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Defense never asked to examine blood vial or independently test it. The vial now can't be located by police. As long as the chain of custody from the draw to the testing is firm, any issue with not having the actual vial to admit into evidence at trial? The results of the testing still come in, correct? (Just like breath test results come in without retaining the sample...)
 
Posts: 51 | Location: TX, USA | Registered: February 20, 2008Reply With QuoteReport This Post
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Check out State v. Vasquez, 230 S.W.3d 744 (Tex. Crim. App. 2007). The CCA reversed the COA, holding that the trial court erred by granting the defendant's motion to suppress the blood test results in an Intox Manslaughter case because there was no evidence that the state acted in bad faith when the blood sample was destroyed. It was not unanimous and the majority cautioned that the best practice is to preserve the evidence for further testing if at all possible.
 
Posts: 674 | Location: Austin, Texas, United States | Registered: March 28, 2001Reply With QuoteReport This Post
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Below is a copy of some of my trial brief on the subject.....

The State also argues that under current case law, the established precedent is a three part test found in Lake v. State, 577 S.W.2d 245 (Tex.Crim.App.1979). The test is 1. the drug has been analyzed, 2. the chain of custody explained and 3. there is no showing of bad faith by the state. Id. at 246.
In Lake, the heroin was destroyed by mistake after a first trial was set aside by the trial court. However, the Court of Criminal Appeals held that, “Under such circumstances it is not error to convict for possession of drugs absent the physical presence of the drug itself, providing the drug has been analyzed and the chain of custody explicated.” Id. citing Montes v. State, (Tex.Cr.App., 503 S.W.2d 241). The Court further said that the “state must not be allowed to purposefully or carelessly destroy evidence with an eye to harming a defendant, but there is no showing of bad faith on the state’s part in this case.” Id. emphasis added. In Velasquez v. State, the 13th Court of Appeals of Corpus Christi quoted the Lake case in a similar case where the cocaine was lost. 941 S.W.2d 303, 306 (1997).
There is no Due Process claim as to this issue because the State of Texas interprets the Due Process clause to mirror the Federal interpretation. NOTE 1) In the unpublished opinion of Texas v. White, 2010 WL 3271195 (Tex.App.-Austin) the Court states that, “As for loss or destruction of exculpatory evidence, all but one Texas court of appeals, including this Court, have held that the Due Course of Law provision provides the same protection as the federal Due Process Clause. However, that exceptional case, commonly called PENA III in the Waco Court of Appeals was reversed on other grounds and the Court of Criminal Appeals saw no reason to address the issue. Pena v. State, 285 S.W.3d 459 (Tex.Crim.App.2009). The Federal interpretation of the Due Process Clause requires that (1) the State failed to disclose evidence, regardless of good or bad faith, (2) the withheld evidence is favorable to the defendant; and 3) the withheld evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App.2002) citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Although the Court in McGee acknowledges the difference in the State and federal constitutions, it supports the Federal interpretation saying that it is “appropriate to apply them to the due course of law provision of the Texas Constitution in connection with those same issues. McGee v. State, 210 S.W.3d 702, 705 (Tex.App.-Eastland 2006) citing Moore v. State, 943, S.W.2d 127, 129-130 (Tex.App.-Austin 1997, pet. ref’d). Further, it states that, “We have held that the lost tape was at best only potentially favorable to the defendant and that it did not create a probability sufficient to undermine confidence in the result of the trial.” Id. at 705. NOTE 2: In an unpublished opinion, Martinez v. State, 2008 WL 2515876 (Tex.App.-Corpus Christi 2008) the 13th Court of Appeals agreed with the Trial Courts decision in denying a pretrial motion to dismiss the case and upheld the conviction when a videotape was inadvertently destroyed. The Court focused on the fact that the tape did not have “exculpatory value apparent to the State” before it was destroyed. See also Jackson v. State, 50 S.W.3d 579, 588-589 (Tex. Ap. – Fort Worth 2001) where loss or destruction of interview notes and vials of blood was unintentional.
 
Posts: 106 | Location: Kingsville, Texas, USA | Registered: July 19, 2011Reply With QuoteReport This Post
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I have not offered the actual blood vial into evidence in my last 6 trials. Instead I get high quality photographs of the blood vials and the packaging and offer them instead. Never had an issue or problem with this practice.
 
Posts: 261 | Location: Fort Worth, Texas | Registered: February 21, 2001Reply With QuoteReport This Post
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My response was more dealing with the situation where the evidence was destroyed prior to trial. For admissibility, the issue seems to be, "was it done to hurt the defendant, or just an admin mistake?" If it wasn't done to mess around the defendant, then the Courts say that it goes to the jury to determine the "weight", not admissibility.
 
Posts: 106 | Location: Kingsville, Texas, USA | Registered: July 19, 2011Reply With QuoteReport This Post
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As has already been stated the law on that issue is pretty clear that the loss or destruction of the sample (barring bad faith) is not going to preclude admissability.
 
Posts: 261 | Location: Fort Worth, Texas | Registered: February 21, 2001Reply With QuoteReport This Post
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