Obtaining warrants to obtain blood samples in driving while intoxicated cases has become more common over the last several years. Holidays are usually “no refusal” weekends in many places. That means that if you arrested for DWI and refuse a breath test the officer will get a search warrant to take your blood. They then take you somewhere so you can get a needle poked in your arm and a sample of your blood taken.

For “no refusal” weekends judges have made themselves available to sign warrants. Technically, the officer has to submit an affidavit that establishes “probable cause” to believe you were driving while intoxicated. Practically, they don’t have to show much – failure on the “HGN” or the field sobriety tests is generally enough.

There is some inconvenience in obtaining a search warrant – you have to fill out an affidavit, and appear before the judge to get the warrant. That usually means going somewhere – which is an inconvenience. So some officers decided to just phone it in; they would call the judge, fax the warrant to them and swear to it. It’s easy – you can do that from the jail.

The question is whether the officer has to appear in person and swear that the facts set forth in the affidavit are true. The Court of Criminal Appeals answered that question, and approved telephone warrants in some circumstances. Where both the judge and officer recognize each other’s voices they can do it over the phone. I have no doubt the result will be more warrants to obtain blood – all you have to do is pick up the phone.

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.
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