Strategies for Defending DWI Cases in Texas

Knowledge Is Power:

What Today’s DWI Defense

Attorneys Need to Know to

Win Trials Tomorrow


Introduction: Blood Draw Issues in Texas DWI Cases 

I have two law offices in Texas—one that serves the Austin area and another that serves the San Antonio area. We have four lawyers in each office and we take on about fifty new cases a month, about forty of which are Driving While Intoxicated (DWI) cases. Essentially, about eighty percent of our monthly caseload involves DWI clients, another ten percent of our cases involve marijuana use/possession, and another ten percent involve other criminal matters.

The evolving issues in Texas DWI cases pertain to blood draws, either statutory or warrant initiated, and the so-called “no refusal” programs. The bottom line in either issue is blood draws—an issue that has recently been at the center of the following cases: Missouri v. McNeely; Bullcoming v. New Mexico; as well as Melendez-Diaz vs. Massachusetts.1 Keeping the blood result out of an otherwise “plain” DWI case is essential for the lawyer taking a DWI case to trial.

It should be noted that under Texas law, a first-time DWI conviction is considered a class B misdemeanor for which you can receive a sentence of from 3 to 180 days in jail and a $2,000 fine. A second conviction is treated as a Class A misdemeanor, which basically doubles your potential jail time to one year, and also doubles your fine to $4,000. If you already have two convictions, the third is treated as a felony, which is punishable by two to ten years in prison and a fine of up to $10,000. A DWI charge involving a passenger who is under fifteen years of age is also treated as a felony. A first-time DWI case in which anyone is seriously injured is considered intoxication assault, which involves a two- to ten-year prison sentence and a $10,000 fine. If anyone is killed in such incident, the prison sentence may be up to twenty years.

In the past, all DWI cases that were charged as felonies typically involved blood draws—if the arresting officer wanted a blood sample they just took it under statutory directive; and that practice was also followed in a misdemeanor case if anyone other than the arrested driver was transported to the hospital for treatment. In that scenario, a first-time DWI case in which someone was complaining of a neck/whiplash injury could result in a statutory blood draw. An innovative police officer would encourage someone with a soft tissue injury to go to the hospital for treatment. This also boosted the odds of a personal injury lawsuit from the treated individual.

However, the decision in the McNeely case changed some of the practices in this area; basically, the Supreme Court said that you cannot statutorily override the Fourth Amendment requirements of the Constitution. In other words, you cannot engage in an unreasonable search and seizure, such as a warrantless blood draw, except in extreme cases. The court now requires the police to obtain a warrant before they can obtain a blood sample in a DWI case unless attempts to obtain a warrant were impractical due to circumstances outside the control of the jurisdiction.

It should be understood that in a major city such as Austin or San Antonio, there is always a magistrate on duty from whom you can obtain a search warrant at any time, whereas it is much harder to obtain a search warrant at 2:00 in the morning in a more rural or remote part of the state. In a smaller community in West Texas, for example, one judge may serve two or more counties. In such a case, as long as the local police department makes reasonable accommodations to obtain a warrant, that is all they are required to do. On the other hand, there is no excuse for failure to obtain a warrant in a larger city—therefore, if you do not obtain a warrant, you cannot forcibly take a blood draw, and that has been a huge game changer in this area.

The Melendez-Diaz and Bullcoming line of cases concern the Confrontation Clause of the 6th Amendment and provide protection against otherwise prohibited testimonial evidence from coming into the courtroom. These cases dealt with the issue of the prosecution bringing in affidavits instead of live testimony to prove up the validity of scientific testing done outside the courtroom. The analyst must now show up and testify so that the defense can have an opportunity to cross-examine the witness and attempt to discredit the evidence concerned.

In Texas, many prosecutors still attempt to have police officers testify about the performance of the nurse drawing the blood sample, if the nurse cannot be present in court. I recently kept the blood result out of a misdemeanor trial by showing that the testifying officer could not adequately describe what had occurred during the blood draw. The state will also try to have a lab technician testify about what another technician did during a Gas Chromatograph run to try to make an end run on Melendez-Diaz and Bullcoming. The DWI trial attorney must be prepared to deal with these judge-aided antics to keep this questionable evidence out of the jury box.

I have attended the Axion Lab Gas Chromatography (Blood Testing) Course in Chicago and have also gone through Phlebotomy training to better cross these witnesses during blood draw cases. You have to know what occurs during a blood draw and the reason for that action. Only then can you deal with witnesses that try to stretch their involvement to the point where the evidence comes in. I prefer the Terry MacCarthy style of cross-examination to accomplish my goals. I know what the witness has to know to qualify the evidence and then I propose statements as questions in those areas that force the witness to answer truthfully.

Without having the training and experience that the missing witness actually attained, it is difficult to answer the tough questions a trained attorney can ask in a courtroom. I ask for the witness to describe each stage of the blood draw. I ask questions that only the person doing the specific job would be able to answer. However each case is specific to that particular blood draw and no simple template will cover the cross-examination needed to win that battle. My friend and colleague, Deandra Grant, has put together a great desktop staple with her Texas DWI Practice Manual, and I encourage you to have a copy handy for your DWI caseload.

1 Missouri v. McNeely, 133 S.Ct. 1552 (2013); Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011); and Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).