November 13, 1975 

The Honorable Tom Hanna 

Criminal District Attorney 

Jefferson County 

P. 0. Box 2553 

Beaumont, Texas 77701 

Opinion No. H- 736 

Re: Legality of non-consensual 

taking of blood from a suspect 

for evidentiary purposes and 

civil liability of physician who 

extracts the blood. 

Dear Mr. Hanna: 

You have submitted three questions to us: 

1. May a blood sample be legally taken for 

evidentiary purposes without a suspect’s consent? 

2. May a physician legally extract blood 

from a non-consegting suspect at the request of 

a law enforcement officer7 

3. In absence of negligence, is a physician 

placed under possible civil liability by extracting 

blood from a non-consenting suspect at the request of a law enforcement officer? 

You indicate that your concern involves traffic-related offenses, and our 

opinion is so limited. 

With reference to your first question, it is now amply established that 

there is no federal constitutional prohibition against the taking of blood from a 

suspect without his consent provided that it is taken by a physician in hospital 

surroundings and according to accepted medical practices. Schmerber v. The 

State of California, 384 U. S. 757 (1966). 

In 1956 the Texas Court of Criminal Appeals held that, in the absence of 

consent, the taking of a blood sample was a violation of constitutional rights 

under article 1, section 10 of the Texas Constitution and the results were inadmissible. Trammel1 v. State, 287 S. W. 2d 487 (Tex. Crim. App. 1956) relying 

p, 3131 
The Honorable Tom Hanna - page two (H-736) 

upon Brown v. State, 240 S. W. 2d 310 (Tex. Crim. App. 1951). 

However, in Olson v. State, 484 S. W. 2d 756 (Tex. Crim. App. 1969) the 

Court of Criminal Appeals held that Trammel1 had been erroneously decided 

and concluded, as dictum”that compelling a blood test if taken under conditions 

which comply with due process, 

give evidence against himself! ” 

does not constitute requiring an accused to 

The court in Olson recognized that even in the 

absence of constitutional limitations it would continue to be necessary to comply 

with statutory provisions. The Court referred to then article 802f of the Penal 

Code which is now found as article 67011,-5 V. T. C. S. That statute, enacted in 

1969 provides, in part, that a person operating a motor vehicle upon the public 

highways of the State shall be deemed to have given consent to a breath analysis 

for the purpose of determining the alcoholic content of his blood. It goes on to 

say: 

A person so arrested may consent to the taking 

of any other type of chemical test, or tests, to 

determine the alcoholic content of his blood, but 

he shall not be deemed, solely on the basis of his 

operation of a motor vehicle upon the public highway of his state, to have given consent to any type 

of chemical test other than a chemical test, or 

tests, of his preath. . . . 

We therefore conclude that, while there is no constitutional limitation, $he 

statutes indicate that a blood sample may not be taken legally from an arrested 

person without his consent. The answer to your first question is in the negative. 

With reference to your second and third questions, section 3(c) of article 

67011-5 provides, in part: 

When a person shall submit to a blood test at 

the request of a law enforcement officer under 

the provisions of this Act, only a physician, 

qualified technician, chemist, registered professional nurse, or licensed vocational nurse, 

under the supervision or direction of a licensed 

physician may withdraw blood for the purpose of 

determining the alcoholic content therein. The 

sample must be taken by a physician or in a 

physician’s office or hospital licensed by the 

Texas Department of Health. This limitation 

p. 3132 
Thk Honorable Tom Hanna - page three (H-736) 

shall not apply to the taking of breath 

specimens. The person drawing blood at 

the reguest of a law enforcement officer 

under the provisions of this Act, or a 

hospital where the person is taken for the 

purpose of securing the specimen, shall 

not be held liable for damages arising 

tram the request of the law enforcement 

officer to take the specimen as provided 

herein, provided the blood was withdrawn 

according to recognized medical procedures, 

and 

not relieve any such person from liability 

for negligence in tl 

blood sample. . . . 

he withdrawing of any 

The submission of consent of the suspect is a necessary prerequisite before the non-liability provision of the Act becomes operable, since consent is 

one of “the provisions of the’ Act” and the physician must withdraw the blood 

“under the provisions of : L he: 1’ Act” to escape possible liability. 

Thus, where there is no consent by the suspect in a traffic related offense, 

there can be no legal withdrawal of his blood and the doctor extracting this 

~blood is not per se protected by the non-liability portion of the statute. A 

physician, however, need not prove actual consent to avoid liability, in our 

opinion. If he reasonably relies upon the appearance of consent, he will not be 

liable for extracting the suspect’s blood even if actual consent was never given. 

Reliance upon the representations of an officer in the matter may very well be 

reasonable in particular situations, depending upon the facts there involved. 

Accordingly, your second and third questions are answered as follows: 

a physician may not extract blood from a suspect at the request of a law enforcement officer where there is no apparent consent, and the physician would face 

possible civil liability for the withdrawal of the blood. 

SUMMARY 

A blood sample cannot be legally taken without 

the consent of a person suspected of a traffic 

related offense. Without apparent consent, a 

physician taking the sample could be subject to 

civil liability. 

Very truly yours, 

p. 3133 
, - 

, 

The Honorable Tom Hanna - page four (H-736) 

Opinion Committee 

jad: 

- 

p. 3134