Defendant has been incarcerated for over two months now. Recently just charged by grand jury with murder - 3rd DWI and aggervated assult with deadly weapon...from what we know of blood alochol results are NOT in yet...can this be? How long does it usually take? Defendant refused breatherlyzer, therefore defandant's blood was taken to the hospital for blood withdrawal..Can defendent be indidted by grand jury without blood alochol results as evidence?
Sometimes blood results can take a pretty long time to get back from DPS, and the grand jury presentation really needs to be done within 90 days of the defendant's arrest if he's in jail. If the results aren't back by then, the presentation will typically just get done with whatever evidence the prosecutor does have at that point, which is all the usual stuff you have in most misdemeanor DWIs (driving behavior, ability to speak to the officer, physical appearance and odor of alcohol, ability to do field sobriety tests, any statements made to the officer, sometimes an open container of alcohol or empties in the vehicle, etc.), plus the extra evidence that may come to light after all the extra work that gets done on a homicide investigation that doesn't generally get done on a misdemeanor DWI (things like tracking down where they were prior to the accident to find out how much they had to drink there and finding witnesses to testify to things lime that and how intoxicated they seemed when they left). There really can be quite a bit of evidence that doesn't have anything to do with the blood alcohol results, and all or most of that information will get presented to the grand jury.
Also, keep in mind that they are considering the case with a much lower buden of proof in mind, and that an indictment only means that at least 9 of the 12 grand jurors thought that the defendant PROBABLY committed the offense (rather than committed it beyond a reasonable doubt), and that there was reason for the case to continue to trial.
Grand jury indictments are very difficult to overturn. A grand jury's indictment means that, based on the evidence provided by the district attorney (which is certainly one-sided, and the defendant's argument is usually not heard), the grand jurors believe that there's a greater than 50% chance that the defendant committed the offense. This allowed the district attorney to proceed in prosecuting the offense. For purposes of trial, the prosecution will probably need to provide blood alcohol levels to convince a jury of guilt beyond a reasonable doubt.
The defendant is entitled to a court-appointed attorney. Has one been appointed yet? I would discuss the indictment concerns with defendant's counsel. Best of luck!
There is no definitive answer to your question. I have had it take as long as 2 years befor ethe results come back - it depends on the nature of the test that has been requested and the method of testing that is used. There are hospital immunoassay tests for ethanol content, Gas Chromatography with and without Mass Spectrometry and High Pressure Liquid Chromatography. Each of these tests are performed in a completely different manner and only one may be performed or the prosecution may decide to perform all three.
Be sure that you hire a blood DWI lawyer immediately. There is a lot we can do when we are quickly brought on to defend a person, but already valuable evidence is being lost. For example when blood is drawn, the swab to cleanse the area of the draw, has packaging that has the expiration date of the swab on it. Without that packaging, you cannot tell if the swab was expired. This is one of many examples of why hiring a lawyer immediately is the best course of action. Police will not preserve all of evidence. They will only preserve evidence of guilt. It is up to your defense attorney to demand that all evidence is preserved.
Blood cases are the most complex and difficult to defend and there are only a handful of lawyers in the state of Texas that can adequately, successfully defend these cases.
Kelly W. Case
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