Zendeh Del & Associates, PLLC


Zendeh Del & Associates, PLLC is a Galveston, Texas based law firm. We provide clients representation in criminal defense, family law, and personal injury cases.
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Blood Draw Warrants in Texas - DWI Caselaw

​Case law summaries relating to DWI blood draw warrants in Texas.

  1. As long as the item sought pursuant to the warrant fits into one of the categories set forth in Article 18.02 C.C.P., such may be seized pursuant to warrant even if it seized from a suspect's person or body. Gentry v. State, 640 S.W. 2d 899 (Tex. Crim. App 1982). Gentry specifically authorized a search warrant to be issued to take a blood sample from a criminal defendant suspected of DWI.
  2. The Court of Criminal Appeals upheld the admission of warrant-seized blood in a misdemeanor DWI-refusal case. Beeman v. State, 86 S.W. 3d 613 (Tex. Crim. App.2002). Beeman clarified that the implied-consent statute does not implicate scenarios where blood samples are taken pursuant to a search warrant issued under the Fourth Amendment. The court ruled that compliance with the implied-consent provisions of the Transportation Code was unnecessary because Texas law does not provide greater protection than the Fourth Amendment in this scenario. Three intermediate appellate courts have followed suit. Cantrell v. State, 280 S.W.3d 408 (Tex. App.—Amarillo 2008), pet. stricken, No. PD 1712-08, 2009 WL 1165492 (Tex. Crim. App. April 29, 2009) (not designated for publication); Gatewood v. State. No. 11-07-00153-CR, 2008 WL 4440438, at *1 (Tex. App.—Eastland Oct. 2,2008, pet. ref=d) (mem. op., not designated for publication); Dye v. State, No. 08-02-00018-CR, 2003 WL 361289, at *1, 2003 Tex. App. LEXIS 1556 at *4, (Tex. App. – El Paso Feb. 20, 2003, no pet.) (mem. op., not designated for publication).
  3. The search warrant affidavit supporting a blood draw warrant in a DWI case is insufficient if it fails to state why the blood constitutes evidence of a crime. Mulder v. State, 707 S.W. 2d 908 (Tex. Crim. App. 1986). In Mulder, the affidavit satisfies the first listed requirement of Art. 18.01(c) by stating that suspect has been indicted and by naming the offense. The indictment establishes probable cause to believe that suspect committed the offense charged. It also satisfies the third enumerated requirement of Art. 18.01(c) by describing the item to be seized as (suspect’s blood) and by stating that the suspect was located in jail. However, the affidavit does not meet the second requirement set out in Art. 18.01(c), because it does not state any fact or facts to show why or how suspect’s blood constitutes evidence. For example, there is no statement that suspect was wounded at the scene or any description of events showing how his blood might have been deposited at the scene. Therefore the fact that blood was found at the scene and the fact that suspect was a participant in the offense does not show or state any reason as to why the blood at the scene might link suspect to the scene so as to require a sampling of his blood. Under the stated facts in the affidavit a defendant who participated in the crime, but who was not wounded and did not “leave” any blood at the scene, could be seized and blood samples taken, even though in such instance there would actually be no probable cause for doing so. However, no facts stating what had happened or even stating simply that suspect was wounded at the scene were included in the affidavit to show that probable cause. The connection between the blood at the scene and suspect’s blood is not shown so as to satisfy Art. 18.01(c)’s requirement that facts be stated showing how the blood constitutes evidence. The affidavit is not sufficient to show probable cause.
  4. Taking blood from a DWI suspect pursuant to a court order or warrant based on an unsworn motion constituted an illegal search. McBride v. State, 840 S.W. 2d 111 (Tex. App.—Austin 1992, pet. ref’d) The court in Smith v. State, 207 S.W. 3d 787 (Tex. Crim. App.2006) upheld a warrant as valid where it was supported by an unsigned affidavit because the magistrate testified that the facts in the affidavit were sworn to by the affiant as being true even though the affiant failed to sign affidavit.
  5. In a DWI case, a blood draw compelled through a search warrant does not implicate the Fifth Amendment. The United States Supreme Court directly rejected any Fifth Amendment compulsion claim in Schmerber v. California, 384 U.S. 757, 86 S.Ct.1826, 16 L.Ed.2d 908 (1966). The Fifth Amendment bars against compulsory testimony or communications, but does not prevent the State from forcing a suspect to provide real or physical evidence such as fingerprints, photographs or voice exemplars.

Posted Mon, November 05, 2012 - 11:12:08