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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102346
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I refused a breathlizer test in may 7th of 2009 a blood sample

Customer Question

I refused a breathlizer test in may 7th of 2009 a blood sample was taken on that day but was submitted to the lab on may 26th 2009. My blood was held for 19 days and it came back 0.21 grams of alcohol. Can the police department hold my blood that long before submission and can I file a lawsuit?
Submitted: 4 years ago.
Category: Legal
Expert:  Ely replied 4 years ago.
Hello, my name is Ely. I am here to help you. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not to tell you what you necessarily wish to hear. There may be a slight delay between your follow ups and my replies as I type out a thorough reply for you.

I am very sorry for your situation. What happened in the end of this matter - were you found guilty? Or, did you get diversion?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. I look forward to helping you.

Customer: replied 4 years ago.

I was forced to plead guilty because the district attorney enhanced my indictment because of prior felony convictions and my blood sample was taken before the search warrant was issued.

Expert:  Ely replied 4 years ago.
Thank you, Marvin.

On this website, I do not always get to give good news, and I am afraid that this is one of these times. I want to be honest with you.

If you decline a Breathalyzer, the police can still get your blood sample via a court order that is very routine. Once this is done, then they police lab analyses the blood and can give the result to the D.A. who can use it against you as evidence. The lab technician will also testify on the stand to the veracity of the test if this goes to trial.

Now, you state that "my blood sample was taken before the search warrant was issued." This was indeed improper, but there is a caveat. Because the police would have no doubt received a warrant for the blood sample, then this falls under "inevitable discovery." If the police would have received a warrant anyhow, then the warrantless blood-taking test results are deemed admissible. This is the "inevitable discovery exception to the statutory exclusionary rule embodied in Tex. Crim. Proc. Article 38.23." State v. Daugherty, 931 SW 2d 268 - Tex: Court of Criminal Appeals 1996.

Ergo, the fact that they did not have a warrant does not affect the matter.

Can the police department hold my blood that long before submission

Yes, I am afraid. I am afraid that you may not have a suit here.

While the legal system tries to be inclusive of every possibility, sometimes people have limited avenues to seek relief. Surely, you prefer that I tell the truth rather than what you wish to hear. Because it reflects very poorly on me unless you press one of the top three faces, keep this in mind when rating my answer and please do not punish me for being honest. I understand that this may not be easy to hear, and I empathize.

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