Forcing an American to Give Blood is Unconstitutional

Posted By Guerra & Farah, PLLC || 26-Apr-2011

Juan and I (Millie) were scheduled to go to trial this week in a DWI case. We spent hours last week and over the weekend preparing to cross-examine the expert witnesses because this case was a blood-draw case. We reviewed the scientific articles on gas chromatography – which is the test used by most DPS labs to determine the level of alcohol in the blood. We studied articles on retrograde extrapolation – where an expert tries to determine what the blood alcohol level was at the time of the arrest, maybe hours before the blood was drawn. We talked to chemists about the difference between ethanol and isopropyl alcohol. We pulled dozens of cases about blood-draws, and found as many legal ways we could attack the admissibility of the blood evidence. And we drafted four motions to suppress, each on different grounds, as well as written objections, etc etc etc.

And the case was dismissed this morning.

The reason why the prosecutor dismissed the case was because it appeared that the cop lied in his affidavit to get a warrant to take the blood. He exaggerated to make our client seem like he was in bad shape when he was not.

It is amazing to me that we allow forced blood-draws in our society. No, strike that – I am outraged that we allow forced blood-draws in our society. Imagine being held down by two burly police officers and having a sharp object inserted into your body. Now, imagine that happening in a dirty police station holding cell that smells like the sweaty former occupants. Why on Earth are we ok with this?

Let’s start with the law: The Texas Transportation Code Section 724.011 says that if a person is arrested for an intoxicated-related offense, it is automatically assumed that the person consents to having his blood taken. If the person is unconscious, Section 724.014 says that the unconscious person cannot refuse the consent. To protect Texans, the Legislature did something smart in Section 724.017 requiring that only certain qualified people can take the blood sample, and it MUST be taken in a sanitary place.

Let’s say you have been driving 5 hours straight. You’re tired, but you’re ok. You stop for dinner and have two beers with your meal. When you continue on your drive, you decide you want to listen to an old Johnny Cash cd. So you look over to the cd case on the passenger seat, and you pull out the cd and put it in the radio. When you looked over, your car drifted slightly into the next lane. It was no big deal. Your car is the only car on the road. The next lane is going in the same direction. Well, a police officer saw you drift over into the other lane, and it is after midnight. So the officer puts on his lights, and pulls you over. He smells beer on your breath. He gets you out of the car to do the field sobriety tests. Well, 1) you’re tired, 2) you are stiff from your long drive, and 3) you’re not in very good shape. You fail the field sobriety tests. The officer arrests you and asks you to sign a consent form to take a sample of your breath, and he asks you to sign the consent form to take a sample of your blood.

You refuse both. You didn’t do anything wrong. You told the officer you only had two beers with your meal. Why should he be arresting you? Those field sobriety tests are impossible to do unless you’re a teenage athlete in great condition.

Well, he can draw-up a quick and dirty affidavit, fax it to a magistrate, who will fax a warrant to take your blood. Let’s say you’re afraid of needles. You freak-out a bit and struggle. Well, they can hold you down and take your blood.

People far smarter than me have been debating this issue since the 1950s when the United States Supreme Court held that it is ok for police officers to forcibly pump the stomach of a person suspected of a crime. The Dissenting Justices on that case argued that the person was forced to give evidence against himself, violating the 5th Amendment. Later, the Supreme Court explained that blood evidence is not testimonial – it isn’t in words – so forcing someone to give blood does not violate the 5th Amendment. If you think about it – the 5th Amendment says that we have the right not to give “evidence” against ourselves. It does notsay we have the right not to “testify” against ourselves. There’s a difference, and I think the Supreme Court missed the mark. Being forced to give part of your own body to law enforcement violates the 5th Amendment.

More than that, though, it is shocking and unconscionable. A police officer can’t beat a confession out of you. A police officer can’t pull-out your hair with tweezers to force you to confess. But a cop can cause a needle to be shoved into your arm to extract part of your body to be used against you in trial?

I do understand the reasoning behind drawing blood samples in a DWI case. People die every day in alcohol-related crashes. No one has the right to put our families in danger by getting behind the wheel of a car when they are ‘three sheets to the wind.’ Our state government has a very serious reason to want to make sure that there is enough evidence to convict someone of an intoxication-related crime.

But, again, we don’t allow police officers to beat confessions out of people – our Constitution protects us from police misconduct – no matter what crime we’re accused of committing. Moreover, even the Legislature believes in protecting people accused of a crime by insisting that only qualified people take the blood sample, and only do so in a sanitary environment.

Merely ensuring a sanitary environment is not enough. Taking a part of a person’s body from them by force is not ok. It is not Constitutional.

For those of you with any kind of medical condition that would result in an emergency situation if your blood is taken in a questionable manner – you must tell the police officer this. If you are taking blood-thinners, refuse the consent and tell the officer about your condition. If you have a condition where it will be difficult for the nurse/technician to find a vein, tell the officer and refuse your consent.