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  • Brian Foley

The Woodlands Texas DWI Attorney - What you need to know about a DWI

Updated: Jun 16, 2023

The Woodlands Texas DWI Attorney - Brian Foley - Board Certified in Criminal Law

If you have been arrested for a DWI in the Woodlands, Texas area, including Conroe and Houston, and the police have taken your blood for testing, don't hesitate to call us and schedule a free consultation.

Can a DWI be successfully challenged with a blood test? There is no such thing as a guaranteed open-and-shut criminal case. Even when the police have obtained a blood sample, you can still fight DWI charges. An experienced DWI lawyer in the Woodlands, Conroe, or Houston can assist you in fighting a DWI arrest, whether you consented to a blood test or the police obtained a warrant to take your blood.

How can you contest a blood test in court?

  1. Insufficient reasonable suspicion to justify the traffic stop.

  2. Lack of probable cause for detaining you for a DWI investigation.

  3. Coercion by the officer leading to your consent.

  4. Lack of probable cause in the blood warrant.

  5. Blood sample taken in an unsanitary facility.

  6. Faulty or uncertified instrument used to test the sample.

  7. Improper refrigeration of the blood sample.

  8. Improper use of a grey top forensic tube during blood collection.

  9. Failure to convert hospital blood results to whole blood.

The Disconnect Theory: People tend to trust what they see and hear. If the officer's body or dash camera footage does not show signs of intoxication, yet your blood test result indicates a high blood alcohol level, there is a clear disconnect between the visual evidence and the lab report. A skilled lawyer can explain how issues with blood testing procedures, such as the integrity of blood vials, transportation, and laboratory refrigeration, can impact the final blood test result. In order to convict you of a DWI based on the legal limit of 0.08, jury members must have no reasonable doubt about the accuracy of the blood test result. When a discrepancy exists between video evidence and the lab report, it suggests that something may have gone wrong with the government's evidence.

How does blood alcohol testing process work? When an officer decides to arrest you for a DWI, they are required to read you a document called the DIC-24, which explains the consequences for your driver's license if you refuse to provide a breath or blood sample. If you consent, the officer will take you to a hospital or a jail facility to collect a sample of your blood. In most Montgomery County DWI cases, the officer will transport you to a hospital. On specific occasions like weekends and holidays, a nurse working at the Montgomery County jail, along with a member of the vehicular crimes team, will video record the blood draw. The general process is as follows:

  1. Arrest

  2. Transportation to a hospital or jail facility

  3. Two grey top blood vials are filled by a nurse or phlebotomist

  4. Blood vials are sealed in a package

  5. Typically, no refrigeration at this stage

  6. Blood samples are mailed to a laboratory

  7. Refrigeration begins at the laboratory

  8. Sample is extracted and transferred to a new container

  9. Sample is analyzed in a Gas Chromatograph along with approximately 50 other samples

  10. A computer-generated number is assigned based on the gas detected above the blood inside the sample tube

  11. Analyst issues a Lab Report

This entire process can take anywhere between 1 and 12 months to complete.

How can you successfully challenge a DWI with a blood test? Beating a DWI charge that involves a blood test requires the assistance of a lawyer skilled in trial strategies and negotiation with Texas prosecutors. The first step is to challenge the initial reason for the traffic stop in your case. Is there any evidence from the officer's body camera or dash camera that contradicts their report? It is crucial to have a lawyer who can thoroughly examine all the evidence in your case. The State of Texas must go through multiple steps to secure a conviction in a DWI case, even when blood evidence is involved. Your lawyer can help you object at each phase of the process and highlight any problems that may have occurred during the collection and testing of your blood sample. For instance, there have been cases where a client's blood turned green during storage at a DPS facility. Surprisingly, DPS lab analysts have testified that issuing lab reports based on green samples is acceptable.

What are the penalties for a DWI with a blood test? A DWI with a blood test result between 0.08 and 0.14999 is classified as a Class B Misdemeanor, carrying a maximum punishment of 180 days in jail and a $2,000 fine.

If the blood test result is equal to or greater than 0.15, it is considered a Class A Misdemeanor, with a maximum penalty of 365 days in jail and a $4,000 fine.

Additionally, the State of Texas may impose a traffic fine of $3,000 for first-time DWI offenders, which increases to $6,000 if the test result was 0.15 or higher.

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