When Can Blood be Forcibly Taken in Texas?

The underlying theory that requires Texas motorists to give a sample of their blood or breath for purposes of analyzing blood alcohol content is expressed in section 724.011 of the Texas Transportation Code. By driving on the Texas roadways, we have given our “implied consent” to submit a breath or blood sample upon request by an officer who has arrested us for Driving While Intoxicated (DWI).

We generally have the right to refuse a request to provide breath/blood test. A refusal is followed by penalties in the form of license suspensions. There are, however, situations where blood can be drawn against our will. There are two instances where this occur.

Statutory exceptions mandate an officer to forcibly retrieve a sample of our blood. When a person is arrested for DWI following an accident, blood shall be drawn in the following situations:

• any individual has died or will die,
• an individual other than the arrested person has suffered serious bodily injury, or
• an individual other than the arrested person has suffered bodily injury and has been transported to a hospital or other medical facility for treatment

In non accident cases, blood draws are mandatory in the following circumstances:

• the person is arrested for Driving While Intoxicated with a Child Passenger,
• the person has two or more prior convictions, or
• the person has previously been convicted of DWI Child Passenger, Intoxication Assault or Intoxication Manslaughter.



Finally, absent a statute mandating blood draws, officers can obtain a search warrant from a magistrate or judge to obtain a blood draw.