If they do take your blood the Judge may throw the result out later.
There are two ways the Police can attempt to take a blood sample against your will. With or without a warrant. For a felony DWI arrest, the police do not need a warrant. For a misdemeanor, they do.
Books have been written about search warrants so I can’t cover them all here — but as with many things in the law, it’s complicated.
With a DWI blood warrant, the judge allows the police to draw your blood. If you are in that situation, then you must comply with the officer’s instructions. Your remedy is to fight the search in court later.
There are all sorts of legal problems with DWI blood warrants in Dallas and Collin County. Arguments can be made the the practice breaks or comes close to breaking several other statutes and laws.
The Texas Transportation Code Section 724.103 states, “…a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.” This language can be argued to be in conflict with the search warrant statute.
Texas Code of Criminal Procedure 14.06 suggests that when someone is arrested, the officer shall take the person arrested before a magistrate “without unnecessary delay.” Where the police hold someone while they take 30 minutes or an hour to get a search warrant, it can be argued they violate this provision too.
There are yet more legal issues with regards to whether the blood was drawn properly.
Thus far, the courts have generally lined-up with the prosecution and police. I have had success in having a court set aside a blood warrant because it failed to establish probable cause and as a result, the prosecution was not allowed to present evidence of the blood result to the jury!
Jeremy F. Rosenthal, Esq.