Untitled Texas Attorney General Opinion ( 1966 )

THE ATT EY GENERAL
Honorable Homer Garrison, Jr. Opinion No. C- 766
Director, Texas Department of
Public Safety Re: Questions relat-
North Austin Station lng to taking blood
Austin, Texas samples from a per-
son suspected of
driving while under
the influence of in-
Dear Sir: toxicating beverages,
In your opinion request you state:
"Recently this Department has been
having difficulty in securing qualified
persons for the purpose of securing
blood samples in cases where motor veh-
icle operators are suspected of driv-
Ing while under the influence of intox-
icating beverages."
You then ask the following three questipns:
"1. In those cases where the sub-
ject has consented to a blood test and a
doctor is not available or refuses to
take the blood from the subject so that
it may be transmitted to a laboratory
for testing, may a registered nurse take
the blood from the subject without vio-
lating Texas laws?,"
“2. In a situation similar to No. 1,
may a hospital techniclab or laboratory
technician take the blood from the subject
without violating Texas laws?"
“3. Is it necessary in Texas to get
the consent of the subject before tak-
ing a sample of his blood if the officer
has probable cause to believe that the
said subject is guilty of driving while
intoxicated in violation of Articles 802,
802b or 802e, V.P.C.?"
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Honorable Homer Garrison, page 2 (c-766 )
For obvious health and evidentiary reasons,
the person secured for the purpose of taking blood
samples must be qualified., We assume, therefore,
that your question 81 and your question #2 are direc-
ted as to whether or not the persons enumerated therein
are qualified.
The answer to both of these questions is, as
In Brown v. State, 240 S.W.2d, 310
````%rn%l), the Court, speaking of blood tests,
:
“When so taken by competent and
trained nurses, doators or laboratory
technicians with the consent of one
whose state of sobriety is questioned,
the results of the test thereof may
be shown by the state or by the ac-
cused. . . .”
Of course, the persons named in these two questions,
i.e., registered nurses, laboratory technicians and
hospital technicians, must individually be competent
and trained, and it Is a question of fact as to whether
or not they, as individuals, actually are.
The answer to your question #3 is yes. The
Court in Trammel1 v. State, 287 s.w.2d 487 (Tex.
Grim. 195ii,) on these facts:
“Officer Curtis testified that he
investigated a collision and sent the
appellant to the hospital in an ambu-
lance, that he proceeded to the hospital
and there saw a doctor take a sample
of blood from the appellant’s arm. When
the State called Dr. Mason, the toxi-
cologist, the appellant objected to his
testimony as to the results of the
blood test on the grounds that the State
had failed to prove that the sample of
blood was taken with the appellant’s con-
sent. The objection was overruled, and
we have concluded that the trial court
erred In so ruling. The appellant tes-
tified that he was unconscious when he
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honorable Homer Garri.son, page 3 (c- 766 )
arr,ived at the hospital, and there is
nothing En the record to refute such
testimony,”
held .’
‘“The State having failed to show
that the specimen was taken with the
consent of the ,a,opellant, the testimony
of D~I’. Mason was not admissible.”
‘(timphasis supplIed)
The Court3 relying upon the decision of ‘the
Brown case, supPa> saLd:
“Consent betng shown, the provisions
of .C,he5th Amendment to the Constitution
of ‘r;l?e ‘.Jn~t.ed States and Art. 1, Sec. 10
of the Constitution of Texas, Vernon’s
Ann.St.Const., providing that no person
shall be compelled to give evidence
against himself, are not violated in the
taking of blood for analysis,, and the
proof of the result of the test.”
It es thus clear that the Court of Criminal
Appeals held tha? the takfng of blood from an accused
without h%s consent in a case such as th4,s was a vlo-
Satfon of the ‘PWth Amendment to the United States
Constitution and of Art”cle I, Secti.on 10, of the
Texas Constitution.
We are not unmZndful of the recent decision
by the UnIted States Supreme Court 3.n Armando Schme’ber
v. State of CalSfornia, 384 ~u.S, 757 (m, where
the Court held thame taking of blood without ,the
consent of the accused, wh,ere proba’nle cause was
shown,d?.d not violate i;:?te proi77,s~ions of the Consti-
tution of the United States; howeve?, ,this action ‘by
the Supreme Court of the United States does not alter
the fact that the Texas Court of Crim%.nal Appeals has
held that such actLoan does violate our State constL-
tution. This is a case in whg.r;hour oourt has con-
strued our eonstitutLon as affording more protection
to an accused than has the United Sta.tes Supreme
Court in construing ~the United S.Lates Cons%itutlon e
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Honorable Homer Garfison, page 4 (C- 766)
SUMMARY
In those cases where a subject has oon-
sented to a blood test and a doctor is not
avallable, or refuses to take the blood from
the subject, a qualified registered nurse,
hospital technician or laboratory technician
may take the blood from the subject. It is
necessary, in Texas, to get the consent of
the subject before taking a sample of blood.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
/-I
By:
REO/er
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Thomas W. Mack
Sam Kelley
John Reeves
Milton Richardson
APPROVED FOR THE ATTORNEY
GENERAL
By T. B. Wright
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