Untitled Texas Attorney General Opinion ( 1975 )

November 13, 1975
The Honorable Tom Hanna Opinion No. H- 736
Criminal District Attorney
Jefferson County Re: Legality of non-consensual
P. 0. Box 2553 taking of blood from a suspect
Beaumont, Texas 77701 for evidentiary purposes and
civil liability of physician who
extracts the blood.
Dear Mr. Hanna:
You have submitted three questions to us:
1. May a blood sample be legally taken for
evidentiary purposes without a suspect’s consent?
2. May a physician legally extract blood
from a non-consegting suspect at the request of
a law enforcement officer7
3. In absence of negligence, is a physician
placed under possible civil liability by extracting
blood from a non-consenting suspect at the re-
quest of a law enforcement officer?
You indicate that your concern involves traffic-related offenses, and our
opinion is so limited.
With reference to your first question, it is now amply established that
there is no federal constitutional prohibition against the taking of blood from a
suspect without his consent provided that it is taken by a physician in hospital
surroundings and according to accepted medical practices. Schmerber v. The
State of California, 384 U.S. 757 (1966).
In 1956 the Texas Court of Criminal Appeals held that, in the absence of
consent, the taking of a blood sample was a violation of constitutional rights
under article 1, section 10 of the Texas Constitution and the results were in-
admissible. Trammel1 v. State, 287 S.W.2d 487 (Tex. Crim. App. 1956) relying
p, 3131
The Honorable Tom Hanna - page two (H-736)
upon Brown v. State, 240 S.W.2d 310 (Tex. Crim. App. 1951).
However, in Olson v. State, 484 S.W.2d 756 (Tex. Crim. App. 1969) the
Court of Criminal Appeals held that Trammel1 had been erroneously decided
and concluded, as dictum”that compelling a blood test if taken under conditions
which comply with due process, does not constitute requiring an accused to
give evidence against himself! ” The court in Olson recognized that even in the
absence of constitutional limitations it would continue to be necessary to comply
with statutory provisions. The Court referred to then article 802f of the Penal
Code which is now found as article 67011,-5 V. T. C. S. That statute, enacted in
1969 provides, in part, that a person operating a motor vehicle upon the public
highways of the State shall be deemed to have given consent to a breath analysis
for the purpose of determining the alcoholic content of his blood. It goes on to
say:
A person so arrested may consent to the taking
of any other type of chemical test, or tests, to
determine the alcoholic content of his blood, but
he shall not be deemed, solely on the basis of his
operation of a motor vehicle upon the public high-
way of his state, to have given consent to any type
of chemical test other than a chemical test, or
tests, of his preath. . . .
We therefore conclude that, while there is no constitutional limitation, $he
statutes indicate that a blood sample may not be taken legally from an arrested
person without his consent. The answer to your first question is in the negative.
With reference to your second and third questions, section 3(c) of article
67011-5 provides, in part:
When a person shall submit to a blood test at
the request of a law enforcement officer under
the provisions of this Act, only a physician,
qualified technician, chemist, registered pro-
fessional nurse, or licensed vocational nurse,
under the supervision or direction of a licensed
physician may withdraw blood for the purpose of
determining the alcoholic content therein. The
sample must be taken by a physician or in a
physician’s office or hospital licensed by the
Texas Department of Health. This limitation
p. 3132
Thk Honorable Tom Hanna - page three (H-736)
shall not apply to the taking of breath
specimens. The person drawing blood at
the reguest of a law enforcement officer
under the provisions of this Act, or a
hospital where the person is taken for the
purpose of securing the specimen, shall
not be held liable for damages arising
tram the request of the law enforcement
officer to take the specimen as provided
herein, provided the blood was withdrawn
according to recognized medical procedures,
and
not relieve any such person from liability
for negligence in tlhe withdrawing of any
blood sample. . . .
The submission of consent of the suspect is a necessary prerequisite be-
fore the non-liability provision of the Act becomes operable, since consent is
one of “the provisions of the’ Act” and the physician must withdraw the blood
“under the provisions of :Lhe: 1’Act” to escape possible liability.
Thus, where there is no consent by the suspect in a traffic related offense,
there can be no legal withdrawal of his blood and the doctor extracting this
~blood is not per se protected by the non-liability portion of the statute. A
physician, however, need not prove actual consent to avoid liability, in our
opinion. If he reasonably relies upon the appearance of consent, he will not be
liable for extracting the suspect’s blood even if actual consent was never given.
Reliance upon the representations of an officer in the matter may very well be
reasonable in particular situations, depending upon the facts there involved.
Accordingly, your second and third questions are answered as follows:
a physician may not extract blood from a suspect at the request of a law enforce-
ment officer where there is no apparent consent, and the physician would face
possible civil liability for the withdrawal of the blood.
SUMMARY
A blood sample cannot be legally taken without
the consent of a person suspected of a traffic
related offense. Without apparent consent, a
physician taking the sample could be subject to
civil liability.
Very truly yours,
p. 3133
, -
,
The Honorable Tom Hanna - page four (H-736)
Opinion Committee
jad:
-
p. 3134