                             November      13,    1975


The Honorable Tom Hanna                                   Opinion   No.   H-   736
Criminal District Attorney
Jefferson County                                          Re: Legality of non-consensual
P. 0. Box 2553                                            taking of blood from a suspect
Beaumont,  Texas   77701                                  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 re-
             quest 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 in-
admissible.      Trammel1 v. State, 287 S. W. 2d 487 (Tex. Crim. App. 1956) relying




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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,       does not constitute requiring an accused to
give evidence against himself! ” 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 high-
                    way 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   pro-
                    fessional   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




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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 tlhe withdrawing of any
                    blood sample.     . . .

     The submission    of consent of the suspect is a necessary       prerequisite be-
fore 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 :Lhe: 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 enforce-
ment 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,




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




            Opinion Committee

            jad:




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