I had the pleasure this summer of attending a Forensic Chromatography Course at Axion Training Laboratories in Chicago, IL. Chromatography is the scientific method used to determine the alcohol content in a blood sample. In addition to classroom training we had hands on experience operating and maintaining the equipment. With more and more blood samples being collected by police in criminal cases, I thought it was important to have a better understanding of the forensic science used to analyze the blood. I am one of only three lawyers in Galveston County, Texas have completed this training.
The United States Supreme Court recently handed down Missouri v. McNeely, a Fourth Amendment case that will change the way Texas police do business with regard to mandatory blood draw cases. Texas Transportation Code Chapter 724 provides for mandatory blood draws, without a search warrant, in circumstances such as felony DWI 3rd, DWI’s with a child passenger, DWIs involving accidents with serious bodily injuries or death. McNeely does not specifically overrule the Texas mandatory blood draw statute but arguably limits its use. McNeely affirms that involuntary blood draws constitute a search for Fourth Amendment purposes and that, absent exigent circumstances, a search warrant, supported by probable cause and issued by a neutral magistrate, is required. McNeely holds the mere fact the body is metabolizing alcohol in the blood is not by itself an exigent circumstance.
In order to get around the search warrant requirement the state will have to establish exigent circumstances beyond the mere fact of metabolism. McNeely leaves open the question of what exigent circumstances would suffice. Prosecutors will argue that exigent circumstances make it impossible to get a search warrant in a variety of fact situations (unavailability of a magistrate, multiple crashes, custody of minor children at the crime scene, high arrest numbers such as during spring break holiday or major sporting event, etc.) I expect criminal attorneys throughout Texas will be litigating this issue extensively in the years to come.
Please contact me if you wish to discuss the specific facts of your blood draw case.
DA declares Mardi Gras “No Refusal” weekends
Jan. 29, 2013
GALVESTON, TX – Galveston County Criminal District Attorney Jack Roady announced today that his office will work with area law enforcement agencies to enforce a No Refusal program covering both weekends of Mardi Gras – beginning Friday, February 1st through Sunday, February 3rd, and again on Friday, February 8th through Sunday, February 10th.
In Texas, anyone driving with a blood alcohol concentration (BAC) of .08 grams per deciliter or higher is considered legally impaired. Under the No Refusal program, police officers may seek blood search warrants for offenders who are arrested for DWI and refuse the officer’s request for blood alcohol testing. Blood samples collected can be used as evidence in the DWI cases.
A DWI arrest and conviction in Texas can cost $17,000 or more: fees include car towing and impoundment, bail, attorney fees, court costs, hearing and fees to regain and retain a driver’s license, DWI fines, probation costs, fees for extended proof of insurance, plus insurance rate hikes.
Local judges will be available to make probable cause determinations and authorize the blood search warrants. Prosecutors and nurses will also work through the night to assist police officers with these investigations.
Galveston County Authorities have announced a “No Breath Test Refusal” policy for the upcoming weekend. This means that in the event a person, suspected of DWI, refuses to take a breath test, the police will request a judge to issue a search warrant to take blood. Before a judge can legally issue a warrant, the police must submit an affidavit establishing that there is probably cause to believe the person is guilty of a crime (DWI). Typical facts used to establish probable cause can include bad driving facts, odor of alcohol, a person’s admission to drinking alcohol. glassy eyes, unsteady balance, poor performance on field sobriety tests, etc.
The existence of probable cause to issue a search warrant can be a very technical legal question that should be evaluated by an experienced lawyer. Please call for a free consultation if you have questions about a specific fact situation.
The job of a prosecutor is to see that justice is done. Under Brady v. U.S. a prosecutor is required to disclose exculpatory evidence to the defense. It is prosecutorial misconduct to fail to do so. Unfortunately, in many cases this kind of prosecutorial misconduct is never discovered and innocent people get convicted. This is why its important to have a lawyer working on your case as early as possible to uncover and preserve evidence favorable to the defense.
The article below is about situation where our local DA’s office did the right thing and took action against two prosecutors for alleged misconduct. One prosecutor was fired and one resigned. Its noteworthy that the DA’s actions came only after defense lawyers during trial uncovered the misconduct. The misconduct in one case was for failing to disclose an exculpatory 911 recording from an identification witness in a robbery case and in the other case, by using false testimony.
Recent publicity about problems in the drug screening program used by the Harris County Adult Probation Dept. highlight what those of us working in the criminal justice system have always known. Problems often occur when a government entity closely connected with the prosecution is responsible for handling scientific evidence:
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions the accused shall have the right to be confronted by the witnesses against him. An example is when the prosecution attempts to introduce lab reports without calling the lab technician that actually conducted the tests. This issue was recently addressed by the United States Supreme Court in Bullcoming vs. New Mexico. Bullcoming was charged with the offense of DWI. The principal evidence against Bullcoming was a forensic laboratory report certifying that his blood-alcohol concentration was above the threshold for aggravated DWI. In Bullcoming the Court held:
1) The Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification.
2) The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.
This week in the 212th District Court of Galveston County, Texas, Judge Criss granted a motion for a directed verdict of acquittal. Directed verdicts in criminal cases are rare. Judge Criss believes this is the first time in her thirteen (13) years on the bench to grant a directed verdict.
The defendant in the case was charged with the aggravated robbery of a the Dollar General Store in Texas City. Identity of the robbers was the contested issue. The defendant claimed he was in another town at the time of the robbery. The state presented a witness who testified she was able to identify the defendant from a photographic lineup shown to her by police. The judge granted the directed verdict after a 911 tape was produced wherein the same witness told her supervisor and the 911 operator that she didn’t know the race of the suspects. Store video showed the suspects both wore ski masks. The judge granted the directed verdict based on insufficient evidence of identity.
The right of a jury trial is a valuable thing. That said, any thing can happen at trial. We hope that justice will always be done. Unfortunately, that doesn’t always happen. More often then we like to admit, people are convicted of crimes they didn’t commit based on faulty eye witness testimony. I don’t know other details of this case but I’m glad we have a judge with the courage to grant a directed verdict when the evidence is just not there.