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Hoelscher Gebbia PLLC Leads Fight Against DWI Blood Draws

Continuing the fight against mandatory blood draws in DWI cases, I recently joined a panel of DWI defense attorneys to speak out against the Bexar County District Attorney's policy of forcing DWI suspects to submit to mandatory blood alcohol tests (KSAT News story here). Prosecutors in Texas are powerful supporters of the policy to take blood in suspected DWI cases because the blood results help support cases that would otherwise be dismissed. The reason the DWI blood draws can't be trusted, however, is precisely because they are only done to support prosecution, not scientifically or objectively.

What criminal defense attorneys, especially those who focus on DWI defense know, is that the blood draw program in Bexar County is inherently flawed. Good blood draws, and good forensic analysis, relies on everyone doing their job with an eye towards a scientifically valid result. Science requires objectivity. At no point in the mandatory blood alcohol testing process, however, is there any objective person collecting or analyzing the evidence.

The cops doing the stops aren't objectively evaluating intoxication in the field. In fact, as I demonstrated with David Luther, a former DWI Field Training Officer for SAPD, the officers are learning to ignore their academy training "on the street" very early. Their FTOs are the ones teaching them to ignore scientifically validated procedure in favor of "tricks of the trade" that support arrests.

The blood draw itself is taken not by medical staff but by poorly trained, barely supervised "technicians." The blood isn't taken in a sanitary place, as required by Texas law, but in the jail, near the holding cells. Prisoners frequently vomit or defecate in the blood draw room. Worse, there are no controls to avoid contamination from industrial cleaners on the rare occasion a trustee is sent around to clean up.

Finally, blood labs, like the one I helped shut down, view themselves as prosecution witnesses, even though they claim to be scientists. That problem persists with DPS technicians who testfy on behalf of the State almost exclusively. In real science, a double-blind system is used to prevent researchers from knowing what the outcome of a specific test should be. At DPS, samples are identified so lab techs know when they are supposed to get a positive result and when they aren't. Telling forensic technicians what outcome they're supposed to get was specifically cited by the National Academy of Science as a reason much American forensic "science" is producing bad results . NAS realized that results were different when the supposedly objective scientists knew they were supposed to get results that indicated guilt.

In DWI blood testing, all of the evidence is controlled by the State. They determine who to suspect of DWI. They determine when to request a warrant (which are barely reviewed by magistrates paid to handle the warrants). They collect the evidence. They test the evidence. They present the evidence in court. At no point does any objective, independent scientist get involved, unless the accused person can afford thousands of dollars out of pocket for retesting. Real science demands duplication of results, but forensic science stifles independent confirmation.

Interestingly, Bexar County DA Nico LaHood claims in this story (and elsewhere) that conviction rates improved after the previous blood lab was proven unreliable. If conviction rates improve without blood evidence, then why pay for a hugely expensive blood draw program? Either LaHood is being dishonest about his conviction rate or he's hiding something about blood draws.

So why does Nico LaHood and other elected District Attorneys want expensive, cumbersome, invasive mandatory blood draws? Why does LaHood want taxpayers to pay for their neighbors to get strapped down in the jail and get a needle shoved in their arm? You'll have to ask him. So far, all LaHood has done is give us soundbites. We need more than soundbites. Officials supporting these programs need to prove their value instead of blindly persuing a policy that has only brought scandal so far.

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