Although Transp. Code Sec. 724.012 has been the law for years, in our office we still get felony DWI's, etc. in which no blood draw was done, even though the officer lays out the predicate for it in his/her report. We've asked about this & gotten responses like "Yeah, I knew it was the law, but DPS didn't provide us with the proper forms until recently."

Since the law is mandatory ("shall"), do you nonetheless prosecute cases in which it wasn't done? I mean isn't this potentially exculpatory evidence that your officer holds the key to?

I would not necessarily call it exculpatory but it most certainly gives the defense big guns for impeachment, just like what happened when the legislature made on-board cameras mandatory in certain areas of population. Those areas that lagged behind in getting the cameras saw the defense bringing out that cameras were mandatory, but there was no recording in that case, so what was the State hiding?

quote:

Originally posted by shollis:
Since the law is mandatory ("shall"), do you nonetheless prosecute cases in which it wasn't done? I mean isn't this potentially exculpatory evidence that your officer holds the key to?

That is entirely within your discretion. The failure of the investigating agency to obtain certain evidence--whether inculpatory or exculpatory--is no legal bar to you proceeding with the case, but it may be a practical bar in some cases (for instance, where there is no other reliable evidence of intoxication). You would also be within your authority to tell your investigating agency that you will not accept a case absent that evidence. But again, that is a function of your discretion, not anything required (or banned) by law.