When a police officer arrests a person in Collin County, Texas for Driving While Intoxicated, the officer may seek a search warrant from a judge if the person refuses to provide a sample voluntarily.
When the officer applies to the Judge for the search warrant authorizing him or her to draw a person’s blood, the officer must prepare an affidavit of the facts that the officer believes will show that probable cause exists that evidence of a crime (Driving While Intoxicated) will be found in the body of the person under arrest. That evidence usually takes the form of a quantity of alcohol in the blood of the person. Because the act of securing a search warrant to take suspected evidence from a location in which the suspect has an expectation of privacy is a serious and solemn matter, the law imposes a requirement that the police officer seeking the warrant present a “sworn affidavit” to the judge in support of the search warrant. Texas Code of Criminal Procedure 18.01(b) The requirement of preparing an affidavit and swearing to the truth of it’s contents impress upon the officer the serious nature of the matter at hand.
The issue of whether section 18.01(b) requires a police officer to personally appear before the judge to swear out and oath, or whether the officer may simply swear to the truth of his or her affidavit over the phone, is an issue that has been debated by lawyers and judges quite a bit over the last few years. Until recently, the Texas Court of Criminal Appeals has never weighed in to settle the question. Finally, in January of 2013, the Court decided the case of Clay v. State of Texas.
In Clay the Court succinctly ruled that section 18.01(b) does not necessarily require an officer to be in the personal presence of the judge from whom they seek the search warrant. Swearing over the phone may be ok so long as “sufficient care is taken in the individual case to preserve the same