Maybe the higher ups are just messing with the new guy, but I have been asked whether Art. 38.43 applies to blood samples in DWI cases. Identity is almost never an issue that DNA testing of a blood sample is necessary to resolve in a DWI case. So, it seems logical that retention is not necessary.

With that said, recently we did have a guy appear, plead and accept probation for DWI 1st. Then he absconded. A warrant was issued and the "defendant" was arrested. It turned out that the real defendant had used his brother's identity. We resolved it with fingerprints but the point is that if there had been a blood sample it, also, could have resolved the issue of identity. Is that very rare scenario enough to require us to store blood samples in DWI cases? Technically the samples establish the identity of the person committing the offense or exclude someone from that group.

The new amendment to Art. 38.43 seems to bolster my belief that the article is not geared towards blood samples in DWI cases and the samples can be disposed of after the case is over.
What advice are y'all giving your local agencies?

Thanks,
Chaux

Was this question too hard or too basic? Seriously, I really would appreciate somebody weighing in on this topic.

This article was originally enacted in 2001 in tandem with the post-conviction DNA testing statute. The intent, obviously, is to give people the opportunity to get post-conviction DNA testing to show that they did not commit the offense for which they were convicted.

That said, DWI blood samples fit within the plain language of the statute. Your example illustrates how, in fact, a DWI blood sample might be useful for post-conviction DNA testing as intended by the legislature. Because the DWI blood evidence fits within the plain language of Article 38.43, any agency holding that type of evidence should comply with that article as to disposal of the evidence.

I don't think the amendments this session are relevant.

Thanks!

You bet. Plain language reading of criminal statutes usually favor us. Sometimes you get strange results, but we rarely get to resort to legislative intent behind the language because our legislature (and their drafting lawyers--legislative council) are good at enacting specific language. Getts, 155 S.W.3d 153, is a good example of specific language leading to an unintended result.