Warrantless Blood Sample Collection

A controversial new law affecting those suspected of drunk driving goes into effect for Texans on September 1. Known as the Nicole "Lilly" Lalime Act, the law gives the police the power to collect blood samples without a warrant in limited situations from drivers suspected of operating a motor vehicle over the legal alcohol limit.

To take a warrantless sample, the police must arrest the person for a drunk driving offense and the person must refuse to give a voluntary sample of his or her breath or blood. In addition, one of the following circumstances also must be present:

• The driver who was arrested caused an accident in which someone died or will die; someone suffered serve bodily injury; or someone suffered any bodily injury and was taken to the hospital
• The driver was arrested for driving while intoxicated with a child passenger
• The driver has a previous conviction for driving while intoxicated with a child passenger, intoxication assault or intoxication manslaughter
• The driver has two or more previous convictions for driving while intoxicated (DWI), flying while intoxicated, intoxication assault or assembling or operating an amusement ride while intoxicated

Under current law, the police are required to collect either a breath or blood sample from any driver suspected of DWI who is involved in an accident that results in death or serious bodily injury to another person. In all other DWI cases, the police can ask drivers to voluntarily take a breathalyzer, but under Texas law, drivers have the right to refuse. It is estimated that nearly half of all Texan motorists refuse to give a voluntary sample when arrested on suspicion of drunk driving.

In response, police in some jurisdictions have adopted "No Refusal" policies. When a driver refuses to give a voluntary sample, the police then will seek a warrant from a judge authorizing them to take a blood sample to determine the driver's blood alcohol content (BAC). Under the new law, magistrates also have been given the authority to grant warrants to collect blood samples from drivers who have refused to give the voluntary sample.

The police have argued that when they are not allowed to collect a blood or breath sample, they are denied important evidence they need to convict drunk drivers and get them off the state's roadways. The practice of obtaining warrants to collect blood samples of suspected DWI offenders has been controversial, with opponents arguing it allows the police to invade citizens' privacy rights. However, the practice was upheld as constitutional by a Texas appellate court in 2002.

Why Was the Law Passed?

The state's legislature felt changes were needed to Texas' DWI laws in order to give police the tools they need to protect the public from drunk drivers. If the police cannot collect a breath or blood sample from a driver reasonably believed to be intoxicated, it is more difficult to secure a conviction against the driver for DWI.

Those in favor of the legislation also argue that the new law will help lower the number of serious injuries and deaths related to drunk driving accidents on the state's roadways. According to the National Highway Traffic Safety Administration, Texas ranks second in the country in the number of drunk driving related highway fatalities.

Proponents also argue that the law will act as an important deterrent to drinking and driving. They say that there is a perception among many in the public that they can get away with driving drunk so long as they refuse to take a breathalyzer. However, if the public understands that the police can take a sample of their blood even if they refuse, then more people may be unwilling to get behind the wheel after having too much to drink.

Criticisms of the New Law

There are just as many people opposed to the new law as there are in favor of it. Opponents of the Act argue that the law violates important constitutional rights, including the right to privacy and the right to be free from unreasonable search and seizures, by forcing citizens to give a fluid sample from their bodies without their consent.

Others criticize the law for giving too much authority to the police without providing a means to appeal or review the officer's decision to take the warrantless blood sample. Under the current system, a judge must determine that an officer has sufficient probable cause to believe a driver is violating the law before the judge will issue the warrant. Under the new law, however, there is no review of the arresting officer's decision to take the warrantless sample.

Opponents also argue that giving the police the authority to take warrantless samples ultimately will be ineffective because it will create a backlog in both the testing centers and the court system. Given how much the legal system already is overburdened, the new law will simply add to an existing problem. Opponents further point out that previous attempts at strengthening the penalties against drunk drivers have done little to deter the behavior and that this new measure likely will produce a similar result.

Conclusion

At this point, it is difficult to speculate how the new law will impact the legal system, the number of drunk driving arrests and private citizens' lives. Opponents of the law have promised to challenge its constitutionality, but it may be a difficult argument for them to win. In Schmerber v. California, 384 US 757 (1966), the US Supreme Court ruled that law enforcement officials in California could take blood samples without a warrant so long as they had probable cause that the driver was intoxicated.