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The End of "Mandatory" DWI Blood Draws in Texas

Chad West Nov. 10, 2014

With the holidays quickly approaching, Texas law enforcement agencies will be increasing DWI enforcement activities through the end of the New Year. Everyone driving on a Texas highway has seen the familiar billboards and flashing traffic signs from TXDOT and Texas DPS stating, “Drink, Drive, Go to jail,” “Drive sober or get pulled over,” or my favorite, “NO REFUSAL WEEKEND.”

There are some very recent legal developments that have restricted the ability of law enforcement to obtain a sample of your blood if you have been arrested for Driving While Intoxicated. Every driver should be aware of their rights and the new changes in Texas law in case you are pulled over by a police officer, arrested for Driving While Intoxicated, and compelled to give a sample of your breath or blood.


In Texas, an officer who has arrested you for Driving While Intoxicated can only obtain a sample of your blood through one of three ways: (1) with your consent; (2) with a search warrant signed by a judge and supported by probable cause; or (3) based on certain specific exceptions to the warrant requirement which are outlined in the Texas Transportation Code. This third option, often referred to as a “mandatory blood draw,” has been severely limited (or found unconstitutional) by four Texas Courts of Appeals this year.

In the 2013 case Missouri v. McNeely, the United States Supreme Court ruled that police officers could not forcibly obtain a blood sample from a suspect without a search warrant unless there were “exigent circumstances” (i.e., there is some type of emergency or circumstance that makes it impossible for a police officer to obtain a search warrant within a reasonable period of time). This ruling called into question the constitutionality of Texas Transportation Code Sec. 724.012(b), the “mandatory blood draw” statute. That statute allows police officers to obtain blood samples from DWI suspects without a search warrant if:

  1. someone dies or suffers serious bodily injury as a result of a DWI accident;

  2. someone is transported to a hospital as a result of a DWI accident;

  3. a DWI suspect is found driving a vehicle with a child under the age of fifteen; or

  4. a DWI suspect has two prior convictions for Driving While Intoxicated.

Under the “mandatory blood draw” statute, it doesn’t matter if the police officer could have obtained a search warrant for the suspect’s blood – the statute allows the officer to obtain a blood sample without a search warrant.


After the McNeely case, four Texas Courts of Appeals (Corpus Christi, Amarillo, Texarkana, and San Antonio) ruled that the Texas “mandatory blood draw” statute was either unconstitutional or that its applicability was specifically limited to situations in which an officer cannot reasonably obtain a search warrant for a DWI suspect’s blood. The most recent appellate court to address the “mandatory blood draw” statute (San Antonio) specifically stated that, while the “mandatory blood draw” statute was not unconstitutional per se, it is not a permissible exception to the warrant requirement for a blood draw, and officers cannot rely on the statute as a “good faith exception” to the Texas exclusionary rule for improperly seized evidence.


If you are arrested for Driving While Intoxicated, a police officer can now only obtain a sample of your blood if you consent or the officer obtains a search warrant. The exceptions outlined in the “mandatory blood draw” statute are no longer applicable and, if the officer obtains a blood draw without a search warrant, the burden is on the State to show that it was not possible for the officer to obtain a search warrant at the time of your arrest. This is a very difficult burden for the State to meet, and a good defense attorney will have a strong likelihood of getting the alleged blood alcohol results excluded from your case. If you or someone you know is arrested for Driving While Intoxicated, make sure you contact the attorneys at Chad West, PLLC for aggressive representation of your Driving While Intoxicated case.

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