You certainly can raise the issue but Texas courts have repeatedly ruled that breaks in the chain of custody go to the weight of the evidence and not whether it is admissible or not.
You will want to get the records on how they are supposed to handle the blood to point out he violated the rules and procedures and you want to address the issue of why it is important to keep the blood at a certain temperature and preserved in a certain manner and what happens if it is not but it is unlikely the judge is going to suppress it completely.
Ok. So even if he took it home it won't matter? Our concern is how long he had it in his car and whether or not his refrigerator was properly calibrated.
Do you think we will have better luck having it suppressed based on the SC ruling?
It won't make it absolutely inadmissible but it can be used to throw doubt on its reliability.
Yes, there is a much better chance on having it suppressed based on the SC ruling but you will want to throw this one in as well.
Also, ask the lawyer to see if the judge will issue a special instruction to the jury based on this.
We are hoping to avoid trial. We've been trying to work something out for a year now.
If you can get the blood test suppressed, and you should, then that will help avoid it for sure. However, if you can get the judge to say he is going to issue a special instruction as well then that will also give the DA motivation to offer a better deal.
The DA is going to know that this is not going to look well in front of a jury so sometimes you have to "front" and act like you're going to a jury trial anyway.
A special instruction that says??
The DA in this county has been offering crazy high sentences for dwi's and we just don't really want to risk it.
I'm not sure, it would have to be crafted for this case. The lawyer who is familiar with everything and that judge can give you a better idea.
Must be coming up for reelection soon.
But there doesn't seem to be any consistency with the sentences. They are all over the place. One guy has more dwi's than my husband and got 7 yrs and the first "offer" to my husband was 50 years.
I can't explain that but what I can tell you is the more likely the DA is to be embarrassed at trial then the more likely he is going to offer a better sentence.
Ok. Thank you.
Best wishes to you on this and thanks for asking for me again. Keep me informed as it progresses.
The DA is charging him with "aggravated" but no one was hurt. Can they do this?
I believe it was "aggravated assault with a deadly weapon" as well as habitual. The BAC was close to .30. The blood was sent in to the lab and then sent back into the lab at a later date.
There is a video. However, my husband is not on it as he had already been transported to the hospital by ems.The video only shows the back of vehicles and then shows the car being put on the wrecker. As a result of him being transported a field sobriety test was not done. The actual report was not filled out until almost 2 months later. My husband was not arrested until about 6 weeks later.
I don't know how to push my lawyer without pissing him off about this. My husband and I have maintained from the beginning that we think there was something wrong with the blood because of the high reading.
I spoke to our lawyer yesterday and he filed the motion to suppress the blood based on the fact that my husband had not been arrested. Apparently there is a statute? He said that if the cop didnt have probable cause to arrest him he didnt have probable cause to take the blood. Does this have more merit vs. the SC ruling? In your opinion what are the chances the motion goes thru based on this?
I talked to you about my husband's case before and the lawyer we have has filed a motion to suppress the blood on the fact that my husband was not under arrest when they took the blood sample. Will this hold up?
So since he was not under arrest when they took the blood the motion to dismiss the blood should be granted?
If the suppression does not get granted and he gets convicted and we have to come back on appeal can we try to get it suppressed then??
Ok. I think I had told you before that he was asked to give a sample and said no but then the cop left the room came back and waived some papers and said it was now mandatory to give a sample. At this point he consented. Will this have any bearing or hurt his case?
He was led to believe that the cop had a warrant and was told he can give it willingly or he would be held down by 4-5 nurses and they would take it anyways. He didnt want to have additional charges against him (and he thought there was a warrant) so he submitted. Would this be viewed as "voluntary consent"?
Sign? There was nothing signed and the paper he brought back home that day is marked "subject refused the taking of a specimen"
Both papers are marked "refused" and he was not under arrest.
We've been told that its a case of the cops word vs. my husbands. How would they show he consented? How could they prove it?
My husband seems to think that because the police report says "because he had several indicators for dwi it was now mandatory that he provide a blood sample. I explained the procedure and instructed him to cooperate. He said he would." that because he agreed to cooperate it was the same as giving consent and it will hurt him.
But we still go back to the fact that he was not under arrest when they took the blood. Does that trump everything?
Is agreeing to cooperate the same as giving consent?
And does he have to prove that he was or do they have to prove he was not?
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