blood alcohol test in Texas

2026App. 1986) (officer’s request that a defendant submit to a blood-alcohol test is not an interrogation) (citing South Dakota v. Neville, 459 U.S. 553 , 564 n.15 (1983) (“In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda.”)); Phommyvong v. State, No. 07-17-00437-CR, 2018 Tex. App. LEXIS 10183 , at *5 (Tex. App.—Amarillo Dec. 11, 2018, no pet.) (mem. op., not designated for publication) (“[The officer’s] request for appellant’s consent to search was not custodial i

2026Code § 724.061 (providing that person’s refusal to submit breath or blood specimen, “whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person’s trial”); Bartlett, 270 S.W.3d at 153 (stating that refusal to provide specimen “tends to show a consciousness of guilt”); see also South Dakota v. Neville, 459 U.S. 553, 564 (1983) (holding that “a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege agains

2020App. 2016) (“[W]hen the State itself extracts blood from a DWI suspect, and when it is the State that conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes.”); State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim.

2017In Hardy , the court of criminal appeals recognized that when the State itself ex tracts blood- from a DWI suspect and then conducts the subsequent blood alcohol analysis, two discrete “searches” have occurred for Fourth Amendment purposes. 963 S.W.2d at 523-24 .

2023“Also relevant as evidence of intoxication is a refusal to take a blood-alcohol test.” Griffith, 55 S.W.3d at 601 (citing TEX.

2018Therefore, “the admission into evidence of a defendant’s refusal to submit to a blood-alcohol test does not offend the Fifth Amendment right against self-incrimination.” Id. (citing South Dakota v. Neville, 459 U.S. 553 , 564 n.15 (1983)).

2020See Kirsch v. State, 306 S.W.3d 738, 745 (Tex.Crim.App. 2010) (noting that any “usual indicia of intoxication,” including bloodshot eyes, support an inference that the defendant was intoxicated at the time of driving and the time of the blood alcohol test) Both the dashcam video and Officer Wilkinson provided evidence that Appellant made confusing statements, including that his “physical” address was listed on his driver’s license but he lived elsewhere.

2020See id. (indicating that defendant’s swaying and inability to follow directions on field sobriety tests permit the fact finder to infer that appellant was intoxicated at the time of driving and the time of the blood alcohol test).9 The video supported Officer Wilkinson’s testimony that Appellant “dozed off” while he was performing the horizontal gaze nystagmus test.

2017App.2015) (holding defendant failed to preserve error), cert. denied, — U.S. -, 136 S.Ct. 1461 , 194 L.Ed.2d 552 (2016); see McNeely, 569 U.S, at 152, 133 S.Ct. at 1561 ; Schmerber v. California, 384 U.S. 757, 770 , 86 S.Ct. 1826, 1835 , 16 L.Ed.2d 908 (1966); Parker, 206 S.W.3d at 600 (“[T]he determination of whether an officer has probable cause and exigent- circumstances ■ to enter a person’s home without a warrant is a factual one based on the sum of all the information known to the officer at the time of entry.”); Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim.

2016See McNeely, 133 S. Ct. at 1565–66; Neville, 459 U.S. at 560 (holding that revoking a driver’s license for one year for refusing a blood-alcohol test is “unquestionably legitimate, assuming appropriate procedural protections”).

2017“The relevant inquiry is whether, given the facts . . . known to police at the time, it would be objectively reasonable for an officer to conclude that taking the time necessary to obtain a warrant before drawing a blood sample would significantly undermine the efficacy of a blood alcohol test.” Douds v. State, 434 S.W.3d 842, 854 (Tex. App.—Houston [14th Dist.] 2014) (op. on reh’g en banc), rev’d on other grounds, 472 S.W.3d 670 (Tex. Crim.

2015The court noted that “courts must focus on whether the State showed that police could not reasonably obtain a warrant, id. at 853 , and that “[t]he relevant inquiry is whether, given the facts and circumstances known to police at the time, it would be objectively reasonable for an officer to conclude that taking the time necessary to obtain a warrant before drawing a blood sample would significantly undermine the efficacy of a blood alcohol test.” Id. at 854 .

2016See Pennsylvania v. Muniz, 496 U.S. 582, 605 (1990) (“We believe that Muniz’s statements were not prompted by an interrogation within the meaning of Miranda, and therefore the absence of Miranda warnings does not require suppression of these statements at trial.”); Neville, 459 U.S. at 564, n.15 (“[A] police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda. . . .

2012It has held, for example, that in the context of a DWI arrest, “a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda ” because such a question, the Court concluded, is “normally attendant to arrest and custody.” Id. 10 A four-justice plurality has also explicitly recognized, as a type of question “normally attendant to arrest and custody,” a “routine booking question exception” to Miranda that “exempts from [Miranda] 's coverage questions to secure the biographical data necessary to complete booking or pretrial services.”

2017App. 2015) (holding defendant failed to preserve error), cert. denied, 136 S. Ct. 1461 (2016); see McNeely, 569 U.S. at 152 , 133 S. Ct. at 1561 ; Schmerber v. California, 384 U.S. 757, 770 , 86 S. Ct. 1826, 1835 (1966); Parker, 206 S.W.3d at 600 (“[T]he determination of whether an officer has probable cause and exigent circumstances to enter a person’s home without a warrant is a factual one based on the sum of all the information known to the officer at the time of entry.”); Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim.

2017App.2015) (holding defendant failed to preserve error), cert. denied, — U.S. -, 136 S.Ct. 1461 , 194 L.Ed.2d 552 (2016); see McNeely, 569 U.S, at 152, 133 S.Ct. at 1561 ; Schmerber v. California, 384 U.S. 757, 770 , 86 S.Ct. 1826, 1835 , 16 L.Ed.2d 908 (1966); Parker, 206 S.W.3d at 600 (“[T]he determination of whether an officer has probable cause and exigent- circumstances ■ to enter a person’s home without a warrant is a factual one based on the sum of all the information known to the officer at the time of entry.”); Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim.

2026Code § 724.061 (providing that person’s refusal to submit breath or blood specimen, “whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person’s trial”); Bartlett, 270 S.W.3d at 153 (stating that refusal to provide specimen “tends to show a consciousness of guilt”); see also South Dakota v. Neville, 459 U.S. 553, 564 (1983) (holding that “a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege agains

2015See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim.

2021See State v. Jordan, 342 S.W.3d 565 , 569–72 (Tex. Crim.

2015See State v. Jordon, 342 S.W.3d 565 , 569–72 (Tex. Crim.

2017App. 2015) (holding defendant failed to preserve error), cert. denied, 136 S. Ct. 1461 (2016); see McNeely, 569 U.S. at 152 , 133 S. Ct. at 1561 ; Schmerber v. California, 384 U.S. 757, 770 , 86 S. Ct. 1826, 1835 (1966); Parker, 206 S.W.3d at 600 (“[T]he determination of whether an officer has probable cause and exigent circumstances to enter a person’s home without a warrant is a factual one based on the sum of all the information known to the officer at the time of entry.”); Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim.

2017App.2015) (holding defendant failed to preserve error), cert. denied, — U.S. -, 136 S.Ct. 1461 , 194 L.Ed.2d 552 (2016); see McNeely, 569 U.S, at 152, 133 S.Ct. at 1561 ; Schmerber v. California, 384 U.S. 757, 770 , 86 S.Ct. 1826, 1835 , 16 L.Ed.2d 908 (1966); Parker, 206 S.W.3d at 600 (“[T]he determination of whether an officer has probable cause and exigent- circumstances ■ to enter a person’s home without a warrant is a factual one based on the sum of all the information known to the officer at the time of entry.”); Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim.

2009We are not aware of any cases, and neither party has directed us to any, addressing the staleness issue related to blood-alcohol content in the context of probable cause to support a search warrant. 1 Appellee instead directs us to several cases addressing the impact of the passage of time on the admissibility of the results of a blood alcohol test. 2 See State v. Mechler, 153 S.W.3d 435, 437 (Tex.Crim.App.2005); Mata v. State, 46 S.W.3d 902, 907 (Tex.Crim.App.2001).

2008See Mechler, 153 S.W.3d at 440 ; see also Stewart v. State, 129 S.W.3d 93, 98 (Tex.Crim.App.2004) (holding same).

2008See 45 C.F.R. § 164.534 (2006) (compliance dates for initial implementation of the privacy standards); Ramos v. State, 124 S.W.3d 326, 330, 336-37 (Tex.App.-Ft.

2007See 45 C.F.R. § 164.534 (2006) (compliance dates for initial implementation of the privacy standards); Ramos v. State, 124 S.W.3d 326, 330, 336-37 (Tex. App.—Ft.

2001Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), held that a State could force a defendant to submit to a blood-alcohol test without violating the defendant’s Fifth Amendment right against self-incrimination.

2001Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), held that a State could force a defendant to submit to a blood-alcohol test without violating the defendant’s Fifth Amendment right against self-incrimination.

2017Appellant does not dispute that the blood alcohol test results were admissible, see id. at 744–45 (observing court’s prior holding that results of breath testing taken “75 minutes after driving” had “probative 8 value in proving both per se and impairment intoxication at the time of driving”).

2008See Mechler, 153 S.W.3d at 440 ; see also Stewart v. State, 129 S.W.3d 93, 98 (Tex.Crim.App.2004) (holding same).

2022See Kennemur v. State, 280 S.W.3d 305 , 314–15 (Tex. App.—Amarillo 2008, pet. ref’d) (considering blood-alcohol test result among other factors indicating intoxication even though blood draw occurred seven hours after defendant was in car accident and stating that test result “tend[ed] to make it more probable that he was intoxicated at the time of the collision because [it] provided evidence that he had introduced alcohol into the body prior to the accident” and no evidence in record indicated that defendant consumed alcohol after leaving bar or following car accident).

2020See Kennemur v. State, 280 S.W.3d 305 , 314–15 (Tex. App.—Amarillo 2008, pet. ref’d) (considering blood-alcohol test result among other factors indicating intoxication even though blood draw occurred seven hours after defendant was in car accident and stating that test result “tend[ed] to make it more probable that he was intoxicated at the time of the collision because [it] provided evidence that he had introduced alcohol into the body prior to the accident” and no evidence in record indicated that defendant consumed alcohol after leaving bar or following car accident).

2013“Retrograde extrapolation is the computation back in time of the blood-alcohol level—that is, the estimation of the level at the time of driving based on a test result from some later time.” Mata v. State, 46 S.W.3d 902, 908-09 (Tex. Crim.

2009We are not aware of any cases, and neither party has directed us to any, addressing the staleness issue related to blood-alcohol content in the context of probable cause to support a search warrant. 1 Appellee instead directs us to several cases addressing the impact of the passage of time on the admissibility of the results of a blood alcohol test. 2 See State v. Mechler, 153 S.W.3d 435, 437 (Tex.Crim.App.2005); Mata v. State, 46 S.W.3d 902, 907 (Tex.Crim.App.2001).

2009App. 1972). 22 See Portuondo v. Agard, 529 U.S. 61, 74-75 (2000)(prosecutor could comment upon the defendant’s presence at trial); South Dakota v. Neville, 459 U.S. 553, 564-66 (1983)(prosecutor could comment upon the defendant’s refusal to take a blood-alcohol test); see also Pennsylvania v. Muniz, 496 U.S. 582 , 604 n.19 (1990)(“since submission to a blood test could itself be compelled . . ., a State’s decision to permit a suspect to refuse to take the test but then to comment upon that refusal at trial did not ‘compel’ the suspect to incriminate himself and hence did not violate the privil

2009See Portuondo v. Agard , 529 U.S. 61, 74-75 (2000)(prosecutor could comment upon the defendant's presence at trial); South Dakota v. Neville , 459 U.S. 553, 564-66 (1983)(prosecutor could comment upon the defendant's refusal to take a blood-alcohol test); see also Pennsylvania v. Muniz , 496 U.S. 582 , 604 n.19 (1990)("since submission to a blood test could itself be compelled . . ., a State's decision to permit a suspect to refuse to take the test but then to comment upon that refusal at trial did not 'compel' the suspect to incriminate himself and hence did not violate the privilege")(citing

2021As we stated in Rhode Island v. Innis, 446 U.S. 291, 301 , 100 S.Ct. 1682, 1689 , 64 L.Ed.2d 297 (1980), police words or actions “normally attendant to arrest and custody” do not constitute interrogation.

2021As we stated in Rhode Island v. Innis, 446 U.S. 291, 301 , 100 S.Ct. 1682, 1689 , 64 L.Ed.2d 297 (1980), police words or actions “normally attendant to arrest and custody” do not constitute interrogation.

2016In particular, the admission into evidence of a defendant’s refusal to submit to a blood-alcohol test does not offend the Fifth Amendment right against self[-]incrimination.”); McCambridge v. State, 712 S.W.2d 499, 506 (Tex. Crim.

1990In Texas, we have held that asking a suspect in custody whether he will take a blood alcohol test or repeatedly asking a suspect to give a breath sample are not "interrogations.” McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App.1986) (remanded on other grounds); see McCambridge v. State, 778 S.W.2d 70 (Tex.Cr.App.1989) (affirmed on other grounds) (blood test).

2019See 564 U.S. 647 , 663, 131 S. Ct. 2705 , 2716, 180 L.Ed.2d 610 (2011) (finding a Confrontation-Clause violation where defendant was unable to cross examine a forensic analyst who performed or knew about the particular blood-alcohol test or testing process employed).

2019See 564 U.S. 647 , 663, 131 S. Ct. 2705 , 2716, 180 L.Ed.2d 610 (2011) (finding a Confrontation-Clause violation where defendant was unable to cross examine a forensic analyst who performed or knew about the particular blood-alcohol test or testing process employed).

2021And as this Court has written, asking a suspect in custody whether he will take a blood alcohol test or repeatedly “asking a suspect to give a breath sample are not ‘interrogations.’” Morris, 897 S.W.2d at 531 ; see also Aguayo v. State, No. 08-13-00283-CR, 2015 WL 6741873 , at *6 (Tex.App.--El Paso Nov. 4, 2015) (not designated for publication) (“[W]e easily dispense with Appellant's claim that the lack of Miranda or Article 38.22 warnings compelled the trial court to suppress the consent form, or the conversations immediately surrounding execution of the consent form.”). 7 Here, based upon h

2015Id. at 531 [internal citations omitted].

2021App. 2011). “[W]hen the State itself extracts blood from a DWI suspect, and when it is 6 the State that conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes.” State v. Huse, 491 S.W.3d 833, 840 (Tex. Crim.

2019Id. at 840 .