A Recent Case Win–Motion to Suppress Granted and .20 BAC Blood Test Tossed Out

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bo@kalabuslaw.com
www.rosenthalwadas.com
www.kalabuslaw.com

972-562-7549
214-402-4364 (24 hour jail release)

The client was pulled over for erratic driving and speeding. Following the field sobriety tests the client was arrested for DWI. The client refused to take the breath test and the officer obtained a search warrant to have the client’s blood drawn at a hospital. The resulting blood test revealed a .20 blood alcohol content (BAC)–the legal limit in Texas is .08. This BAC enhanced the offense from a Class B misdemeanor to a Class A misdemeanor carrying stiffer penalties including a deep lung device that would have to be installed on the client’s vehicle during probation. The BAC also enhanced the DPS driver’s license surcharges from $1,000 a year for 3 years to $2,000 a year for 3 years. This certainly looks like a pickle for the client doesn’t it?

Well, when the arresting officer applied for the warrant he neglected to put the time of the stop in his affidavit in support of the warrant. The Texas Court of Criminal Appeals recently addressed the issue of the sufficiency of an affidavit in support of a search warrant for blood in the case of Crider v. State, (November 16, 2011).

The Crider case had similar case facts to my client’s case. In Crider, the police officer’s affidavit indicated that “[o]n or about 06-06-08” the officer observed the defendant commit the offense of DWI. The magistrate signed the warrant on June 7, 2008 and it was executed soon thereafter. The Court of Criminal Appeals held that in light of the potential 25 hour window between the time the crime could have occurred, and the time the warrant was executed, the information was stale and therefore the affidavit did not establish probable cause that the “evidence of intoxication would be found in appellant’s blood at the time the search warrant was issued.”

I filed a motion to suppress the blood test in the case under the reasoning in Crider and the motion was granted, which kept the blood results out of the case. As a result of the ruling, the State of Texas had to abandon the enhancement to a Class A misdemeanor. Also, DPS would not be collecting the higher driver’s license surcharge. The client was happy with the result.

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