Refusal to Perform DWI Police Tests Not Enough to Substantiate Probable Cause for Blood Draw

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


“No refusal weekends” have become a permanent fixture in the aggressive anti-DWI campaign waged by law enforcements agencies across the State of Texas and the nation. In these programs a judge is on standby to sign a warrant authorizing law enforcement authorities to take a “blood sample” when a suspected DWI driver refuses to take the standard breathalyzer test—and in Texas, if the suspect refuses to voluntary consent to a blood draw, law enforcement authorities can forcefully extract the blood sample.
This past January the Second District Court of Appeals, in Farhat v. State, reversed a DWI conviction involving the use of “blood evidence seized with a warrant.” The significance of the Farhat decision lies in the fact that the prerequisite “affidavit” used to secure the blood draw warrant did not have a sufficient factual basis. Corporal Patrick Finley of the Highland Village Police Department, located in Denton County, decided to stop Farhat after the officer observed him driving ten miles per hour below the posted 40 miles per hour limit, his vehicle weaving from side to side, and his signaling a right-hand turn before turning left into a fast-food restaurant.
When Finley approached Farhat’s vehicle, the officer noticed two pill bottles in the center console. Finley asked for, and Farhat refused to, “perform any sobriety tests.” Finley placed Farhat under arrest and prepared a “sworn affidavit” for a blood-draw search warrant which was issued by a magistrate based on the affidavit. Finley’s affidavit reads as follows:
“On 01-11-2008 at approximately 0050 hours, I, Cpl. Finley #516 was driving eastbound in the 1900 block of Justin Road and visually observed a vehicle turning from Sellmeyer onto Justine road. I turned around at the light and started westbound when I could see the vehicle driving very slow approximately 30 miles an hour in a 40 miles per hour zone. I pulled my vehicle behind the vehicle a silver BMW with dealer plates. The vehicle was weaving from sided [sic] to side and continued for about a half a mile in the left lane. As the vehicle approached the KFC parking lot the vehicle turned on the right turn signal and crossed over the left lane into the parking lot. I activated my overhead lights and conducted a traffic stop in the parking lot at 2180 Justin road KFC. I noticed two pill bottles in the center console and asked where the driver later identified as Farhat …, the defendant [sic]. I asked the defendant to step out of the vehicle to check to see if he was ok to drive. The defendant refused to do any road side test and was placed in double locked properly spaced handcuffs.”

Based on that sworn affidavit, a magistrate judge issued a blood draw search warrant which revealed enough evidence to warrant the formal charging of Farhat with DWI. He was subsequently convicted of a Class B misdemeanor DWI charge, sentenced to 160 days confinement, probated for 18 months, and fined $600. He raised one issue on appeal: Officer Finley’s sworn affidavit did not provide a substantial basis for the magistrate to conclude there was probable cause for the issuance of the blood draw search warrant.
Article 18.01 of the Texas Code of Criminal Procedure both defines and establishes the basis for the issuance of search warrants in this state. Subsection B of Art. 18.01 specifically provides that a “sworn affidavit ….  establishing probable cause shall be filed in every instance in which a search warrant is requested.” The Texas Court of Criminal Appeals, in Beeman v. State, held that under Art. 18.01 the police may obtain an individual’s blood through a search warrant when conducting a DWI investigation. However, as the appeals court in Farhat cautioned, “a search cannot issue unless it is based on probable cause as determined from the four corners of an affidavit.” Article 18.01 requires an affidavit to set forth the following facts:

  • That a specific offense has been committed;
  • The items to be seized constitutes evidence of the offense or evidence  that a particular person committed the offense; and
  • The item is located at or on the person, place, or thing to be searched.

The Texas Court of Appeals, in Flores v. State, and the United States Supreme Court, in Illinois v. Gates, have held that probable cause, under the totality of the circumstances presented to the magistrate in an affidavit, must establish that there exists at least a “fair probability” or “substantial chance” that evidence of a crime or other contraband will be found at a specified location. The Supreme Court in Gates specifically held that an affidavit must contain “sufficient information” from which the magistrate can determine probable cause because the magistrate’s action “cannot be a mere ratification of conclusions of others” and to prevent such “ratification” decision-making, courts must “conscientiously review the sufficiency of affidavits on which warrants are issued.”
The appeals court in Farhat then cited the seven factors within the “four corners” of Officer Finley’s affidavit used to demonstrate probable cause for the blood draw search warrant:

  • Farhat was driving 30 miles per hour in a forty-mile-per-hour zone at approximately 12:50 a.m.;
  • He was weaving from side to side;
  • He continued in the left lane for about one-half mile;
  • He turned on his right-turn signal but turned left into a KFC restaurant’s parking lot;
  • The officer, upon stopping Farhat, saw two pill bottles in the center console of Farhat’s vehicle;
  • Farhat refused a field sobriety test; and
  • Corporal Finley believed that Farhat had committed DWI.


The magistrate and subsequently the trial court accepted these factors as sufficient to establish probable cause. In its written findings of fact, the trial court further found probable cause that Farhat was driving while intoxicated “based on the erratic driving behavior, the pills in the console, and the officer’s opportunity to personally observe the driver.”
After observing that the seven factors contained within the four corners of Finley’s affidavit were insufficient to establish probable cause, the appeals court was especially concerned that the affidavit made no mention of Finley’s observations. Citing Cassias v. State, the appeals court said “’it is one thing to draw reasonable inferences from information clearly set forth within the four corners of the affidavit … [but] it is quite another matter to read material information into an affidavit that does not otherwise appear on its face.’” The appeals court added that because Finley’s affidavit was totally devoid of any of his personal observations, “the affidavit contain[ed] no facts within its four corners from which the magistrate could have reasonably inferred from Farhat’s demeanor, behavior, or appearance that there was fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat’s blood.”
To illustrate these findings the appeals court pointed out that while Finley observed two pill bottles in the center console, the officer did not state whether the bottles contained pills; whether they were prescription or over-the-counter medication; whether Farhat admitted to taking the pills; or whether Farhat’s demeanor suggested he had taken them.
And while erratic driving behavior and the refusal to take field sobriety tests are part of the “totality of circumstances” which may considered in finding probable cause to issue a warrant, the appeals court stressed that Farhat’s case was about whether there was probable cause to issue an invasive “blood draw” warrant, not whether Officer Finley had a “reasonable suspicion” to stop Farhat.
The Farhat ruling is instructive in “blood draw” warrants issued during the so-called “no refusal weekends.” These warrants are often based on nothing more than a suspected DWI driver’s refusal to cooperate with field sobriety tests. Absent a sworn affidavit with detailed facts indicating intoxication, the Farhat decision indicates that refusal to voluntarily submit to a blood draw alone is an insufficient basis for probable cause to issue a warrant for the forced blood draw. As the Farhat court concluded: “The only evidence that Farhat was intoxicated came from the results of a blood test, obtained in violation of Farhat’s constitutional protection against unreasonable search and seizure. We are thus unable to determine beyond a reasonable doubt that the trial court’s error in denying Farhat’s motion to suppress did not contribute to Farhat’s conviction or punishment for DWI.”
We applaud the Farhat decision. We have stated in the past, and continue to believe, that “forced blood draws” against the citizens of this State based on nothing more than a refusal to cooperate with field sobriety tests are repugnant to Fourth Amendment of the United States Constitution and Art. 1, § 9 of the Texas Constitution.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization.