I was at the wreck just after it happend. She had two empty beer cans in the car from days prior so they are charging her for open container and Intoxication Manslaughter.. The have since then detained her three weeks after the accident. They have since lost her blood alchol report. Her attorney says they can still win because of her past DUI charges also cause she was rude to officers at the wreck. Well of course she was rude she hates cops. She also was in and out of conciousness had broken femur, shoulder and hand. Whats next/
Criminal Defense Attorney
I hate to hang a defense on them not finding the report, or not being able to reproduce it from blood drawn, but it is a great break for your wife. Get her bonded out! Prosecutor may be willing to make an excellent deal. There is no crime of rude to cops, in fact the Supreme Court has ruled that cops have to be thick skinned, or at least that you can say what you want.
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DUI / DWI Attorney
"Losing" the blood test results is irrelevant, in my opinion. In Texas, you can be prosecuted for this offense three different ways. Only one of them includes a number that is over the limit of .08. So don't get too excited about the results getting misplaced. Also, what the prosecutor is telling you and what the truth is, may be completely different. Depending on the lab testing the blood, results can take up to 6 months to come back. Many times, I have had prosecutors tell me that they are missing evidence, only to find out later that the evidence was in storage or located in a different place, and they were simply unaware of it's location.
A good defense is calculated is prepared; it does not rely on luck. Blood cases are extremely complex, involve many different scientific disciplines and a thorough knowledge of the law and science involved.
Kelly W. Case
Criminal Defense Attorney
Intoxication manslaughter cases should be attacked on two fronts if the case is going to trial. Notwithstanding whether a person is or is not intoxicated, a good lawyer would examine the Texas Peace Officer collision report which was completed as part of the investigation. Just because a driver may be intoxicated does not mean that he should be held criminally liable for the death of another.
I do not know the facts of your case, but I have had cases where the deceased driver was as much at fault if not more at fault than the accused. Examples could include the deceased having run a red light, the deceased having operated his motor vehicle at night without lights, the deceased also being intoxicated, the deceased merging improperly into traffic, and the list goes on. A lawyer familiar with crash reconstruction and who has worked with reconstruction experts should be able to present this defense if it is available. The issue is one of causation and is set forth in Tex. Penal Code Section 6.04. In a nutshell, what 6.04 states is that if an accused’s conduct is insufficient in itself to cause the result, and the conduct of another contributed to the result and the contributing cause was sufficient to cause the result, the accused cannot be held liable.
A good accident reconstruction expert’s report may convince a prosecutor to agree to probation if causation is questionable. That in itself may be worth the investment in hiring both a reconstruction expert and a lawyer who knows how to present such findings.
The second line of defense is whether a person is intoxicated. Scientific evidence can be compelling for a jury. However, the State is allowed to rely upon opinion evidence based upon observations such as lack of coordination, blood shot eyes, smell of intoxicants on breath, slurred speech etc. Some of these symptom could be explained by lack of sleep, allergies, injury, but not all.
Most police departments have on board video cameras and video may very well have been used in this case. Video can be a two-edge sword. Many a video has convinced a defendant to make the best deal possible, while other videos have convinced an accused to take it to trial
In blood draws/test results, there are several considerations. You do not state how the blood was drawn, whether it was in the course of medical treatment or the result of a mandatory blood draw. A blood sample can be lost, yet there can be a medical record from a laboratory stating what the test result is. In fact, most hospitals don’t retain the blood samples, but for a very short period. If the blood draw was for medical treatment, sometimes there is a chain of custody problem that makes admission of the medical records unreliable. Most courts, when dealing with a chain of custody issue on medical records as the result of medical treatment rule that any problems goes to the weight of the evidence, not the admissibility, that is, the records gets admitted but the defense lawyer gets to argue that it is not reliable because of the poor chain of custody.
Mandatory blood draws can be attacked, however, you should hire a lawyer familiar with the statutory and administrative requirements for blood draws.
No lawyer can predict a result or guarantee a result.