The U.S. Supreme Court will hear a Missouri case that may affect DWI blood draws in Bexar County, if the nation’s high court rules search warrants are not needed.
“Our current practice is to obtain a search warrant and that’s been approved by our highest criminal court, the Texas Court of Criminal Appeals,” said Cliff Herberg, Bexar County’s first assistant district attorney.
He said the Missouri case involved a suspected drunk driver undergoing a blood draw without a search warrant.
Herberg said San Antonio became the largest city in Texas last year to do mandatory blood draws year-round if drivers refuse a breathalyzer. He said Bexar County’s “no-refusal” policy began in 2008 but only during holidays like the Fourth of July or New Year’s Eve.
Herberg said in the past, blood draws were done only after wrecks, not routine DWI stops.
He said not having to get a search warrant would dramatically streamline the process.
“Obviously the closer in time you are to the offense, to the arrest, that you draw the blood, the more precise reading you have,” Herberg said.
However, Brent de la Paz, a criminal defense attorney, said warrants protect against unreasonable search and seizure of possible evidence under the Bill of Rights.
“You’ve got a breath test. You’ve got field sobriety tests. You’ve got videos. You don’t need blood,” de la Paz said.
However, Herberg said prior cases have shown jurors want more proof.
“You always have the officer’s word against the defendant’s word, but the problem is that juries like to see scientific evidence,” Herberg said.
The first assistant DA said getting a search warrant can take up to two hours depending on where the arrest is made.
However, prosecutors and defense attorneys agree time is crucial in determining someone’s blood alcohol content.
De la Paz said the most common guideline is based on those who have not eaten.
“It’ll take two hours from the time they stopped drinking to absorb everything,” de la Paz said.
Herberg said otherwise if food has been consumed, experts and jurors must estimate how much alcohol was in the driver’s system during the traffic stop.