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I spoke with you yesterday and wanted to follow up. The cop

that took the blood apparently...
I spoke with you yesterday and wanted to follow up. The cop that took the blood apparently left the hospital with it and according to his report he stored it in his own refrigerator before turning it in the next day. Based on this should the blood also be suppressed?
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Answered in 1 minute by:
7/2/2013
Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,305
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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JD 1992 :

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.

JD 1992 :

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.

Customer:

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.

Customer:

Do you think we will have better luck having it suppressed based on the SC ruling?

JD 1992 :

It won't make it absolutely inadmissible but it can be used to throw doubt on its reliability.

JD 1992 :

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.

JD 1992 :

Also, ask the lawyer to see if the judge will issue a special instruction to the jury based on this.

Customer:

We are hoping to avoid trial. We've been trying to work something out for a year now.

JD 1992 :

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.

JD 1992 :

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.

Customer:

A special instruction that says??

Customer:

The DA in this county has been offering crazy high sentences for dwi's and we just don't really want to risk it.

JD 1992 :

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.

JD 1992 :

Must be coming up for reelection soon.

Customer:

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.

JD 1992 :

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.

Customer:

Ok. Thank you.

JD 1992 :

Best wishes to you on this and thanks for asking for me again. Keep me informed as it progresses.

Dwayne B.
Dwayne B., Lawyer
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Customer reply replied 4 years ago

The DA is charging him with "aggravated" but no one was hurt. Can they do this?

What kind of charge is it exactly? Also, what was the BAC level?
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Customer reply replied 4 years ago

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.

They can charge him with Aggravated Assault based on the car being a deadly weapon but it is extremely unlikely they will be able to get a conviction if no one was hurt. The better charge would have been "Attempted" but DAs over-charge on cases like this all the time.

In addition, the BAC is extremely high and that can play into an Aggravated finding as well.

So the short answer is yes, the DA can charge him with it.

Your lawyer will also want to look into whether the proper preservative was put into the sample because a reading that high, unless they have a video of him acting drunk, indicates there is at least a chance some fermentation occurred inside the vial which can happen if it isn't stored properly.
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Customer reply replied 4 years ago

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.

That high of a BAC is unusual. If he was at all coherent either before the wreck or after it then it would indicate a bad test as opposed to his BAC actually being at that level.

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Customer reply replied 4 years ago

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 don't know what to tell you about that. Maybe if you can get some witnesses to talk to the lawyer about your husband's behavior right before he drive, a copy of any bar bill from that night, anything that may convince the lawyer to look into it further.

You always look at anything above a .20 with a little skepticism.
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Customer reply replied 4 years ago

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?

He is right. If they didn't have probable cause to arrest then they didn't have probable cause to seize blood. I think both arguments are equal mainly because we don't know the far reaching effects of the SCOTUS ruling yet since it is so new.
Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,305
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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Customer reply replied 4 years ago

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?

I think so based on the recent SCOTUS case. It should be suppressed anyway, whether he was under arrest or not but if he wasn't under arrest it is even more likely.
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Customer reply replied 4 years ago

So since he was not under arrest when they took the blood the motion to dismiss the blood should be granted?

Yes, it should.
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Customer reply replied 4 years ago

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??

You don't actually get it suppressed on appeal. What you do is ask the Appeals Court judges to rule that the trial court erred in not suppressing it. If they rule that way they reverse and send the case back to the trial court with instructions that the trial court judge suppress it although they can also reverse and say that without that evidence the case should be dismissed.
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Customer reply replied 4 years ago

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?

The only way it would make a difference is if the court believes it was a voluntary consent. If the court believes it was voluntary consent then he can't claim it was an unconstitutional violation of his rights.
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Customer reply replied 4 years ago

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"?

No, not if the judge believes those are the facts. Not the part about the warrant but the part about being held down and having it forcibly taken. If the judge believes he signed to avoid what would be close to torture then it isn't voluntary.
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Customer reply replied 4 years ago

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.

I should have said consented rather than signed. Usually they get you to sign a form saying you agreed but in this case he stated he refused the burden is on them to show he consented.
Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,305
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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Customer reply replied 4 years ago

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?

Testimony of any witnesses including the police, nurses, etc. It's the only way they can prove it under these facts.
Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,305
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Verified
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Customer reply replied 4 years ago

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.

It can if the court believes that the consent was voluntary. He can testify that he refused and didn't agree to cooperate until they told him they were going to hold him down ant forcibly take a blood sample if he didn't cooperate. That then would change it from real consent to "coerced consent" which is not real consent.
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Customer reply replied 4 years ago

But we still go back to the fact that he was not under arrest when they took the blood. Does that trump everything?

Not necessarily if he consented. Although the courts haven't addressed the issue since SCOTUS ruled on the need for a warrant but the courts could say that a consent means you can't then challenge the test.
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Customer reply replied 4 years ago

Is agreeing to cooperate the same as giving consent?

Yes. It would be unless he were coerced into cooperating.
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Customer reply replied 4 years ago

And does he have to prove that he was or do they have to prove he was not?

The burden shifts back and forth. They have to prove the "seizure" of his blood was lawful if he files a Motion to Suppress. Once they put on their evidence and prove that it was, the burden would then shift to him to prove it wasn't. The initial presumption, once he raises the issue, is that it wasn't a legal seizure.
Dwayne B.
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Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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