NewsChannel 11 has learned that Lubbock County authorities are testing a new program that lets them draw your blood without your consent. They say it's a program to combat a growing number of suspected drunk drivers who are withholding evidence. Prosecutors estimate 3 out of 4 DWI defendants now refuse to take a breathalyzer, but some say they are overstepping their authority.
The D.A.'s office is testing a blood search warrant program. That means, if you say no to a breathalyzer, an officer can take you straight to the hospital where your blood will be drawn and tested for alcohol, and you don't have a choice. Law enforcement already does this to suspected drunk drivers involved in an accident causing death or serious injury, but now, the process is being expanded.
"It's not really anything that new or particularly innovative. This didn't come as a result of any new law that was passed or anything like that. This is just regularly, old 4th Amendment search warrant stuff," Lubbock County Assistant Criminal District Attorney Tom Brummett said.
He estimates that from 2002 to 2007, the number of suspected drunk drivers refusing a breathalyzer has grown from 25% to 75%.
"Those numbers became alarmingly high, and we knew that we had to make some kind of response to that in order to still procure those," Brummett said.
Now, Lubbock County is testing a blood search warrant program.
"If a person is arrested for DWI, the officer will ask them for a breath sample. If they refuse, then an officer will take them to UMC, and we'll fill out a search warrant. They send it to a judge who will review that, and if the judge agrees that there is enough probably cause to search for it, they'll sign it and then that person's blood will be withdrawn," Brummett said.
"They bring them here, because they need a hospital and a health care professional to collect the blood for the testing. We're not saying that they think the individual is guilty of a crime; we're merely complying with a court order," Vice President of University Medical Center Greg Bruce said.
Bruce says the suspect is not a patient of the hospital, and an officer remains with them the entire time.
"This is no different than what we've been doing for years with individuals that have been involved in an accident that resulted in the death or injury of an individual," Bruce said.
"We're still an early adopter; there are, I believe, 20 other counties that are doing this and ranging from all sizes. It has been examined by the courts and they've said it's okay," Brummett said.
"The prosecutors in various jurisdictions and now Lubbock are trying to use that case, set up a no refusal weekend, that type of thing, and so they got warrants, stuck a needle in somebody's arm and drew blood," Lubbock Criminal Law Attorney Stephen Hamilton said.
Hamilton is against the blood search warrant program.
"You have an absolute right to refuse to give a breath sample. What the D.A.'s office has done, through the case law, is say well that doesn't prevent us from going forward attempting to get a warrant to take somebody's blood," Hamilton said.
"That's incorrect," Brummett said.
He says once you get behind the wheel on a Texas roadway, you give authorities implied consent. It's written in the Texas Transportation Code.
"There's not a right not to give a breath test. If that was so, we couldn't bring it up in trial as evidence against you, and we're allowed to do that. You also couldn't face a penalty for doing that, and right now the penalty for not providing a breath sample is a suspension of your license for six months. If you had a right not to give that, they couldn't take away your driver's license," Brummett said.
"There's a difference between maybe can they do it and should they do it, and I hope that Lubbock County and the citizens of Lubbock would say this is just not acceptable," Hamilton said.
"Our ultimate goal is just to keep people from DWI, but the ones that are going to chose to go ahead and do it, that they're not going to be able to withhold that evidence from us anymore," Brummett said.
Brummett tells NewsChannel 11 they tested the program during two days last month. He says the D.A.'s office was pleased with the results, and is moving forward with those cases.
Brummett says they're planning more enforcement dates. We'll have more details on those dates later this month.
Since UMC is the county hospital, Brummett doesn't expect any added cost, except for purchasing more vials for the blood.