Montgomery County and Harris County procedures, discussed below.)

The Department of Public Safety requirements for the issuance of a Texas Essential Need or Occupational Driver’s License are:

1) A County or District Court Order, or an Order from the Court in which the person was convicted granting an Occupational Driver’s License. The Order shall be definite as to hours of the day, days of the week, specific reasons for travel, and the areas of routes of travel to be permitted. Actual travel time does not have to be continuous, but specific hours must be stated in the Court Order, and shall not exceed twelve (12) hours in any given twenty-four (24) consecutive hour period. (This means that, before you can expect DPS to issue your restricted license, you must file a court proceeding to obtain the order granting you the essential need or occupational license.

2) Proof of financial responsibility by filing Form SR-22 (typically the pink certificate of liability insurance). An insurance agent can assist you in obtaining the SR-22 and sometimes they can be obtained online.

3) You must complete Texas DPS Form DIC-37, providing information to appear on the Essential Need or Occupational Driver’s License.

4) You must pay the fees required by the Department of Public Safety:

A reinstatement fee is required under the Safety and Responsibility Act (Court Costs Fees are separate), and

A $10.00 Fee for the issuance of the Essential Need or Occupational Driver’s License payable to the DPS ($10.00 fee for one (1) year or less).

There are other fees associated with the proceeding, but they are court costs, and are paid to the clerk of the court where your petition for an essential need license is filed.

The following rules are applicable to any person who has had the Driver’s License suspended due to a conviction of Driving While Intoxicated, (DWI), or driving privileges revoked by the Department of Public Safety for any reason, and wishes to obtain an occupational license during the period of suspension. Additionally, these requirements must be met before a court will order that you are entitled to an essential need license.

As mentioned above, an Occupational License will not be issued by the Department of Public Safety unless the driver has obtained liability insurance. You must obtain Form SR-22 and verification of purchase of at least six (6) months of liability insurance and present it to the court at the time of your hearing or the submission of your petition for an essential need license.

You must obtain, and present it to the court at the time of your hearing or the submission of your petition for an essential need license, a copy of your driving record. Some counties or courts may obtain that record at the time of or before your hearing, but you will be able to obtain a copy from the Texas Department of Public Safety.

You or your lawyer must prepare and file with the clerk of the court a Petition for Essential Need License. This is basically your request to the court to consider granting you a restricted license. In the Petition you must set out the reasons you need to drive during the period of your suspension. Also in the Petition, you must be specific as to the area and times in which you will be driving.

In Montgomery County, Texas, your attorney may be able to convince the judge who is hearing your DWI case to also hear your petition for an occupation license. Alternatively, one of the county courts at law is normally assigned to hear all of the Petitions for occupational licenses. Once you file the petition with the required paperwork and attachments, the clerk will forward your application to the judge and you will be notified of the outcome or the necessity of an in-person hearing.

In Harris County, Texas, if your license is suspended because of a DWI or associated matter, (such as the ALR suspension which is present in most DWI cases), most of the civil courts will not hear your petition, but will require that you file it with the court that is hearing or had heard your DWI case or other case associated with the suspension. Courts in Harris County are generally “specialized,” with certain courts hearing only civil cases and other courts hearing only criminal cases.

The law provides that if you are granted an occupational license, your driving privileges are limited not only to a specific geographic area (usually your home county and counties nearby), but you are also limited as to when and where you can drive. The law provides that you can drive no more than four (4) hours per day, although, if there is a specific need, the court can allow you to drive up to twelve (12) hours a day. (Texas Trans. Code, Title 7 § 521.248). Most courts will allow twelve cumulative hours of allowable driving time per day, once you demonstrate the need. You must be specific as to the number of hours per day you will need and that need must be justified, based on your particular occupational, educational or household duties.

The Petition filed for an occupational license must be sworn to, and often it is verified by your signature in front of a Notary Public.

Once you have obtained the SR-22 and your driving record, and prepared the Petition, it must be filed with the clerk of the court and the filing fee paid. At that point, depending on your county and the court’s procedures, a hearing will be set and you will be notified to appear, or the court will consider your Petition “by submission,” and you will not be required to appear and the clerk will notify you of the court’s action on your request.

When the Judge signs the Order granting the Occupational License, the Court Clerk will prepare two (2) certified copies of the Application and Order. You must keep one (1) set with you at all times while you are in the vehicle. It shall serve as a restricted license, and shall remain in effect until the 31st day after the date on which the Order takes effect (Texas Trans. Code, Title 7 § 521.249 (a). The other set is for you to mail or take to the Department of Public Safety. However, many counties and courts require you to prepare a “proposed order” setting out what you want the order to provide. And, some counties and courts have their own “pre-printed” form orders, where you must “fill in the blanks” and make certain selections from the options provided. Whichever kind of order the court uses, it must be signed by the Judge and a certified copy provided to you and the Texas Department of Public Safety before you may safely (and legally) drive.

If the clerk of the court does not send the forms to the Texas Department of Public Safety, then you must then take or mail the certified forms, along with the pink copy of the SR-22, the completed DIC-37, and any necessary fees to the Department of Public Safety.

Once the clerk has provided you with a certified copy of the Court’s order, and you have ensured that the Department of Public Safety is going to get a copy of the order and the required documents, you may legally drive on two conditions: first, that you only drive during the times and under the conditions set out in the order and, importantly, that you ALWAYS carry a certified copy of the court order allowing you to drive in your car, with you. Section 521.250 of the Texas Transportation Code explicitly provides that a “person who is issued an occupational license shall have in the person’s possession a certified copy of the court order granting the license while operating a motor vehicle. The person shall allow a peace officer to examine the order on request.”

You should keep in mind that the Court is not required to grant your request for an essential need or occupational license. In fact, some courts, depending on your driving record and criminal history, will not issue one, or, if they do, they will tack on additional requirements, such as ignition interlocks. You should almost always consult with an attorney regarding your chances for obtaining an essential need license before filing the petition. And, as is explained below, sometimes you just can’t get an essential need license, because the law forbids it.

If you want to learn more about the statutory requirements for the “essential need” or “occupational” license in Texas, review these sections of the Texas Transportation Code, available online: Sec. 521.248. ORDER REQUIREMENTS; Sec. 521.249. NOTICE TO DEPARTMENT; ISSUANCE OF OCCUPATIONAL LICENSE; Sec. 521.250. COURT ORDER IN OPERATOR’S POSSESSION.

And, on a final note. . . .

A “Hard Suspension” Means NO Occupational Driver’s License

Texas Transportation Code, Title 7, § 521.251 states, in part, that:

– If the person’s driver’s license has been suspended as a result of an alcohol-related or drug-related enforcement contact during the five (5) years preceding the date of the person’s arrest, the Order may not take effect before the 91st day after the effective date of the suspension.

– If the person’s driver’s license has been suspended as a result of a conviction under Sec. 49.04, 49.07, 49.08, Penal Code, during the five (5) years preceding the date of the person’s arrest, the Order may not take effect before the 181st day after the effective date of the suspension.

These time periods are what are known as “hard suspensions,” and apply to repeat alcohol or drug offenders. This means that you cannot obtain an occupational license during these periods – your license is suspended and your privilege to drive in Texas has been suspended without exception for those time periods. Only after these time periods have expired may you then obtain an essential need license.