Two recent stories raise issues about blood testing in Travis County on DWI cases. I wrote about those in this post if you want more information.  This article is aimed at what to do with that information.

Most lawyers know how to handle the issue if the cases hasn't yet gone to trial. The quetsion is what you can do if you've already been convcited.

The first situation involves one of the technicians who draws blood. She told prosecutors the conditions in the place where blood draws were done was not sanitary. That is a basis for challenging a blood draw. The courts have held that one of the issues to look at when determining whether a blood draw is constituional is whether it was done in a sanitary place. That means you can file a motion to suppress prior to trial, trying to get the results thrown out. The other issue would be the possibility of contanimation, which would invalidate the results. That's more difficult to prove, but something you could probably score points with in a trial.

If you've already been convicted though, there's not a clear way to relief. If you can get evidence that the sample was contanimated, you might be able to file a writ of habeas corpus under Art. 11.073, of the Code of Criminal Procedure. You are going to have to be able to prove the sample was actually contaminated though, which is difficult to do.

It appears this was the first time anyone raised this issue. However, if there is evidence that these concerns were raisaed before, the State would have had to a duty to disclose them - as they did with the recent disclosure.

The second situation involves in error in interpreting the results. I haven't seen the letter, and the problems pointed out, but this could be a significant issue. If in fact the testimony provided by the experts were in error, that could be valid claim. This would be limited to cases that went to trial though. Agian, your remedy would be Art. 11.073, and would be based on using false or misleading testimony. The question is going to be how significant this was, and what impact that would have had. For example, if the error is testimony the certainty level was 98.7% when it should have been 98%, that 's not going to be that signfincant. If the certainty level was far lower though, that could be an issue. This is a case where you may need an expert to properly interpret the results.

These cases point out a couple of things. The first is the necessity of hiring an experienced lawyer, who knows what to look for. The other is the importance of challenging the evidence. If you simply plead guilty, many of the issues go uncovered, and you won't be able to raise them later. The first case involving the lab contanimation was one where the result was over twice the legal limit, which most people woudl think was a loser case. If the defendant would not have forced a trial, the problem would have never surfaced.

If you think you may have a case, and want to discuss that further, contact us at [email protected]



Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.