In order to take a sample of your blood the government must secure a warrant or follow strict guidelines found in the Texas Transportation Code. The rules require that the sample must be taken:
- At the request of a law enforcement officer;
- By a physician, qualified technician, chemist, registered professional nurse, or licensed vocation nurse;
- In a sanitary place.
How is the test given?
If you agree to give a blood specimen it will likely be taken at the local hospital or in the jail. A physician, nurse, or other qualified person should take the sample. The person who draws the blood should first clean the injection site with an antiseptic. The blood is drawn into a vacuum sealed tube, should be handled properly, should follow the guidelines set out by the manufacturer, and should then be refrigerated.
Is the test accurate?
The government relies on the results of the blood test to prosecute citizens for DWI or other alcohol related offenses. The blood test, however, may be inaccurate for several reasons. They include, but are not limited to:
- Did they use a non-alcoholic swab to clean the injection area before taking the sample? If the injection site was cleaned with an alcohol swab the test results could be compromised.
- What type of container did they use to collect the blood? If it was not a vacuum sealed tube containing an anticoagulant and sodium fluoride preservative, a whole blood test cannot be conducted.
- Was the blood immediately refrigerated? The tests could be compromised if the sample was not refrigerated.
- How was the test conducted? If the technician did not use a gas-chromatography test then the BAC analysis may be inaccurate.
- Contact Doug Atkinson to discuss the defenses available in your case relating to the blood test in your DWI case.
Can you refuse to take a blood alcohol test?
Texas has an implied consent law which means that if you applied for and received a Texas driver’s license you agreed to take a breath or blood alcohol test if arrested for DWI or other alcohol related offense. However, you can refuse to take the test.
There are consequences to refusing to take the test. The government attorney can use your refusal against you during your trial. Further, DPS may suspend your driver’s license longer than if you had taken the test.
In very select Texas Counties the government will attempt to force you to give a blood test. The government will seek a warrant from a Judge even if you refused to give blood or a breath test. If a Magistrate signs the warrant to seize your blood the government will forcibly take a sample of your blood. While it shocks many people to learn this is taking place, it is a current reality.
If you were involved in an alcohol related accident and seriously bodily injury or death was involved, the government can forcibly take your blood without a warrant from a judge or your consent.