Yes, a blood draw is perfectly legal with a warrant or consent from the individual. A person can refuse a blood draw until the officer got a warrant, at which point they can no longer refuse, and police can do whatever they want and use whatever force is necessary to extract the blood from the person.
A warrant will be granted 99.9% of the time. I do not foresee any situations in which a magistrate judge would not grant a warrant based upon the sworn application of a police officer saying there was probable cause for a DWI.
In some jurisdictions it is set up so that a magistrate is basically sitting at the police station, so it would just be a matter of doing some paperwork, swearing to it; the officer would probably be able to get a warrant within the hour.
Yes, the police officer can request one, but if the person had already given a breath test, it would be a very unusual unless the breath analysis was inconclusive, which is the only reason an officer might want to do that.
Yes, this happens all the time. If the field sobriety test was just the probable cause to get the person in the car so they could be taken downtown for a breath test, they can take a blood test if the person refused the breath test, if they were in a mandatory blood draw county like San Antonio.
In reality, this could go one of two ways; they could send it back for a toxicology screen for drugs, which happens on occasion, or they could decide to go to trial based upon the results of the field sobriety tests and the officer’s observations. They probably would not be able to make a case and the case would subsequently be dismissed if the blood draw showed no alcohol or drugs.
In San Antonio or Burke County, Texas, it is about half and half right now between blood draws and Breathalyzer, although more and more police officers are starting to use blood draws and breath tests for some reason or another.
Some Texas counties have a mandatory blood draw, which means the officer can easily obtain a warrant for a blood draw if the person refuses to take a breath test. In addition, a blood test can be utilized in other cases such as intoxication assault or intoxication manslaughter, although the officer would still need to obtain a warrant before drawing blood unless the person had consented.
A toxicologist is usually retained as an expert for a blood draw case.
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