Austin Police Department Draws Blood for Testing
In the face of a staffing crisis, Austin Police Department Officers have begun to draw blood for DWIs, rather than medical professionals. This has sparked controversy among some of the residents of Travis County, as well as from members of the medical and legal community, as concerns are raised over safety and trust.
Since 2014, Emergency Medical Service (EMS) medics in Travis County as well as registered nurses with the Travis County Sheriff’s Office have completed blood draws at the request of police officers. However, the department has had difficulty in recent years finding volunteers to staff the program, partly as a result of staffing issues in general.
In response, the Austin Police Department has designated several officers to undergo phlebotomist training. The department has also assured the public that they will not be drawing blood “by the side of the road,” and will observe standard medical procedure. As of February 2014, there were 4 officers trained to draw blood, and the APD told the public the officers have completed 50 hours of training and thus far had a 96% success rate.
What Are Blood Tests?
Blood testing is a form of testing that police officers can use after a traffic stop or accident if the officer has reasonable cause to believe that the driver was intoxicated or inebriated. These tests are given when the driver may have been under the influence of drugs, or when the driver has refused other testing methods like the breathalyzer.
Blood tests are given voluntarily or via a warrant. Like most other states, Texas follows the implied consent rule, meaning that drivers must submit to either a breath, blood, or urine test when asked to do so by a law enforcement officer with legal cause. Blood tests measure a person’s blood alcohol content, or BAC, in a manner far more accurate than breath tests.
These tests may be warranted under any of the following circumstances, according to Tex. Stat. Sec. 724.012:
- (a-1) A peace officer shall require the taking of a specimen of the person's blood if:
- the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft;
- the person refuses the officer's request to submit to the taking of a specimen voluntarily;
- the person was the operator of a motor vehicle or a watercraft involved in a collision that the officer reasonably believes occurred as a result of the offense; and
- at the time of the arrest, the officer reasonably believes that as a direct result of the collision any individual has died, will die, or has suffered serious bodily injury; or
- The person was the operator of a motor vehicle or a watercraft involved in a collision that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the collision an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment;
- (2) the offense for which the officer arrests the person is an offense under Section 045 or 49.061, Penal Code; or
- at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:
- has been previously convicted of or placed on community supervision for an offense under Section 045, 49.061, 49.07, or 49.08, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections; or
- on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.
Officers can receive a warrant for a blood draw for any violation of Texas’ Drinking and Driving statutes. The secondary clauses are there to increase the penalty for refusing a test after arrest, especially after an accident causing serious injury or death.
Ethics Problems
There are multiple issues with officers directly drawing blood:
Qualification
Even if the officer is certified, the fact of the matter is that EMS techs, nurses and phlebotomists have more training and experience, and have likely done thousands of blood draws. The simple fact is that designated officers cannot be trusted as much as dedicated technicians to complete the blood draw in a safe and secure manner, especially if they have an emotional tie to the suspect.
Trust
There is a major issue of trust when it comes to police officers directly drawing blood. Travis County Attorney Delia Garza, whose office oversees most DWI cases, said she is concerned the program will lead to the “eroding of public trust,” and that blood draws should continue to be performed by an outside agency.
We agree with Ms. Garza’s office on this issue completely. The separation of duties ensures community in trust in a way that is simply not being upheld with this system. While the APD said in April that “The only difference is the person drawing your blood may be different,” this difference is a pretty important one.
Legally, there is no precedent saying that police officers cannot draw blood so long as they are qualified to do so. Texas statute simply says that police can order to have a person’s blood drawn, but does not say by whom. However, for members of the public, it can be extremely discouraging to have their blood sample handled by the same person, or department, that arrested them. The use of police officers as phlebotomists erodes the trust that their sample will be handled with full impartiality.
Call an Austin DWI Lawyer Today
Just because your blood was drawn doesn’t mean that you can’t fight your DWI charge. Blood testing can sometimes generate false results – but the best way to fight these charges is by talking to a lawyer first.
Austin DWI attorney Kevin Bennett has represented numerous people charged with DWI through testing. He has an in-depth understanding of DWI blood testing and is skilled at formulating creative and effective defenses for his clients. Call The Law Office of Kevin Bennett now at (512) 476-4626 to set up your first consultation free of charge today.
The Law Office of Kevin Bennett represents people throughout the greater Austin and Travis County area including Lago Vista, Bee Cave, Lakeway, Manor, Del Valle, Jonestown and Rollingwood.
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