New BAC Testing Law Causes Concern Amongst DWI Defense Attorneys

A new law taking effect Sept. 1 in Texas will allow police to draw blood from DWI suspects without having to get approval from a judge.

Under the terms of the law, police can order a blood sample to be taken from a person suspected of DWI under certain circumstances, such as if the suspect is a repeat DWI offender, if the suspect caused a fatal DWI accident, or if a child under the age of 15 was in the vehicle.

Current laws require police officers seeking a blood sample of a suspect who has refused a breathalyzer test to convince a judge there is probable cause to authorize a search warrant.  The new law will allow police officers to order blood tests without a warrant.

Prosecutors are pleased with the law, and think it will deter drivers from driving while intoxicated if they know the police can sample their blood.  However, many others, including constitutional experts and DWI defense attorneys, are concerned as to whether or not the law is constitutional.

"The real problem is they've taken authority away for judicial review, and it's now at the sole discretion of the police officers," said Houston lawyer Doug Murphy, who co-chairs the DWI committee of the Texas Criminal Defense Attorney's Association.  "There are no checks and balances. Once you give police officers sole discretion, one branch of government can run amok."

Houston DWI attorney Tyler Flood agrees.

"It's a violation of our constitutional right to privacy, and right to be free from unreasonable search, and that's what this is, an unreasonable search," said Flood.

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