Texas lawyer: Police taking blood for DWI cases is illegal

David Edwards and Muriel Kane
Raw Story
Jul. 08, 2008

Texas law enforcement officials have the right to take blood samples from suspected drunk drivers, even against their will. However, one Dallas-area lawyer argues that the procedure is illegal when the blood is drawn by police officers instead of by licensed medical personnel or trained technicians.

Defense attorney Avery McDaniel represents a client who was stopped by police in December 2005 and had blood taken from her forcibly, leaving bruises along her arm. He is asking the judge to throw out the blood evidence that he says was obtained illegally.

McDaniel told CBS 11 News, "If an officer believes that you're intoxicated and you refuse, they will get a search warrant and they will physically hold you down and take your blood."

"What if someone is diabetic, or if the person’s on blood thinners," McDaniel asks. "They’re not prepared or trained if something goes wrong."

The officers do undergo a 20-hour training course modeled on one from a school of phlebotomy -- the practice of drawing blood -- in Phoenix. Tarrant County Assistant District Attorney Richard Alpert insists that "everybody drawing a blood sample as a part of this program ... has been medically certified as qualified to draw blood samples."

However, an Arizona lawfirm that specializes in DWI cases explains on their website why this is not sufficient: "Up until a few years ago, when officers opted for a blood test, they would transport the DUI suspect to a hospital or other similar type medical facility where trained medical personnel would draw blood in a clinical setting. ... The vast majority of the police officers calling themselves phlebotomists are not graduates of a full phlebotomy program and certainly cannot be considered medical personnel. ... While these police 'phlebotomists' are performing an invasive medical procedure, their first concern is not for the safety of the blood draw subject, but gathering evidence."

A transcript of this video is available here.

This video is from CBS 11 Dallas, broadcast July 2, 2008.

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