http://www.chron.com/disp/story.mpl/metropolitan/6548493.html

A new Texas law allowing police to draw blood from DWI suspects without a judge's OK is riling defense attorneys, pleasing prosecutors and has crime labs gearing up for more work.

The law, which takes effect Sept. 1, also has sparked debate among constitutional experts, including some who are troubled by the prospect of allowing the state to invade a person's body on suspicion of a crime.

Police will be allowed to order blood drawn from a person suspected of driving while intoxicated without judicial review under certain circumstances, including instances in which the suspect is a repeat offender, a passenger died or in which a child under 15 was a passenger in the vehicle.

“The real problem is they've taken authority away for judicial review, and it's now at the sole discretion of 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.”

A more practical concern is that authorities could become overwhelmed with blood tests once the process of presenting a warrant to a judge no longer is needed.

“For us, we're not sure if it will go up drastically ... that's what we will have to monitor,“ said Mary Daniels, director of operations for the Harris County Medical Examiners Office.

Currently, police and prosecutors seeking a blood sample from a DWI suspect who has refused a breath test must convince a judge there is probable cause to authorize a search warrant. The new law will allow police to order blood tests, without a warrant, in certain circumstances. It also expands the definition of judge to include magistrates, who only have to be licensed lawyers, in all other cases.

‘Huge' deterrent
Brent Mayr, the Harris County prosecutor who heads the vehicular crimes division, said the amount of blood work related to DWI cases inevitably will increase “because there are so many more circumstances where we can do it.“

“The deterrent value will be huge,” Mayr said. “Right now, the perception is it's OK to drink and drive as long as you refuse ... to take the breath test, and you'll get off. Once people find out it doesn't work that way anymore, because now they're (police) going to get a search warrant to get their blood, people are going think twice about that decision.”

The two largest crime labs in the areas are operated by the Houston Police Department and a regional facility in north Houston run by the Texas Department of Public Safety.

Defense attorney Murphy predicts the blood work will swamp the labs.

“It's going to cause an extensive output of resources — financially and physically with personnel — to analyze all these samples,” Murphy said. “The HPD crime lab has had its share of problems, and with the addition of all these blood tests they're going to be overwhelmed. It's going to be very expensive. In order to do them, they're going to have to hire more people or cut corners.”

Houston police say they have taken steps to hire additional personnel to meet the demand.

Executive Assistant Chief C.A. McClelland said the highest priority in the crime lab has been to hire civilian scientists and technicians to handle the expected upswing in DWI and other cases.

“We've hired staff in the crime lab,” he said. “We're one of the agencies that does all of our serology (and) DNA testing in house. We're still actively hiring, and the crime lab is the highest priority in terms of filling civilian positions.“

David Crump, a law professor at the University of Houston law school, said a 1966 ruling by the U.S. Supreme Court upheld the DWI conviction of a California man whose blood was drawn while he was unconscious in a hospital.

Striking a balance
“What really matters is what the Legislature thinks, and they probably have the right to pass it,“ Crump said of the law, adding that lawmakers have the authority to strike a balance between protecting the public “and the desire not to have your body poked with a needle.”

Local defense attorneys who defend DWI clients disagree.

“It's a violation of our constitution right to privacy, and right to be free from unreasonable search, and that's what this is, an unreasonable search,” said attorney Tyler Flood.

It'll be interesting to see unlicensed phlebotomists in a licensing board's crosshairs.

man, what's up with texas.

first they want to pass a law to arrest people who don't leave during a hurricane and now forced blood tests.

Even if this passes, It wont last.....

There are too many ways to comprimise the integrity of the specimin, and at the rate that these 'should' be thrown out, officers will soon realize that they will be spending more time defending the process and less time doing 'cop stuff'.

This is Un-Possible!  Dave will happily tell anyone that the 4th and 5th amendments are sacrosanct, and that Nobody but Nobody would even consider infringing upon them.

+ one for that!!

Ignition interlocks should be standard equipment on all new vehicles, like seatbelts and ABS, if they really want to tackle this problem.

I'd like to see how long this lasts in my county. It's already difficult to get the County Attorney to prosecute a DWI as it is. I can forsee drawing blood w/o a warrant, law or not, as one of the other reasons they won't try a case.

I think the article says that police will be able to order the blood drawn, not that they will draw it themselves.  This is the way it has been in California for decades.  Passed constitutional muster.








 

Police are not drawing blood.  They are ordering it to be drawn.








 

Reading is fundamental..









 

Its not the cops will be taking the blood (if I follow correctly), Its that there will be a string of unlicenced techs collecting and processing evidence that will be used ti convict for DUI

1387Delta: ???

Hello








 

I am sorry, what did i miss to earn ;'reading is fundimental?"

This says it all.


Venipuncture isn't exactly difficult, but it sure is easy to screw up if someone doesn't know what they're doing.  There is an assumed right to be free of needless harm inflicted by those tasked with serving protecting us.  I'd rather not have a massive hematoma because someone on the side of the road decided to just jerk the needle out without popping the vacuum tube first.


I choose to abstain from alcohol, but I also recognize that there are limits bounds that our local and federal authorities need to adhere to.


ETA:  I guess it would help if I read the whole article before blabbing, huh?

Their freedoms are bigger than yours, if less numerous.

Everything's bigger in Texas.

Im not paying for that bullshit, I obey the law.

Not sure how this will work in TX but in SD we do this every night.  If charged with DWI in SD you will give blood or we WILL take it per state law. 32-23-10
We also have a RN on staff 24/7 to do this.  We also have the man power to TAKE the blood when we have to,

the houston crime lab has an awesome record of fucking things up

Is this in a jail or on the side of the road?

My mistake, I misread your reply.  I thought you were talking about the police drawing blood.  So, I guess I'll give myself a "READING IS FUNDAMENTAL" shout!  








 

So much for the 5th amendment eh?

[
[/quote]

Not sure how this will work in TX but in SD we do this every night.  If charged with DWI in SD you will give blood or we WILL take it per state law. 32-23-10
We also have a RN on staff 24/7 to do this.  We also have the man power to TAKE the blood when we have to,
[/quote]


Is this in a jail or on the side of the road?

[/quote]


This is done in the jail.

how do you TAKE the blood?

[/quote]


Is this in a jail or on the side of the road?

[/quote]
do you use sodium or lithium heprin  or SST or plain red? how lond do you wait to spin the blood? How fast and how long do you spin the blood?  Is ypur RN certicied by the National Association of Phlobotomists or the National Assn of Clinical Patholigists? At what temp is the specimin maintatned untill testing? Who is the tech doing the test?–– is it a 'technicial' or a "technologist"?  Who insures your urginization is maintaining its clinical practice license?

This testing holds up in court????

wait 1 ...gotta read...
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    32-23-10.   Operation of vehicle as consent to withdrawal of bodily substances and chemical analysis––Submission to withdrawal or analysis following arrest. Any person who operates any vehicle in this state is considered to have given consent to the withdrawal of blood or other bodily substance and chemical analysis of the person's blood, breath, or other bodily substance to determine the amount of alcohol in the person's blood and to determine the presence of marijuana or any controlled drug or substance or any substance ingested, inhaled, or otherwise taken into the body as prohibited by § 22-42-15 or any other substance that may render a person incapable of safely driving. The arresting law enforcement officer may, subsequent to the arrest of any operator for a violation of § 32-23-1, require the operator to submit to the withdrawal of blood or other bodily substances as evidence.


this counts for ETOH?

at what piont will you TAKE my blood?

1)  I don't drink, but....
2) Arrogant  LEOs like you are the reason people hate cops.
3)  It's embarassing to hear someone so proud to trample on the constitution just because some black robes say you can.
4)  If 4th and 5th amendments are made null and void because you are in a car, then what other rights does the SD legislature suspend while in a car?

There was never a doubt that JBTs the world over would get instant orgasms from such power to abuse the lower classes.

If anyone tried to forcibly take blood from me, regardless of the outcome, I would resist.

+1+1+1+1+1+1+1(infinity)

my life would have a new dedication..........

this was my point.

[/quote]

1)  I don't drink, but....
2) Arrogant  LEOs like you are the reason people hate cops.
3)  It's embarassing to hear someone so proud to trample on the constitution just because some black robes say you can.
4)  If 4th and 5th amendments are made null and void because you are in a car, then what other rights does the SD legislature suspend while in a car?[/quote]

Lets see were to start yes to test for ETHO.  2 We will take the blood after you are arrested and booked in to jail.  3 Yes it holds up in court.  4 Please tell me how I am arrogant?  I did not write the law.  You do not have to drive but when you do in SD you are subject to the laws in SD.  5 Per the courts its not trampling the constitution as the ETHO in your blood is evidence and your body is destroying it all the time.  If you don't understand the exigency exemption to the 5th you should read up on it.

[/quote]

this was my point.[/quote]
understood; no prob here....

1)  I don't drink, but....
2) Arrogant  LEOs like you are the reason people hate cops.
3)  It's embarassing to hear someone so proud to trample on the constitution just because some black robes say you can.
4)  If 4th and 5th amendments are made null and void because you are in a car, then what other rights does the SD legislature suspend while in a car?[/quote]

Lets see were to start yes to test for ETHO.  2 We will take the blood after you are arrested and booked in to jail.  3 Yes it holds up in court.  4 Please tell me how I am arrogant?  I did not write the law.  You do not have to drive but when you do in SD you are subject to the laws in SD.  5 Per the courts its not trampling the constitution as the ETHO in your blood is evidence and your body is destroying it all the time.  If you don't understand the exigency exemption to the 5th you should read up on it.

[/quote]
“ No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1] ”

Self-incrimination
The fifth amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal conduct punished by fines, penalties or forfeiture.[3]

Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions.[4][5]

The legal shift from widespread use of torture and forced confession dates to turmoil of the late sixteenth and early seventeenth century in England[6]. Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was taken for guilty[6]. Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly employed to compel "cooperation." Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for "freeborn rights" were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell's revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with thirteen demands, of which the right against self-incrimination (in criminal cases only) was listed at number three. These protections were brought to the American shores by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights.

In terms of Miranda rights, this is often referred to as the "right to remain silent." This amendment is also similar to Section 13 of the Canadian Charter of Rights and Freedoms. In other Commonwealth countries like Australia and New Zealand, the right to silence of the accused both during questioning and at trial is regarded as an important inherited common-law right, and is protected in the New Zealand Bill of Rights and in Australia through various federal and state Acts and Codes governing the criminal justice system.




and its "ETOH" (the phrase in my question), that is 'etho'? 2: how did your state interperet this to a point where you have your 'power'

1)  I don't drink, but....
2) Arrogant  LEOs like you are the reason people hate cops.
3)  It's embarassing to hear someone so proud to trample on the constitution just because some black robes say you can.
4)  If 4th and 5th amendments are made null and void because you are in a car, then what other rights does the SD legislature suspend while in a car?[/quote]

Lets see were to start yes to test for ETHO.  2 We will take the blood after you are arrested and booked in to jail.  3 Yes it holds up in court.  4 Please tell me how I am arrogant?  I did not write the law.  You do not have to drive but when you do in SD you are subject to the laws in SD.  5 Per the courts its not trampling the constitution as the ETHO in your blood is evidence and your body is destroying it all the time.  If you don't understand the exigency exemption to the 5th you should read up on it.

[/quote]

so let me get this right you will hold someone down and forcefully take their blood?

Lets see were to start yes to test for ETHO.  2 We will take the blood after you are arrested and booked in to jail.  3 Yes it holds up in court.  4 Please tell me how I am arrogant?  I did not write the law.  You do not have to drive but when you do in SD you are subject to the laws in SD.  5 Per the courts its not trampling the constitution as the ETHO in your blood is evidence and your body is destroying it all the time.  If you don't understand the exigency exemption to the 5th you should read up on it.

[/quote]

so let me get this right you will hold someone down and forcefully take their blood?[/quote]

Yes

Yawn....

Lot of chest thumping and misinformation in this thread.

Major quote fail.

and its "ETOH" (the phrase in my question), that is 'etho'

Your right I miss typed It was a long 18 hour shift sorry.

Edit for a new typo

so let me get this right you will hold someone down and forcefully take their blood?[/quote]

Yes

[/quote]


So..."you DO have ways of making us talk?"......
what happened to 'no self incrimination'?

[
[/quote]

1)  I don't drink, but....
2) Arrogant  LEOs like you are the reason people hate cops.
3)  It's embarassing to hear someone so proud to trample on the constitution just because some black robes say you can.
4)  If 4th and 5th amendments are made null and void because you are in a car, then what other rights does the SD legislature suspend while in a car?[/quote]

Lets see were to start yes to test for ETHO.  2 We will take the blood after you are arrested and booked in to jail.  3 Yes it holds up in court.  4 Please tell me how I am arrogant?  I did not write the law.  You do not have to drive but when you do in SD you are subject to the laws in SD.  5 Per the courts its not trampling the constitution as the ETHO in your blood is evidence and your body is destroying it all the time.  If you don't understand the exigency exemption to the 5th you should read up on it.

[/quote]

so let me get this right you will hold someone down and forcefully take their blood?[/quote]

Yes

[/quote]


So..."you DO have ways of making us talk?"......
what happened to 'no self incrimination'?[/quote]

Getting a drunk to talk is never a problem it's getting them to stop.

Blood evidence is non-testimonial.

i order blood tests all the time. especially where there is p.c. to believe that there are drugs present besides alcohol. Not a big deal here. If they refuse a blood , or breath test, they lose their license to operate in this state. The type of test administered is Officer discretion.

And you will try to take our guns....if Obama says so.  Just follow orders.....

If you can read his posts that is.  

How do they get a needle in the vein of someone resisting? And all the people who gave their life for this country and it's come to this.

Strap them down at the hospital. Cops in Texas get a subpoena if there is wreck involved and say your wife was hurt bad in the wreck. Or they get a warrant, i.e. no refusal weekend.