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
    1. Collection tubes and directions
  2. The laboratory
    1. Personnel
  3. Testing
    1. Specimen suitability for testing
    2. Analytical methods—calibration
    3. Validation and approaches to calibration
    4. Quality control and matrix validation
    5. Batch analysis
    6. Quality control
    7. Acceptance criteria
    8. Monitoring quality control performance
    9. Instrument maintenance
    10. Proficiency tests
  4. Post testing
    1. Reporting
    2. Uncertainty
    3. 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?


10 responses to “Vial = Trial”

  1. I agree 100% with Mark. I had the pleasure of getting to know him a little this past weekend when we went thru a two day GC class in Houston. Knowledge is power and blood cases can be won. The great thing about blood is there are lots of areas to challenge and we should be challenging these areas. Great blog Mark.

  2. Garriott’s is a great book for all kinds of DWI cases, including breath cases as well. If you do not have an expert, it is great because many prosecution witnesses will acknowledge Garriott’s as a learned treatise which, if you know it better than they do, will enable you to cross them on all sorts of things. One of the most helpful books I’ve purchased for DWI defense.

  3. Some good advise. I have never gone to trial without Garriots at counsel table. I think defense attorneys would benefit from more lectures on the topics you list and less emphasis on the exagerated claim that said vials are generating alcohol due to contamination. The benefits of drawing blood over breath testing ensure that it’s use as an option is here to stay and will continue to grow. Believe it or not the benefits extend to those arrested for DWI. I have seen cases where search warrant blood was drawn on what otherwise would have been a refusal case and the results actually led to the case being rejected at intake due to the results that (but for the warrant) would not have been known.
    Finally, credit for the phrase “If it bleeds it pleads” need to go to Shannon Edmonds (TDCAA). it is a great phrase and our internal stat’s have so far shown it to be true.

    Richard Alpert

    • Richard, your “it’s sometimes to the arrestee’s benefit” argument strikes me as a bit Orwellian. Shouldn’t the people be able to decide whether their bodies are violated for their own good?

      I am sure that “if it bleeds it pleads” has so far proven true. It shouldn’t, and if the defense bar had its act together it wouldn’t.

      • Mark, I did not mean to be “Orwellian” (and I probably need to re-read something to be sure what that means, whatever it means I have been called worse). I was just stating the “fact” that requiring blood evidence has benefited some arrestee’s. As for bodies being violated, I have never thought that we should leave it up to the accused what evidence we will collect and use against them. If the Supreme Court and the Court of Criminal Appeals say that compelling blood evidence is a lawful option I am not one to disagree. As for defense attorneys “getting their act together” I think you are being too harsh on your colleagues. Even the best defense attorneys I know will sometimes determine that the odds of gaining an acquittal are so slight that their best option for their client is to negotiate a plea. That determination, in my experience, happens more often in a DWI case with blood evidence then it does it a refusal case.

          • Your right it’s not as catchy and in truth we would not have this delightful exchange if your version was what we used. Given that my goal is to make people think twice and plan ahead and thereby avoid having to “bleed” or “plead” I am inclined to keep using the more catchy one. I am in the process of tracking all cases filed during our last no refusal weekend so I should be in a better position to put a % point on how many actually did plead before the year is up.

  4. “We can’t save everyone” makes me want to wax poetic about the old man on the beach and the starfish but instead I think I will google “Orwellian” and see how bad I have been slammed.

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