Texas DWI Blood Test

Texas and all other states test for Blood Alcohol Content (BAC) when a driver or operator is suspected of intoxication after stopped by the police. Some jurisdictions ask for a breath test first and then if refused, get a warrant. Some first ask for a blood test and get a warrant if it is refused.

What is Tested For in a DWI, BWI DUI Blood Test?

A blood test vial will be examined for alcohol and maybe drugs as well. It depends what the cop who makes the arrest requests. It takes extra work to test for both alcohol and drugs. If a person looks or acts intoxicated and does not smell of alcohol, the test may only test for drugs either prescription or illegal.

How Long Does it Take to Get Blood Alcohol Test Results?

Blood test results vary. In Texas it usually take a few months. The laboratories are usually backed up with blood testing. A test can be rushed but it will need to be a special case such as one involving a death.

Who Can Draw a Blood Specimen in a DWI Case?

A consensual blood alcohol specimen in Texas must be taken in a sanitary place and only by the following:

  • a physician
  • a qualified technician
  • a registered professional nurse
  • a licensed vocational nurser or
  • a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic authorized to take a blood specimen subject to Texas Transportation Code 724.017 (c) below.

Texas Transportation Code 724.017 (c) says a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic may take a blood specimen only if authorized by the medical director for the entity that employs the technician-intermediate or technician paramedic.

If a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic takes a blood specimen at the request or order of a peace officer the peace officer must:

  • observe the taking of the specimen and
  • immediately take possession of the specimen for the purposes of establishing a chain of custody

What is a Medical Director?

A medical director is a licensed physician who supervises the provision of emergency medical services by a public or private entity that provides those services and employs one or more licensed or certified emergency medical technician-intermediates or emergency medical technician-paramedics.

Who Can Draw my Blood When I Refuse a Blood Test?

The above rule 724.017 is specified for a consensual (voluntary) blood draw. It does not apply to a refused blood test where a warrant is issued for a blood draw.

The Texas court of criminal appeals said in State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) –

“We agree with the court of appeals’s determination that Chapter 724 is not controlling authority when it comes to determining the reasonableness of how a blood draw was performed under the Fourth Amendment. In Beeman v. State, we held that Chapter 724 is inapplicable when there is a warrant to draw blood; therefore, compliance with Chapter 724 is not necessary to satisfy the Fourth Amendment.[51] Whether a blood draw is conducted pursuant to a warrant or not, the assessment of reasonableness is purely a matter of Fourth Amendment law.”

In Cavazos v. State, 969 S.W.2d 454 (Tex. App. 1998) the court allowed a phlebotomist’s testimony to hold her qualified over the defense’s objection. “Phlebotomists are not per se qualified to draw blood, but may be qualified based on their job duties or experience Martinez v. State (Tex. App. 2014).” See the following:

“At trial, Williams testified that her title was “phlebotomist,” she was trained as a medical assistant, and her responsibilities include drawing blood. The hospital had employed her in that capacity for over one year and she also had three-and-a-half years’ experience drawing blood for a physician. She also had prior experience conducting police-ordered blood draws. Williams described the procedure for conducting a police-ordered blood sample and the importance of not using alcohol when drawing blood for a blood-alcohol analysis. Williams, following police protocol, also signed her name on the tube containing Martinez’s blood. Viewing the evidence in the light most favorable to the trial court’s ruling, we hold that the trial court did not abuse Martinez v. State (Tex. App. 2014)”

So a person can draw blood in a warrant case who has no formal training but merely on the job training-

“Becknauld testified that while she had no formal training, she had been a phlebotomist for the past twenty four years.” Torres v. State, 109 S.W.3d 602, 2003 WL 21283663 (Tex. App. 2003)

What Location is Used For a Blood Draw?

All law enforcement phlebotomy programs outline specific guidelines, typically following OSHA standards, requiring that all blood draws be conducted in a controlled setting and on a stable surface. This does not include a car trunk or a backseat.

Blood Test Kit

Prior to the blood draw the phlebotomist shall verify the expiration date on the outside container is not expired. The expiration date should coincide with the expiration dates on the enclosed tubes. There is a lot number on the outside container. The phlebotomist shall record the expiration date and the lot number on the Phlebotomy Blood Draw Report.

What Tubes Are Used For DWI Blood Tests?

The test kit has gray topped evacuated blood test tubes used for blood alcohol screening. The DWI and DUI alcohol testing specifically require gray topped tubes. They have two chemical additives inside. The additives are:

  • Sodium Fluoride an antiglycolytic agent which inhibits the metabolic breakdown of glucose (blood sugar) by blood cells.
  • Potassium Oxalate an anticoagulation agent.

The Phlebotomist SHALL NOT use expired tubes.

The phlebotomist shall verify that the integrity of the tube is intact and visually ensure that the chemical additive is present. This is very important. In 2019 the New Jersey tube manufacturer Becton Dickinson & Company had tubes that were missing the additives. The resulting test could have been inaccurate by being falsely high or low if tested more than two days after storage at room temperature.

The FDA documents the voluntary recall for BD Vacutainer Fluoride Tubes for Blood Alcohol determinations Part Number: 367001- https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfRES/res.cfm?id=173340

The FDA approved the termination of the recall on May 5, 2020- https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfCFR/CFRSearch.cfm?fr=7.55

More information is to come.

Click here for BAC Chart.

Take a look at my home page at http://erictorberson.com

Author: Eric Torberson

Eric Torberson is a licensed attorney in Texas as well as licensed in the federal courts of the southern and western districts of Texas.