Actually, this situation could result in a valid murder case. The charged offense under the Penal Code would simply be murder, but the grounds would be what is commonly referred to as felony murder. This basically just means a death that occurs during the commission of another felony (I.e. the felony DWI). Here's the relevant language from the statute:
TEXAS PENAL CODE Sec. 19.02 Murder
(b) A person commits an offense if he:
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual."
You're correct that normally you cannot commit the offense of murder without intentionally and knowingly causing a person's death, but this particular scenario is different--there's no mental state required, since there is none for DWI.
Yes. Hire the best DWI lawyer that handles these types of cases and is trained in blood evidence. This is not the type of case that you can afford to delay hiring a lawyer. Valuable evidence is being lost because the police do not preserve all evidence, they only preserve evidence of guilt. It is up to your defense lawyer to make sure that all evidence is preserved and to defend you. The sooner a great lawyer is hired, the better off you are and will be because there are many tactics that can be employed by a good DWI lawyer.
Waiting to hire someone will be a serious mistake. Hiring the wrong person is almost as bad as waiting to hire someone, so do your research. Great DWI Blood lawyers are very few, there are less than 10 in the entire state of Texas that have completed a course in Gas Chromatography and are more than qualified to defend these cases.
This is extremely serious, as I am sure you are aware, and a very good lawyer should be hired immediately.
Kelly W. Case
I fully agree with my colleagues. It is imperative that you consult a good criminal defense attorney and fight the charges aggressively as the recklessness of your driving while intoxicated can be the basis of a murder conviction.
This attorney can be contacted via email at firstname.lastname@example.org or via phone at 817.305.7170. The above answer does not constitute, and should not be construed as, legal advice.