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Wednesday, March 4, 2009

Please blow, don’t say "No” or you will be required to give blood

Many people in bexar county and the city of San Antonio have contacted our law firm because they have been unreasonably and against their reasonable expectation of privacy commandeer to submit to blood test by the Police.

The following information was taken from DA Susan Reed's website: "San Antonio, Texas: For New Year’s Eve, District Attorney Susan Reed is cracking down on drunk drivers. “If you are arrested for a DWI and you say no to the blow, then the police will obtain a search warrant to draw your blood. So, when the officer says “Please blow,” don’t say “No” or you will be required to give blood,” is the District Attorney’s warning. The blood sample obtained by these warrants will be tested by the Bexar County Medical Examiner’s Office to provide critical scientific evidence to secure a conviction against the Defendant. During this No Refusal Accepted evening, an Assistant District Attorney will be on duty at the San Antonio Magistrate’s Office and Detention Facility to assist with and review the blood search warrants that will then be presented to a magistrate. A Registered Nurse will also be on duty to draw the blood. The District Attorney’s Office has met with the various local law enforcement agencies that file DWI cases, trained them on the processes, and has secured their enthusiastic cooperation in this important project. This is the second time No Refusal Accepted has been implemented in Bexar County. Last Memorial Day, the District Attorney’s Office, working with the local police departments, the City of San Antonio Magistrate’s Office, and the Bexar County District Clerk’s Office began a trial run of the program. Approximately 77 people were arrested over the weekend and, of those, approximately 40 blood samples were obtained. The average blood alcohol content was a .16, twice the legal limit of .08. The highest blood test was a .35, more than four times the legal limit."

Some of the research conducted indicated that non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy'); Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment').' '[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ('the ultimate measure of the constitutionality of a governmental search is `reasonableness''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).

The question now becomes, which one is greater, the privacy rights of the many citizens of bexar county against the capricious attempt to collect non-consensual blood examples vs. police officers already tainted probable cause to obtain the warrant to collect the blood?

We believe that the police went too far on this one, and perhaps we would be challenging any of the convictions given based on this unconstitutional practice to obtain blood.

If you have been arrested for a DWI, DUI in San Antonio, or in Texas, please contact our law firm, we can help. That is why we say, "we care about your legal needs."

The Baez Law Firm, P.C. is a general practice law firm that is ready to help you during difficult times. We handle bankruptcy, criminal law, personal injury, family law, business law, consumer law, litigation, and appeals.

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