10 Sep 2012
The Austin Police Department initiated a “no refusal” policy over the Labor Day weekend for those suspected of drinking and driving. According to the story we read, any refusal of a request for a breath or blood sample will lead to the issuance of a warrant for a blood sample to measure the suspects Blood Alcohol Content (BAC).
What’s interesting about the article in question is that it tends to imply that the decision to issue the warrant is the province of the police. In that regard, it includes several statements that are misleading, such as “police officers will have a search warrant issued to draw a blood sample”, and “[p]olice have had to issue warrants on 10 of those [29 DWI] arrests.”
The fact is that the police do not, and cannot, issue warrants. Warrants are issued by magistrates and judges. The framers of the United States Constitution were keenly aware of the need to protect the citizens against overzealous law enforcement. This is why the Constitution includes a protection against unreasonable searches and seizures. Specifically, the Fourth Amendment provides as follows:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Absent special circumstances, a warrant is necessary for a search and seizure to be valid. And the taking of a blood sample is a search and seizure. The statements in the article which we quoted above, taken at face value, are simply incorrect.
If you have been charged with driving while intoxicated, the potential penalties are severe. Even if a warrant for a blood test was issued in your case, remember that a warrant is only as good as the sworn statement used to obtain it, and the validity of the warrant can be challenged in court. This is another area where a qualified Austin DWI lawyer can assist in your drunk driving case.
Law Office of David D. White, PLLC
1205 Rio Grande Street
Austin, TX 78701
(512) 369-3737