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Can an Officer Obtain a Warrant by Making a Phone Call?

Can an Officer Obtain a Warrant by Making a Phone Call?

To force you to provide a blood sample for a blood test during a DWI stop, an officer needs to have a search warrant. Nevertheless, more and more officers are engaging in this practice, and they are going about it with fewer legal restrictions than ever before. For example, many holiday weekends in Texas are what are known as no-refusal weekends. What this boils down to is that, if you are stopped on a no-refusal weekend and refuse a breathalyzer, the officer will likely be able to call a judge and obtain a warrant that allows him or her to test your blood for alcohol. In fact, judges often make themselves available for just such phone calls on no-refusal weekends.

The Burden of Proof

To obtain a search warrant, your arresting officer must, technically, do the following:

  • Submit an affidavit that establishes there is evidence that indicates there is probable cause to believe that you were driving while intoxicated.

  • Submit this affidavit to the judge in person

  • Swear to the affidavit’s truthfulness

While the burden of proof for obtaining a warrant remains on the arresting officer, in actuality, this burden is not especially onerous. Demonstrating that you failed to pass one of your field sobriety tests is likely enough.

The Inconvenience of Obtaining a Warrant

To obtain a search warrant, the officer traditionally has to fill out an affidavit and appear before the judge. This usually means physically going somewhere to accomplish the goal of obtaining the warrant. Some officers have found a way to bypass this step by calling the judge instead, faxing over the affidavit, and swearing to its authenticity on the phone. In fact, they can do all of this from the jail.

The Question of Legitimacy

There is some question about the legitimacy of simply phoning in a warrant request because the officer in question does not actually appear before the judge to swear to the truthfulness set forth in the affidavit. The Court of Criminal Appeals, however, has answered this question and concludes that telephone warrants are appropriate in some circumstances. For example, when the arresting officer and the judge involved can recognize each other’s voices on the phone, obtaining a warrant over the phone is considered a legitimate practice. It is, nevertheless, a legitimate practice that is likely to lead to greater numbers of warrants to obtain blood testing in DWI cases.

If You Have Been Charged with DWI, Consult with an Experienced Killeen Criminal Defense Attorney Today

If you were stopped for DWI and were required to consent to a blood test, attorney Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – is committed to fighting for your rights and to bringing every applicable legal challenge in your case. The consequences of a DWI conviction are far too serious to leave to chance. If you are facing DWI charges, our dedicated legal team is here to help. We are on your side, so please do not hesitate to contact or call us at 254-501-4040 for more information today.
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