THE ATT EY GENERAL 

Honorable Homer Garrison, Jr. Opinion No. C- 766 

Director, Texas Department of 

Public Safety Re: Questions relatNorth Austin Station lng to taking blood 

Austin, Texas samples from a person suspected of 

driving while under 

the influence of inDear 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 vehicle operators are suspected of drivIng while under the influence of intoxicating beverages." 

You then ask the following three questipns: 

"1. In those cases where the subject 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 

lating Texas laws?," 

subject without vio- 

“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 taking 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 directed 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 accused. . . .” 

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 ambulance, 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 toxicologist, 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 consent. The objection was overruled, and 

we have concluded that the trial court 

erred In so ruling. The appellant testified that he was unconscious when he 

-3682- 
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,he 5th 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 vloSatfon 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 Constitution 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 constLtution. This is a case in whg.r;h our oourt has construed 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 

-3683s 
Honorable Homer Garfison, page 4 (C- 766) 

SUMMARY 

In those cases where a subject has oonsented 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 

REO/er 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Thomas W. Mack 

Sam Kelley 

John Reeves 

Milton Richardson 

By: 

APPROVED FOR THE ATTORNEY GENERAL 

By T. B. Wright 

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