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Vial = Trial

Texas counties are moving toward getting blood tests for alcohol in more DWI cases.

Tarrant County prosecutor (and sometime Defending People commenter) Richard Alpert likes to say, “If it bleeds, it pleads.” That does not need to be true.

  1. Pre-testing issues

  2. Collection tubes and directions

  3. The laboratory

  4. Personnel

  5. Testing

  6. Specimen suitability for testing

  7. Analytical methods—calibration

  8. Validation and approaches to calibration

  9. Quality control and matrix validation

  10. Batch analysis

  11. Quality control

  12. Acceptance criteria

  13. Monitoring quality control performance

  14. Instrument maintenance

  15. Proficiency tests

  16. Post testing

  17. Reporting

  18. Uncertainty

  19. Records and specimen retention

That’s the outline from Chapter 9 of Garriott’s Medicolegal Aspects of Alcohol; it could serve as an outline for discovery and potential attacks on the forensic aspects of the blood draw, and there are plenty of potential attacks. (Do you take blood-test or breath-test DWI cases? Buy the book! It’s not a cheap book, but it’s a cheap education.) 

But finding and making the right attacks requires three things that most lawyers don’t have on most cases:

  1. A working knowledge of the testing method and the issues with it—if you don’t know how the GC/FID works, you don’t know what you’re looking at when you get papers from the lab;

  2. Time to carefully review hundreds of pages documents enough to find the inconsistencies; and

  3. An expert witness—if the state has an expert who is truly expert, you might be able to make your points through cross-examination, but most of the state’s lab “experts” are button-pushers, “lab monkeys” as Montgomery County DWI lawyer (and soon-to-be judge) Kelly Case says.

You can get the beginnings of working knowledge through CLE—the next time Justin McShane and Josh Lee are in your neck of the woods, go to their seminar and pay close attention; the next step is a hands-on seminar using the GC/FID machine and analyzing samples. Also, keep Garriott’s handy and read it in your free time.

Time is money. If you have a full calendar and you take a blood-test case for the same fee that you charge for a no-test-no-accident DWI, it’s going to be hard for you to justify taking time away from your other clients’ cases to prepare for the blood-test case. If you’re going to take blood test cases, plan not to have an otherwise-full calendar—in other words, plan to take fewer NT/NA cases—and charge more for the blood-test case. That’s a fee discussion that the client doesn’t want to have, but you’ve got to have it.

While you’re having the fee discussion, get some money in trust for an expert witness. If you just want someone to review the discovery, it’s going to be a grand or two; if you need someone to testify at trial plan on quintupling those numbers.

Why do all this, when you can get more people to hire you for lower fees and wing it on the blood evidence? Pride in your work, for one thing. I won’t take a case without the resources to do a good job on it (though sometimes the resources come out of my pocket), and neither should you.

Aside from that, the more people prepare and try blood-test cases (doing it right), the more expensive and time-consuming it becomes for the state to file blood-test cases. The more expensive and time-consuming it becomes for the state to file blood-test cases, the less enthusiastic they’ll become about vampires in blue. The less enthusiastic the state become about their vampires in blue, the less interference the people will have with their right to be left alone.

And that’s a good thing, no?

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