Texas DWI Superfine

Understanding Blood Draw Requirements in DWIs

Nobody wants to have their personal space invaded or their bodily integrity compromised. But police officers often order DWI blood tests from people during Driving While Intoxicated (DWI) investigations to determine that person’s Blood Alcohol Concentration (BAC). BAC refers to the percent of alcohol in a person’s bloodstream and is a factor when determining whether to file a DWI charge. Understanding blood draws in DWI cases can be confusing because the legal process of taking a blood sample is a complicated area of the law. As with other DWI laws, there are legal requirements that must be met for a blood draw after a DWI, BWI, or DUI arrest.

Many in the legal community consider Mimi Coffey a knowledgeable criminal attorney on the subject of DWI due her 25 years of experience and board certification in DWI Defense by the NCDD. Mimi knows that any Texas DWI arrest can cause a great deal of stress and anxiety. She also knows that the fear of the moment can sometimes cloud a person’s memory of the arrest. Mimi conducts a full case evaluation to determine the strongest points of a client’s case, and to help them refresh their memory of the arrest. During this evaluation, Mimi goes over all of the evidence, including video, and gives recommendations on how best to proceed.

Here is a simplified explanation of the blood draw requirements from a DWI Lawyer in Arlington. A DWI blood draw has two main requirements: 1) a qualified person must perform the blood draw, and 2) the blood draw must occur in a “sanitary” place. Texas Transp. Code § 724.017(a) and (a-1). There is one important thing to note before getting into the details, though. Keep in mind that police can “force” a blood draw by getting a warrant even when a person refuses.

Qualified Person Requirement

The statute lists five broad categories for persons qualified to perform a blood draw:

• a physician;
• a qualified technician;
• a registered professional nurse;
• a licensed vocational nurse; or
• a licensed or certified [EMT] authorized to take a blood specimen under subsection (c).

Subsection (c) has some specific restrictions. But, to put it simply, an EMT can only perform a blood draw if authorized by the EMT’s medical director and using protocol established by the medical director. Stated another way, an EMT is not a “qualified technician” under the statute. A phlebotomist is usually, but not always, a “qualified technician” for blood draws. In essence, a “qualified technician” is someone not in the other categories but is “qualified” because of education, experience, etc..

Does this hospital room look sanitary?

Sanitary Place Requirement for a Blood Draw

The “sanitary place” requirement, however, can be somewhat confusing. Part of the reason for confusion is that the statute does not define what “sanitary” means. There is also very little case law that defines “sanitary” for blood draws. Unfortunately, most of the caselaw says that a place only has to be “safe” rather than “ideal” to count. Some cases say that taking a blood draw on the floor of a place is not sanitary. This is the case even if the place itself is sanitary.

However, the Health and Safety Code can provide some minimal insight into what “sanitary” might mean. The code defines sanitary as “a condition of good order and cleanliness that precludes the probability of disease transmission”. This definition is only somewhat helpful. The code then defines public nuisance, which is a bit more helpful. Some of the key examples that we have seen in the past could fall under a public nuisance. These public nuisances include:

• a place, condition, or building controlled or operated by a state or local government agency not maintained in a sanitary condition;
• sewage, human excreta, wastewater, garbage, or other organic wastes deposited, stored, discharged, or exposed in such a way as to be a potential instrument or medium in disease transmission to a person or between persons;
• a place or condition harboring rats in a populous area;
• an object, place, or condition that is a possible and probable medium of disease transmission to or between humans.

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to seal your record or avoid probation revocation.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

Texas DWI & DUI: What’s The Difference?

Many people tend to use the terms DUI and DWI interchangeably. However, in Texas, the two can be quite different in practice.

Texas DUI vs. Texas DWI

DUI is the term usually used when the arrest involves a minor (someone below 21 years old). Meanwhile, DWI is the term used for the more severe charge. Here’s the kicker, though: The police can still charge a minor with a full-on Texas DWI.

The Texas Alcoholic Beverage Code contains the statutes regarding DUI by a minor. Section 106.041 of that Code states:

(a) a minor commits an offense if the minor operates a motor vehicle in a public place . . . while having any detectable amount of alcohol in the minor’s system.

(b) . . . an offense under this section is a Class C Misdemeanor [same level as most, if not all, traffic tickets].

. . . (g) an offense under this section is not a lesser included offense [of DWI]

To summarize, the police may arrest a minor if the minor has ANY amount of alcohol in her system. This can be a problem because, as people with interlock or SCRAM may know, even NyQuil can register as ‘alcohol’ in a person’s system. Further, DWIs are not eligible for reduction to DUI just because it involves a minor, which is an ABSURD rule.

The Texas Penal Code defines Texas DWI as:

(a) a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

(b) . . . an offense under this section is a Class B Misdemeanor [for a first time offense].

A DUI is nearly the same as a DWI except for the additional/different elements of (1) “any detectable amount” instead of intoxicated, and (2) only applying to minors. That is the reason they won’t consider a DUI a “lesser included offense”! Because the “lesser” offense would have MORE elements! This wouldn’t be so bad if police could only arrest minors for DUI. But, police may unfairly arrest minors for full-scale DWIs.

License suspensions for DUI (for minors)

There is a small positive, however. If a minor consents to breath or blood (or if there is other proof of presence of alcohol (e.g., open container)), the minimum suspension is 60 days. Future suspensions (assuming consent) are 120 days (2nd offense) and 180 days (3rd+ offense). Keep in mind a DWI conviction will count as a “first” offense.

The positive comes with a negative, though. If a minor refuses to give breath or blood, the minor faces the exact same suspension as an adult. This means 180 days for a first offense and up to 2 years for a second (or more) offense.

A Texas DUI’s effect on a Texas DWI & DUI

Luckily, a DUI you get as a minor does not enhance a Texas DWI you get as an adult. In other words, if you get a DUI when you are 16 and just learning to drive, that will not have any major effect on a DWI you get when you are 30. If there is an effect, it would likely only be something (relatively) minor like taking a slightly different Texas DWI education program.

More about Mimi Coffey

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft and Possession charges.

Mimi is also listed on several “top” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI attorney Dallas County, DWI Lawyer Collin County and DWI Lawyer Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

Know Your Rights: “What About My Miranda Rights?”

The police did not read my rights at the scene! Can they dismiss the case?!

The answer is a confusing “yes and no”. The Miranda warnings are somewhat popular due to inclusion in many television police dramas. What many may not know is that there is no specific language for the warnings. However, the warnings must, using whatever language convey 4 basic warnings:

1. The right to remain silent;
2. That anything the person says may be used against them; (Note that it “may”, not “will” be. The rules of evidence prevent some statements from admission.)
3. The right to an attorney before and during any questioning; (more on this later) and
4. The right to have an attorney appointed if the person cannot afford one. (However, proving indigence can be very difficult to satisfy this right).

Miranda Warnings can be confusing

Another myth popularized by some police dramas is that the law requires the warnings for simple information gathering. This is simply not true. The law only requires reading the warnings during “custody” or “interrogation” of a person (typically called “custodial interrogation”). In some situations, this may mean after the police place you under arrest. However, an “arrest” is not a “custodial interrogation” unless the officer starts to ask specific questions. If the officer is only talking while transporting you to the jail, you are not “interrogated”. Only if the officer is asking questions specifically designed to gather information about the crime is it an “interrogation” to trigger the rights.

As another confusing point, you must EXPRESSLY invoke these rights. That means if you want to invoke the right to remain silent, you must specifically say “I am going to remain silent” to the officer. In some cases, simply remaining silent can be enough. But, courts state that simply remaining silent is “ambiguous” and sometimes allow admission of statements made before invoking or waiving the right.

Miranda Warnings and Probation

There are many other specific examples of what we will call “loopholes” for the rights. Exploring every single aspect of the Miranda rights would take far too long for a casual reader (and in fact the Constitutional Rights associated with these warnings are the main subject of a semester-long Criminal Procedure course for law students)! One exception to know is that the warnings DO NOT APPLY to probation revocation proceedings because the evidence is not used to give extra punishment. Even if the rights did apply, in many cases the conditions of probation will specifically state that you may not refuse ANY lawful request by police. This means that if the officer (lawfully) asks for a blood draw, you must do it.

Consent to Search

Though not included in the rights discussed above, you have the right to refuse a request for the police to search you or your car (mostly). If police stop you for speeding and ask to search your car, for example, you can refuse the request. Once you refuse the request, the police will (usually) need to get a warrant for the search. Police may, however, search your car without a warrant under “exigent circumstances,” such as a search incident to arrest.

If police arrest you on suspicion of DWI, for example, they may search you and parts of your car without a warrant (usually on the premise of “officer safety”). In this case, police may search the driver’s side and, probably, the passenger compartment because it was in the area of your “control”. Police would usually not be able to search the trunk of your car because it is not related to the offense of DWI. If the police arrest you for a drug crime, however, the search may be larger to determine the amount in the car (to determine simple possession or intent to deliver).

What is not a stop and/or search?

When the officer approaches you and asks you questions, it is not a “stop” since you are free to leave or refuse to answer the questions. If the officer tells you that you may not leave, that is when the encounter becomes a stop. There are similar rules about searches. After a stop, an officer asking you to show license and registration is not a “search”. When an officer makes a lawful request for license and registration, you MUST comply with that request.

You must show your driver’s license (including CHL), registration, and proof of insurance. After that, however, you are generally free to refuse to perform any SFSTs or give breath/blood. In essence, you always have the right to refuse a test. If you refuse to give breath or blood, police must get a warrant to take your blood. Even though alcohol dissipates from the body quickly, that is not enough of an “exigent circumstance” for a warrant-less search.

How long can the police stop me?

If the police stop you for a traffic violation, the officer’s actions must be reasonably related to the circumstances justifying the initial stop. The stop may last no longer than necessary to address the traffic violation. The stop ends when tasks related to addressing the violation end (including checking license, registration, insurance, and outstanding warrants). Here is the BIG exception: If the police get reasonable suspicion of other activity, they can extend the stop to confirm or dispel the suspicion. Reasonable suspicion is hard to define, but is basically if the officer “reasonably” believes you are, were, or will be committing a crime.

For example, police may not request a drug dog to search a car to investigate a simple traffic violation. However, they may request one if, for example, they observe behavior that gives the officer reasonable suspicion of drug-related crime. In any case, the extra time has to be related to the reason for the stop. There is no specific amount of time that is “reasonable”. One innocent example is if the license or warrant check-up system is slow. Since those checks are related to the stop, a slow check that takes 15 minutes is still “reasonable”.

Right to an Attorney

Always, ALWAYS request an attorney be present before answering any questions. Make the request multiple times. Multiple specific requests for a lawyer can be suppressed at trial since repeated requests for an attorney can lead a jury to unfairly infer guilt. The evidentiary language is “the probative value is substantially outweighed by the risk of unfair prejudice”.

More about Mimi Coffey

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft, and Possession charges.

Mimi is also listed on several “top” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.