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9/14/2005
Texas Police Will Take Blood By Force in DUI Cases
Dalworthington Gardens, Texas police will draw the blood of drunk driving suspects.

Dalworthington Gardens Police blood testAfter completing a training course, Dalworthington Gardens police officers have been certified to draw blood from any motorist whom they suspect of driving under the influence of alcohol. The small North Texas city joins three counties -- Montague, Archer and Clay -- which have recently adopted similar policies.

These jurisdictions are seeking to make drunk driving convictions less vulnerable to court challenge as mounting evidence shows breathalyzer machines can be inaccurate. Under the new policy, a suspect will be brought to a police station and asked in a videotaped interrogation to submit voluntarily to a blood test. If the request is refused, police will call one of the judges who have agreed to remain on-call to obtain a warrant. If approved, police will draw the blood, by force if necessary. Anyone who refuses a blood test, even if not convicted or formally accused of a crime, will surrender his license to drive on the spot and will not see it again for at least six months.

"It's kind of eerie," Frank Colosi, an attorney who works with the Fort Worth chapter of the American Civil Liberties Union told the Ft. Worth Star-Telegram. "It's kind of grotesque that the government can come and take your blood."

Section 724.017 of the Texas code requires that, "Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer....'qualified technician' does not include emergency medical services personnel." Dalworthington Gardens believes their twenty-hour course meets this standard.

Article Excerpt:
TEXAS TRANSPORTATION CODE
CHAPTER 724. IMPLIED CONSENT
SUBCHAPTER B. TAKING AND ANALYSIS OF SPECIMEN

724.011. CONSENT TO TAKING OF SPECIMEN. (a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.
(b) A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person's alcohol concentration.

724.012. TAKING OF SPECIMEN. (a) One or more specimens of a person's breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:
(1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or
(2) was in violation of Section 106.041, Alcoholic Beverage Code.
(b) A peace officer shall require the taking of a specimen of the person's breath or blood if:
(1) the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor
vehicle or a watercraft;
(2) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably
believes occurred as a result of the offense;
(3) at the time of the arrest the officer reasonably believes that as a direct result of the accident:
(A) any individual has died or will die; or
(B) an individual other than the person has suffered serious bodily injury; and
(4) the person refuses the officer's request to submit to the taking of a specimen voluntarily.
(c) The peace officer shall designate the type of specimen to be taken.
(d) In this section, "serious bodily injury" has the meaning assigned by Section 1.07, Penal Code.

724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.

724.014. PERSON INCAPABLE OF REFUSAL. (a) A person who is dead, unconscious, or otherwise incapable of refusal is considered not to have withdrawn the consent provided by Section
724.011.
(b) If the person is dead, a specimen may be taken by:
(1) the county medical examiner or the examiner's designated agent; or
(2) a licensed mortician or a person authorized under Section 724.016 or 724.017 if there is not a county medical examiner
for the county.
(c) If the person is alive but is incapable of refusal, a specimen may be taken by a person authorized under Section 724.016
or 724.017.

724.015. INFORMATION PROVIDED BY OFFICER BEFORE REQUESTING SPECIMEN. Before requesting a person to submit to the
taking of a specimen, the officer shall inform the person orally and in writing that:
(1) if the person refuses to submit to the taking of the specimen, that refusal may be admissible in a subsequent
prosecution;
(2) if the person refuses to submit to the taking of the specimen, the person's license to operate a motor vehicle will
be automatically suspended, whether or not the person is subsequently prosecuted as a result of the arrest, for not less than 180 days;
(3) if the person is 21 years of age or older and submits to the taking of a specimen designated by the officer and an
analysis of the specimen shows the person had an alcohol concentration of a level specified by Chapter 49, Penal Code, the person's license to operate a motor vehicle will be automatically
suspended for not less than 90 days, whether or not the person is subsequently prosecuted as a result of the arrest;
(4) if the person is younger than 21 years of age and has any detectable amount of alcohol in the person's system, the
person's license to operate a motor vehicle will be automatically suspended for not less than 60 days even if the person submits to the taking of the specimen, but that if the person submits to the taking of the specimen and an analysis of the specimen shows that the person had an alcohol concentration less than the level specified by Chapter 49, Penal Code, the person may be subject to criminal penalties less severe than those provided under that chapter;
(5) if the officer determines that the person is a resident without a license to operate a motor vehicle in this state, the department will deny to the person the issuance of a license, whether or not the person is subsequently prosecuted as a result of
the arrest, under the same conditions and for the same periods that would have applied to a revocation of the person's driver's license
if the person had held a driver's license issued by this state; and
(6) the person has a right to a hearing on the suspension or denial if, not later than the 15th day after the date on which the person receives the notice of suspension or denial or on which the person is considered to have received the notice by mail as provided by law, the department receives, at its headquarters in Austin, a written demand, including a facsimile transmission, or a request in another form prescribed by the department for the hearing.

724.016. BREATH SPECIMEN. (a) A breath specimen taken at the request or order of a peace officer must be taken and analyzed under rules of the department by an individual possessing a certificate issued by the department certifying that the individual is qualified to perform the analysis.
(b) The department may:
(1) adopt rules approving satisfactory analytical methods; and
(2) ascertain the qualifications of an individual to perform the analysis.
(c) The department may revoke a certificate for cause.

724.017. BLOOD SPECIMEN. (a) Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place.
(b) The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not
liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if
the blood specimen was taken according to recognized medical procedures. This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.
(c) In this section, "qualified technician" does not include emergency medical services personnel.

724.018. FURNISHING INFORMATION CONCERNING TEST RESULTS. On the request of a person who has given a specimen at the
request of a peace officer, full information concerning the analysis of the specimen shall be made available to the person or the person's attorney.

724.019. ADDITIONAL ANALYSIS BY REQUEST. (a) A person who submits to the taking of a specimen of breath, blood, urine, or another bodily substance at the request or order of a
peace officer may, on request and within a reasonable time not to exceed two hours after the arrest, have a physician, qualified technician, chemist, or registered professional nurse selected by the person take for analysis an additional specimen of the person's
blood.
(b) The person shall be allowed a reasonable opportunity to contact a person specified by Subsection (a).
(c) A peace officer or law enforcement agency is not required to transport for testing a person who requests that a blood specimen be taken under this section.
(d) The failure or inability to obtain an additional specimen or analysis under this section does not preclude the admission of evidence relating to the analysis of the specimen
taken at the request or order of the peace officer.
(e) A peace officer, another person acting for or on behalf of the state, or a law enforcement agency is not liable for damages
arising from a person's request to have a blood specimen taken.

SUBCHAPTER C. SUSPENSION OR DENIAL OF LICENSE ON REFUSAL OF SPECIMEN

724.031. STATEMENT REQUESTED ON REFUSAL. If a person refuses the request of a peace officer to submit to the taking of a
specimen, the peace officer shall request the person to sign a statement that:
(1) the officer requested that the person submit to the taking of a specimen;
(2) the person was informed of the consequences of not submitting to the taking of a specimen; and
(3) the person refused to submit to the taking of a specimen.

724.032. OFFICER'S DUTIES FOR LICENSE SUSPENSION; WRITTEN REFUSAL REPORT. (a) If a person refuses to submit to the taking of a specimen, whether expressly or because of an
intentional failure of the person to give the specimen, the peace officer shall:
(1) serve notice of license suspension or denial on the person;
(2) take possession of any license issued by this state and held by the person arrested;
(3) issue a temporary driving permit to the person unless department records show or the officer otherwise determines
that the person does not hold a license to operate a motor vehicle in this state; and
(4) make a written report of the refusal to the director of the department.
(b) The director must approve the form of the refusal report. The report must:
(1) show the grounds for the officer's belief that the person had been operating a motor vehicle or watercraft powered
with an engine having a manufacturer's rating of 50 horsepower or above while intoxicated; and
(2) contain a copy of:
(A) the refusal statement requested under Section 724.031; or
(B) a statement signed by the officer that the person refused to:
(i) submit to the taking of the requested specimen; and
(ii) sign the requested statement under Section 724.031.
(c) The officer shall forward to the department not later than the fifth business day after the date of the arrest:
(1) a copy of the notice of suspension or denial;
(2) any license taken by the officer under Subsection (a);
(3) a copy of any temporary driving permit issued under Subsection (a); and
(4) a copy of the refusal report.
(d) The department shall develop forms for notices of suspension or denial and temporary driving permits to be used by all state and local law enforcement agencies.
(e) A temporary driving permit issued under this section expires on the 41st day after the date of issuance. If the person was driving a commercial motor vehicle, as defined by Section
522.003, a temporary driving permit that authorizes the person to drive a commercial motor vehicle is not effective until 24 hours after the time of arrest.
Source: Police are trained to take blood samples for DWI (Ft. Worth Star-Telegram, 9/14/2005)



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