             THE      ATT           EY        GENERAL




Honorable Homer Garrison, Jr.           Opinion No. C- 766
Director,  Texas Department of
     Public Safety                      Re:    Questions relat-
North Austin Station                           lng to taking blood
Austin, Texas                                  samples from a per-
                                               son suspected   of
                                               driving while under
                                               the influence   of in-
Dear 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 veh-
            icle operators are suspected of driv-
            Ing while under the influence   of intox-
            icating beverages."
        You then ask the following            three   questipns:
                "1.  In those cases where the sub-
            ject 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 subject without vio-
            lating Texas laws?,"
               “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 tak-
        ing 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   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 direc-
ted 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 ac-
        cused. . . .”

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 ambu-
        lance, 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 toxi-
        cologist,     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           con-
        sent.     The objection     was overruled,    and
        we have concluded that the trial          court
        erred In so ruling.         The appellant   tes-
        tified    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,he5th 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 vlo-
Satfon 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 Consti-
tution 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 constL-
tution.   This is a case in whg.r;hour oourt has con-
strued 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 oon-
         sented 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

                                       By:
REO/er
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Thomas W. Mack
Sam Kelley
John Reeves
Milton Richardson
APPROVED FOR THE ATTORNEY
                        GENERAL
By T. B. Wright




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