Because of several factors which have made breath testing less effective in obtaining convictions in driving while intoxicated cases, the Texas Department of Public Safety, Texas District and County Attorneys and various city and county governments and police forces have decided to take blood from DWI arrestees who refuse breath tests. The policies exist on a county by county basis. However, in all major metropolitan areas of the State there is a policy to take blood draws in misdemeanor as well as felony DWI arrests. There are many concerns which the average person may have about this informal policy change in Texas.
Taking someone's blood is a search within the meaning of the Fourth Amendment to the United States Constitution. In a dramatic 8 to 1 opinion the U.S. Supreme Court in Missouri v. McNeely has held that blood searches in routine DWI cases violate the Fourth Amendment unless there is a search warrant or "exigent circumstances." The fact that alcohol may dissipate from the blood over time is NOT and exigent circumstance. This opinion modifies the earlier opinion in Schmerber v. California, holding that forced blood draws are nevertheless considered out of the ordinary and acceptable only in "exigent circumstances." In Texas, the Legislature and the Courts require a warrant for a blood search in all instances other than statutorily created circumstances such as DWIs involving death or injury or multiple DWI prior convictions. The validity of this statute is now in question. The Arizona Supreme Court has issued an opinion on a statute similar to the one in Texas in State v. Butler holding that an implied consent statute does not remove the requirement for a search warrant for blood since that statute, like Texas', mandates that the blood draw must be voluntary.
In my office I am recommending that people who get arrested for DWI or any intoxication related offense refuse both blood and breath tests for reasons I will explain. What the McNeely opinion means to you is that WARRANTLESS BLOOD DRAWS MAY RESULT IN SUPPRESSION OF THE BLOOD TEST.
ACCURACY OF BLOOD TESTS - THE "GOLD STANDARD?"
Blood is analyzed using gas chromatography in most instances. In some instances the results are confirmed or quantified using enzymatic analysis or mass spectroscopy. Gas chromatography is more sensitive in measuring substances than is the intoxilyzer (breath test machine). Its measurements are accurate down to the billionths of a gram. However the gas chromatogram machine itself is extremely sensitive to its initial conditions, that is, its "setup" or calibration. If the machine is not calibrated correctly, it is simply not a scientific test, and it can be wildly inaccurate, for example, in the presence of microbials, incorrect temperature or improper flow of the carrier gas. In fact, there are many other initial conditions which can significantly affect the results of the test. Thus the issue in the DWI case is not necessarily the accuracy of the machine itself, but it is the qualifications and scientific reliability of the operator of the machine and his laboratory's protocols.
Another issue with the gas chromatogram is that blood draws are usually further away in time from the arrest than are the breath analyses. The law requires that the officer must go through several steps before and during the legal process of taking blood. There is a documented chain of custody to be maintained. Additionally, a magistrate must be available to sign a search warrant before the needle is used. All of the players must be in place for the process to begin. These factors make the likelihood of accurately estimating the alcohol concentration of the driver when he was behind the wheel even more problematic for the State since a person's metabolism changes over the minutes after arrest.
TRIAL OF THE CASE
Very few lawyers have been trained for a "forensic" defense of a misdemeanor DWI case involving gas chromatography. The main lab which trains lawyers and other individuals in this type of defense is Training Institute, Inc. at Axion Analytical Labs, Inc. in Chicago, Illinois. The course "Forensic Chromatography: Theory and Practice" is taught by Dr. Lee Polite of Axion Analytical Labs, Inc. Perhaps a dozen Texas lawyers have taken this course, and it is difficult to enroll. The enrollment is limited and expensive, and the course takes the lawyers from their practice for a significant period of time. Nevertheless, most lawyers agree that the course is essential for purposes of making a forensic challenge in this type of case. George Scharmen completed this course in July, 2012. As of the date of this comment, no misdemeanor prosecutors have been trained prepared in forensic presentations of this type of evidence. A result of this fact is that some prosecutors' offices currently are resisting defense discovery of the testing records in order to hamper the defense at trial.
A jury must be informed about the problems associated with this type of analysis before they accept it as fact. Judges must be informed about the scientific reliability of the operator and the laboratory protocols before admitting the results into evidence. The cases which have been forensically defended often have resulted in juries which ignore these test results as inconclusive. As of now, the state of the defense law practice in these cases appears to favor training in forensic defense. Therefore, defendants must be made aware of this fact, and they should demand forensic defense.
SEE MY BLOG FOR PICTURES AND DESCRIPTIONS OF BLOOD DRAW ANALYSIS
BLOOD DRAW Q&A
Why are cops around Texas now taking blood in DWI arrests?
The defense attorneys' campaign to have people refuse to take breath tests began to succeed in that many people have begun to refuse breath tests. Additionally, the case of Mata v. State, made it virtually impossible for the prosecutors to scientifically estimate a person's alcohol concentration while driving. DWI was rapidly becoming for jurors what it really is legally: an opinion crime. In response to this situation the Texas District and County Attorney's Association and the Department of Public Safety decided to begin taking blood in those cases in which the arrestee refused a breath test. Whether or not the State will succeed in obtaining more convictions using this very complicated and sensitive new equipment is yet to be seen.
What is the difference if I consent to my blood being drawn or them getting a warrant for it?
If you consent to give a blood draw, you cannot suppress the test. Consent validates the blood draw search for purposes of the Fourth Amendment. DO NOT CONSENT TO A BLOOD DRAW. IF YOU DID NOT CLEARLY CONSENT TO THE BLOOD DRAW, TELL YOUR LAWYER. The difference in obtaining a warrant is time, a very important issue in the metabolic process involving alcohol. The longer it takes the State to obtain the blood specimen, the less relevant it becomes and the lower the result will be.
Is a blood draw more accurate than the breath test?
The two types of tests or "measurements" are distant in time from the time of driving. In that sense they are both inaccurate for purposes of determining alcohol concentration while driving. Gas Chromatography (blood testing) is accurate, if at all, and sensitive to the .000000001 while breath testing is accurate, if at all, and sensitive to the .004. The problem, with both is that they are sensitive to their initial setup conditions, and the more sensitive the machine, the more problems can occur during testing if the initial set up conditions are off. Thus, a blood draw can more accurately measure the alcohol concentration after arrest than the breath test machine, but the blood draw has many more scientific hoops to go through in order to be accurate.
Can I win my case if they have a blood draw?