Not Guilty: DWI Blood Test More Than 0.15

TRIAL REPORT – DWI Blood Test More Than 0.15

Court:  Travis County Court at Law Number 6 Judge Brandy Mueller
Offense:  DWI First with BAC greater than 0.15 g/dl
Offense Level:  Class A
Prior Convictions Admitted? None
Did Defendant Testify? Yes
Offer prior to trial:  1 Day Travis County Jail + $1,000 fine + Court Costs + Loss of Driver’s License for 1 year + $3,000 Texas DPS Surcharge
Was Defendant Probation Eligible? Yes
If case went to punishment: Not Applicable
Verdict/Sentence: Not Guilty


Client was traveling south on IH-35 when he was stopped for Speeding (74 in a 60 mph zone) and Failing to Maintain a Single Lane. Officer observed Defendant’s driving as Defendant approached Cesar Chavez Street. Officer detected a strong odor of alcohol, bloodshot glassy eyes, restricted pupils, and slurred and confused speech. Defendant admitted to drinking one glass of wine at dinner and one shot of vodka earlier in the day. After administering the Horizontal Gaze Nystagmus Test (6 out of 6 clues plus vertical) and a Finger Counting Test the Officer arrested defendant for Driving While Intoxicated. The Officer obtained a warrant for blood. The blood test showed Defendant had a BAC of 0.173 g/dl which is more than twice the legal limit.

The Stop and Arrest

The stop and arrest were video recorded. Defendant explained that he was trying to exit at Cesar Chavez Street. That stretch of highway between 6th Street and Cesar Chavez only allows about 300 feet to negotiate the merging of on-ramp and off-ramp traffic. The Officer admitted to accelerating to 57 mph as he entered the highway. Defendant testified that as the Officer attempted to merge onto the highway, the Officer’s patrol car came up alongside the Defendant’s vehicle obstructing Defendant from exiting at Cesar Chavez. The Officer came up so fast that Defendant had to speed up to avoid a collision with the Officer. The Officer minimized his own actions but on cross could not name a stretch of road in Austin that had a shorter distance between on-ramp and off-ramp traffic. The Officer created the dangerous condition that supported the reason for the stop.

On the video, Defendant explained that he had recent back surgery, that he was emotional because he just received news that his mother was dying, and that he suffered from hearing loss. He explained that he takes medication for several conditions including fentanyl for pain management. The officer administered the HGN and a finger counting test but chose not to administer the Walk and Turn or the One Leg Stand out of concern for Defendant’s recent back surgery. The State introduced a video showing a tight close-up of someone’s eyes undergoing HGN. We asked the Officer why he did not record a close-up of defendant’s eyes for the jury to see any HGN for themselves. The Officer had no explanation. We presented the Officer with a published study entitled: Nystagmus Caused By Epidural Fentanyl. His main argument with the study was how the Fentanyl was administered and not that Fentanyl causes Nystagmus. The Officer admitted to numerous other possible causes of Nystagmus. We also showed that Defendant’s hearing loss accounted for any confused answers to questions. Despite his training to accommodate individuals with hearing loss, the Officer could not explain why he did not question Defendant in a more quiet location like his patrol car instead of beside a busy interstate highway. We showed that after instructing the finger counting test a second time defendant performed the test perfectly. The officer gave no explanation for not offering an opportunity to do a finger to nose test, an alphabet test, or a Rhomberg Balance test.

The Blood Draw

Defendant refused blood and the officer obtained a blood search warrant. We introduced the APD Policy Manual, June 1, 2013 which provides: “Blood draws performed at the Travis County Central Booking Facility shall be recorded by the video cameras in the phlebotomy room.” The phlebotomist said he had no control over starting and stopping the recording and had no explanation for why the blood draw was not video recorded. The phlebotomist admitted that a failure to video record the blood draw is a breach of protocol. He testified that he applied a tourniquet for up to two minutes and only partially filled the blood vial that was used for analysis. On cross, he admitted that maintaining a tourniquet for more that one minute and performing a short draw can both cause hemolysis. He also admitted to keeping hand sanitizer in the blood draw room – a substance known to contain ethyl alcohol. Most importantly, he used blood vials that had an inadequate amount of Sodium Fluoride to preserve the blood sample.

The Blood Analysis

After the blood draw, the Officer put the blood samples in an evidence bag where they sat for 52 hours until being brought to the APD Crime Lab for refrigeration. The officer could not definitively account for where the blood samples were stored and stated they were brought to either one of two evidence storage locations. He stated that wherever it was, the blood was refrigerated along with other evidence but could not explain for how long or at what temperature the blood samples were stored. On the chain of custody evidence bag, a name appeared indicating that the blood was retrieved by someone but no witness at trial could identify the name of that person.

The blood analyst was questioned about the lack of an adequate preservative, the lack of refrigeration, and how each of these problems could cause fermentation. The analyst explained how microbial activity under the right conditions can produce alcohol in a blood vial. We discussed the effects of hemolysis, the lack of an air blank immediately prior to defendant’s blood sample, and the danger of cross-over contamination from the previous blood sample which was very high.

Defendant testified that one complication of his back surgery was Thrush – a difficult yeast infection. Our position was that this over abundance of yeast had become systemic and that along with other bacteria, yeast had contaminated the blood vial and allowed fermentation to take place. Incredulous, the prosecutor asked if the Defendant had brought along any medical documentation to document his medical condition. Defendant said yes he did. The prosecutor in a half skeptical mocking tone said: “I’d really like to see those records” implying that no such records existed. On redirect we admitted the medical records to rebut their claim of recent fabrication. Defendant had invasive candida albacans at the time of the arrest.

Immigration Consequences

Client needed to travel to Canada for business. Under Section 36(2)(c) of The Canadian Immigration and Refugee Protection Act: “A foreign national is inadmissible on grounds of criminality for committing an act outside Canada that is an offence [sic] in the place where it was committed and that, if committed in Canada, would constitute an indictable offence [sic] under an Act of Parliament.” Section 255 of the Canadian Criminal Code, states that an individual charged with ““Operation While Impaired” (§ 253) is guilty of an indictable offence [sic] or an offence [sic] punishable on summary conviction.

The State did not want to create a “Canada Exception” out of concern that this would lead to a rush of defense counsel asking for the same treatment. I urged them to take a more merits based approach and consider the disproportionate impact inadmissibility would have on my client compared to others who did not depend on Canadian travel.

Defendant was more than twice the legal limit. The Jury felt that the State did not follow protocol throughout the arrest and evidence gathering procedures. The jury felt that they could not trust the blood results in light of a good video at the time of the stop, a failure by the phlebotomist to record the blood draw, a lack of accommodation for deafness, several improper blood draw techniques, insufficient preservative, failure to document refrigeration of the sample, and inability to explain the failure to control for crossover contamination. The jury also considered Defendant’s significant yeast infection which provided an alternative explanation to alcohol consumption. A perfect storm.

Noteworthy Requests or Rulings from the Court:

We were concerned that by not video recording the blood draw important evidence was lost and that evidence would have benefited the defense. We asked the court for a Spoliation Instruction. The Defense requested and the trial court denied the following Proposed Jury Charge:


The State has a duty to gather, preserve, and produce at trial evidence which may possess exculpatory value. Such evidence must be of a nature that the defendant would be unable to obtain comparable evidence through reasonably available means. The State has no duty to gather or indefinitely preserve evidence considered by a qualified person to have no exculpatory value, so that an as yet unknown defendant may later examine the evidence.

If, after considering all of the proof, you find that the State failed to gather or preserve evidence, the contents or qualities of which are in issue and the production of which would more probably than not be of benefit to the defendant, you may infer that the absent evidence would be favorable to the defendant.

Pena v. State, 226 S.W.3d 634, 656 (Tex. App.—Waco 2007), rev’d, 285 S.W.3d 459 (Tex. Crim. App. 2009).