DWI, Texas ER Docs, and the US Supreme Court

November 2, 2016

By Dusty Otwell
Associate General Counsel

An emergency room physician is working the night shift when a police officer brings in a DWI suspect who has refused to submit to a breath or blood test. The officer directs the physician to forcibly draw the suspect’s blood. What should the ER doctor do?

Scenarios like this occur in emergency rooms in Texas. Physicians put in this position face a very difficult decision, made even more complicated via recent U.S. Supreme Court decisions.

Texas Law

Texas law provides that DWI suspects have given “implied consent” to the taking of their breath or blood. Even if the suspect is unconscious or dead, the suspect has not withdrawn this implied consent. A conscious DWI suspect may refuse to provide breath or blood, subject to penalties including suspension of driver’s license. In such cases, the police may choose to seek a warrant to obtain the suspect’s blood. However, Texas law provides that police may, without a warrant, forcibly draw blood from a refusing suspect in cases of arrests for DWI involving an accident with injury or death, arrests for DWI while driving with a child under 15 years old, and when the officer believes that the suspect has prior DWI convictions. In fact, Texas law requires an officer to obtain the blood of the suspect in such cases. Texas Transportation Code Sec. 724.

United States Supreme Court

In April 2013, the U.S. Supreme Court ruled on Missouri v McNeely. The case arose from an incident not unlike the one at the beginning of this article. A police officer observed McNeely driving erratically, arrested him on suspicion of DWI, and took him to a nearby hospital. McNeely refused to consent to a blood test, and the officer directed a lab technician to draw McNeely’s blood. McNeely moved to suppress the evidence from the blood draw, and the Supreme court agreed. The Court reasoned that in cases of DWI, without circumstances that suggest an emergency, warrantless forcible blood draws violate the right to be free from unreasonable searches.

Under McNeely, evidence from a warrantless blood draw is admissible only in cases of “exigent circumstances,” determined by the totality of the circumstances in each case. The court did not provide detail on possible exigent circumstances, but it did provide that the dissipation of alcohol in the blood stream does not constitute exigent circumstances. Missouri v McNeely did not invalidate the Texas mandatory blood draw law, but it certainly cast a dark shadow over it. Of particular note, the Austin Police Department changed procedures in 2013. When a DWI suspect refuses to submit to a breath or blood test, Austin police seek a warrant. Cases of warrantless forcible blood draws continue in other parts of Texas, but most notably in rural areas.

In June of 2016, two additional cases cast further doubt on the Texas mandatory blood draw law. In the case of State of Texas v Villarreal, police arrested David Villarreal on suspicion of DWI. Villarreal refused to submit to a blood test, and when police noted that he had prior DWI convictions, they took Villarreal to a hospital and had a technician draw his blood. Villarreal successfully moved to suppress the evidence from the test, and the Texas Court of Criminal Appeals agreed. The Court found that there were no exigent circumstances preventing the officer from obtaining a warrant. In essence, in this case of warrantless blood draw based on prior DWI convictions, Missouri v McNeely trumped the Texas law. Travis County prosecutors appealed to the U.S. Supreme Court. In June of 2016, the Supreme Court refused to hear case, effectively affirming the Texas Court of Criminal Appeals decision.

Also in June of 2016, the U.S. Supreme Court decided Birchfield v North Dakota. Birchfield was a challenge to the law in several states providing criminal penalties for refusing to submit to a blood test for DWI. The Supreme Court ruled that a state may criminalize refusal to submit to a breath test but not a blood test. Texas was not involved in Birchfield, but the case provided yet another argument against the already shaky Texas mandatory blood draw law. Now, the prominent recommendation for law enforcement in Texas is, “Get a warrant.”

What Should ER Doctors Do?

Armed with this knowledge of the law, what is our ER doctor at the beginning of this article to do? The best advice for our ER doctor, as it is in so many difficult situations, is to locate and follow the hospital policy. Many proactive hospitals in Texas have detailed policies for handling blood draw requests from law enforcement. These policies contain notices to be provided to the officer, forms for the officer to provide the legal justification for the blood draw, and the procedures for conducting the blood draw. Hospital policy also covers the important question of medical screening exams for DWI suspects. Following hospital policy helps protect the physician from legal liability related to the incident as well as preserves positive relations with the hospital. However, it is not easy to pause and look up hospital policy in a busy ER, and extremely difficult when an imposing police officer is present in the ER with a belligerent DWI suspect. Therefore, ER physicians should request this blood draw policy well before any incident occurs, particularly when working in a rural hospital in which blood draw requests are not uncommon.

If there is no hospital policy, our ER doctor has a difficult decision to make. There is no legal requirement for our ER doctor to accept the officer’s directive and forcibly draw the patient’s blood. If the physician chooses to help, Texas law provides some limited immunity protection. The Texas mandatory blood draw law provides that a physician conducting the blood draw is immune from liability if the blood draw is conducted “according to recognized medical procedures.” However, this limited immunity does not protect a provider from liability for negligence in drawing the blood. Transportation Code Sec. 724.017(b). This limited immunity provides little comfort for most medical professionals. While it might protect from a battery claim, it seems to provide no protection from a medical malpractice claim. In addition, this immunity provision is contained in a Texas law that is on very questionable constitutional grounds. If our ER doctor still chooses to assist the officer, his or her motivation would assumedly be to assist in law enforcement efforts and justifiable criminal prosecution. However, a warrantless blood draw, without exigent circumstances under Missouri v McNeely, is unlikely to produce a blood specimen that survives a challenge in court. Our ER doctor has neither the time nor the qualifications to discern whether exigent circumstances are present in a suspected case of DWI. After all, lawyers and Supreme Court justices have a hard time discerning such exigent circumstances. In such a difficult position, our ER doctor may choose to assist in the blood draw, but in light of Texas law and recent Supreme Court decisions, our ER doctor might choose to diplomatically relay the prominent recommendation for Texas law enforcement, “Get a warrant.”

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

About Emergency Service Partners, L.P.

Founded in 1988, Emergency Service Partners, L.P. is a physician practice management group specializing in hospital emergency departments (EDs). The physician-owned and physician-managed partnership serves more than 35 EDs across Texas. In addition, ESP provides pulmonary, intensive care, sleep medicine, hospitalist, and ob/gyn hospitalist services in Central Texas.