Can the Police Force Me to Take a Blood Test?

This is one of the more common questions I get when meeting with clients in my office after they have been arrested for Driving While Intoxicated (DWI). Most folks find it appalling that the police can force you to do something so invasive, so intimate, so in violation of the notion of privacy. How is it constitutional for the cops to force me to do something against my will which invades my actual body??? How is that even legal?


Can the Police Force Me to Take a Blood TestThe answer is yes, the police can and will force you to give a blood sample against your will. The Texas Court of Criminal Appeals (the highest criminal court in Texas) decided in the case of Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002) that blood draws can be taken pursuant to valid search warrants in DWI cases. Blood is an item “constituting evidence of an offense or constituting evidence that a particular person committed an offense.” Gentry v. State, 640 S.W.2d 899 (Tex. Crim. App. 1982). These cases allow the police to obtain search warrants for blood when they suspect a person has committed the crime of DWI, and those search warrants provide authority to get the blood sample in a “reasonable” manner. In fact, the police can use force to hold you down to get your blood and the courts will not have a problem with it.

Search warrants for blood can be obtained 24 hours a day, 7 days a week here across Texas. There is a magistrate on duty down at the courthouse whose job it is to review affidavits presented by police officers and determine if there is enough evidence to issue a warrant. It does not take a lot of evidence to get a blood search warrant. The magistrate must simply determine if there exists “probable cause” to believe a crime was committed. This is a prevalent practice not only here but increasingly across the State. If you resist or try and fight to stop your blood from being drawn, they can strap you into the chair or physically hold you down to complete the blood draw. Fighting the police can lead to additional charges being filed against you on top of a DWI charge.

So why are they allowed to do this? The courts have said that the interest of the police in enforcing DWI laws can override a person’s interest in the privacy of their bodies, amongst other rationale. For the time being, though, it is perfectly legal for the police to take your blood against your will and use it against you in a DWI prosecution so long as they have a valid search warrant.

Arrested for DWI in Texas? Contact Hamilton Grant at (972) 943-8500 DFW and (512) 279-6600.

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