Texas, in 2021, passed HB 558. “Colten’s Law” requires that police officers take DWI suspect’s blood sample and test the sample for drugs or alcohol:
- For certain intoxication charges;
- If the person refuses a request to voluntarily give a blood specimen;
- If the person drove a motor vehicle (or watercraft) involved in an accident;
- If the officer reasonably believes the accident occurred as a result of the intoxication; or
- If at the time of the arrest, the police officer reasonably believes that due to the accident another person:
- Will die
- Suffered serious bodily injury
According to Texas Action, an officer cannot take a blood sample without first obtaining a warrant “unless the officer has probable cause to believe that exigent circumstances exist.” The law outlines what those exigent circumstances are; you can read it here.
Prior to passage of the law, the police officer investigating the case had discretion as to whether to seek a blood test. After passage of the law, the police must seek a blood test.
Why was the new DWI blood test law passed?
According to MSN, the law is in response to several incidents involving the death of victims by drivers believed to have been intoxicated at the time of the accident that caused the deaths. The final version of the bill, known as “Colten’s Law,” was named after Colten Carney, an autistic Royce City man who was killed by a driver in 2017. The driver’s blood wasn’t tested.
John Palmer, whose wife Katie was killed by a drunk driver, in 2020, fully supports the new law. The driver was given a field sobriety test and a breathalyzer test. The breath test revealed a .06 BAC level 50 minutes after the accident, which may have been enough time for the drunk driver’s BAC to drop below the legal limit. A grand jury declined to file manslaughter or criminal negligence charges against the driver.
The new law would eliminate this risk, Palmer believes. “What this bill does is it eliminates any bad decisions that are made on scene,” he said.
What challenges can be made to a blood test for DWI?
The law is expected to see challenges that it violates the Fourth Amendment to the US Constitution. There may be due process challenges, too, claiming that the law is vague. It is also expected DWI defense lawyers will fight for suppression of evidence, claiming that the exigent circumstances did not exist and that the police could have easily obtained a warrant. Warrants do provide a check by the judiciary on overreach by the prosecution.
Whether the police should be required to test for blood or drugs without a warrant in certain cases – or whether mandatory tests without a warrant violate the Fourth Amendment – will be reviewed by the courts. Even if the law is found to be Constitutional, DWI defense lawyers can still assert that the blood test is invalid for other reasons including compliance with HB 588 issues. Some of these challenges will include:
- The police officer didn’t have reason to believe the driver was intoxicated at the time of the accident.
- The police officer didn’t have reason to believe death or serious bodily injury occurred. Even with the new law, police should be required to obtain a warrant if the victim just has a few scratches or bruises.
- The police officer delayed too long in giving the blood test.
- The chain of custody of the blood test was violated
- There are other reasons to question the validity of the blood test
- There are explanations for a high reading
Other defenses may also apply such as that the driver is not the person who caused the accident.
What are the consequences for a DWI conviction?
In Texas, if you are found guilty of a DWI, you will be imprisoned, ordered to pay large fines, and will lose your driving privileges. Your insurance premium will rise dramatically if you can find insurance at all. You may be ordered to install an ignition interlock device on your car. Your car won’t start if you fail the IID test before starting your car. Your car will make loud noises and the lights will flash on and off if you fail the IID test while you are driving.
What are the consequences for refusal to submit to breath or blood test?
Drivers in Texas give their implied consent to breath and blood tests if they are suspected of driving while intoxicated. If you refuse to submit to the test, your license could be suspended. The refusal to submit to the breath or blood test can also be introduced into evidence in the DWI trial.
At Mary Beth Harrell Law Firm, our Killeen DWI attorneys use every argument, every fact, and every legal motion we can to help you obtain an acquittal or a dismissal of a DWI charge. In some cases, we are able to reduce the charges to a less serious offense. We contest the police’s testimony, challenge blood and breath tests, and seek to submit evidence that was improperly obtained.
If you’ve been charged with a DWI, the consequences for a conviction include jail time, suspension of your license, fines, and the possible mandate of an interlock ignition device. To speak with as seasoned DWI lawyer who will assert your rights and defenses, call us at 254-680-4655 or use our contact form to schedule an appointment. We represent defendants in Killeen and Copperas Cove.
I’ve dedicated my legal career to defending my clients. I demand all the evidence. I investigate all the facts, the so-called witnesses and even the police officers. I make it my business to know the law. Cases can be won or lost before you even set foot inside the courtroom.
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