From behavior, D is obviously intoxicated (accident, spacey, tries to put purse on her feet instead of shoes, etc.) Can't do anythnig on FSTs (falling over). Breath test = 0.00 No evidence of smell of drugs, none in the car, no admission by D, no DRE testimony. We have charged alcohol, drug, dangerous drug, combination, etc. There's no contest on intoxicated state, but I can't get to type of intoxicant. I know an allegation of intoxication alone will survive a motion to quash, but I fear I am sunk in trying to prove guilt at trial (it's that damn "by reason of . . ." Am I wrong?

One can never tell what a jury will do? On such a case I would invite the defense to share any medical evidence they have to offer that would explain her behavior. Did the jail do a medical evaluation of her when she was booked in? Did her condition improve over time? I encourage my police departments to use search warrants on these type cases.

Tom,

You said there was an accident....did she had insurance? Try subpoenaing the claim records and her statements to the insurance adjuster(s). You would be surprised what they find out or find in the vehicle when they do their investigation. Don't give up, these aren't easy to get.

Did she go to the hospital or answer any questions regarding medical treatment? Maybe she told either of those parties who her primary doctor is or what medication she's on.

Hope this helps!

Does the video show an obvious loss of normal use of mental or physical faculties?

Do you want a person in this condition to be the one driving your kids to school?

Just guessing that "head Injury" has or will be coming up at some point.

wonder if DPS should have been told about the head injury.

Officers also need to be trained that the implied consent law provides for the officer requesting a second blood sample after the breath test. Then you would have blood or at least a refusal.

quote:

---

Originally posted by Clay A.:
Officers also need to be trained that the implied consent law provides for the officer requesting a second blood sample after the breath test. Then you would have blood or at least a refusal.

---

X2

If they show 0.00 or well under the limit, but appear under the influance, ask for Blood and use that as best you can.

quote:

---

Originally posted by Lubec:

quote:

---

Originally posted by Clay A.:
Officers also need to be trained that the implied consent law provides for the officer requesting a second blood sample after the breath test. Then you would have blood or at least a refusal.

---

---

If they give breath but refuse blood, does that still count as a refusal with the automatic suspension? Do you do two DIC 24 forms in that case?

Take a look at State v Gonzales, 850 S.W.2d 672 which directly discusses the use of one DIC-24 when asking for more than one specimen of breath or blood. Kerr v. Texas Department of Public Safety (973 S.W.2d 732), Texas Department of Public Safety v. Bond (955 S.W.2d 441), Texas Department of Public Safety v. Watson) (945 S.W.2d 262) all discuss the issue of requesting more than one specimen.

JA [to follow the new trend ]