Scenario:

Defendant is arrested for DWI by two police officers and agrees to give a breath sample after being read the DIC-24. When they get to the jail, they discover that the Intoxilyzer is not working, so they read the DIC-24 to the Defendant again and ask for a blood sample. The defendant refuses, saying that he is scared of needles.

At this point, Officer 1 says to Officer 2, "OK, go ahead and take him to the hospital; I'm going to work on getting us a search warrant for his blood." Hearing this exchange, Defendant speaks up and says that he would rather volunteer the specimen and agrees to give it at the hospital. The officers do not get a warrant and now we have a specimen.

Voluntary or coerced? I guess its arguable that this was an implied threat, but I think that it just the officers coordinating their efforts.

After an officer announces he's going to get a search warrant, does he have to follow through on that?

What do I do with other cases involving initial refusals followed later by agreements to give specimens?

How is the announcement that an officer will be following the constitutional authority for taking a blood sample a "threat"? Have we come so far in our political correctness that such accurate, legally proper information is coercive? I think not. Your officer acted well within the range of what is proper to obtain consent to a search and seizure. One can only hope the appellate courts (who have shown some recent fear of the blood sample) will see it the same way.

How is that any different from an officer going to someone's home and asking for consent to search, then after consent is refused saying that s/he is going to get a warrant and the person saying, never mind, come on in?

I agree it's not coercive. That being said, the safer practice, and what we always tell our officers, is that once you get a refusal and decide to get a warrant, go through with it even if the Defendant changes his mind about agreeing to give a sample.

Here's what Dix says:

an officer's assertion that he or she will seek or obtain a search warrant if consent is not forthcoming is not necessarily controlling.[FN5] It is, however, certainly strong evidence that consent was merely acquiescence by the person in a chain of events the person anticipated would lead to the search being conducted under legal right.

[FN5] Johnson v. State, 803 S.W.2d 272, 287 (Tex.Crim.App.1990) ("a consent to search given in response to a threat to seek or obtain a search warrant has been upheld as voluntary"); Beaupre v. State, 526 S.W.2d 811, 815 (Tex.Crim.App.1975)

Dix & Dawson 40 Texas Practice § 12.36

"It is, however, certainly strong evidence that consent was merely acquiescence by the person in a chain of events the person anticipated would lead to the search being conducted under legal right."

Now that is some legal mumbo jumbo.

thanks folks!