Thursday, January 7, 2010

Changing the No-Blow Paradigm

For years the standard operating procedure for DWI suspects in Brazos County was no-blow. That is, once a person was arrested for driving while intoxicated, the best defense was a good offense and suspects were encouraged by College Station criminal defense lawyers to refuse any breath or blood test requested by the arresting officer. However, times have changed over the past several years with the gathering momentum of blood draw warrants.

Blood draws pursuant to a search warrant occur shortly after a person arrested for DWI is taken to the local police department and refuses to submit to a chemical test. Blood draw search warrant affidavits and search warrant forms are now readily available to law enforcement in Bryan|College Station. Local judges are on call 24/7 to review affidavits and grant warrant requests when the facts support the officer's request. The DWI suspects are then transported to a local hospital, their blood is drawn and sent to DPS for analysis.

What's the problem for citizens from whom blood was drawn after their DWI arrest? Simply, a blood test is much more difficult to defend than a breath test. Breath samples analyzed by the Intoxilyzer 5000 can be attacked in many credible ways. We've discussed the problems with the Intoxilyzer on many occasions here at the Defense Perspective. However, blood testing does not suffer from the same, wide array of problems. There are ways to attack a blood test, but not nearly as effectively.

Consequently, the no-blow paradigm may be changing around these parts. The best way to avoid the problem is to avoid drinking-and-driving. However, in a large college town like Bryan|College Station, students rarely take this issue into consideration before a night out on the town. So, if you drink and drive in Brazos County, it may be time to start saying yes when asked to submit to a breath test. But better you never get asked.

5 comments:

Anonymous said...

What do police officers need in order to get a warrant for your blood? Is it simply
their suspicion (it's late and night and your were "swerving") or do they need something more tangible such as the smell of alcohol and glossy eyes?

Stephen Gustitis said...

The officer's probable cause needs to address certain key elements of the alleged crime. Certainly, they must have evidence the person, from whom they are seeking blood, was driving a motor vehicle. Next they need some evidence indicating possible intoxication. This can be evidence of bad driving, the smell of alcohol, admissions by the person they'd be drinking, poor performance on sobriety tests, glassy eyes, etc. Remember, the level of evidence needed for probable cause is quite low, certainly not evidence to prove guilt beyond a reasonable doubt. But nonetheless, there must be evidence related to each element of the DWI charge for the search warrant to survive a motion to suppress. Great question, and thanks for visiting.

Anonymous said...

if you were in a motor vehicle crash as the driver and the officer claimed to have smelled alcohol and found pain pills prescribed to another person in your car, can they come to the hospital where you were taken and give you a statutory warning while still not in a fully conscious state?

MA Drunk Driving Defense said...

More and more cities are really stepping things up and making blood tests mandatory.

Stephen Gustitis said...

Under the implied consent law in Texas, a person must be under arrest before the police can legally request a breath or blood sample. Under the hospital scenario you described, the police might not get the person's DL administratively with ALR, but could subpoena the hospital blood test records and use them in a criminal prosecution, if all other elements of the offense could be proven.