THE 

## ATT EY GENERAL

Honorable HomerGarrison, 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 maybe transmitted to a laboratory for testing, maya registered nurse take the blood from the lating Texas laws?,"subject without vio-
“2. In a situation similar to No. 1, maya 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.?"-3681-Honorable HomerGarrison, page 2 (c-766 )

For obvious health and evidentiary reasons, the person secured for the purpose of taking blood samples mustbe qualified., Weassume, therefore, that your question 81 andyour 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 Brownv. State, 240 S.W.2d, 310 ~~~~%rn%l), the Court, speaking of blood tests, :

“Whenso 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 shownby the state or by the accused.

. . .” Of course, the persons namedin 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.

Theanswer to your question #3 is yes. The Court in Trammel1v. 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 sawa 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 wehave concluded that the trial court erred In so ruling. Theappellant testified that he was unconscious whenhe
-3682-honorable HomerGarri.son, page 3 (c- 766 )

arr,ived at the hospital, and there is nothing Enthe record to refute such testimony,” held

.’

‘“TheState having failed to show

that the specimen was taken with the consent of the ,a,opellant, the testimony of D ~I’

.Masonwas not admissible.”

‘(timphasis supplIed) The Court3 relying upon the decision of ‘the Brown case, supPa> saLd:

“Consent betng shown, the provisions of .C,he5th Amendmentto the Constitution of ‘r;l?e‘.Jn~t.edStates 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%sconsent in a case such as th4,s was a vloSatfon of the ‘PWth Amendmentto the United States Constitution and of Art”cle I, Secti.on 10, of the Texas Constitution.

Weare not unmZndful of the recent decision by the UnIted States SupremeCourt 3.nArmandoSchme’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;:?teproi77,s~ionsof 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%.nalAppeals has held that such actLoandoes violate our State constLtution. This is a case in whg.r;hour oourt has construed our eonstitutLon as affording more protection to an accused than has the United Sta.tes Supreme Court in construing ~theUnited S.Lates Cons%itutlon e

-3683sHonorable 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 maytake 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: OPINIONCOMMITTEE W.V. Geppert, Chairman ThomasW. Mack SamKelley John Reeves Milton Richardson 

## By:

APPROVED

FORTHEATTORNEY

GENERAL ByT. B. Wright

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