Galveston DWI Attorney - Can I still get a DWI dismissed if they took my blood?
Howdy, my name is Brian Foley, and I am a Galveston criminal defense attorney and DWI attorney. We’re here to talk about whether you can beat a blood test and whether you can beat a DWI case if they took your blood. Well, the answer is yes—we do it all the time.
The first thing we want to look at when trying to beat a DWI blood case is whether the traffic stop was justified. That is the best way to get all the evidence of the blood test excluded: by attacking the traffic stop itself. For example, did they say you were weaving within your lane or maybe even leaving that lane, but it was not done in a dangerous way? These are some of the best ways to get a traffic stop suppressed, which means all the evidence collected afterward would be suppressed as well.
Another thing we look at is consent. If you consented to a blood draw during the case, was that consent coerced or forced? Did they do something other than just reading you what’s called the DIC-24? That’s a document that starts off by saying you’re under arrest for an offense involving acts alleged to have occurred while operating a motor vehicle or a watercraft while intoxicated. You can actually get arrested for flying a plane or even operating an amusement park ride while intoxicated, though those aren’t listed on the DIC-24. I’m not sure why, but in any case, they’re supposed to read you that document. If they don’t do that or they do it but then threaten you in some other way, they could potentially coerce that consent for the breath or blood test, and we could get that result suppressed as well.
Another thing we’ll do is look for problems with the search warrant. Let’s say you refused to give a breath or blood test, and then they went to a judge and got a search warrant for your blood. They may not have included all the necessary information in that search warrant. There’s a principle that says we look just at the "Four Corners" of the search warrant—no additional information, even if the officer knew it, can be imputed into that document. If there wasn’t probable cause in the search warrant, even though a judge signed it and they got your blood, a judge later on—maybe a different judge—could suppress that evidence. These are the first things we’re going to look at to try to beat a DWI case with blood analysis.
The next step for a DWI case, if it’s headed to trial and we can’t work out an agreement that our client is happy with, is to make sure that it’s going to work with their job, their life plans, and their career plans. If the state only wants jail time or a conviction, and if we can’t get the blood suppressed, we’re going to look to see if there’s an error in how they tested the blood.
A lot of people don’t know this, but they don’t actually test your blood. They test the air that is above your blood when it is confined in a vial. This is based on something called Henry’s Law, which states that the alcohol concentration in the air above the blood and within the liquid below will equal out. What they do is use a gas chromatograph. In the diagram you see here, on the left-hand side, that’s the gas chromatograph—it’s a technical diagram of the machine. In reality, these machines look a little different; they kind of look like small computers. And they don’t just test one sample at a time. In real life, they’re testing around 50 samples at a time.
If you ask a lab analyst how many times they’ve messed up a sample, they are never going to admit to messing up or swapping samples. But I’m sure this happens at least sometimes. What they do is take a carrier gas, which is some type of gas—not gasoline but a type of air—and press it through a flow and pressure regulator, through a column, and eventually to a detector. Then your sample gets put into an injection port that injects your sample of air through the column along with the carrier gas that pushes it through. The column is just a tube that’s wound up in a coil. It forces any substance inside, including the alcohol or other substances, to push through the column at a certain rate.
To calibrate these machines, they will take a known sample of alcohol and see how long it takes a molecule of alcohol to get through the column. They time it and say, "Okay, now we’ll inject your sample and look at the time that alcohol was supposed to come through this column." They then see how much of the substance came through, and the detector sends this data to a computer. The computer says, “This is the reading we got on the detector at the time we know alcohol is supposed to come out of the instrument. This is what we think the alcohol result is.”
As you can see, there are a lot of different things that can go wrong. If the column is not operating properly or if the carrier gas is causing carryover from one sample to the next, it can lead to inaccurate readings. For example, if there is residual alcohol left over, it can affect the results of your test. This is known as the carryover principle. Let’s say the person’s sample before yours showed a blood alcohol concentration (BAC) of 0.30, and your BAC was 0.06. If there was a carryover of maybe 0.02, it could bump your result up to 0.08. So, we look for issues in the gas chromatographs, such as problems with the computer data analysis, or whether the instrument is recording all zeros when nothing is supposed to be coming through, or if it’s showing residual carryover.
We’ll also check if a sample before or after yours has issues or when the instrument was last serviced. They have to keep meticulous records of these machines, which are maintained by either the Department of Public Safety, the Houston Crime Lab, the Galveston Crime Lab, or other entities. All of these are factors we consider when analyzing blood testing issues. If we can find something wrong with how these tests were conducted, we could win at trial or negotiate a better plea deal, resulting in a great outcome for our client.
The last way that we might beat a DWI case involving a blood test is by using what’s called pre-trial diversion. If we can’t find a way to get the case dismissed regularly, we might be able to enter into a type of probation where the case is dismissed at the end and can be expunged from your record. That’s what pre-trial diversion is. It’s different from deferred adjudication probation or straight probation, which avoid jail time and technically avoid a conviction, but they can still be used to enhance future offenses. For instance, if you get a DWI second or third offense, it’s like being found guilty and put in jail, because even on a first DWI, even if you did jail time, you could still get it non-disclosed from your record, just like you can with deferred adjudication probation. But government agencies and the police will always be able to see it. The only way to avoid that is with pre-trial diversion.
This is something we consider after building what’s called mitigation evidence. Mitigation evidence is evidence we collect as a defense to show that our client is worthy of a second chance to have a clean record. This can include letters of recommendation, classes, or treatment programs. Sometimes we have our clients go to AA classes, especially if it’s a DWI second or third offense, to show that they are working on rehabilitation. That’s something we work on as well.
The last thing we do to make sure our clients get the best possible result is to conduct an individual case analysis. No attorney can promise that every case will be dismissed. That’s just not true. Some cases don’t have the best result we want, which is a full dismissal, but every case has a best possible outcome based on the evidence. The way we achieve that for each client is by doing a thorough, individualized analysis of their case. We look at the factors that are important in their particular situation.
In most DWI cases, the video is the most important evidence, followed by blood and breath tests, and then we look at mitigation evidence. We make sure we pay attention to each of those phases to get the best result possible for each client. Every case is different, but we do get good results for our clients, and most of our clients are happy with the outcome.
If you have any questions, you can check us out online at galvestondwiattorney.com or galvestoncriminalattorney.com. You can also look at our reviews on Google. Thank you for watching, and we appreciate your attention. Check out our next video when we drop it. Bye-bye.
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