Who Actually Draws The Blood?
San Antonio Blood Alcohol Lawyer
The blood has to be drawn by a certain individual according to Texas law. That individual could be anyone from a doctor to a technician. In fact, some counties have law enforcement officers qualified to draw blood, and there is really be no requirement for the blood to be drawn by a trained professional.
Can People Bond Out And Get Their Own Blood Drawn?
No, because this has to be done at the time of the arrest. The officer has to prove the individual was intoxicated while he was driving, so they only have a small window of a couple of hours in which they can obtain sufficient evidence through a conclusive breath BAC reading or blood analysis.
If Someone Knew They Had Done A Lot Of Drinking But Were Still Under The Limit, Can They Get A Blood Draw On Their Own If They Were Arrested?
No, because once someone is arrested for a DWI they won’t be able to leave, even if they blew a zero on the breath test, because the officer will just get blood or think the person was under the influence of drugs. They will not let the person go, so they won’t be able to get their own blood drawn.
Can Someone Bond Out And Immediately Get A Blood Test From A Hospital So They Could Prove They Were Not Intoxicated?
A blood draw would be inconclusive on someone who had bonded out 12 to 24 hours after they were arrested because the alcohol would already have worn out of their system by then.
Where Exactly Does The Blood Draw Take Place?
The blood draw usually happens in the police station or magistrate’s office.
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What Are Some Misconceptions About Blood Draw Cases?
San Antonio Blood Alcohol Law Firm
Among the myths and misconceptions people have about blood draws is that they use alcohol to preserve the blood that alcohol evaporates out of the blood, that blood creates a smell of alcohol and many others. A blood draw must be done in a very specific way, because the evidence needs to be preserved and tagged in evidence because there is possibility that a court will kick out the blood test if such procedures are not followed.
Can A Blood Draw Be Evaluated During A Case That Was Based On A Blood Draw Result?
The person can always have the court get an order for discovery and a blood draw and they can get a copy, or sometimes, even a sample of the blood. They are often kept with either the lab or DPS. It can be somewhat difficult to get the sample itself to the defense attorneys for analysis, but it is possible.
Do Blood Draw Cases Take Longer Since They Are More Complicated?
They do take longer because they have to wait for the lab results to come back.
Can A Blood Draw Show Things That Look Like Alcohol But In Reality Are Not?
No, the blood test shows ETH, which is ethyl alcohol and there is nothing that can be confused with alcohol.
How Do Blood Draws Weigh In Court Against Breathalyzers And Standardized Field Sobriety Tests?
They are the same thing, because they are both scientific tests that would determine the blood alcohol content in the person’s body.
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How Can A Blood Draw Case Be Beaten?
San Antonio Blood Alcohol Attorney
A blood draw can be beaten in a number of ways; one would be to hire an expert to review the testing and determine that the test was improperly done. I have handled situations where they performed a blood draw on my client and said he was over substantially the limit, but we had an expert do an analysis of the test, only to find out the blood wasn’t even my client’s; it wasn’t even the same blood type. So, there can be situations like that where a lab makes a mistake.
San Antonio and Burke County once contracted with a forensic lab in Fort Worth, but they basically made so many errors with the chain of custody for some blood tests, that the DEA actually came out and said hundreds of blood test analyses were defective and could not be used in court.
How Long Does Alcohol Stay In Someone’s System?
There is no set rule because each individual is different in terms of how they process alcohol. As a rule of thumb, the body basically processes one ounce of alcohol every hour, so if drank two beers or two drinks an hour, they would stay in their system until they were fully processed out, but it would depend on when the person stopped drinking and how long thereafter the test was given.
What Will The Prosecutor Look For In A Blood Case?
The prosecutor will look for an alcohol concentration in the blood that was above 0.08 BAC.
What Can Be Detected In Blood; Can Drugs Also Be Detected?
Yes. If the officer requested a full toxicology screen of the blood, not only would it pick up alcohol content, it would also pick up any drugs in the person’s system. It’s not unusual for a blood test to come back indicating the presence of alcohol and drugs like Xanax and Zoloft in the system also.
What Is The Most Important Thing For Someone To Know About Their Blood Draw Case?
The person should go out and get themselves a lawyer who knows what he is doing.
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What Occurs after the Police Administer a Breath or Blood Test?
San Antonio DWI Breath Test Law Firm
Interviewer: How long does it take before the police have the results of the blood test back from the lab? If you take a breath test, are you arrested immediately?
In Most Cases, You Will Be Arrested But Can Post Bond to Leave the Jail the Morning Following Your Arrest
Gary: Well, depending on the results of the test. With a blood test, they won’t get the results back for weeks, a month, so they’ll still arrest you anyway. You go visit the local jail and if you can, you have a relative or a friend bond you out.
After you post your bond, you’ll get out the next morning. After departing the jail you are given a court date but in Texas, all counties handle it differently. In San Antonio, they will give you a court date immediately. Usually, the date is 30 days after the arrest. In different counties throughout the state, it can be six months or seven months before they’ll file on the case. So it just depends on which county you were arrested in when your first court date will be.
It Is Possible to Be Released from Jail without Paying for a Bond?
Interviewer: Are people then released on their own recognizance?
A PR Bond Allows the Driver to Be Released without Charge but Are Restrictive
Gary: Yes, it’s called a PR bond. After spending 24 hours in jail an officer will interview you and most of the time, they’ll let you out on PR bonds because the jail is overcrowded. PR bonds are not always a good thing because they put numerous restrictions on the individual released under the PR bond.
These pretrial officers think they’re federal pretrial officers. They’ll require you to periodically check in with them and you can’t leave the county without court permission, as well as other onerous restrictions. I have even seen them order the installation of ignition interlock devices in vehicles.
"A Surety Bond for a First Offense DWI Is $800 and Is Less Restrictive than a PR Bond"
I always tell my clients, if you’re on a PR bond let’s get off your PR bond as quick as possible, substitute it out for a surety bond and move on. The cost of a DWI surety bonds first offense bond is like 800 dollars, so you’re looking at paying 100 dollars to bondsman to get out and all you have to do is call a bondsman on every Tuesday instead of jumping through hoops with the pretrial officer.
Your Vehicle Will Be Impounded after a DWI Arrest
Interviewer: After you are released from jail, has your car usually been impounded?
When Impounded, Your Vehicle May Also Be Searched
Gary: The car is impounded. You have to go down to the impound lot and pay a hefty amount of money to get your vehicle out. Hopefully, at the time of your arrest, you don’t have any contraband in your vehicle. Sometimes they search the vehicle and sometimes they don’t.
I’ve had clients that have been in the unfortunate situation of not only getting arrested for DWI, but also being charged with possession of marijuana or other drugs that they forgot were in the car. A word of advice to people, never drive with drugs in your car, the police will find them.
Are There Additional Penalties for Refusing to Undergo the Breath or the Blood Test?
San Antonio DWI Breath Test Lawyer
Interviewer: What’s the penalty for refusing? Are there any additional penalties?
Texas Upholds the Informed Consent Statute
Gary: Yes, there is a penalty and where it affects you is on the administrative side, which determines your license revocation. In Texas, and most states, drivers operate their vehicles under the informed consent statute.
First Offense DWs, without a Refusal of a Breath or Blood Test Face a 90-Day License Suspension; Refusing the Tests Results in a 180-Day suspension
If you are stopped for suspicion of DWI and it’s a first offense and you’ve submitted to the required tests and failed, you are looking at a 90-day suspension. If you refuse the test or they have to get a warrant for a draw on you then it becomes a 180-day suspension.
In years past, when they weren’t doing mandatory blood draws why would anybody take a breath test? This was because you’re only looking at a driver’s license suspension of 90 more days after the fact. It actually benefited you not to take a breath test because it wasn’t that big of a sanction against you for a refusal.
Interviewer: Do you have situations where clients say I didn’t refuse the test, but they marked me down as having refused?
Gary: Yes, I’ve had that situation before but it usually turns out, watching the video that during the conversation they were so drunk that they didn’t know what was going on.
Currently, 90 Percent of Police Stops Are Videotaped in Texas
Interviewer: You mentioned video. Are all police stops videotaped?
Gary: Ninety percent of the stops in the San Antonio, Bear County area and in Texas are recorded through on-board cameras. San Antonio has a digital camera in their police cars that records all the police stops.
The Use of Video Can Support a Defense That a Driver Was Not Intoxicated
What they do is they pull you over and they will have you performing your field sobriety tests in front of the camera, and interviewing you in front of the camera as well. It always comes back and haunts them a little bit because 99% of the police reports indicate that the driver had bloodshot eyes, smelled of alcohol, and spoke with slurred speech. Then all of a sudden on the tape the defendant is speaking with distinction and clarity and the defense attorney now has a valid argument right there. “Well, where’s the slurred speech, officer?”
Video Can Help a Client Who Had a Poor Performance on Tape Consider a Plea Bargain
Video sometimes is good and sometimes is bed. It helps the case if the video does not reflect well on the client and it works to convince the client that they should take a look into a plea bargain agreement.
If the video is good then, you know, even though they may have blood draw, sometimes you can convince a jury that the client wasn’t drunk at the time and that designating a person as being drunk is science and science is always fallible.
Are Blood Draws Legal?
San Antonio Blood Draw Consent Attorney
Yes, a blood draw is perfectly legal with a warrant or consent from the individual. A person can refuse a blood draw until the officer got a warrant, at which point they can no longer refuse, and police can do whatever they want and use whatever force is necessary to extract the blood from the person.
Can The Officer Always Get A Warrant?
A warrant will be granted 99.9% of the time. I do not foresee any situations in which a magistrate judge would not grant a warrant based upon the sworn application of a police officer saying there was probable cause for a DWI.
What Is The Fastest Time That A Police Officer Can Get A Warrant?
In some jurisdictions it is set up so that a magistrate is basically sitting at the police station, so it would just be a matter of doing some paperwork, swearing to it; the officer would probably be able to get a warrant within the hour.
Can A Police Officer Request A Blood Draw Even If The Person Had Already Done The Breathalyzer And Standardized Field Sobriety Tests?
Yes, the police officer can request one, but if the person had already given a breath test, it would be a very unusual unless the breath analysis was inconclusive, which is the only reason an officer might want to do that.
Can A Blood Draw Be Combined With A Standardized Field Sobriety Test?
Yes, this happens all the time. If the field sobriety test was just the probable cause to get the person in the car so they could be taken downtown for a breath test, they can take a blood test if the person refused the breath test, if they were in a mandatory blood draw county like San Antonio.
What Happens If They Draw Blood And Find Nothing?
In reality, this could go one of two ways; they could send it back for a toxicology screen for drugs, which happens on occasion, or they could decide to go to trial based upon the results of the field sobriety tests and the officer’s observations. They probably would not be able to make a case and the case would subsequently be dismissed if the blood draw showed no alcohol or drugs.
What Percentage Of The Time Does A Blood Draw Occur And Is It Very Common?
In San Antonio or Burke County, Texas, it is about half and half right now between blood draws and Breathalyzer, although more and more police officers are starting to use blood draws and breath tests for some reason or another.
When Does It Become Absolutely Necessary For Someone To Draw Blood?
Some Texas counties have a mandatory blood draw, which means the officer can easily obtain a warrant for a blood draw if the person refuses to take a breath test. In addition, a blood test can be utilized in other cases such as intoxication assault or intoxication manslaughter, although the officer would still need to obtain a warrant before drawing blood unless the person had consented.
What Are Some Examples Of Experts Who Would Be Utilized For A Blood Draw Case?
A toxicologist is usually retained as an expert for a blood draw case.
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What Should Someone Ask A Lawyer Regarding Blood Draw Cases?
San Antonio Blood Draw Case Law Firm
The first thing a person should ask is how experienced the attorney is when it comes to handling blood draw cases, but they should also ask what they know about blood draw cases, how they would beat a blood draw case and whether procedures were done properly.
What Do You Ask A Client Who Has Told You They Had A Blood Draw?
Many issues will be discussed, including what they expect from the case, how drunk they were that night, where they were drinking and whether there are any witnesses. I will also advise them that I need to see the video of the field sobriety tests, to see how the person looked, and to look at every aspect of the blood test, including who took it, how it was done, what time it was done, whether proper procedures were followed and whether the person wanted to spend the money to hire an expert to review the blood test so to discover if there was a hole in it, because if they found a hole in it, we will have to decide whether or not to spend the extra money to get them to come to court to testify.
Do You Foresee Any Changes in the Law When It Comes To Blood Draws?
I don’t see any changes in terms of blood draws or anything else like that. As technology develops, more mobile devices will be used to measure BAC in potential defendants; in Texas, anyone can purchase a mobile Breathalyzer online and blow into the straw to tell the person what their alcohol content is. DPS officers and police officers have them and use them as a preliminary tool, even though the results of those tests are inadmissible because they are not scientifically recognized as a proper blood alcohol content recording device. If technology improves enough to where they did become more scientifically recognized, people could expect each and every officer to have a portable breath machine in their vehicle for an on-the-spot test.
Does The Case Come With An Extra Fee Like Most Cases In A DWI?
Yes, the person will usually get hit with a fee if convicted, to cover the cost of the lab analysis.
Do People Think Their Case Is Over Once They Have A Blood Draw And Do They Get Discouraged?
Just because someone has a blood draw and it is expensive and difficult to set aside, it doesn’t mean the end of the case; there are other options available for someone charged with DWI. In Burke County right now, they are giving some people a charge of obstruction of a highway and giving deferred adjudication, while other counties allow a plea down to reckless driving.
A good lawyer may be able to get you a better deal than a DWI; they may even be able to get charges dropped from a DWI enhanced with a 0.15 or above to just a regular DWI. Therefore, just because the officers have a blood test and the person didn’t have the money to pay for an expert to try to challenge and beat test does not mean the end of the world; there are always other options.
Is There Anything Else People Should Know About Blood Draws?
Being charged with a DWI is a serious offense and there can be huge financial ramifications down the road, so anyone charged with DWI should hire an attorney who knows what they are doing and who knows how to handle these types of cases.
The Most Common Mistakes Made In Blood Draw Cases
San Antonio Blood Draw Case Attorney
The most common mistake is that the blood draw isn’t done properly. I’ve handled cases in which they poked the individual 10 to 15 times without re-sanitizing the needle or doing the proper preparation of the skin surface, and I have handled cases in which the officer’s claims defied all proper procedures and they took 10 ml of blood rather than the 3 ml taken and given to the lab according to testimony, which raises the question of what happened to the other 7ml. We just try to find a flaw in the procedures that have to be done so as to create a question of doubt.
Can The Flaws Be So Severe as to Benefit My Case?
Yes, definitely. If someone can convince the jury that a mistake was made on a blood draw and the evidence was not credible, they could basically hold that the person was not intoxicated. This doesn’t happen very often, but it does happen every now and then.
Is The Validity Of The Blood Draw Worth Investigating And Looking Into?
Sure; every aspect of a DWI defense needs to be explored.
What Is The Most Difficult Aspect Of Blood Draw Cases?
The most difficult aspect of a blood draw case is the fact that the officers have evidence that the person was intoxicated, such as the test showing the BAC, or blood alcohol content was above 0.08, which is presumed to be intoxicated under the law, which means the person has to beat that presumption.
Does It Make The Case Worse If They Had To Actually Hold The Person Down?
Yes, it could affect the case to a degree because they will have look at everything. It may help with negotiations down the road if the person cooperated, but if not, the DEA would use that against them to show they were intoxicated, so it’s not in the person’s best interest to resist.
Would The Penalty Be Worse If A Blood Draw Was Involved?
No, it won’t affect the degree or the offense.
What Would Happen If The Person Was Deadly Afraid Of Needles?
The person has no choice regarding that and they will just tell the person they should have just blown.
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Which Test Is More Defensible in a DWI Case, the Blood Test or the Breath Test?
San Antonio DWI Attorney
Interviewer: Have you found that breath tests are easier to defend the case than blood or vice versa?
Two Breath Tests Administered within 60 Minutes May Each Produce a Different Result
Gary: The thing about like breath tests is if you’re above a .8 you probably will be convicted anyway, but if you’ve got a close breath test you have some defenses. Typically, two breath tests are administered. So you have two different basic parameters to look at. For example, when a driver is pulled over, they take a breath test.
The first time they blow they blow a .08 right on the nose. The second time they blow they blow a .081, so their blood alcohol level is going up. So, were they intoxicated when they produced the result of .8, which was when they were driving an hour earlier?
My argument would be no because if you look at the breath test result, their alcohol content is going up at the time. So does that mean at the time they were driving they were not presumed to be intoxicated, when the blood alcohol content was actually lower?
Can the Driver Choose Which Test to Take?
Interviewer: Are people allowed to choose between the breath test and a blood test?
Gary: Yes, you can request a blood draw and say I refuse the breath test, I just want to get my blood drawn and they’ll do a blood draw on you. Or you can agree to take a breath test. All individuals have a right to choose between a blood draw and a breath test.
What If You Test Positive for Blood Alcohol Content But the Result Is below the Legal Limit?
San Antonio DWI Breath Test
Interviewer: What about if the breath test result is below a .08, or you’re found to have a blood alcohol level below .08, are there laws that address that? Will you still be arrested and charged with DWI?
Gary: Technically they could still charge you with DWI because at .08 there is a presumption of intoxication. That just means the burden shifts so the state has to prove you were intoxicated. But if they will try to prove it through the testimony of an officer or the video shows that you were intoxicated.
Proving a Drug-Related DWI: Do Blood Tests Address the Active Properties of Metabolites or Threshold Levels?
Interviewer: Are there laws that address people having certain levels of drugs in their blood and whether their metabolites can be considered active compounds?
Gary: Okay, that’s basically depends a lot on the individual and what their tolerance is for the particular narcotic. I’ve represented clients that were addicted to pain killers. These individuals can easily ingest eight to ten painkillers a day and not be affected by it because their body has built tolerance level to the drug.
Drugs and Impairment: Currently, There Is No Test That Can Prove a Drug’s Intoxication Level
Interviewer: In an alcohol-related DWI, there are specific limits where there is a presumption of intoxication because of the level of an individual’s blood-alcohol but how about for drugs?
It Is Unusual to See a Blood Test Result That Indicates a Drug was ingested beyond the Prescriptive Dose
Gary: Well, there isn’t. That’s just the thing about it. You can look at a blood toxicology screen and based upon the milliliters of the testing in the blood, you can see the prescriptive dose. As an example, a 10 mg pill would be a prescriptive dose. Very rarely do I see a blood test result that’s really beyond what a normal prescriptive dose would be.
The problem begins when people mix narcotics, or people are on the drug for the first time and don’t really know how their system will react to it. With people who are regularly like on pain pills can function normally on their prescriptive dose but when they mix it with Xanax then following asleep at the wheel.
While Other states Are Proposing Legislation to Set levels, in Texas, a Driver Is Presumed to be Intoxicated from Marijuana Even If the Smallest Amount Is Found in Their System
It primarily depends on the individual and his or her chemical makeup. With marijuana there is no presumption. If you’ve had X amount in your system you are determined to be intoxicated. I think that’s the problem they’re having right now in Washington and Colorado.
They need to define what exactly is driving under the influence of marijuana. In Texas there is no such thing. If it’s in your blood and you’re driving erratically for whatever reason they are going to argue you were intoxicated.