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.