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 ofnon-consensual taking ofblood from a suspect for evidentiary purposes and civil liability ofphysician 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 aphysician legally extract blood from anon-consegting suspect at the request of a law enforcement officer7 3. Inabsence ofnegligence, is aphysician placed under possible civil liability by extracting blood from a non-consenting suspect at the request ofa law enforcement officer? You indicate that your concern involves traffic-related offenses, and our opinion is so limited. With reference toyour first question, it is now amply established that there is no federal constitutional prohibition against the taking ofblood from a suspect without his consent provided that it is taken by aphysician inhospital 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, inthe absence of consent, the taking ofa blood sample was aviolation of constitutional rights under article 1, section 10 ofthe Texas Constitution and the results were inadmissible. Trammel1 v. State, 287 S.W. 2d 487 (Tex. Crim. App. 1956) relying

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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 iftaken under conditions which comply with due process, give evidence against himself! ” does not constitute requiring an accused to The court inOlson recognized that even in the absence of constitutional limitations itwould continue tobe necessary to comply with statutory provisions. The Court referred to then article 802f ofthe Penal Code which is now found as article 67011,-5 V. T. C. S. That statute, enacted in 1969 provides, inpart, that aperson operating a motor vehicle upon the public highways ofthe State shall be deemed to have given consent to a breath analysis for the purpose of determining the alcoholic content ofhis blood. It goes onto say: A person so arrested may consent to the taking ofany other type of chemical test, or tests, to determine the alcoholic content ofhis blood, but he shall not be deemed, solely onthe basis ofhis operation ofa motor vehicle upon the public highway ofhis state, tohave given consent to any type of chemical test other than a chemical test, or tests, ofhis preath.

. . . We therefore conclude that, while there is no constitutional limitation, $he statutes indicate that ablood sample may not be taken legally from an arrested person without his consent. The answer toyour first question is inthe negative. With reference toyour second and third questions, section 3(c) of article 67011-5 provides, inpart: When a person shall submit to ablood test at the request ofalaw enforcement officer under the provisions ofthis Act, only aphysician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse, under the supervision or direction ofa licensed physician may withdraw blood for the purpose of determining the alcoholic content therein. The sample must be taken by aphysician or in a physician’s office or hospital licensed by the Texas Department ofHealth. This limitation

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shall not apply to the taking ofbreath specimens. The person drawing blood at the reguest ofa law enforcement officer under the provisions ofthis 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 ofthe 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 intl blood sample.

. . . hewithdrawing of any

The submission of consent ofthe suspect is anecessary prerequisite before the non-liability provision ofthe 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 1’ he: Act” to escape possible liability. Thus, where there is no consent by the suspect in atraffic related offense, there can be no legal withdrawal of his blood and the doctor extracting this ~bloodis not per se protected by the non-liability portion ofthe statute. A physician, however, need not prove actual consent to avoid liability, in our opinion. Ifhe reasonably relies upon the appearance of consent, hewill not be liable for extracting the suspect’s blood even ifactual consent was never given. Reliance upon the representations of an officer inthe matter may very well be reasonable inparticular situations, depending upon the facts there involved. Accordingly, your second and third questions are answered as follows: aphysician may not extract blood from a suspect at the request ofa law enforcement officer where there is no apparent consent, and the physician would face possible civil liability for the withdrawal ofthe blood. SUMMARY A blood sample cannot be legally taken without the consent ofaperson suspected of atraffic related offense. Without apparent consent, a physician taking the sample could be subject to civil liability. Very truly yours,

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Opinion Committee jad:

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