We have completed the investigation of a two car fatal crash at the intersection of Fairmont Parkway and Preston in Pasadena, Harris County, Texas. This is a large open intersection governed by stop and go signals on each side of the intersection. It was night time dark with lighting present in the form of roadside street lamps.

The identified or wheeled motorist that survived the crash said he was turning left from the south bound lanes of Preston to go east on Fairmont Parkway. A single non-contact vehicle occupied the same lane in front of him and turned first on a green signal. The decedent drove along the north bound side of Preston and crossed Fairmont Parkway on a red signal at the same time the surviving motorist nearly ended his turning movement. The decedent�s car was glanced slightly in the left back quarter side and turned over on its left passenger side. The driver, who died, partially ejected-still wearing her seat belt. Her car landed on top of her head and upper body causing severe head trauma.

One of the two independent witnesses claimed to have been so distraught by the sight of crash that he drove home and started drinking beer. The other witness did not provide much in the way of information as to what color light both motorists had at the time of the crash and could not verify where the surviving motorist drove from before striking the decedent�s car. He was stopped at a red light west bound Fairmont Parkway waiting to turn south onto Preston.

I arranged for someone SFST certified to examine the surviving motorist. He turned out to be impaired on alcohol. Causation though was out the window; HOWEVER, in the middle of our investigation I was approached about the possibility of the surviving motorist may have disregarded the red light governing the east bound side of Fairmont Parkway instead of turning left from the south bound side of Preston. Armed with this new information, I ordered a mandatory blood draw on the surviving driver.

Vehicle damage was minimal at best; neither vehicle involved is supported by the CDR tool. We checked security cameras at the intersection and could not verify the witness account that the surviving motorist drove east on Fairmont Parkway instead of south on Preston.

We have since determined the surviving driver did not cause the crash. The analysis on his blood sample showed a blood alcohol concentration of 0.17. Is it possible to use this blood to file misdemeanor driving while intoxicated charges against the surviving motorist? If so, would someone direct me or give me some direction to go for case law to present a case to the Harris County ADA for charges.


Thank you!

Keith Bell
Police Officer
Commercial Vehicle Enforcement
Pasadena Police Department
1114 Jeff Ginn Memorial Drive
Pasadena, Harris County, TX 77506
kbell@ci.pasadena.tx.us
dkbell@gmail.com

I see absolutely no reason why you couldn't use that blood draw in a misdemeanor case.

I agree with Gretchen.
He failed the FSTS and he was involved in what could have turned out to be an Intox Manslaughter. You did not know, at the time of the draw, if the living driver was the cause of the wreck.
I think you were on solid ground when you got the blood draw.

Looking at the Transportation Code, it doesn't appear that a peace officer has authority to order a mandatory test unless the operator of the vehicle is arrested for DWI/BWI etc.

The facts as recited above didn't specify if the surviving driver was arrested before the test or after.

724.012. TAKING OF SPECIMEN.
(a) [... covers voluntary sample, not mandatory ...]

(b) A peace officer shall require the taking of a
    specimen of the person's breath or blood if:
  (1) the officer arrests the person for an offense 
      under Chapter 49, Penal Code, involving the 
      operation of a motor vehicle or a watercraft;
  (2) the person was the operator of a motor 
      vehicle or a watercraft involved in an 
      accident that the officer reasonably believes 
      occurred as a result of the offense;
  (3) at the time of the arrest the officer 
      reasonably believes that as a direct result 
      of the accident:
    (A) any individual has died or will die;  or
    (B) an individual other than the person has 
        suffered serious bodily injury;  and
  (4) the person refuses the officer's request to 
      submit to the taking of a specimen voluntarily.

(c) The peace officer shall designate the type of 
    specimen to be taken.     

(d) In this section, "serious bodily injury" has 
    the meaning assigned by Section 1.07, Penal Code.

I want to answer questions posed by Alex.

I arranged with night shift patrol to investigate the surviving driver of the crash for impairment. Patrol made initial observations of an odor of alcohol, slurred speech, red watery eyes, etc. They started SFST roadside and observed many clues during the WAT and OLS (all video taped). During this time, our investigation consisted of driving while intoxicated-no arrest.

It was during the course of setting up our total station and marking the roadway (about forty-five minutes or so into the investigation and post-SFST) that we learned of the (possibility) of new driving facts involving the surviving driver and his causing the crash.

Our venue changed and the way we going with the surviving driver. Instead of asking for breath we asked for blood in his statutory warning (DIC 24). The suspect refused; hence, the ordered mandatory blood draw. About another hour or so passed after the blood draw that we unfounded causation by the surviving driver, who at the time of the draw had a 0.17 BAC.

Keith Bell

Since the DIC 24 starts out with "You are under arrest for...", it looks like you answered Alex's issue. I would respectfully suggest you talk with your local prosecutors. I expect they are current on the caselaw and they will get to see all the relevant evidence before making a filing decision.

Protocol mandates reading the 24 and requesting a specimen based on death or SBI. Our suspect fell into all categories of causation and in this case death not SBI; it was later after the taking of the specimen that we unfounded facts surrounding causation.

Suspect was wheeled as operator
Suspect was intoxicated at time of driving
Involved in crash
Suspect under arrest for Chapter 49
Death by another person
Read 24 (refusal)
Refusal = TLE-51
Then blood sample

At the completion of the mandatory blood draw we "unarrested" the suspect and arranged with someone to give him a ride home from the hospital and submitted our packet to the lab.

FYI to the lurkers: having someone "unarrested" at the hospital is not at all uncommon... especially in smaller jurisdictions which don't have the manpower to babysit defendants until their release from the hospital.