Can You Beat a Blood-Test-Based Fourth DWI?
Any individual whom Texas authorities charge with a fourth DWI based on a blood test needs to know two things. First, a fourth DWI is a serious charge. More about that seriousness is in the discussion below. But the other thing those charged with a blood-test based fourth DWI need to know is that they may well be able to beat the charge, even though based on a blood test.
Some DWI-defense lawyers refuse to even accept the defense of a person whose allegedly unlawful blood-alcohol level authorities base on a blood test. What, after all, can a defendant do about blood test results? The answer, discussed at greater length below, is plenty. A skilled DWI Specialist like 2021 Houston DWI Lawyer of the Year Doug Murphy, who knows the relevant law, science, and medicine, can show that blood-test results are so unreliable or inaccurate as to be either inadmissible or lacking credibility. Doug has successfully defended many clients whose DWI charge, whether for a first, second, or later offense, authorities based on blood-test results.
Why a Blood-Test-Based Fourth DWI Charge Is Serious
Before considering how a skilled DWI Specialist like Doug Murphy challenges blood-test results, first appreciate what makes a fourth DWI charge so serious. Texas law defines first and second DWI offenses as misdemeanors, still serious charges but not nearly so serious as a felony. But Texas Penal Code 49.09 enhances a third or fourth DWI offense into a felony. And felonies carry significantly greater penalties than misdemeanors.
Texas Penal Code 49.09 enhances any DWI offense beyond a first and second offense, whether a third or fourth offense, into a third-degree felony. Under Texas Penal Code 12.34, a third-degree felony subjects the multiple-DWI offender to a prison term of from two to ten years plus a fine of up to $10,000. That two-to-ten-year term of imprisonment for a third-degree felony far exceeds the six-day minimum and twelve-month maximum term for a second-DWI-offense Class A misdemeanor.
A fourth-DWI offender who has already incurred a third-degree felony DWI conviction risks longer imprisonment. A repeat-offender statute Texas Penal Code 12.42 can raise the conviction from third to second degree for those having had a prior third-degree conviction. If prosecutors pursue a repeat-offender conviction and the court imposes it, the higher second-degree felony under Texas Penal Code 12.33 can result in up to twenty, not just ten, years of imprisonment.
Probation generally follows imprisonment, sometimes with up to 600 hours of community service. Two-year license suspension is automatic, with a $2,000-per-year surcharge, unless with skilled legal counsel, the offender is able to prove a hardship exception to drive to and from work, for which the offender would still have to pay for an ignition interlock. Fourth DWI offenses also carry collateral consequences like job loss, loss of occupational licenses, and disruption of family relationships.
Fourth DWI charges are plainly serious business. The extra-high stakes that one faces with fourth DWI charges are one reason why you should retain Board Certified DWI Specialist and nationally recognized DWI lecturer Doug Murphy to defend those charges. Doug knows blood-test science and practice and has the strong advocacy skills and top-flight reputation necessary to successfully challenge DWI blood-test evidence. Read next how DWI Specialist Doug Murphy can help you beat a serious fourth-DWI charge or lesser DWI charges based on blood-test evidence.
Defending Blood-Test-Based Fourth DWI Charges
Police don't have to obtain a breath test or blood test showing unlawful blood-alcohol levels to support a DWI charge. Texas Penal Code 49.01 permits authorities to prove unlawful “intoxication” either by such test results or other evidence showing that alcohol, drugs, or both prevented the operator's normal use of mental and physical faculties. That other evidence may come in the form of the operator's confession or the officer's testimony as to observation of erratic driving, slurred speech, glassy eyes, an alcohol smell on the operator's breath, open containers in the vehicle, and other circumstantial evidence.
Police tend, to prefer breathalyzer or blood-test results to prove an unlawful blood-alcohol level of .08% or higher over other non-test evidence that skilled counsel can more-readily challenge. Between the two tests, breath or blood, police will often rely on the more-convenient breath test unless breath results are inconclusive or the officer believes drugs are involved. Breath tests are for alcohol, not drugs. Breath-test results, though, are less reliable and more-readily challenged than blood-test results. If your DWI charge relies on breath-test results, then you should definitely retain a skilled DWI Specialist like Texas DWI attorney Doug Murphy to defend those charges. But as the 2021 Houston DWI Lawyer of the Year, Doug also has the knowledge, skill, and experience to successfully challenge DWI charges, including fourth-offense charges, based on blood-test results.
Challenging Blood-Test Results on a Fourth-DWI Charge
One way to challenge blood-test results is to show that the officer violated the defendant's Fourth Amendment right against unreasonable search and seizure, applicable to the states under the Fourteenth Amendment's due-process clause. An officer needs probable cause to believe that the operator may have an unlawful blood-alcohol level if the officer seeks to force the operator to submit to a blood test. A 2014 Texas Supreme Court decision held unconstitutional the state's implied-consent statute, meaning an operator may now lawfully refuse a blood test. An operator's refusal requires the officer to get a blood-search warrant on a showing of probable cause. Read here more detail about whether you should refuse an officer's request for a blood test, including potential penalties for doing so.
Officers generally allege probable cause for a vehicle stop from observations of moving violations and probable cause for a sobriety test from observations of erratic driving, an alcohol smell on the operator's breath, and other observations of the operator's apparent drunkenness. Skilled counsel can successfully challenge false or disputed evidence of probable cause to make a vehicle stop and obtain a blood test. Officers also mistake intoxicated passengers as vehicle operators or seek charges against operators who were simply not intoxicated. A fourth-DWI charge can be just as mistaken as any lesser DWI charge.
Blood tests, when lawfully obtained, may also just be plain inaccurate. The prosecutor must prove their case beyond a reasonable doubt. The skilled investigation of a DWI Specialist like Doug Murphy can cast doubt on a blood test's accuracy. Blood-test inaccuracies may be due to any number of subtle scientific or medical reasons, including:
- blood drawn from an artery rather than vein;
- too little blood drawn to meet the test protocol;
- blood improperly mixed with blood-test chemical agents;
- samples drawn by untrained and unqualified individuals;
- failure to recalibrate plasma blood-test results to whole blood value;
- alcohol swabs cleaned the skin before the blood draw;
- improper storage of blood samples;
- broken chain of custody for blood samples;
- improperly recorded chain of custody for blood samples;
- police destroyed all blood samples frustrating retesting;
- improper cleaning of blood-test equipment; and
- improper calibration of blood-test machines.
When Facing a Blood-Test-Based DWI, Get the Best Help
DWI charges, even fourth-DWI-offense charges based on blood-test evidence, can fall to an aggressive defense. Skilled representation from a DWI Specialist like 2021 Houston DWI Lawyer of the Year Doug Murphy, one of only two Texas lawyers holding both a DWI Specialist Board Certification and Criminal Law Board Certification, can lead to dismissal of a fourth-DWI charge, even one based on blood-test evidence. Contact Doug Murphy Law Firm online or at (713) 229-8333 now for his evaluation of your case. You have every reason to trust Texas DWI attorney Doug Murphy with your defense.