Interviewer: In Texas, can you refuse to take a field sobriety test and what will happen if do?
Gary: You can and say I’m not going to do anything and they’ll slap the handcuffs on you and take you downtown, which they’ll do anyway by the way. I have hardly ever seen a person walk away from a DWI stop.
Interviewer: Is that another misconception that people think they can talk their way out of a DUI arrest?
Gary: Yes, and it never works.
After an Arrest, the Officers Will Take the Driver to the Police Station and Ask to Administer a Breath Test
Interviewer: After the field sobriety test you’ll be arrested and they’ll take you back to the station and they will ask you to undergo a blood test?
Gary: What they’ll do is they’ll offer you a breath test and you can refuse to undergo the breath test. You simply say I’m not going to take my breath test. San Antonio has what’s called a no refusal policy, a 24/7 no refusal policy seven days a week, 365 days a year.
What this policy means is if you refuse the breath test, they’ve got a magistrate right there and they’ll swear a warrant and obtain a search warrant to take your blood. They’ll ask you if you want to cooperate at this point and time, and if you don’t cooperate and say you still refuse, what they’ll do is hold you down and draw your blood.
Interviewer: Yeah it is. What’s preferred, is it the breath test or the blood test in San Antonio?
Gary: It’s hard to say definitively. The deal with a blood test is usually the blood test is to be performed two to three hours after the arrest. So, you have a question what is exactly was blood alcohol content at the time the person was driving if the test was done two to three hours after the fact?
If a breath test was administered that’s lower than legal limit, then they’re going to try to trap you and come back in and say at the time he was driving he was intoxicated, but that is difficult to prove. So, sometimes a blood test can benefit you because you have an expert and you argue whether your blood alcohol is going up or down at the time, and they scientifically can prove that. It becomes a situation where the defense attorney has valid arguments to present.
Plus, in my experience I’ve seen mistakes in blood drawn tests as far as problems with the testing or the officer drawing the blood did not follow the correct protocol. Those errors can result in a faulty sample.
I had a trial in Blanco a couple of years ago. It was a felony DWI because there was a child in the vehicle. I requested a blood sample from DPS for independent testing and was told that no blood sample was available. I didn’t think very much more about it.
When we were in trial and I have the blood expert from DPS testifying, I asked him about the blood sample and I asked, “Isn’t it a fact that you advised me that there was no blood for independent sampling?” “Yes, we only received 4 ml of blood.”
His statement contradicted the police officer’s statement who said he filled two vials of 10 ml of blood. So right there, I now have question of where did the blood go? Was it tampered with? What happened? So, you know, sometimes you stumble into great defenses like that.
Interviewer: What would you say is the ratio of preferred testing?
Gary: Right now 50/50 for either method. In Bear County, about 50% of them are blood draws right now. It’s gotten so big that they’re actually outsourcing the blood tests. Previously, the medical examiner’s office was doing the testing but now they’re outsourcing it to a firm in Dallas. I believe this outsourcing will present some interesting arguments in trial.