April 6, 2012

972 369 0577

Many of the questions I am asked concern submitting to or refusing a breath or blood test in a Driving While Intoxicated case.

Generally, the law provides a DWI suspect the right to refuse, subject to several exceptions.  First, the law now authorizes the police to require the taking of a blood sample from a DWI suspect without a search warrant  in several situations.  1.  DWI- with child, 2., DWI where an accident has occurred and it results in an injury to a person other than the operator that requires them to go to the hospital. 3.  When the officer believes that the operator has committed a felony DWI, that is to say, he or she has at least two previous DWI convictions.

In addition to the above, the police may always seek a search warrant to require a blood sample whenever they have arrested a person for DWI, and believe they have probable cause that evidence of intoxication will be found in the person's blood.  This is true regardless of whether any of the above factors are present.

If the police obtain a search warrant for my blood and the results indicate an alcohol concentration over the legal limit, am I automatically guilty?

No.  A lawyer should carefully review the police officer's affidavit in support of the search warrant application, to review whether the affidavit establishes probable cause to show that evidence of intoxication will be found in a person's blood at the time of the application for the search warrant. 

There are numerous avenues to explore on this topic, and I will focus on just one right now- a recurring issue.  A lawyer should review the search warrant to make sure that the facts establish that the evidence of intoxication will be found at a particular time.  For example.

The Texas Court of Criminal Appeals recently addressed the issue of the sufficiency of an affidavit in support of a search warrant for blood in the case of Crider v. State,  (November 17, 2011).

In Crider, the police officer's affidavit indicated that "[o]n or about 06-06-08" the officer observed the defendant commit the offense of DWI.  The magistrate signed the warrant on June 7, 2008 and it was executed soon thereafter.  The Court of Criminal Appeals held that in light of the potential 25 hour window between the time the crime could have occurred, and the time the warrant was executed, the information was stale and therefore the affidavit did not establish probable cause that the "evidence of intoxication would be found in appellant's blood at the time the search warrant was issued." 

 In Crider the officer did in fact state the day, month and year, but was imprecise about the time of day- leaving an objective reader of the affidavit a potential twenty five hour window of time in which the evidence of intoxication may be found.  A gap too large for the Texas Court of Criminal Appeals.

The issue of the specificity of the time in the search warrant affidavit is one issue among many that should be reviewed in a DWI case with a blood search warrant.