Warrantless DWI Blood Draws, and a Urinary Catheter


Harris County intends to get a search warrant to draw blood from anyone who, having been arrested for DWI this (Memorial Day) weekend, refuses to provide a breath sample (Houston Chronicle). A judge will be on call to sign warrants and MADD will provide nurses to draw the blood.

In the 1966 Supreme Court case of Schmerber v. California the Court approved a warrantless blood draw based on probable cause for DWI on the theory that an emergency existed because the accused’s blood alcohol content might diminish while the police awaited a warrant. This weekend (when a warrant can be obtained within 10 or 15 minutes of a driver’s stop) such an emergency won’t exist, so if the police don’t get their PC affidavits and warrants right the blood test results will be suppressible.

Meanwhile, a Fort Bend County lawyer reports that the Sugar Land, Texas Police Department, after drawing blood, forcibly inserted a catheter into the penis of a DWI arrestee who had refused a breath test.

In Schmerber the Supreme Court wrote:

We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

A catheter is unquestionably a more substantial intrusion than a blood draw. Catheterization is painful, and bears a substantial risk of infection. Schmerber doesn’t support the Sugar Land officers’ action. Not only did they jeopardize the prosecution, but they (and the medical personnel who helped them) lined themselves up as the potential defendants in a large civil lawsuit.


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