Who Can Take Blood After a Possible DWI?

When police suspect drunk driving played a role in an auto accident, they may seek to force the defendant to submit a blood sample under Texas’ implied consent law. But there are certain rules law enforcement must still follow in such cases.

For example, Section 724.017 of the Texas Transportation Code states that only certain qualified individuals, such as a physician or registered nurse, may take a blood sample “at the request or order ” of a law enforcement officer. If a non-qualified individual performs the blood draw, it is illegal and inadmissible in court.

Appeals Court Upholds Intoxication Assault Conviction, 16-Year Sentence of Denton County Man

Section 724.017 Limitations

But it is important to understand that Section 724.017 does not cover all types of blood draws taken without a defendant’s consent. In a recent decision from the Texas Second District Court of Appeals, Borys v. State, a Denton County defendant was found guilty of intoxication assault following an accident where prosecutors relied on a blood sample taken from the defendant while he was unconscious.

The Incident

Here is what happened. According to the evidence introduced at trial, the defendant was driving in the wrong direction on a divided highway. His vehicle collided with another car. The defendant and the other driver sustained serious injuries in the crash, and a passenger in the other vehicle–a six-year-old girl–was left paralyzed.

Blood Draw and Results

The defendant was transported to the hospital while still unconscious. At the hospital, medical personnel took a blood draw as part of their normal emergency treatment protocol. This sample showed the defendant’s blood-alcohol level was 0.243 percent. This was more than three times the legal limit allowed under Texas law.

Criminal Charges and Conviction

Prosecutors charged the defendant with two counts of third-degree felony intoxication assault. The jury found the defendant guilty on both counts. The defendant received sentences of 6 years for the assault on the other driver, and 10 years for the assault on the six-year-old girl. The judge directed the defendant serve the sentences consecutively, for a total of 16 years.

The Appeal

On appeal to the Second District, the defendant argued the trial judge should have instructed the jury to disregard the results of the blood test if they “had been obtained in violation of the law,” specifically Section 724.017. The defense pointed out there was no evidence introduced at trial as to “how the blood was drawn” or whether a qualified individual actually performed the test.

The Second District said that did not matter. Section 724.017 only applied to blood draws specifically requested by law enforcement. It did not cover a situation like this, where the hospital performed its own blood draw for medical reasons. The defense was therefore not entitled to a jury instruction with respect to the legality of the blood draw.

Saddled with Similar Criminal Charges?

Speak with a Houston DWI Accident Defense Attorney Today

When you are lying unconscious in a hospital following an accident, you are in no position to object to law enforcement conduct that may violate your constitutional rights. That is why you need to work with an experienced Houston DWI accident defense lawyer who will fight to ensure that prosecutors and judges follow the law.

If you need legal advice or assistance, contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today.

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