Being that the Breath Tests are out in my area, the FSTs are coming under severe attack.. Does anyone know if there is a proper order for the tests or if there is a certain amount of time required for the HGN?

This case might be of help Compton v. State,120 S.W.3d 375 (Tex.App. -- Texarkana 2003, pet. filed)(slight deviation from manual in number of seconds taken to administer horizontal nystagmus test did not invalidate results)

Why not do blood draws?

You need a copy of Richard Alpert's Book DWI Investigation & Prosecution. Call Diane Beckham at TDCAA for a copy.I like the idea of requesting blood. The refusal to do so is admissible but I can see the defense argument that the Def is afraid of needles.

If you get a defense that the refusal to allow blood was due to a fear of needles, you can frequently shoot that down by checking for piercings and/or tattoos. At least get the officers to ask for a blood sample.

I'm thinking of starting a program of doing search warrants for blood. Particularly if it is a felony DWI, it is frustrating to see the level of refusals. If a magistrate is handy, a warrant can force a blood draw. Anyone doing this already?

John,

We have just recently started to do this. We are only doing this on felony offenses at the moment.


Regards,

John L. Pool

Just curious... if we can't do retrograde extrapolation on a breath test (I assume that's why you're saying breath tests are out) then why is a blood test admissible?

If I have misunderstood please forgive...

Please keep us updated on your blood draw programs. Obviously, time is not on your side in an alcohol offense, so I am curious how you're getting everything done soon enough to have a positive effect for your case.

If breath tests can not be admitted due to Stewart v. State, logic would suggest to atleast ask for blood to get a Blood Refusal. But logic doesn't work here as the 4th Court has shown. Waiting for the CCA to rule on Stewart relatively soon (hopefully) and then get the 4th Court back in line with the rest of the State.

The correct order for administering the SFSTs is 1)HGN test, 2)Walk and Turn test and 3)One Leg Stand test. Call me at my office tomorrow and I'll give you more information that I would prefer not to post in this PUBLIC forum.


John B. Lyons
Criminal Investigator
County Attorney's Office
Johnson County, Texas

817-556-6859 office

I come from AZ a state where we regularly obtained search warrants to draw blood in refusal cases. We also had the two hour presumption. I do not recall many instances where we had a blood draw outside the two hour window. Once word "got around" most people agreed to blow rather than have their blood drawn. We had about 80% of our cases with breath tests. My county (Denton) is now thinking of attempting to get search warrants where there is a total refusal ... since these cases are rare and involve a lessor amount of time for the officer, we thought they might be workable as test cases. Is there anyone else out there actually obtaining blood with search warrants?? How is this working??

John, we had started to do this regularly before I left Midland. (I think we were the first to give it a try). The "Man" there on this topic is David Watson.