John Denholm had a recent Felony DWI-3rd where the blood analysis was conducted by the Harris County Institute of Forensic Sciences (IFS). The IFS says they are impartial and are only on the “side of science.” In this case, they were.

Here, the accused had exercised his constitutional rights not to cooperate with law enforcement and provide evidence against himself. He would not participate in any Standardized Field Sobriety Test, refused to answer any questions, and refused to voluntarily submit a specimen of his breath or blood. The arresting officer obtained a search warrant and blood was drawn approximately two hours after the stop. When tested, it was reported out as a blood alcohol concentration (BAC) of 0.083 ± 0.007 g/100 mL. In other words, the blood alcohol concentration fell within the range of 0.09 to 0.0796. Clearly, retrograde extrapolation would be an issue in the case.

Evidence from HCIFS

Evidence from HCIFS

Doing his due diligence before trial, John scheduled a meeting with the analyst, Josie Hollowell. When he arrived at the IFS, he was greeted not only by Hollowell, but by both the Technical Reviewer, Patricia Small and the Expert Reviewer, Dr. Jeff Walterscheid. During the meeting, the discussion included the blood being first reported out at 0.098. Per the IFS protocol, a 2nd analysis was required to confirm the 1st. However, the 2nd  analysis reported out at 0.083, which necessitated yet a 3rdanalysis of the same sample. This time the blood reported out at 0.086.

IFS protocol dictated only the lowest result is sent to the State. The blood was reported out at 0.083 and with the margin of error being +/- 0.007, was below the legal limit.

Normally, this is when an “expert” witness for the State will perform a miraculous extrapolation and explain how the defendant was much higher at the time of the stop. But the expert witness for the science was intellectually honest and said otherwise. When considering all the possibilities and giving estimates based on the time of arrest being both prior to or after peak alcohol absorption into the blood, the IFS opined the BAC at the time of arrest could even have been as low as 0.067 ± 0.01.

You have to give credit where credit is due…

Nolle for insufficient evidence. Note comments on extrapolation

Nolle for insufficient evidence. Note comments on extrapolation

“The court evaluating the reliability of a retrograde extrapolation should also consider (a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person’s weight and gender, the person’s typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.”

Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001)

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Drink, Drive, Go to Jail

“How many of you know the “Drink, Drive, Go to Jail” law?” When you ask potential jurors this question, most hands go up. That’s when you have to explain to them it is not the law, it’s an ad campaign.

The law does not criminalize drinking and driving. It does criminalize driving while intoxicated.

DWI/DUI is a serious offense in Texas. If you have been arrested for a DWI/DUI offense, you may be facing serious fines, a loss of your driving privileges, probation, and even potential jail time. Our attorneys have helped clients defeat DWI/DUI charges (pre-trial and during trial), negotiate reduced penalties, and obtain minimum penalties in the event of a conviction. Please see our DWI/DUI page for more information about these charges, and see our license suspension page for more information about retaining or regaining your driver’s license after an arrest.

A first offense DWI is typically a Class B misdemeanor carrying a punishment range of up to 180 days in the county jail and up to a $2,000.00 fine. You driver license may be suspended for 90-365 days. Jail time can be required in some instances, but probation is often an option. Probation includes monthly reporting, random urinalysis, DWI Offender Education Class, and drug and alcohol evaluation and treatment.

Even if a first offense, if a breath or blood test shows an alcohol concentration greater than 0.15, your offense is enhanced and becomes a Class A misdemeanor. This is the same category offense as a DWI 2nd offense.

A second offense DWI is a Class A misdemeanor and carries a punishment range of up to 1 year in the county jail and up to a $4,000.00 fine if convicted.

Even a first DWI can rise to the level of a felony if you have a child younger than 15 years of age as a passenger in the car.

A third offense DWI is a felony carrying a punishment range of not less than 2 years in prison and not more than 10 years in prison and up to a $10,000.00 fine.

If a person is intoxicated and by accident or mistake causes serious bodily injury to another, they may be charged with the felony of Intoxication Assault. This offense normally arises from a vehicle collision and if convicted the punishment range is not less than 2 years in prison and not more than 10 years in prison and up to a $10,000.00 fine.

If a person is intoxicated and by accident or mistake causes the death of another, they may be charged with the felony of Intoxication Manslaughter. Intoxication manslaughter normally arises out of a crash and if convicted the punishment range is not less than 2 years in prison and not more than 20 years in prison and up to a $10,000.00 fine.

While on bond for DWI >0.15, DWI 2nd offense, Intoxication Assault or Intoxication Manslaughter, you will be required to have an ignition interlock as a condition of your bond. This means you will have a device installed on your car that is designed to detect alcohol. If alcohol is detected, your device records a warning. If over a certain threshold, usually 0.02, your car will not start. Violations are reported to the Court and may result in your bond being raised and a warrant being issued for your arrest. If convicted of >0.15 or 2nd DWI and your receive probation, you will be required to have an interlock as a condition of probation.

The Texas Department of Public Safety (DPS) will be notified of the Court’s order that an interlock be installed. Once notified, you will receive a letter telling you that your license is cancelled until you obtain a new license ($10.00) with the “Ignition Interlock Required” restriction. This restriction alerts law enforcement that you may only operate a vehicle with the device. If you are stopped driving a vehicle without an interlock, you are subject to arrest. If the interlock is also a condition of your current bond, you will also be in violation of bond conditions and again, subject to arrest.

And while a driver license suspension may be probated for a first offense, if you are convicted of a DWI 2nd offense, and the first conviction was within the previous five years, your license will be suspended for two (2) years. The first year is known as a hard suspension. No occupational driver license may be issued during the first year; meaning no driving whatsoever. This is true even if you receive probation for the offense.

Always remember, probation is still a conviction. All convictions come with driver license surcharges.

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Posted in DWI, MADD