The Taking of a Blood Draw with a Subsequent Test for Alcohol Concentration in Order to Show a Person is DUI/DWI;
With the Appropriate Attorney, there is Hope!
Remember that in most jurisdictions, a charge of DUI (Driving Under the Influence) and DWI (Driving While Intoxicated) have the same meaning. The person is driving a motor vehicle on the roadway while without the normal use of their mental or physical faculties or while intoxicated. Law Enforcement Agencies from the Local County Sheriff to the City Police Department to District Attorney’s Offices are heading the drive to have mandatory blood tests upon the suspicion by a law enforcement agent, police officer, or a County Sheriff’s Deputy that a person is either Driving Under the Influence of an Intoxicating Beverage to the point where the driver has lost the normal use of his or her mental or physical faculties or Driving While Intoxicated, the definition of which is driving a motor vehicle on a roadway without the normal use of their mental or physical faculties.
In Texas, the crime is generally called DWI (Driving While Intoxicated) with special conditions required for the offense of DUI or Driving Under the Influence. Of course the right to refuse a blood test exists; however, the tactic in use now is for the Arresting Officer to obtain a Search Warrant based upon a Sworn Affidavit of Probable Cause that the person suspected was driving without the normal use of their mental or physical faculties, together with a Request for an Order of Assistance in the taking of the Blood Draw, should the person refuse to allow the person attempting to Draw the Blood, perform his or her task.
In Bexar County, Texas, these Court Ordered Blood Draws are specified by the Bexar County District Attorney’s Office and only due to the expense, certain holiday weekends or periods are so designated. However, this tactic is available to any Law Enforcement Agency in any County or Municipality in Texas, should the authorities so desire when DUI or DWI is suspected, the person accused is requested to take a Breath Test by use of the Intoxilyzer 5000, exercises their Constitutional Right to Refuse, despite the Implied Consent Law which states that if one drives and is suspected of DUI or DWI, they must take this Breath Test, and can be utilized to require the Blood Draw by going around the United States Constitution’s Fourth Amendment protections which presumes all warrantless searches are unreasonable, and must be done only upon the issuance of a Search Warrant based upon a sworn affidavit of Probable Cause by what is supposedly viewed by an impartial judge or magistrate to see if Probable Cause actually exists; however, often, the judge or magistrate only sees the affidavit and doesn’t have the opportunity to question the officer requesting the warrant or observe the officer’s demeanor or the condition of the person accused. Sometimes, the affidavit is faxed to the judge or magistrate, who then signs the Search Warrant and Order of Assistance in the Taking of the Blood Sample, and faxes it back to the Officer, who then initiates the procedures where the Blood is actually Drawn to be later tested for the percentage of alcohol it contained.
Only a Highly Skilled Attorney is capable of defending these types of Case; knowing what the procedures are for the obtaining of the warrant, the procedures for the drawing of the blood, the maintenance of the proper handling of the sample, what is to be mixed in with the sample, how it is to be properly carried and preserved pending the analysis, and then the proper procedures of the analysis that must be conducted by the proper personnel.
A few years ago, various Texas Counties and Cities started this Constitutionally Questionable policy of 'no refusal' in the case that a Breath Test was offered but refused by the person accused of DUI or DWI, for the drawing of blood in cases of suspected DUI or DWI in Texas. Across Texas, on certain holiday weekends, or at other unannounced times, by the securing and utilization of these Blood Draw Search Warrants together with the accompanying Order of Assistance person’s accused of DUI or DWI are mandatorily required to provide blood samples once the refusal of the Breath Test is made known or the refusal of providing a Blood Sample is made known to the Arresting Officer. Many Law Enforcement Agencies are attempting to obtain funding from the Federal Government and the Texas State Government in order to expand this procedure to a year-round effort.
Perhaps a prohibitive stumbling block to the full time implementation of this program designed to provide evidence that an accused person was, in fact intoxicated, has been the lack of judges or magistrates to review the Sworn Affidavits of Probable Cause necessary to allow them to sign the actual Search Warrant which initiates the process. However, way have been found to circumvent this lack in the system such as fax machine review to the volunteering of the judge’s or magistrate’s time to be available at the designated times when the Law Enforcement Agencies decide to implement a Blood Draw holiday in order to curb those drivers who may appear to be DUI or DWI, which is what is required to initiate the process of the unwanted Blood Draw so that evidence can be provided to attempt to substantiate the ultimate charge of DUI or DWI.
Defense to this highly intrusive method of obtaining apparent evidence to support the charge of DUI or DWI reaches Constitutional proportions because it prohibits the person accused of exercising their Constitutional Right to Unreasonable Searches and Seizures, as well as, their Constitutional Right to refuse any other type of test, such as the Breath Test or even a Urine Test. An Officer subjectively decides that a person is either DUI or DWI, requests a Breath Test, Urine Test, or a Blood Test, and is refused, has this Constitutionally Questionable procedure of obtaining a Blood Draw to support their suspicions and justify their arrest of the individual.
The Defense of this type of DUI or DWI requires skill and expertise that can only be gained by the Attorney who has involved themselves over many years of practice in these types of cases. The Law Offices of Stephen Nicholas has almost 26 years of experience in defending these very types of cases, once, even successfully defending a Police Officer who had his Blood Drawn against his will. While there are circumstances where a Blood Draw may be appropriate and those situations are present in existing state law which defines situations when a Blood Draw is appropriate, such as when there is an accident involving injury, these too, have the same requirements and procedures that start at the Drawing of the Bloods and culminate in the Sample being tested for the presence of alcohol, and each and every procedure must be strictly followed or there is no evidence that is admissible against a person suspected of either DUI or DWI.
Call The Law Offices of Stephen Nicholas for Assistance during these particularly difficult times. The first consultation is free and will last as long as it takes for the situation to be properly analyzed and that doesn’t mean 30 minutes to an hour. However long it takes, it takes. Call Stephen Nicholas, Now.